C. Due Process.
Even if the amendment to Illinois' long-arm statute were applied retroactively and Illinois would extend its jurisdiction to the outer bounds of due process in this case, there would still not be personal jurisdiction over Tomah. In order for this court constitutionally to exercise jurisdiction, Tomah must have had "minimum contacts" with Illinois sufficient to give Tomah fair warning that it might be required to defend itself there. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1984). In addition, the exercise of jurisdiction must not otherwise offend "fair play and substantial justice," i.e., the exercise of jurisdiction must be "reasonable." Id.3
Dickie alleges that Tomah mailed its Jurisdictional Offer to his Illinois business address and that it repeatedly contacted him during the litigation and served numerous papers on him in Illinois. Such conduct, however, does not satisfy the "minimum contacts" requirement, a result unchanged by the fact that Dickie's legal work was done in Illinois. As the Supreme Court has stated:
The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.
Burger King, 471 U.S., at 475, quoting Hanson v. De nckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958).
The City of Tomah did not invoke the benefits and protections of Illinois' laws. Making a Jurisdictional Offer and then litigating the validity of the condemnation (the acts which allegedly created jurisdiction) were done pursuant to Wisconsin statute. While acting pursuant to Wisconsin's laws on eminent domain, a matter of uniquely local concern, Tomah had no reason to foresee that its conduct might require it to have to defend itself in an Illinois court. The city's contacts with Illinois were simply too modest to cause it to "reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980).
In addition to failing the "minimum contacts" prong of the due process analysis, extending jurisdiction over Tomah would also fail the "reasonableness" prong. The "reasonableness" test, also known as the "fair play and substantial justice" test, see Burger King, 471 U.S., at 476, and see Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 113, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (1987), allows this court in "'appropriate cases' to 'evaluate the burden on the defendant,' 'the forum State's interest in adjudicating the dispute,' 'the plaintiff's interest in obtaining convenient and effective relief,' 'the interstate judicial system's interest in obtaining the most efficient resolution of controversies,' and the 'shared interest of the several States in furthering fundamental substantive social policies.'" Id. at 477, quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S., at 292.
An evaluation of "the interstate judicial system's interest in obtaining the most efficient resolution of controversies" and the "shared interest of the several States in furthering fundamental substantive social policies" demonstrates that the exercise of jurisdiction over Tomah would be unreasonable. Our federal system depends on one jurisdiction's respect for the sovereignty of another. In this case Tomah's exercise of its eminent domain power is a core attribute of sovereignty which other jurisdictions are bound to respect. See Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 28, 3 L. Ed. 2d 1058, 79 S. Ct. 1070 (1959). This case, however, will apparently require the interpretation of Wisconsin's eminent domain law in a factual context never before presented.
Indeed, Dickie's dispute with Tomah has already required Wisconsin courts to decide issues of first impression under that state's law of eminent domain. See Dickie v. City of Tomah, 160 Wis. 2d 20, 465 N.W.2d 262 (Wis. Ct. App. 1990). The present lawsuit will require the resolution of additional matters of first impression regarding a condemnee's rights to attorney's fees and interest when the condemnee voluntarily dismisses his own appeal of the Condemnation Commission's decision. The interstate system's interests in the efficient resolution of controversies and in the furthering of fundamental substantive social policies require that one state not extend jurisdiction over cases which implicate fundamental attributes of sovereignty of another state, particularly when the lawsuit involves issues of first impression. It would therefore be unreasonable for an Illinois court (or a federal court in Illinois) to extend jurisdiction over Tomah in this case.
It may in fact be unreasonable for any federal court -- in Illinois or in Wisconsin -- to hear this action. Although the defendant did not raise the matter of abstention, it is an issue that may be raised by the court ex mero motu. See AFA Distributing Co. v. Pearl Brewing Co., 470 F.2d 1210, 1213 (4th Cir. 1973); see also C. Wright, A. Miller and E. Cooper, 17A Federal Practice and Procedure : Jurisdiction 2d § 4245. Because this court finds the issue of personal jurisdiction dispositive, it will not dismiss on the grounds of abstention. Nonetheless, this court can not but remark upon the striking similarities between this case and Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 3 L. Ed. 2d 1058, 79 S. Ct. 1070 (1959).
City of Thibodaux is a leading example of the category of abstention articulated in Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943). Burford established a doctrine of abstention in which federal courts abstain in order to avoid needless conflict with the administration by a state of its own affairs when a substantial public concern is involved. Although federal courts ordinarily have a duty to exercise jurisdiction whenever they legally can, see Willcox v. Consolidated Gas Co., 212 U.S. 19, 53 L. Ed. 382, 29 S. Ct. 192 (1909), the abstention doctrine constitutes a noteworthy exception.
In City of Thibodaux, a landowner challenged a municipality's attempt to condemn its property. The condemnee removed the condemnation action itself to federal court on the basis of diversity and challenged the taking in that action. In City of Thibodaux, the state's condemnation law was considered unsettled. The Supreme Court upheld the trial court's abstention. Although the propel understanding of City of Thibodaux is still debated, one school of thought believes that it teaches that abstention is proper in eminent domain cases where the state law is unsettled. See Charles A. Wright, Law of Federal Courts § 52 (1983).
Unlike City of Thibodaux, this case does not involve a challenge to the legitimacy of Tomah's condemnation of Dickie's property. It does, however, relate to the substantive rights of a condemnee: the rights to attorneys' fees and foregone interest when litigating a Wisconsin municipality's exercise of eminent domain. Moreover, as mentioned above, Wisconsin law appears unsettled at least inasmuch as the case involves issues of first impression. These considerations militate in favor of a federal court's abstaining from hearing this particular case.
For the foregoing reasons, Defendant's motion to dismiss is granted.