United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JORGE ALONSO United States District Judge.
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
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.
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
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)).
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.
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.)
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.
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.
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.
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 ...