Faxel v. Wilderness Hotel & Resort, Inc.

          MEMORANDUM OPINION AND ORDER

          HON. JORGE ALONSO United States District Judge.

         In this diversity case, plaintiffs Meghan and Mike Faxel bring suit against defendant, Wilderness Hotel & Resort, Inc., asserting claims of premises liability, negligence, and loss of consortium, all arising out of an injury Meghan suffered on one of defendant's waterslides in Wisconsin. Defendant moves to dismiss for lack of personal jurisdiction or, alternatively, to transfer this case to the Western District of Wisconsin. For the following reasons, the Court grants the motion and transfers this case to the Western District of Wisconsin.

         I. BACKGROUND

         Plaintiffs Meghan and Mike Faxel are residents of New Lenox, Illinois. According to plaintiffs' complaint, on August 18, 2016, Meghan was a guest at defendant's Wilderness Resort in Wisconsin Dells, Wisconsin. When Meghan attempted to ride the resort's “toilet-bowl type” indoor water slide (Compl. at 3, ECF No. 1), she became stuck in the whirlpool section of the ride and then flipped over, fracturing her clavicle. Upon returning to Illinois, Meghan was forced to undergo multiple surgeries to correct the problem. In this lawsuit, plaintiffs claim that they are entitled to damages because Meghan was injured due to defendant's failure to maintain the water ride in safe and proper working order and its negligence in operating the ride, and because Mike, Meghan's husband, suffered a loss of consortium as a result of the injury.

         II. PERSONAL JURISDICTION

         A. Legal Standards

         A motion to dismiss pursuant to Rule 12(b)(2) tests whether a federal court has personal jurisdiction over a defendant. Central States v. Phencorp. Reins Co., 440 F.3d 870, 875 (7th Cir. 2006); Fed.R.Civ.P. 12(b)(2). In ruling on a Rule 12(b)(2) motion, courts may consider matters outside of the pleadings. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). When a court determines a Rule 12(b)(2) motion based on the submission of written materials without holding an evidentiary hearing, the plaintiff must make a prima facie case of personal jurisdiction. uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 432 (7th Cir. 2010); GCIU-Employer Ret. Fund, 565 F.3d 1018, 1023 (7th Cir. 2009). As such, the plaintiff bears the burden of establishing that personal jurisdiction exists. N. Grain Marketing, LLC v. Greving, 743 F.3d 487, 491 (7th Cir. 2014). To determine whether the plaintiff has met its burden, the court may consider affidavits from both parties. Felland v. Clifton, 582 F.3d 665, 672 (7th Cir. 2012). When the defendant challenges by declaration a fact alleged in the plaintiff's complaint, the plaintiff has an obligation to go beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction. Purdue Research Found., 338 F.3d at 783. Courts must also resolve all factual disputes in the plaintiff's favor. GCIU, 565 F.3d at 1020, n.1. Unrefuted facts in defendant's affidavits, however, will be taken as true. Id.

         “A federal court exercising diversity jurisdiction has personal jurisdiction only where a court of the state in which it sits would have such jurisdiction.” Philos Techs., Inc. v. Philos & D, Inc., 645 F.3d 851, 855 n.2 (7th Cir. 2011). Illinois's long-arm statute authorizes personal jurisdiction to the extent permitted by the Illinois Constitution and the United States Constitution. 735 ILCS 5/2-209(c). “[T]here is no operative difference between these two constitutional limits, ” so a single constitutional inquiry will suffice. Mobile Anesthesiologists Chicago, LLC v. Anesthesia Assocs. of Houston Metroplex, P.A., 623 F.3d 440, 443 (7th Cir. 2010). “The key question is therefore whether the defendants have sufficient ‘minimum contacts' with Illinois such that the maintenance of the suit ‘does not offend traditional notions of fair play and substantial justice.'” Tamburo v. Dworkin, 601 F.3d 693, 700-01 (7th Cir. 2010) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

         There are two types of personal jurisdiction: general and specific. General jurisdiction exists where a defendant has “continuous and systematic general business contacts” with the forum, while specific jurisdiction refers to jurisdiction over a defendant in a suit “arising out of or related to the defendant's contacts with the forum.” RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1277 (7th Cir. 1997) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 414 n.8 (1984)). A defendant is subject to general jurisdiction only where its contacts with the forum state are so substantial that it can be considered “constructively present” or “at home” in the state. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011); see also Tamburo, 601 F.3d at 701 (“The threshold for personal jurisdiction is high; the contacts must be sufficiently extensive and pervasive to approximate physical presence.”). “Specific personal jurisdiction is appropriate where (1) the defendant has purposefully directed his activities at the forum state or purposefully availed himself of the privilege of conducting business in that state, and (2) the alleged injury arises out of the defendant's forum-related activities.” Tamburo, 601 F.3d at 702.

         B. Analysis

         Defendant argues that the Court should grant its motion to dismiss because it does not have the requisite “minimum contacts” with the state of Illinois to be subject to personal jurisdiction by an Illinois court. According to an affidavit submitted by its chief operating officer, Joseph Eck, defendant's resort is located in Wisconsin, and it conducts no operations in Illinois of any kind, apart from print and radio advertising. (Eck Aff. ¶¶ 1-4, ECF No. 11.) Further, any reservations its customers make remotely are not “finalize[d] until a customer physically appears in Wisconsin at the resort located in Wisconsin Dells.” (Id. ¶ 5; see id. ¶ 4.)

         Plaintiffs respond that this Court “indeed has general jurisdiction” over defendant because of defendant's print and radio advertising, which, plaintiffs argue, is specifically targeted at Illinois. According to plaintiffs, defendant has not only placed its own print and radio advertising in Illinois, as Eck admitted in his affidavit, but it is a member of the Wisconsin Dells Visitor and Convention Bureau (“WDVCB”), which conducts sweeping, large-scale advertising campaigns and elaborate promotional events in Chicago and elsewhere in Illinois on behalf of Wisconsin Dells resorts.

         Even if the Court could consider the WDVCB's advertising as defendant's own contacts- a dubious proposition, Helicopteros, 466 U.S. at 417 (“[U]nilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.”)-it would not suffice to establish that this Court has general jurisdiction over defendant. General jurisdiction requires defendant to have such “continuous and systematic contacts as to render [it] essentially at home” in Illinois. See Goodyear, 564 U.S. at 919 (internal quotation marks omitted). But defendant is a Wisconsin corporation with its principal place of business in Wisconsin Dells, Wisconsin, and, while it solicits business in Illinois, “no case has ever held that solicitation alone is sufficient for general jurisdiction.” Kipp v. Ski Enter. Corp. of Wis., 783 F.3d 695, 699 (7th Cir. 2015) (Illinois court did not have general jurisdiction over Wisconsin ski resort, at which Illinois-resident plaintiff suffered injury, merely because resort solicited business in Illinois); see also Ruddy v. Wilmot Mountain, Inc., No. 10 C 07219, 2011 WL 3584418, at *3 (N.D. Ill. Aug. 12, 2011) (reaching a similar result, despite somewhat more substantial advertising in Illinois, reasoning that “Illinois courts consistently reject mere solicitation of business as a basis for the exercise of general personal jurisdiction”) cited approvingly in Kipp, 783 F.3d at 698-99.

         It is unclear whether plaintiffs also intend to argue that the Court has specific jurisdiction over defendant. Plaintiffs do not use the term, but they do cite the specific jurisdiction standard and a case that applied it, Madison Miracle Prods., LLC v. MGM Distribution Co., 978 N.E.2d 654, 669 (Ill.App.Ct. 2012), and they repeatedly argue that defendant “specifically targets” Illinois with its advertising. (See Pls.' Resp. in Opp'n at 3-4.) The Court assumes that plaintiffs intend to assert specific jurisdiction as well.

         If defendant's advertising activity targeted at Illinois is as extensive as plaintiffs allege, and if it is as successful in attracting Illinois customers as plaintiffs contend it is, then it might well have the minimum contacts necessary for specific jurisdiction. uBID, Inc., 623 F.3d at 427 (defendant's contacts with Illinois were sufficient for specific jurisdiction because it had “thoroughly, deliberately, and successfully exploited ...