William Kipp v. Ski Enterprise Corporation , 783 F.3d 695 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2527
WILLIAM R. KIPP,
Plaintiff-Appellant,
v.
SKI ENTERPRISE CORPORATION OF
WISCONSIN, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 60 — Joan Humphrey Lefkow, Judge.
____________________
ARGUED DECEMBER 2, 2014 — DECIDED APRIL 15, 2015
____________________
Before WOOD, Chief Judge, and WILLIAMS and TINDER, Cir-
cuit Judges.
WOOD, Chief Judge. William Kipp broke his collarbone as
he was attempting to board a chairlift operated by Ski En-
terprise Corporation of Wisconsin, Inc., in Merrimac, Wis-
consin. Kipp sued Ski Enterprise in federal court in Illinois,
alleging that the company had negligently caused his inju-
ries. Ski Enterprise countered with a motion seeking dismis-
2 No. 14-2527
sal based on lack of personal jurisdiction. The district court
granted that motion and dismissed the case without preju-
dice. We affirm.
I
On January 6, 2012, Kipp purchased a chairlift ticket at
Devil’s Head Ski Resort. As a result of the “unreasonably fast
speed” of the lift in the boarding area, he was injured as he
was attempting to board it. Kipp sued Ski Enterprise, the op-
erator of the lift, in the Northern District of Illinois. He as-
serted that Ski Enterprise’s negligence in operating the lift at
such a high speed caused him to be thrown from the lift and
to suffer a displaced left clavicular fracture (i.e., a broken col-
larbone). The district court had subject-matter jurisdiction
over the suit based on diversity of citizenship: Kipp is a citi-
zen of Illinois, and Ski Enterprise is both incorporated and
has its principal place of business in Wisconsin. See 28 U.S.C.
§ 1332(a)(1), (c)(1).
Ski Enterprise filed a motion to dismiss based on the
court’s lack of personal jurisdiction over it. After allowing
Kipp to conduct limited discovery, the court granted the
motion and dismissed the suit. In doing so, it relied on the
following facts, which are not disputed by the parties. Ski
Enterprise owns and operates the ski slopes at Devil’s Head
Resort in Merrimac, Wisconsin. Its only offices are in
Wisconsin. The company does not engage in print or
broadcast advertising in Illinois, but it does attend a trade
show—the “Windy City Ski and Snowboard Show”— that
takes place in Chicago every year. At the show, Ski
Enterprise representatives speak with potential customers
and obtain their email addresses. The company later sends
out “email E blasts” to those contacts touting its services and
No. 14-2527 3
sales. There is also a website that includes information about
both the Devil’s Head Resort (which is owned by the Devil’s
Head Area Recreation Company, not a party here) and the
ski slopes at the resort (which, as just noted, are operated by
Ski Enterprise). Customers can reserve rooms at the resort
through the website, which takes a deposit at that time, but
they cannot purchase lift tickets on the site. The resort offers
a vacation package called the “Chicagoland Express,” but
the package is not limited to Chicago—or even Illinois—
residents. According to Joseph Vittengl, Ski Enterprise’s
general manager, approximately 60 to 75 percent of the
resort’s clients are from Illinois.
After the district court granted Ski Enterprise’s motion to
dismiss, Kipp timely appealed. We review the district court’s
decision to dismiss de novo. Hyatt Int'l Corp. v. Coco, 302 F.3d
707, 712 (7th Cir. 2002).
II
Once a defendant has moved for a dismissal based on the
lack of personal jurisdiction, “the plaintiff bears the burden
of demonstrating the existence of jurisdiction.” Purdue Re-
search Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th
Cir. 2003). When a court does not hold an evidentiary hear-
ing but instead grants the defendant’s motion on the basis of
written materials, as the district court did here, the plaintiff
must establish merely a prima facie case of personal jurisdic-
tion. See id.A federal district court sitting in diversity must apply the
personal jurisdiction rules of the state in which it sits. See
Hyatt, 302 F.3d at 713. Illinois is the relevant state in this case.
The governing statute in Illinois permits its courts to exercise
4 No. 14-2527
personal jurisdiction up to the limits of the Due Process
Clause of the Fourteenth Amendment. See 735 ILCS 5/2-
209(c) (“A court may also exercise jurisdiction on any other
basis now or hereafter permitted by the Illinois Constitution
and the Constitution of the United States.”); Hyatt, 302 F.3d
at 715 (noting no operative difference between federal con-
stitutional and Illinois constitutional personal jurisdiction
limitations, though acknowledging that the “two standards
hypothetically might diverge”); Rollins v. Ellwood, 565 N.E.2d
1302, 1316 (Ill. 1990) (construing the due process guarantee
in the Illinois Constitution to mean that “[j]urisdiction is to
be asserted only when it is fair, just, and reasonable to re-
quire a nonresident defendant to defend an action in Illinois,
considering the quality and nature of the defendant’s acts
which occur in Illinois or which affect interests located in Il-
linois”). In keeping with these authorities, we conclude that
it is enough for present purposes to analyze federal due pro-
cess limitations on personal jurisdiction. The parties have
not argued, nor does Illinois law indicate, that the state’s
constitutional standards would differ from federal law in
this case.
The Due Process Clause authorizes personal jurisdiction
over out-of-state defendants when the defendant has “cer-
tain minimum contacts with [the state] such that the mainte-
nance of the suit does not offend ‘traditional notions of fair
play and substantial justice.’” Int'l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457,
463 (1940)). Courts recognize two types of personal jurisdic-
tion: general and specific. Daimler AG v. Bauman, 134 S. Ct.
746, 751 (2014). General jurisdiction is “all-purpose”; it exists
only “when the [party’s] affiliations with the State in which
suit is brought are so constant and pervasive as to render it
No. 14-2527 5
essentially at home in the forum State.” Id. (quoting Goodyear
Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851
(2011)) (internal quotation marks and alteration omitted).
Specific jurisdiction is case-specific; the claim must be linked
to the activities or contacts with the forum. Id. Kipp dis-
claims any reliance on specific jurisdiction and relies solely
on the general variety.
In recent years, the Supreme Court has clarified and, it is
fair to say, raised the bar for this type of jurisdiction. Because
general jurisdiction exists even with respect to conduct en-
tirely unrelated to the forum state, the Court has empha-
sized that it should not lightly be found. Instead, as the
quote above shows, general jurisdiction exists only when the
organization is “essentially at home” in the forum State.
Goodyear, 131 S. Ct. at 2851. Thus far, the Court has identified
only two places where that condition will be met: the state of
the corporation’s principal place of business and the state of
its incorporation. Daimler, 134 S. Ct. at 760. Any additional
candidates would have to meet the stringent criteria laid out
in Goodyear and Daimler. Those criteria require more than the
“substantial, continuous, and systematic course of business”
that was once thought to suffice. Id. at 760–61. The Due Pro-
cess Clauses of the Fifth and Fourteenth Amendments per-
mit courts, federal and state, to exercise general jurisdiction
only when “the continuous corporate operations within a
state [are] so substantial and of such a nature as to justify
suit … on causes of action arising from dealings entirely distinct
from those activities.” Id. at 761 (quoting Int’l Shoe, 326 U.S. at
318).
With this background in mind, we turn to the question
whether Ski Enterprise’s contacts with Illinois are extensive
6 No. 14-2527
enough to say that Ski Enterprise is “at home” in the state.
To begin with, it is undisputed that neither of Daimler’s “ex-
emplar bases” applies; Ski Enterprise is a Wisconsin corpora-
tion, and it has its principal place of business in that state.
Kipp accurately notes that it has a few contacts with Illinois,
including its attendance at the annual trade show in Chica-
go, its use of that show to collect the email addresses of Illi-
nois residents for marketing purposes, its targeting of Illi-
nois customers through the Chicagoland Express package,
its success in attracting a large number of such customers to
the Devil’s Head Resort, and the ability of Illinois customers
to visit the Devil’s Head Resort/Ski Enterprise website. These
contacts come nowhere close to the Goodyear/Daimler stand-
ard. In fact, even before the Supreme Court’s recent pro-
nouncements, Illinois courts and federal courts applying Il-
linois law have often found a lack of general jurisdiction in
similar situations.
In Roiser v. Cascade Mountain, Inc., 855 N.E.2d 243 (Ill.
App. Ct. 2006), another personal injury suit against a ski re-
sort, the defendants had an Illinois telephone number, en-
gaged in some advertising in Illinois, attended trade shows
in the state, and maintained a website that allowed custom-
ers to purchase season passes and rent equipment. The court
found that these contacts were insufficient to support gen-
eral jurisdiction. Id. at 249–50. A judge in the Northern Dis-
trict of Illinois reached the same result in Ruddy v. Wilmot
Mountain, Inc., No. 10-C-07219, 2011 WL 3584418 (N.D. Ill.
Aug. 12, 2011), where the defendant ski resort maintained
Illinois phone numbers; advertised on Chicago Transit Au-
thority buses, an Illinois billboard, and the radio; and at-
tended trade shows in Illinois. The defendant’s website al-
lowed customers to purchase season passes and lift tickets
No. 14-2527 7
and contained maps to the resort from four Illinois cities. See
id. at *3. The court held that there was no jurisdiction, noting
that “mere solicitation of business” is inadequate. See id. at
*3–4; see also Berks v. Rib Mountain Ski Corp., 571 F. Supp. 500(N.D. Ill. 1983); Radosta v. Devil's Head Ski Lodge, 526 N.E.2d
561 (Ill. App. Ct. 1988).
Ski Enterprise’s contacts are similar—if not less signifi-
cant—than those of the defendants in these cases. The com-
pany attends just one trade show per year, its website is
mostly informative and does not allow customers to pur-
chase lift tickets, and it does not maintain an Illinois office.
Moreover, Ski Enterprise does not have many of the other
characteristics that courts have used to support a finding of
general jurisdiction: it has no employees in Illinois, it is not
registered to do business in the state, and it does not adver-
tise there. See Goodyear, 131 S. Ct. at 2852. Ski Enterprise does
solicit business in Illinois, but no case has ever held that so-
licitation alone is sufficient for general jurisdiction. See id.(noting lack of solicitation as one factor in the conclusion
that there was no general jurisdiction, but listing several oth-
er factors as well); Ruddy, 2011 WL 3584418, at *3 (“Illinois
courts consistently reject mere solicitation of business as a
basis for the exercise of general personal jurisdiction.”). Ski
Enterprise’s solicitation is relatively slight in any event: its
Chicagoland Express package is not restricted to Illinois res-
idents, and it talks to potential Illinois customers only once a
year at a trade show. Finally, though the percentage of cus-
tomers from Illinois is substantial, it is unclear whether that
figure is caused by Ski Enterprise’s Illinois solicitation or is
simply a result of the close proximity of Illinois to the resort
and the high population density of Chicago. The assumption
that all of the Illinois residents at Devil’s Head Resort are ski-
8 No. 14-2527
ing is also unfounded: the data represent overnight stays at
the resort, not purchases of lift tickets. At best, it is an imper-
fect proxy for Ski Enterprise’s customers; at worst, it may
systematically overstate the percentage of Illinois residents,
who may be more likely to stay overnight than skiers who
live in Wisconsin. But even if it were a good indicator of Ski
Enterprise’s clientele, this figure, combined with the other
contacts listed above, still does not suffice to make Ski En-
terprise “at home” in Illinois. To the contrary, the company’s
dealings with Illinois are best described as inconsistent and
perhaps even sporadic.
Kipp also insists that the Devil’s Head Resort/Ski Enter-
prise website is a key factor in finding jurisdiction in this
case. We have been clear that maintaining a public website is
not sufficient, by itself, to establish general jurisdiction. See
Tamburo v. Dworkin, 601 F.3d 693, 701 (7th Cir. 2010). There is
nothing wrong with taking the website into account, even
though it does not even allow customers to purchase lift
tickets. But doing so does not help Kipp. The only conclu-
sion that this record supports is that Ski Enterprise lacks
continuous and systematic contacts with Illinois such that it
is “at home” in that forum. Kipp thus has not made out a
prima facie case of general personal jurisdiction.
III
Ski Enterprise’s contacts with Illinois are insubstantial
and episodic. While Goodyear and Daimler may have left
some room for the exercise of general jurisdiction in the ab-
sence of incorporation or principal place of business in the
forum state, this is not one of those rare situations. We thus
AFFIRM the district court’s dismissal of the suit based on the
lack of personal jurisdiction over Ski Enterprise.