Erin Bauer v. Armslist, LLC ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3198
RICHARD WEBBER, as Special Administrator of the Estate of
Sara J. Schmidt,
Plaintiff-Appellant,
v.
ARMSLIST LLC and JONATHAN GIBBON,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:20-cv-01526-WCG — William C. Griesbach, Judge.
____________________
No. 21-3207
ERIN BAUER and ESTATE OF PAUL BAUER,
Plaintiffs-Appellants,
v.
ARMSLIST LLC and JONATHAN GIBBON,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:20-cv-00215-PP — Pamela Pepper, Chief Judge.
2 Nos. 21-3198 and 21-3207
____________________
ARGUED SEPTEMBER 13, 2022 — DECIDED JUNE 12, 2023
____________________
Before FLAUM, BRENNAN, and SCUDDER, Circuit Judges.
BRENNAN, Circuit Judge. In these cases, we consider
whether a website that hosts advertisements for the sale and
purchase of firearms can be held liable under Wisconsin law
for the deaths of two shooting victims. The circumstances giv-
ing rise to the complaints at issue are grave and the allega-
tions are serious.
Erin Bauer and Richard Webber are the legal representa-
tives and family members of two individuals killed using
guns that had been listed on armslist.com, an online firearms
marketplace. Bauer and Webber each sued Armslist LLC and
its member manager, Jonathan Gibbon, in separate diversity
actions, alleging negligence and other Wisconsin state law
claims. The plaintiffs assert that the defendants designed the
website to encourage and assist individuals in circumventing
federal and state law regulating firearms. The defendants ar-
gue that the plaintiffs have failed to state a claim upon which
relief can be granted because publishing third-party offers to
sell firearms does not establish tort or other liability under
Wisconsin law.
The district court dismissed the negligence claim in both
cases, concluding that the plaintiffs failed to plausibly allege
the website’s design caused the deaths. The remaining claims
were also dismissed, and in Bauer, Gibbon was dismissed
from the lawsuit for lack of personal jurisdiction. Bauer seeks
reversal of Gibbon’s dismissal, and Armslist LLC challenges
Nos. 21-3198 and 21-3207 3
the exercise of personal jurisdiction over Gibbon in Webber. At
the heart of these appeals, Bauer and Webber also challenge
the dismissal of their claims under Federal Rule of Civil Pro-
cedure 12(b)(6). The defendants ask us to affirm the dismissal
of the plaintiffs’ claims, either on the merits under Wisconsin
law or as preempted by the Communications Decency Act
(CDA), 47 U.S.C. § 230. The CDA precludes a website from
being “treated” as the “publisher or speaker of any
information provided by another information content pro-
vider.” § 230(c)(1). We agree with the defendants that the dis-
trict court lacked personal jurisdiction over Gibbon. We also
affirm the district court’s dismissal of the plaintiffs’ negli-
gence and other state law claims against Armslist LLC. Be-
cause we affirm on the state law claims, we decline to rule on
the preemption issue.
We first describe the factual and procedural background
of the cases. Then we address the exercise of personal juris-
diction over Gibbon, followed by the question of preemption
by the CDA. Next, we review the plaintiffs’ negligence claim,
as well as their other state law claims. Finally, we consider the
plaintiffs’ requests to amend their complaints. 1
1 Armslist LLC argues that Illinois law should govern Bauer’s claims.
Although the company acknowledges that Wisconsin’s choice-of-law
rules require this court to analyze whether an outcome-determinative con-
flict exists between Wisconsin and Illinois law, see State Farm Mut. Auto.
Ins. Co. v. Gillette , 641 N.W.2d 662, 675 (Wis. 2002); Hunker v. Royal Indem.
Co., 204 N.W.2d 897, 901 (Wis. 1973), it contends in a conclusory fashion
that Bauer’s allegations cannot state any claim under either state’s law.
Armslist LLC offers no arguments about the standard governing Bauer’s
claims under Illinois law and fails to engage with the district court’s rea-
soning as to why Wisconsin law applies. We conclude that Armslist LLC
has waived its challenge to the application of Wisconsin law. See Cont’l W.
4 Nos. 21-3198 and 21-3207
I. Background
Under federal law, only licensed gun dealers may “engage
in the business of importing, manufacturing, or dealing in
firearms, or importing or manufacturing ammunition.” 18
U.S.C. § 923(a); see also § 922(a)(1). 2 Among other require-
ments, licensed dealers must contact the national instant
criminal background check system prior to completing a
transfer, verify the identity of any purchaser, and maintain
records of importation, production, shipment, receipt, sale, or
other disposition. § 922(t)(1); § 923(g)(1)(A); 27 C.F.R.
§ 478.124.
Under Wisconsin law, a firearms dealer, defined as “any
person engaged in the business of importing, manufacturing
or dealing in firearms and having a license as an importer,
manufacturer or dealer issued by the federal government,” is
subject to similar requirements. WIS. STAT. § 175.35(1)(ar), (2).
Private sellers may also sell firearms in Wisconsin consistent
with state and federal law. See 18 U.S.C. §§ 921(a)(21)(C),
923(a); Daniel v. Armslist, LLC, 926 N.W.2d 710, 722 (Wis.
2019). A private seller is not engaged in the business of selling
firearms as defined under federal and state law and therefore
is not subject to the same requirements as firearms dealers.
§ 921(a)(21)(C); § 923(a); § 175.35(1)(ar), (2).
Ins. Co. v. Country Mut. Ins. Co., 3 F.4th 308, 318 (7th Cir. 2021); Puffer v.
Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012).
2 Unless otherwise indicated, all federal and state statutory and regu-
latory citations are to the versions in effect at the time of the shootings and
the purchases of the firearms.
Nos. 21-3198 and 21-3207 5
A. Factual
Armslist.com is an online marketplace for firearms. De-
fendants Armslist, LLC, a Pennsylvania limited liability com-
pany, and Jonathan Gibbon, a Pennsylvania resident, are the
operator and member manager of armslist.com. 3 Armslist
LLC is not engaged in the business of selling firearms. Rather,
its website hosts “for sale” and “want to buy” ads posted by
users.
Plaintiff Erin Bauer is the widow and executor of the estate
of Paul Bauer and resides in Illinois. Thomas Caldwell, a pri-
vate seller from Wisconsin, listed a Glock 26 9mm handgun
for sale on armslist.com. That gun was purchased by Ron
Jones from Milwaukee in 2017. According to Bauer’s com-
plaint, Jones resold that Glock handgun “into the broader
criminal market where it ultimately was obtained” by
Shomari Legghette. Legghette used the gun to shoot and kill
Chicago Police Commander Paul Bauer on February 13, 2018,
in downtown Chicago.
Plaintiff Richard Webber is the special administrator of the
estate of his deceased daughter, Sara Schmidt, of Harrison,
Wisconsin. She was the victim of domestic violence by her es-
tranged husband, Robert Schmidt, who was arrested. A court
prohibited him from possessing any firearms, but he pur-
chased a gun on January 8, 2018 from a private party, Brock
Verstagen, through armslist.com. Schmidt used the handgun
to kill Sara and himself the next day.
3 We use the title reflected in Jonathan Gibbon’s affidavits in support
of his motions to dismiss.
6 Nos. 21-3198 and 21-3207
Webber sued Armslist LLC and Gibbon under diversity
jurisdiction, alleging negligence and six other causes of ac-
tion. 4 Bauer sued the same defendants, making the same
claims and adding causes of action for aiding and abetting
tortious conduct as well as loss of consortium.
The plaintiffs level serious accusations against the defend-
ants. They allege that armslist.com allows individuals to en-
gage in the business of selling firearms without a license and
to circumvent federal and state law governing firearms deal-
ers, including avoiding background checks. The defendants
purportedly accomplished this through design and content
features. Among these are choosing to label purchases and
sales as private party transactions by default. The plaintiffs
also claim that armslist.com allows users to filter listings to
identify private party sellers. This “filter function” allegedly
facilitates the private sale of firearms without background
checks to individuals prohibited from possessing firearms.
The plaintiffs also contend the defendants provided cer-
tain assurances that enabled both buyers and sellers to oper-
ate anonymously, including that:
• “ARMSLIST DOES NOT become involved in trans-
actions between parties and does not certify, inves-
tigate, or in any way guarantee the legal capacity of
any party to transact”;
• “ARMSLIST can not and will not be a party in trans-
actions. It is the sole responsibility of the buyer and
seller to conduct safe and legal transactions”;
4 Negligence per se, public nuisance, civil conspiracy, wrongful death,
a survival action, and piercing the corporate veil.
Nos. 21-3198 and 21-3207 7
• “You can perform all of the major functions with-
out creating an account”; and
• Armslist will not contact a seller on behalf of a user
or provide a user with information about another
user but can provide this information to law en-
forcement during due process of law.
In addition to contending that the website’s design is
flawed, Bauer and Webber allege that Armslist LLC and Gib-
bon should have implemented certain design features,
adopted by other online firearm marketplaces, to prevent il-
legal transactions. These include requiring evidence of the le-
gality of the transactions, background checks and transaction
records, delivery through federal firearms licensees, and a
waiting period. They also include taking certain actions with
respect to high volume sellers, allowing users to flag illegal
conduct, and providing updated information on firearms
laws.
B. Procedural
These two diversity cases proceeded before different dis-
trict judges. Gibbon sought dismissal for lack of personal ju-
risdiction in both cases. In each case, both defendants moved
under Federal Rule of Civil Procedure 12(b)(6) to dismiss the
complaints for failure to state a claim.
In Bauer, the plaintiffs amended their complaint twice be-
fore the defendants moved to dismiss for lack of personal ju-
risdiction and failure to state a claim. The district court held a
hearing at which it granted Gibbon’s motion to dismiss for
lack of personal jurisdiction. At the hearing, counsel in Bauer
asked whether they could amend their complaint to remedy
the personal jurisdiction issues. The court responded
8 Nos. 21-3198 and 21-3207
affirmatively but advised the plaintiffs to wait to do so until
after the court had ruled on Armslist LLC’s motion to dismiss.
After the hearing, the court granted Armslist LLC’s motion to
dismiss for failure to state a claim and entered judgment dis-
missing the case. The court ruled that Bauer sufficiently al-
leged duty, breach, and damages, but not causation.
Webber moved to transfer his case to federal court in Penn-
sylvania. But the Eastern District of Wisconsin court denied
that motion. It also denied Gibbon’s motion to dismiss for lack
of personal jurisdiction and granted the defendants’ motion
to dismiss for failure to state a claim. The court found that
Webber sufficiently alleged all elements of a negligence claim
except causation. Judgment was entered dismissing the Web-
ber case.
Armslist LLC and Gibbon further asserted in their mo-
tions to dismiss that § 230 of the CDA barred Bauer’s and
Webber’s state law claims. The district court rejected the de-
fendants’ arguments, however. In Webber, the court concluded
that the plaintiffs sought to hold Armslist LLC and Gibbon
responsible for their own role in developing content, and that
neither plaintiff sought to treat the defendants as the pub-
lisher or speaker of third-party content, which the CDA pro-
hibits. Bauer reached the same conclusion. The court also dis-
missed the plaintiffs’ remaining claims, including because
failure to plead negligence was fatal to many of them.
II. Personal Jurisdiction
We consider first whether the defendants waived their
right to challenge the court’s ruling in Webber that personal
jurisdiction existed over Gibbon.
Nos. 21-3198 and 21-3207 9
The plaintiffs argue a cross-appeal is necessary to reach
this question, but we do not agree. A cross-appeal is required
when a party seeks to modify the district court’s judgment.
Wellpoint, Inc. v. Comm’r of Internal Revenue, 599 F.3d 641, 649
(7th Cir. 2010). “The judgment is not the court’s opinion or
reasoning; it is the court’s bottom line … .” Id. at 650. A cross-
appeal permits an appellant “the same right to respond to his
opponent’s brief” and “alert[s] the court to the dual role of the
parties in the appeal.” Id.Here, the judgment is the dismissal of the case and entry
of final judgment. Dismissing the case for lack of personal ju-
risdiction would not modify that judgment. Additionally,
Bauer already appealed the grant of Armslist LLC and Gib-
bon’s motion to dismiss for lack of personal jurisdiction, so
we are aware of this issue and the positions of the parties in
both cases. Gibbon therefore has not waived his challenge on
this point.
In Bauer, the district court concluded that it lacked
personal jurisdiction over Gibbon. It reasoned that specific ju-
risdiction was absent because, although Armslist LLC’s activ-
ities could be attributed to Gibbon, there was no indication
that Gibbon or Armslist LLC targeted the forum state of Wis-
consin.
But in Webber the court ruled differently, concluding that
subsection (4)(a) of Wisconsin’s long-arm statute for “[s]olici-
tation or service activities … carried on within” Wisconsin
conferred jurisdiction over Gibbon. WIS. STAT. § 801.05(4)(a).
Under the due process prong of the personal jurisdiction in-
quiry, the court reasoned that the complaint sought to hold
Gibbon responsible for his role as a creator, designer, and ad-
ministrator of armslist.com, and not merely because of his
10 Nos. 21-3198 and 21-3207
corporate role. Because Gibbon was willing to serve and sell
to customers in Wisconsin and collect the benefits flowing
therefrom, the court found that personal jurisdiction existed
over Gibbon.
Dismissal for lack of personal jurisdiction is reviewed de
novo. Curry v. Revolution Lab’ys, LLC, 949 F.3d 385, 392 (7th
Cir. 2020). Where there has been no evidentiary hearing, a
plaintiff need only make a prima facie showing that the court
has personal jurisdiction over the defendant. Id. at 392–93.
Federal courts sitting in diversity must apply the personal ju-
risdiction rules of the forum state. Kipp v. Ski Enter. Corp. of
Wis., Inc., 783 F.3d 695, 697 (7th Cir. 2015). A federal court sit-
ting in Wisconsin may exercise jurisdiction only if it comports
with Wisconsin’s long-arm statute, WIS. STAT. § 801.05, and
Fourteenth Amendment due process. Felland v. Clifton, 682
F.3d 665, 672 (7th Cir. 2012).
Two subsections of Wisconsin’s long-arm statute have
been argued or held to establish jurisdiction over Gibbon:
Wisconsin Statute § 801.05(3) and (4)(a). Plaintiffs contend
that specific jurisdiction over Gibbon exists under § 801.05(3),
which provides that Wisconsin courts have personal jurisdic-
tion in an action “claiming injury to person or property within
or without this state arising out of an act or omission within
this state by the defendant.” In Webber, the court concluded
that jurisdiction could be exercised under § 801.05(4)(a),
which provides for jurisdiction in an action “claiming injury
to person or property within this state arising out of an act or
omission outside this state by the defendant, provided in ad-
dition that at the time of the injury…[s]olicitation or service
activities were carried on within this state by or on behalf of
the defendant.”
Nos. 21-3198 and 21-3207 11
Plaintiffs argue that Gibbon designed armslist.com to
solicit business “in many states, including Wisconsin.” By in-
stituting design elements that permitted users to search for
private sellers in Wisconsin, according to the plaintiffs, Gib-
bon subjected himself to personal jurisdiction in the forum.
In dispute is whether Armslist LLC’s business in Wiscon-
sin may be attributed to Gibbon by virtue of his corporate role
for purposes of personal jurisdiction. Under Wisconsin law,
showing that an officer has control over a corporation allows
for attribution of the corporation’s activities to that officer.
Yet, a corporation’s contacts with a forum must have existed
by virtue of the officer’s control.
In Pavlic v. Woodrum, 486 N.W.2d 533, 534 (Wis. Ct. App.
1992), Louis Woodrum solicited the plaintiff’s investment in
a corporation organized with his son Timothy. After the
plaintiff agreed to invest, Timothy sent the stock certificates
by mail to the plaintiff’s Wisconsin address, and later sent a
letter to the same address informing the plaintiff that the cor-
poration had failed. Id. The plaintiff sued Timothy for dam-
ages in Wisconsin, arguing that personal jurisdiction could be
exercised over him based on the sending of the stock certifi-
cate and letter. See id. at 534–35. The Wisconsin Court of Ap-
peals held that Louis’s and the corporation’s contacts with
Wisconsin could not be attributed to Timothy solely because
of his role as an officer. Id. at 534. That court analyzed Timo-
thy’s contacts with the forum—the stock certificate and the
letter—and held that these were insufficient to establish long-
arm jurisdiction over Timothy for soliciting business in Wis-
consin. Id. at 535. The court reasoned that Timothy could not
have anticipated a financial benefit when he made the two
mailings. Id. Rather, the mailing of the stock certificate was a
12 Nos. 21-3198 and 21-3207
ministerial duty required because of Louis’s contact, and the
letter merely informed the plaintiff of dissolution. See id. That
court then considered whether personal jurisdiction existed
over Timothy under State v. Advance Marketing Consultants,
Inc., 225 N.W.2d 887 (Wis. 1975). Pavlic, 486 N.W.2d at 536.
In Advance Marketing, the Wisconsin Supreme Court con-
cluded that “the placing of advertisements in newspapers cir-
culated in Wisconsin” constituted an act or omission within
the state from which the injury arose. 225 N.W.2d at 892. This
activity was undertaken by virtue of the corporate officer’s
control of the corporation, as shown through trial testimony,
and therefore could be attributed to him for purposes of exer-
cising personal jurisdiction. See id. at 891–92. In Pavlic, the
Wisconsin Court of Appeals explained that Advance Marketing
could not be understood to conclude that an officer of a cor-
poration who commits a personal tort—in those cases, involv-
ing fraud or misrepresentation—is always subject to personal
jurisdiction. See Pavlic, 486 N.W.2d at 536. Rather, “[t]here
must be some act or omission by that officer in Wisconsin to
justify personal jurisdiction.” Id. Pavlic explained that the “ad-
vertisements [in Advance Marketing] were circulated in Wis-
consin by virtue of the officer’s control” and therefore could
be attributed to the officer. Id. Because Timothy had not acted
in Wisconsin, Advance Marketing was not controlling. Pavlic,
486 N.W.2d at 536.
As in Pavlic, Gibbon’s activities cannot be considered
actions within Wisconsin for purposes of exercising personal
jurisdiction over him. Plaintiffs have alleged that Gibbon de-
signed armslist.com to permit it to be accessed “in many
states, including Wisconsin.” But they have failed to plead
that in designing the website, Gibbon anticipated receiving a
Nos. 21-3198 and 21-3207 13
financial benefit from users in Wisconsin because he made the
decision to solicit business in that state. In other words, the
plaintiffs do not allege that Gibbon was responsible for Arm-
slist LLC’s decision to target the forum. Instead, plaintiffs
plead only that Gibbon “played a role in the design, architec-
ture, and administration of Armslist.com” and “controls its
operations.” We decline to draw from these allegations the
unsupported inference that Gibbon’s “role” or “control” en-
compassed deciding that Armslist LLC would solicit business
from Wisconsin. 5 Plaintiffs have therefore not alleged an act
or omission occurring within the state or solicitation or ser-
vice activities outside of the state by Gibbon that would bring
him within the grasp of Wisconsin’s long-arm statute.
Under this reasoning, the district court did not have per-
sonal jurisdiction over Gibbon.
III. Communications Decency Act
The defendants argue in each case that the plaintiffs’ state
law claims are preempted by the Communications Decency
Act (CDA), 47 U.S.C. § 230. The provision at issue states:
Protection for “Good Samaritan” blocking and
screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer
service shall be treated as the publisher or
5 Gibbon describes his role as a “member manager,” and Bauer sug-
gests there may be additional “members” of Armslist LLC. This is an ad-
ditional reason to be cautious to attribute Armslist LLC’s decision to solicit
business in Wisconsin to Gibbon given only a vague allegation that Gib-
bon “controls [Armslist LLC’s] operations.”
14 Nos. 21-3198 and 21-3207
speaker of any information provided by another
information content provider.
§ 230(c)(1). Two terms in this statute are defined in § 230(f).
First, an “interactive computer service” is “any information
service, system, or access software provider that provides or en-
ables computer access by multiple users to a computer server,
including specifically a service or system that provides access
to the Internet and such systems operated or services offered
by libraries or educational institutions.” § 230(f)(2) (emphasis
supplied). An ”access software provider” is a provider of soft-
ware (including client or server software), or enabling tools
that do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache,
search, subset, organize, reorganize, or translate
content.
§ 230(f)(4). This court has previously considered websites
hosting third-party advertisements, like armslist.com, to fall
within the definition of “interactive computer service.” See
Chicago Laws.’ Comm. for Civ. Rts. Under L., Inc. v. Craigslist,
Inc., 519 F.3d 666, 668, 671–72 (7th Cir. 2008) (treating the
online host of third-party housing advertisements as an inter-
active computer service). Second, § 230(f)(3) defines an “infor-
mation content provider” as “any person or entity that is
responsible, in whole or in part, for the creation or develop-
ment of information provided through the Internet or any
other interactive computer service.”
Whether the CDA preempts plaintiffs’ state law claims is
a pure question of law that we review de novo. See Talignani
Nos. 21-3198 and 21-3207 15
v. United States, 26 F.4th 379, 381 (7th Cir. 2022); White v. United
Airlines, Inc., 987 F.3d 616, 620 (7th Cir. 2021). As a federal
court sitting in diversity, we are not bound by the decisions
of state courts interpreting a federal statute.6
This court first examined § 230(c)(1) in Doe v. GTE Corp.,
347 F.3d 655 (7th Cir. 2003). There, the plaintiffs sued corpo-
rations that provided web hosting services to websites that
offered hidden camera videos of the plaintiffs for sale. Id. at
656. Others provided the video and website content, although
the corporations may have provided “technical or artistic as-
sistance in the creation and maintenance of” the websites. Id.
at 657. This court proposed two potential readings of
§ 230(c)(1). See id. at 660. First, § 230(c)(1) might be read as a
clause defining “provider or user” for immunity under
§ 230(c)(2). Id. Thus, if the objectionable information came
from someone else, then the defendant would be eligible for
immunity under § 230(c)(2); but if the defendant created the
objectionable information, it would be a “publisher or
speaker” of that content and fall outside of § 230(c)(2). Id. Sec-
ond, § 230(c)(1) might preclude liability to the extent an inter-
net service provider could be considered a “publisher” of
6 In each case, the parties argue for the interpretations of the CDA by
Wisconsin’s appellate courts in Daniel v. Armslist, LLC, 913 N.W.2d 211(Wis. Ct. App. 2018), rev’d, 926 N.W.2d 710 (Wis. 2019)—the plaintiffs for
the ruling by the state appellate court, and the defendant for that by the
state supreme court.
We apply Wisconsin substantive law as a court sitting in diversity, but
that state’s appellate decisions do not govern our interpretation of the fed-
eral CDA. Cf. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 198 (1988)
(citations omitted) (“Although state law generally supplies the rules of de-
cision in federal diversity cases, it does not control the resolution of issues
governed by federal statute.”).
16 Nos. 21-3198 and 21-3207
another’s content. Id. But the court did “not decide which un-
derstanding of § 230(c) is superior” because plaintiffs failed to
plead any underlying state claim. Id.
In Craigslist, the Chicago Lawyers’ Committee for Civil
Rights Under Law sued Craigslist under the Fair Housing Act
for allegedly discriminatory ads that were posted by third
parties. 519 F.3d at 668. The Lawyers’ Committee argued that
Craigslist caused these ads “to be made, printed, or pub-
lished” under 42 U.S.C. § 3604(c). Craigslist, 519 F.3d at 671.
This court explained that § 230(c)(1) does not grant “compre-
hensive immunity from civil liability for content provided by
a third party,” illustrated by the liability of information con-
tent providers “for contributory infringement if their system
is designed to help people steal music or other material in
copyright.” Id. at 670 (citing Metro-Goldwyn-Mayer Studios Inc.
v. Grokster, Ltd., 545 U.S. 913 (2005)). But we concluded that
the only way Craigslist could be held liable under § 3604(c)
was if it was treated as a publisher or speaker of advertise-
ments authored by third parties, which § 230(c)(1) precluded.
See id. at 671.
Later, in City of Chicago v. Stubhub!, Inc., an internet auction
site invoked the CDA in response to an action by the City of
Chicago to collect and remit taxes for tickets sold. 624 F.3d
363, 364–65 (7th Cir. 2010). We held that § 230(c)(1) did not
apply because the City did not seek to hold StubHub! liable
as a publisher or speaker of information, such as through a
defamation, obscenity, or copyright infringement suit. See id.
at 366.
Five years later in Backpage.com, LLC v. Dart, this court con-
sidered whether a county sheriff violated the First Amend-
ment by threatening credit card companies with criminal
Nos. 21-3198 and 21-3207 17
prosecution as accomplices to illegal activity being advertised
on an online forum. See 807 F.3d 229, 233–34 (7th Cir. 2015).
This court referred to Doe, 347 F.3d at 659, in noting that under
ordinary understandings of culpable assistance of wrongdo-
ers, entities that know the information’s content do not be-
come liable for the poster’s words. Backpage, 807 F.3d at 234.
We therefore expressed doubt that the online forum could be
held liable for aiding and abetting a crime just because they
were aware that users had posted ads for illegal conduct. See
id. We acknowledged, however, that the CDA did not immun-
ize the online forum from federal criminal liability. Id.Most recently, in Huon v. Denton, this court implicitly ac-
cepted the second of Doe’s descriptions of § 230(c)(1)’s effect:
that the provision precludes liability whenever the cause of
action treats an interactive computer service as the publisher
of another’s content. 841 F.3d 733, 741 (7th Cir. 2016) (describ-
ing that Doe “explain[ed] that ‘entities that know the infor-
mation’s content do not become liable for the sponsor’s
deeds,’ and not[ed] that § 230(c) preempts contrary state law”
(quoting Doe, 347 F.3d at 658–59)). In Huon, this court reversed
dismissal of a defamation claim where the plaintiff plausibly
alleged that employees of the defendant website “helped
create and develop” some of the allegedly defamatory com-
ments. Id. at 736–37. We explained that “for purposes of defa-
mation and other related theories of liability, a company …
cannot be considered the publisher of information simply be-
cause the company hosts an online forum for third-party us-
ers to submit comments.” Id. at 741. But the CDA does not
preclude liability against companies “for creating and post-
ing, inducing another to post, or otherwise actively participat-
ing in the posting of” content. Id. at 742.
18 Nos. 21-3198 and 21-3207
These precedents show that § 230(c)(1) is not a compre-
hensive grant of immunity for third-party content. Instead,
that subsection precludes liability only where the success of
the underlying claims requires the defendant to be considered
a publisher or speaker of that content. But § 230(c)(1) may not
necessarily preclude liability if the underlying claims identify
the interactive computer service’s own content as objectiona-
ble.
Plaintiffs argue their claims are based on content Armslist
LLC created to allegedly encourage and assist prohibited
third parties to engage in illegal firearms transactions. To
Webber and Bauer, armslist.com enables anyone to identify
themselves as a “Private Party.” The website also applies that
phrase to all advertisements created by users without an ac-
count. Both complaints further allege that Armslist LLC cre-
ated content that informed users that the company does not
become involved in transactions or certify, investigate, or
guarantee the legal capacity of any party to transact. Accord-
ing to the plaintiffs, these features enabled individuals to cir-
cumvent federal and state firearms laws.
Armslist LLC responds that the plaintiffs seek to impose
upon it a duty of care to protect others from harm that arises
from publication of third-party advertisements on arm-
slist.com. The plaintiffs’ theory, in Armslist LLC’s view, is
that prohibited possessors and sellers used armslist.com to
advertise illegal gun transactions. According to Armslist LLC,
any state cause of action for failing to prevent illegal transac-
tions treats Armslist LLC as a publisher of third-party adver-
tisements. Along the same line, Armslist LLC submits that the
decision to create a listing with the private-party label was ul-
timately the user’s decision.
Nos. 21-3198 and 21-3207 19
Our analysis is aided by this court’s discussion in Craigslist
about the interaction between § 230(c)(1) and contributory
copyright infringement suits. 519 F.3d at 670. Plaintiffs’ alle-
gations that armslist.com was designed to encourage and as-
sist individuals to engage in illegal gun sales and purchases
are similar to the allegations that the software products of
Grokster, Ltd. and StreamCast Networks, Inc. were designed
to encourage the illegal obtaining of music or other copy-
righted material. See Grokster, 545 U.S. at 918–19, 936–37. We
explained in Craigslist that § 230(c)(1)’s limited role meant
that the cause of action in Grokster would not necessarily be
precluded because § 230(c)(1) is not a grant of comprehensive
immunity for content provided by a third party. Craigslist, 519
F.3d at 670. Even so, we need to decide whether § 230(c)(1)
precludes the plaintiffs’ claims only if they have stated a cause
of action against Armslist LLC. See Doe, 347 F.3d at 660. We
therefore assess those claims.
IV. Negligence
We next address whether the plaintiffs have plausibly
pleaded common law negligence claims against Armslist
LLC. As in our personal jurisdiction analysis, the substantive
law of the forum state controls, Erie R.R. Co. v. Tompkins, 204
U.S. 64, 78 (1938), here, Wisconsin tort law. If the Wisconsin
Supreme Court has not yet addressed an issue before us, we
look to the decisions of the Wisconsin Court of Appeals to pre-
dict that state’s law. In re Zimmer, NexGen Knee Implant Prods.
Liab. Litig., 884 F.3d 746, 751 (7th Cir. 2018).
To the extent a conflict exists between the state and federal
pleading standards, see Cattau v. Nat’l Ins. Servs. of Wis., 926
N.W.2d 756, 758–59 (Wis. 2019), we apply the federal pleading
standard to assess the sufficiency of the allegations on a
20 Nos. 21-3198 and 21-3207
motion to dismiss. Windy City Metal Fabricators & Supply, Inc.
v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 670–72 (7th Cir. 2008).
“To survive a motion to dismiss, a plaintiff must allege
‘enough facts to state a claim to relief that is plausible on its
face.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 365–
66 (7th Cir. 2018) (quoting Bell Alt. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).
A. Wisconsin common law of negligence, including
public policy factors
A negligence claim under Wisconsin law consists of four
elements: duty, breach, causation, and damages. See Brenner
v. Amerisure Mut. Ins. Co., 893 N.W.2d 193, 198 (Wis. 2017) (cit-
ing Gritzner v. Michael R., 611 N.W.2d 906, 912 (Wis. 2000)).
Armslist LLC does not dispute that damages have been al-
leged. Among the other three elements, we focus on the third,
causation.
Legal cause under Wisconsin law has two components:
cause-in-fact and public policy factors. See Fandrey ex rel. Con-
nell v. Am. Fam. Mut. Ins. Co., 680 N.W.2d 345, 351–52 (Wis.
2004); see also Wis. JI-CIVIL 1500 cmt. Cause-in-fact is estab-
lished using the “substantial factor” test. Fandrey, 680 N.W.2d
at 351. The public policy factors address whether the cause of
the harm is legally sufficient to permit recovery. See id. at 353.
In other words, under Wisconsin law, “[p]roximate cause in-
volves public policy considerations for the court,” although
the term “proximate cause” is no longer used. Id. at 352–53.
Nos. 21-3198 and 21-3207 21
The six public policy factors Wisconsin courts consider
when deciding whether to limit liability are: (1) “[T]he injury
is too remote from the negligence”; (2) “Recovery is ‘too
“wholly out of proportion to the culpability of the negligent
tort-feasor”’”; (3) “[I]n retrospect it appears too highly ex-
traordinary that the negligence should have brought about
the harm”; (4) “Allowing recovery ‘would place too unreason-
able a burden upon [the tortfeasor]’”; (5) “Allowing recovery
would be ‘too likely to open the way to fraudulent claims’”;
or (6) “Allowing recovery ‘would “enter a field that has no
sensible or just stopping point.”’” Id. at 348 n.1 (quoting Colla
v. Mandella, 85 N.W.2d 345, 348 (Wis. 1957)). Because these
factors are set out in the disjunctive, a finding that one is sat-
isfied is sufficient to preclude liability. See Tobias v. Cnty. of
Racine, 507 N.W.2d 340, 342 (Wis. Ct. App. 1993).
The application of these public policy factors is a question
of law. Fandrey, 680 N.W.2d at 350. The Wisconsin Supreme
Court has emphasized that when courts limit liability as part
of the legal cause analysis, they are not pronouncing on “what
is politically appropriate for the state as a whole.” Id. at 354.
Rather, they are engaged in an analysis that is “inexorably
tied to legal cause in Wisconsin,” id. at 354, and is “a function
of the court.” Stephenson v. Universal Metrics, Inc., 641 N.W.2d
158, 168–69 (Wis. 2002). But that function must be exercised
with due respect for legislative choices expressed in its enact-
ments. See Hoida, Inc. v. M & I Midstate Bank, 717 N.W.2d 17,
33–34 (Wis. 2006); Smaxwell v. Bayard, 682 N.W.2d 923, 941,
941 n.15 (Wis. 2004); Stephenson, 641 N.W.2d at 168–69.
In conducting the public policy analysis, Wisconsin courts
have tread carefully when it comes to subject matters that are
“highly regulated by the legislature.” Stephenson, 641 N.W.2d
22 Nos. 21-3198 and 21-3207
at 170. On those topics, the Wisconsin Supreme Court has ex-
pressed a particular reluctance “to create liability where the
legislature has not expressed that there should be any.” Id.That court has sometimes addressed the relevance of legisla-
tive enactments under the sixth public policy factor; on other
occasions, it has considered certain statutes apart from its dis-
cussion of the relevant factors. Compare Smaxwell, 682 N.W.2d
at 939–42 and Nichols v. Progressive N. Ins. Co., 746 N.W.2d 220,
229–31 (Wis. 2008), with Hoida, 717 N.W.2d at 33–35.
The Wisconsin Supreme Court has expressed that “the
better practice is to submit the case to the jury before deter-
mining whether the public policy considerations preclude li-
ability.” Alvarado v. Sersch, 662 N.W.2d 350, 355 (Wis. 2003).
But it has also stated that a court may apply public policy con-
siderations before trial where the policy questions are fully
presented and the facts are easily ascertainable. Fandrey, 680
N.W.2d at 358; see Hornback v. Archdiocese of Milwaukee, 752
N.W.2d 862, 875–76 (Wis. 2008).
Plaintiffs contend the district court in Webber erred in ad-
dressing the public policy factors at the motion to dismiss
stage because the facts are insufficiently established. But the
public policy factors have previously been applied on mo-
tions to dismiss. See, e.g., Nichols, 746 N.W.2d at 222–23, 227.
Important to our consideration is that the relevant public pol-
icy to be applied in these cases stems from legislative enact-
ments. The parties acknowledge that Armslist LLC does not
sell firearms, let alone engage in the business of selling fire-
arms, so the interpretation and application of statutes to these
cases does not require full development of the facts. Moreo-
ver, the pleadings and briefing present a question of public
policy. See Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d
Nos. 21-3198 and 21-3207 23
432, 443 (Wis. 1994). That question is whether it contravenes
statutes for a website hosting firearms transactions to be held
to the standards regulating firearms dealers in Wisconsin, or
to charge such a website with enforcing those standards. The
parties submitted substantial briefing addressing the first,
second, fourth, and sixth public policy factors, and the scope
of Wisconsin statutes regulating firearms transactions ap-
pears on the face of the complaints. For these reasons, the
public policy factors are appropriately considered in resolv-
ing these cases at the motion to dismiss stage.
B. Wisconsin statute on purchase of handguns
The key legislative enactment guiding our discussion is
Wisconsin Statute § 175.35, which regulates the purchase of
handguns. That statute defines “firearms dealer” as “any per-
son engaged in the business of importing, manufacturing or
dealing in firearms and having a license as an importer, man-
ufacturer or dealer issued by the federal government.”
§ 175.35(1)(ar). By referring to the federal licensing scheme,
the state statute incorporates certain definitions provided un-
der federal law. First, a “licensed dealer” is “any dealer who
is licensed under the provisions of this chapter,” and a
“dealer” includes “any person engaged in the business of sell-
ing firearms at wholesale or retail.” 18 U.S.C. § 921(a)(11). The
term “engaged in the business,” however, “shall not include
a person who makes occasional sales, exchanges, or purchases
of firearms for the enhancement of a personal collection or for
a hobby, or who sells all or part of his personal collection of
firearms.” § 921(a)(21)(C). Therefore, the provisions of
§ 175.35 governing firearms dealers exclude individuals mak-
ing occasional sales and exchanges—that is, private sellers.
Wisconsin law compels firearms dealers to obtain evidence of
24 Nos. 21-3198 and 21-3207
the legality of the transaction, conduct background checks,
and keep transaction records, among other requirements. See
§ 175.35. To aid our evaluation, we consider these statutory
demands on firearms dealers.
Evidence of transaction’s legality. Before transferring posses-
sion of a handgun, a firearms dealer must, among other
things, obtain identification and a completed notification
form from a transferee. § 175.35(2)(a)–(b). Sec-
tion 175.35(2g)(a) specifies, “The department of justice shall
promulgate rules prescribing procedures for a transferee to
provide and a firearms dealer to inspect identification con-
taining a photograph of the transferee.” The Wisconsin State
Department of Justice promulgated Wisconsin Administra-
tive Code § Jus. 10.01, which declared the purpose of the
chapter to be “to establish the procedures, as required under
s. 175.35(2g), Stats., for searching the records of persons to
whom a handgun dealer proposes to transfer a handgun.”7
Section Jus. 10.06(1)(a) states that a dealer “shall require each
handgun transferee to show the dealer, for the dealer’s inspec-
tion, a reliable identification document. The identification
document shall include a photograph of the transferee.” A
dealer must also “require each transferee to complete an offi-
cial notification form obtained from the department,” which
collects information including a transferee’s legal name, birth
date, gender, race, social security number, and current ad-
dress. § Jus. 10.06(1)(c)(1). This information is then used to
7“Handgun dealer” or “dealer” as used in the chapter refers to “a
firearms dealer as defined in s. 175.35(1)(ar), Stats., who offers one or more
handguns for sale.” WIS. ADMIN. CODE § Jus. 10.03.
Nos. 21-3198 and 21-3207 25
certify the legality of a handgun transfer. See generally § Jus.
10.06(1)(d)–(2).
Background Checks and Transaction Records. Before transfer-
ring a handgun, a firearms dealer must also request a “fire-
arms restrictions record search.” WIS. STAT. § 175.35(2)(c).
That includes “a search in the national instant criminal back-
ground check system.” § 175.35(at). Further, a firearms dealer
must keep “the original record of all completed notification
forms and a record of all confirmation numbers and corre-
sponding approval or nonapproval numbers.” § 175.35(2j); see
also WIS. ADMIN. CODE § Jus. 10.10(1).
Delivery and Waiting Period. Wisconsin Statute § 175.35
does not require purchasers of firearms from private sellers to
take delivery in any specific way, nor does it impose a waiting
period on the delivery of a firearm to the purchaser after a
confirmation number from a firearms restrictions record
search is obtained, see Daniel, 926 N.W.2d at 722. Moreover,
Wisconsin Statute § 66.0409 governs the local regulation of
weapons. That statute specifies “[n]othing in this section pro-
hibits a political subdivision from continuing to enforce until
November 30, 1998, an ordinance or resolution that is in effect
on November 18, 1995, and that requires a waiting period of
not more than 7 days for the purchase of a handgun.”
§ 66.0409(am) (emphasis added).
C. Plaintiffs’ negligence allegations
The allegations of Armslist LLC’s negligence track the
same three categories:
1. Evidence of Legality. Bauer and Webber contend Armslist
LLC breached its duty by failing to require buyers and sellers
to provide information about the legality of transactions.
26 Nos. 21-3198 and 21-3207
They specifically allege that Armslist LLC failed to demand
greater transparency from users, such as by requiring both
buyers and sellers to create accounts and provide credit-card
verified evidence of their identities. They also aver Armslist
LLC failed to oblige buyers and sellers to certify and provide
evidence that they are legal transactors. Bauer adds that Arm-
slist LLC was negligent in failing to require buyers and sellers
to register.
2. Background Checks and Transaction Records. Bauer and
Webber further allege that Armslist LLC breached its duty by
failing to require or recommend that sellers conduct back-
ground checks. Webber adds that Armslist was negligent in
failing to require or recommend that sellers create transaction
records.
3. Delivery and Waiting Period. Bauer and Webber also
claim that Armslist LLC was negligent in failing to require
purchasers from private sellers to take delivery of the firearm
through a federal firearms licensee, who would run a back-
ground check and create transaction records. Webber further
alleges that Armslist LLC was negligent in failing to impose a
reasonable waiting period for delivery of a firearm purchased
through the website.
As shown above, Wisconsin Statute § 175.35 regulates
each of these aspects of handgun sales. Concluding that the
allegations in these three categories state a negligence claim
would directly contravene the Wisconsin legislature’s judg-
ments, as reflected in Wisconsin Statute §§ 175.35 and 66.0409.
Section 175.35 requires firearms dealers—not websites,
private sellers, or other entities—to obtain certain evidence of
the legality of a transaction, the first category. Armslist LLC
Nos. 21-3198 and 21-3207 27
is not a firearms dealer. Concluding that the allegations in this
first category can proceed would impose the responsibilities
of firearms dealers on actors which the Wisconsin legislature
has not chosen to regulate in this manner. It would also hold
Armslist LLC liable for failing to operate as an arm of the state
where Wisconsin has not given it this function. Just so, on al-
legations about background checks and transaction records—
the second category—the Wisconsin legislature has not cho-
sen to regulate websites or private sellers, such as Verstagen,
or to oblige them with enforcement.
Under § 175.35, neither a method of delivery nor a waiting
period is specified—the third category—even for firearms
dealers. That statute also incorporates the federal definition in
18 U.S.C. § 921 of “engaged in the business” of dealing in fire-
arms, which expressly exempts private sellers from its re-
quirements. Therefore, the Wisconsin legislature has chosen
not to impose delivery specifications on handguns obtained
via private sale, the third category. Nor has it imposed a wait-
ing period on transactions. In fact, a forty-eight-hour waiting
period that formerly existed under Wisconsin law was elimi-
nated in later versions of § 175.35. See Act of June 24, 2015, § 3,
2015 Wis. Legis. Serv. 22 (West) (eliminating a minimum wait-
ing period of forty-eight hours).
Armslist LLC is not a firearms dealer—rather, it operates
a website that hosts third-party advertisements for the sale
and purchase of firearms. The state has not entrusted it with
enforcing the provisions of the regulatory scheme governing
handgun transfers. It follows that Armslist LLC has no
statutory obligation to collect identification, require
certification and evidence of legal transactions, mandate or
recommend background checks or recordkeeping, or regulate
28 Nos. 21-3198 and 21-3207
the delivery of firearms. If we decided that plaintiffs stated a
negligence claim against Armslist LLC based on these three
categories of allegations, that conclusion would contravene
the Wisconsin legislature’s judgment on which entities—i.e.,
firearms dealers—will be held liable for meeting the
requirements of state and federal law. Wisconsin has not
chosen to include websites hosting firearms transactions as
among the actors regulated in the ways plaintiffs allege, a
decision that must be respected. Wisconsin has also chosen to
exempt private sellers, like Verstagen, from certain
requirements, WIS. STAT. § 175.35(1)(ar), and has made the
decision to eliminate a waiting period on handgun purchases,
see Act of June 24, 2015, § 3, 2015 Wis. Legis. Serv. 22 (West).
We decline to redefine what is politically appropriate for the
state or to find liability where Wisconsin has not expressed it
should exist. See Hoida, 717 N.W.2d at 27; Stephenson, 641
N.W.2d at 170. Just so, we note that state officials can take
measures to ensure that this regulatory scheme, enacted by
elected representatives, is complied with so its requirements
do not become a “dead letter.”
Although most of plaintiffs’ allegations fall into these
three categories and are in unmistakable tension with Wis-
consin’s legislative enactments, we see three sets of allega-
tions that are not:
• High Volume Sellers. Bauer alleges Armslist LLC was
negligent in failing to: monitor high volume sellers,
design its website to prevent unlawful high volume
sales, remove sellers engaged in the business of sell-
ing firearms without a license, provide users with
tools to report repeat offenders, notify law enforce-
ment of users engaged in the business of selling
Nos. 21-3198 and 21-3207 29
firearms, and inform users that law enforcement
will be notified of persons who appear to be en-
gaged in selling firearms without a license.
• Flagging Illegal Conduct. Plaintiffs also claim Arm-
slist LLC was negligent in failing to enable users to
flag potentially illegal conduct and alert it and law
enforcement of this activity.
• Providing Updated Firearms Law. Bauer and Webber
aver Armslist LLC breached its duty by failing to
provide “extensive and regularly updated” infor-
mation regarding all applicable firearms laws.
We consider next whether plaintiffs have plausibly pleaded
causation in any of these three sets of allegations.
“The phrase ‘substantial factor’ denotes that the defend-
ant’s conduct has such an effect in producing the harm as to
lead the trier of fact, as a reasonable person, to regard it as a
cause, using that word in the popular sense.” Merco Distrib.
Corp. v. Com. Police Alarm Co., 267 N.W.2d 652, 654 (Wis. 1978)
(citing Restatement (Second) of Torts § 431, cmt. a (1965)). Un-
der Wisconsin law, causation is not restricted to a single act
or omission: “[T]here can be more than one substantial factor
contributing to the same result and thus more than one cause-
in-fact.” Morgan v. Pa. Gen. Ins. Co., 275 N.W.2d 660, 666 (Wis.
1979). Causation is a factual question for a jury if reasonable
people “could differ on the issue.” Id. It becomes a question
of law if reasonable people “could not disagree.” Id.“Cause-in-fact has also been described as requiring an un-
broken sequence of events connecting the negligent act and
the injury.” Hoida, 717 N.W.2d at 33 n.19; see also Cefalu v.
Cont’l W. Ins. Co., 703 N.W.2d 743, 747 (Wis. App. 2005);
30 Nos. 21-3198 and 21-3207
Fondell v. Lucky Stores, Inc., 270 N.W.2d 205, 210 (Wis. 1978).
In other words, the defendant’s negligence must be “actively
operating at the time of the accident which produced the
plaintiff’s injury.” Cefalu, 703 N.W.2d at 747.
Bauer’s high-volume seller claim fails due to a break in the
chain of causation. Even if we assume Bauer’s high volume
seller allegations adequately plead duty and breach, Bauer
does not plead any facts that demonstrate Jones was prohib-
ited by law from purchasing firearms. Rather, Bauer alleges
only that Jones had been previously arrested on drug charges;
Bauer does not claim that Jones had been charged with any
crime that would have precluded him from lawfully obtain-
ing a firearm. What is more, Bauer pleads only that Jones
“may have feared” he would be unable to pass a background
check, as opposed to alleging that a background check would
have affirmatively prevented him from buying a gun. Private
sales are legal in Wisconsin, see 18 U.S.C. § 921(a)(21)(C); Dan-
iel, 926 N.W.2d at 722, and Bauer has not alleged that Jones
unlawfully obtained the firearm at issue. Reasonable people
could not disagree that Bauer failed to plead that Armslist
LLC’s alleged negligence was actively operating when Jones
obtained the firearm. See Cefalu, 703 N.W.2d at 747. Bauer thus
has not alleged causation as a matter of law in a high-volume
seller claim.
We reach the same conclusion as to the other two sets of
allegations. Causation is not established where the harm
would have occurred even absent the defendant’s negligence.
See Beacon Bowl, Inc. v. Wis. Elec. Power Co., 501 N.W.2d 788,
807 (Wis. 1993). Bauer and Webber have failed to plausibly
plead that the deaths would not have occurred but for Arm-
slist LLC’s failure to permit users to flag illegal conduct. In
Nos. 21-3198 and 21-3207 31
fact, in its website’s terms of use, Armslist LLC provided the
contact information number for the Bureau of Alcohol, To-
bacco, Firearms and Explosives. Given that users could report
the same conduct directly to ATF, plaintiffs do not explain
how allowing users to flag conduct would plausibly have pre-
vented the deaths.
Plaintiffs have also failed to plausibly allege that the
deaths would not have occurred but for Armslist’s failure to
provide updated firearms laws. Bauer and Webber do not al-
lege any facts about the effect of providing updated firearms
information on the likelihood that individuals will engage in
illegal transactions. Without these allegations, we cannot con-
clude that plaintiffs have plausibly alleged providing up-
dated firearms laws would have prevented the deaths.
Even if we assume the duty and breach elements of negli-
gence have been satisfied, these three additional sets of alle-
gations, not precluded by Wisconsin Statute § 175.35, do not
survive the plausibility standard necessary to plead a negli-
gence claim. None of these allegations plead factual content
that allows the court to draw the reasonable inference that the
defendants are liable for the misconduct alleged. See Boucher,
880 F.3d at 365–66. Put another way, the allegations in any of
these three sets do not plausibly show that Armlist LLC
caused the deaths of Commander Bauer and Sara Schmidt.
D. Application of public policy factors
As noted above, in addition to cause-in-fact, Wisconsin
law on causation includes public policy considerations. Fan-
drey, 680 N.W.2d at 352; see also Wis. JI-CIVIL 1500 cmt. As an
alternative causation analysis, we consider plaintiffs’ allega-
tions under two of the public policy factors, the second
32 Nos. 21-3198 and 21-3207
(disproportionate liability) and the sixth (no sensible or just
stopping point).
In Webber, the district court ruled that the plaintiff’s negli-
gence claim was precluded, including by the second policy
factor of disproportionate liability. He concluded that impos-
ing civil liability here would likely destroy Armslist LLC’s
business. In Bauer, the district court declined to base its deci-
sion on the public policy factors.
Out of proportion to culpability. Bauer and Webber argue
that Wisconsin courts have invoked this public policy factor
only when the defendant’s blameworthiness is minimal at the
time the risk materializes, or if it is more than minimal, the
cost of injury is so high that it is out of proportion with the
defendant’s culpability. Among the cases plaintiffs cite for
this proposition is Stephenson.
Armslist LLC counters that because it did not use, distrib-
ute, or sell a firearm to anyone, holding it responsible for the
murders would be disproportionate to its culpability. It also
refers to Daniel and argues that creating and operating a web-
site that enables buyers to find information posted by third-
party sellers is legal.
In Stephenson, the Wisconsin Supreme Court concluded
that recovery was precluded on this factor against an individ-
ual who agreed to drive an inebriated person home, causing
a bartender to serve that person more alcohol. 641 N.W.2d at
160, 169. It reasoned, in relevant part, that liability was dis-
proportionate considering the state’s immunity laws. If the
defendant had been a social host who had served alcohol to
the defendant, he would be immune from suit. “It defies
common sense to hold someone in [the defendant]’s position
Nos. 21-3198 and 21-3207 33
liable while immunizing someone who serves or even encour-
ages alcohol consumption.” Id. at 169.
Based on Stephenson, this second factor precludes liability
in Webber on all allegations within the three categories re-
ferred to above. As in that case, statutes inform culpability.
Private sellers are exempt from the requirements plaintiffs
seek to impose. Verstagen is a private seller, and thus has no
obligation to certify, investigate, or delay the transaction. To
impose those requirements on Armslist LLC, the website
hosting Verstagen’s transaction, would place liability on an
actor one step removed from Verstagen, and circumvent leg-
islative judgment. See id. For these reasons, we agree with the
district court’s analysis and conclusion on this second factor
in Webber.
No sensible or just stopping point. Under the sixth public pol-
icy factor, Armslist LLC contends that because plaintiffs will
always conjure creative arguments about what a firearms
platform should have done to prevent harm, liability here has
no sensible or just stopping point. Armslist LLC argues that
potential harm is not limited to firearms and could apply to
any product that could harm someone. Plaintiffs respond
there is no liability if a defendant played no role in a harm,
but here the defendants consciously created, designed, and
maintained a website to allow and encourage illegal firearms
sales. Per plaintiffs, the stopping point would be a jury’s de-
cision that Armslist LLC acted reasonably.
At the end of its discussion of this sixth factor in Stephen-
son, the Wisconsin Supreme Court stated that “the possibili-
ties for expanding liability … would also threaten to run
counter to the legislative enactments regarding immunity.”
641 N.W.2d at 170. That court continued, “Finally, we give
34 Nos. 21-3198 and 21-3207
significant weight to the fact that the production, sale, distri-
bution, vending, and consumption of alcoholic beverages are
highly regulated by the legislature.” Id. “Given this history
and the current state of the law, we are reluctant to create lia-
bility where the legislature has not expressed that there
should be any. We think that it is more appropriate that the
legislature decide whether or not someone who agrees to
drive an intoxicated person home should be an exception to
the legislature’s general policy of holding the intoxicated per-
sons themselves liable for injuries they cause.” Id.
In Smaxwell, the same court ruled that the sixth factor
precluded liability against a landowner for harm caused by a
tenant’s dogs. 682 N.W.2d at 939. This was in part because al-
lowing liability would contradict a state statute imposing
strict liability exclusively on owners for injuries caused by
dogs. Id. at 941.
Under the reasoning of Stephenson and Smaxwell, this sixth
factor precludes liability in Webber and Bauer. The same con-
cerns exist with expanding liability counter to legislative en-
actments on the purchase of handguns. Wisconsin statutes
regulate the entities that qualify as firearms dealers; other ac-
tors are not subject to those statutes and have not been
charged with enforcing them. To allow liability on those other
actors, such as private sellers—and here a website—would
contradict that legislative judgment. The same holds true for
the lack of a principled stopping point. If liability is permitted
here, there would be no distinction between firearms dealers
and exempt entities, a line Wisconsin law has drawn.
Because the public policy factors are considered in the dis-
junctive, a finding that one is satisfied is sufficient to preclude
liability. See Tobias, 507 N.W.2d at 342. Most of the allegations
Nos. 21-3198 and 21-3207 35
in Webber fail under the second factor, and the first three cat-
egories of allegations in both cases fail under the sixth factor.
* * *
Concluding that plaintiffs’ allegations would state causa-
tion for a negligence claim would directly contravene Wiscon-
sin statutes on the regulation of handguns. The remaining
allegations do not state a claim under Wisconsin tort law, so
we need not review the questions of duty and breach. Two of
Wisconsin’s public policy factors also preclude plaintiffs’
claims. For these reasons, we conclude that plaintiffs have not
stated common law negligence claims against Armslist LLC.
V. Other Claims
Plaintiffs argue the district court erroneously dismissed
their public nuisance, wrongful death, survivorship, and con-
sortium claims. But their failure to plausibly plead negligence
claims disposes of these other causes of action.
Public nuisance requires a showing of negligence. WIS. JI-
CIVIL 1928 (“To sustain a claim of nuisance in this case, plain-
tiff must prove … [that the] defendant was negligent.”).
Wrongful death actions in Wisconsin require an underlying
wrongful act, neglect, or default. WIS. STAT. § 895.03 (provid-
ing that liability exists “[w]henever the death of a person shall
be caused by a wrongful act, neglect or default”); see also
Rosenthal v. Ascension Health, No. 21-cv-344-wmc, 2022 WL
203475, at *2 (W.D. Wis. Jan. 24, 2022) (stating that § 895.03 “is
a ‘derivative tort action[]’ and thus, specifically premised on
the existence of an underlying common law tort” (quoting
Christ v. Exxon Mobil Corp., 866 N.W.2d 602, 609 (Wis. 2015))).
Similarly, the survival action depends on an underlying tort,
since the “action is brought by the representative of the
36 Nos. 21-3198 and 21-3207
deceased for personal injury damages suffered by the de-
ceased prior to his death.” Force ex rel. Welcenbach v. Am. Fam.
Mut. Ins. Co., 850 N.W.2d 866, 878 n. 30 (Wis. 2014) (quoting
Prunty v. Schwantes, 162 N.W.2d 34, 37 (Wis. 1968)). Loss of
consortium is also a derivative claim, relying on the existence
of an underlying tort—here, negligence. Cf. Finnegan ex rel.
Skoglind v. Wis. Patients Comp. Fund, 666 N.W.2d 797, 804–05
(Wis. 2003) (characterizing consortium as a derivative claim).
Because plaintiffs cannot show negligence, there is no under-
lying tort for these claims, and their dismissal was proper.
Two more claims, unrelated to any alleged negligence by
Armslist LLC, require discussion: aiding and abetting tortious
conduct (only pleaded in Bauer), and civil conspiracy.
The district court held that Bauer failed to state a claim for
aiding and abetting tortious conduct because he did not suf-
ficiently allege that defendants consciously desired or in-
tended to assist illegal sales. Bauer argues on appeal that she
pleaded that defendants deliberately chose to implement cer-
tain design features and that they designed and administered
armslist.com to assist illegal purchases.
“A person is liable in tort for aiding and abetting if the per-
son (1) undertakes conduct that as a matter of objective fact
aids another in the commission of an unlawful act; and
(2) consciously desires or intends that his conduct will yield
such assistance.” Tensfeldt v. Haberman, 768 N.W.2d 641, 649
n.12 (Wis. 2009). “Mere presence, with no effort to prevent un-
lawful conduct, is not aiding and abetting unless an intent to
assist is communicated.” See Winslow v. Brown, 371 N.W.2d
417, 423 (Wis. 1985). The underlying tortious conduct alleged
by Bauer is the “transferring [of] weapons to dangerous indi-
viduals displaying a propensity to misuse such weapons in a
Nos. 21-3198 and 21-3207 37
manner that would cause harm to innocent third-parties.” As
an allegation of intent to aid this conduct, Bauer points to his
claim that “the Armslist Defendants chose to implement de-
sign, policy and content choices which made the transfer of
firearms to the criminal market an inevitable and major part
of the commerce on Armslist.com.” Bauer also refers to his
allegation that despite notice of criminal activity, “the Arm-
slist Defendants continued to design and administer Arm-
slist.com to fuel an online black market in firearms.”
Bauer’s allegations do not raise a plausible inference that
Armslist LLC aided and abetted illegal sales. At most, he
pleads facts consistent with both an intent to aid and abet and
mere presence, and Armslist LLC’s actions are more likely ex-
plained by the latter. See Iqbal, 556 U.S. at 680. The fact that
private sales are legal in Wisconsin provides an obvious alter-
native explanation for armslist.com’s design. Bauer also fails
to point to a specific action Armslist LLC took in “continuing”
to design and administer the website to promote illegal sales
that might indicate an intent to assist; rather, Bauer seems to
contend that armslist.com aided and abetted illegal transac-
tions simply by virtue of its continued existence. But the fail-
ure to prevent unlawful conduct is alone insufficient to state
a claim for aiding and abetting. See Winslow, 371 N.W.2d at
423.
Mere presence can support aiding and abetting liability if
an intent to assist is communicated. Id. As evidence of such a
communication, Bauer asserts Armslist included the follow-
ing disclosures on its website:
• “ARMSLIST DOES NOT become involved in trans-
actions between parties and does not certify,
38 Nos. 21-3198 and 21-3207
investigate, or in any way guarantee the legal ca-
pacity of any party to transact”; and
• “ARMSLIST can not and will not be a party in trans-
actions. It is the sole responsibility of the buyer and
seller to conduct safe and legal transactions.”
But the plaintiffs’ interpretation of these disclaimers presents
only a sheer possibility of unlawful conduct. See Iqbal, 556 U.S.
at 678. The obvious alternative explanation for the disclaimers
is that they operate as “at your own risk” provisions. These
provisions no more endorse illegal activity than a “swim at
your own risk” sign placed at a hotel pool endorses using the
pool to drown another. In fact, armslist.com’s terms of use re-
quire users to certify that they “will not use Armslist.com for
any illegal purpose.” Bauer’s claim for aiding and abetting
tortious conduct therefore fails.
In each case the district court also dismissed plaintiffs’
civil conspiracy claims. In Webber, the court reasoned that the
claim suffered from the same failure to adequately plead cau-
sation and was subject to the same public policy considera-
tions as apply to the negligence claim. And in Bauer, the court
concluded that the allegations were too vague to state a claim,
since plaintiffs alleged that Gibbon and Armslist “and/or
other parties” conspired. That court also observed that the
complaint alleged only in a conclusory fashion that Armslist
LLC intended to conspire to promote unlawful transactions.
Plaintiffs contend that Armslist LLC and co-conspirators
intended to supply firearms to prohibited possessors. They
allege they did so by encouraging the operation of “stores”
through which unlicensed firearms dealers would sell fire-
arms, and by motivating prohibited possessors to transact on
Nos. 21-3198 and 21-3207 39
the website through its design features. Bauer also argues that
Armslist LLC conspired with Gibbon and other unknown
parties. Armslist LLC responds that the allegations of civil
conspiracy are too vague to state a claim.
To support a claim for civil conspiracy, “[t]here must be
intentional participation in the transaction with a view to the
furtherance of the common design.” Coopman v. State Farm
Fire & Cas. Co., 508 N.W.2d 610, 613 (Wis. Ct. App. 1993).
“[M]ere knowledge, acquiescence or approval of a plan, with-
out cooperation or agreement to cooperate, is not enough to
make a person a party to a conspiracy.” Id. (quoting Winslow,
371 N.W.2d at 420)). Plaintiffs plead facts consistent with co-
operation in furtherance of an unlawful purpose, but they are
also compatible—and more readily explained by—mere
acquiescence. As explained above, an obvious alternative ex-
planation for Armslist LLC’s conduct is that it designed its
website to permit private sales consistent with Wisconsin law.
The plaintiffs have therefore failed to move their complaints
over the line from conceivable to plausible. Iqbal, 556 U.S. at
680. 8
8 For completeness, we note two items. First, because plaintiffs have
not plausibly alleged a cause of action, we need not resolve the CDA
preemption issue. See Gonzalez v. Google LLC, 143 S. Ct. 1191 (2023).
Second, plaintiffs’ claims of piercing the corporate veil were properly dis-
missed. Armslist LLC is a Pennsylvania limited liability company. We ap-
ply Wisconsin’s choice-of-law rules to determine whether Wisconsin or
Pennsylvania law on piercing the corporate veil applies. Klaxon Co. v. Sten-
tor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Under Wisconsin’s conflict of
laws rules, “the threshold question for a court is ‘whether a genuine con-
flict exists between Wisconsin law and the law of the other state.’” Waranka
v. Wadena Ins. Co., 847 N.W.2d 324, 332 (Wis. 2014) (quoting Sharp ex rel.
Gordon v. Case Corp., 595 N.W.2d 380, 384 (1999)). Wisconsin law applies
40 Nos. 21-3198 and 21-3207
VI. Amending the Complaints
Last, Bauer and Webber argue that the district court erred
in entering judgment instead of dismissing their complaints
and permitting amendment. They ask us to remand with in-
structions to allow them to file amended complaints, if we
deem amendment necessary.
These two cases have somewhat different procedural pos-
tures. When the district court entered judgment in each case,
Bauer had twice amended her original complaint, and Web-
ber was standing on his original complaint. 9
“When a district court enters final judgment at the same
time as it dismisses a complaint, the plaintiff should file a
post-judgment motion for leave to amend under Federal Rule
of Civil Procedure 59(e).” White v. Ill. State Police, 15 F.4th 801,
808 (7th Cir. 2021). “We have rejected the argument that Rule
15 requires a district court dismissing a plaintiff’s original
complaint with prejudice to sua sponte grant leave to amend
the complaint. Even after judgment is entered, a plaintiff seek-
ing to amend a complaint must properly move to amend in
the district court.” Id. (citations omitted).
when there is no conflict between the two states’ laws. Sharp, 595 N.W.2d
at 384. A request to pierce the corporate veil is not an independent cause
of action under Wisconsin and Pennsylvania law. Commonwealth v. Golden
Gate Nat’l Senior Care LLC, 194 A.3d 1010, 1035 (Pa. 2018); see Spearing v.
Cnty. of Bayfield, 394 N.W.2d 761, 765 (Wis. Ct. App. 1986). Therefore, there
is no conflict, Wisconsin law applies, and the plaintiffs have failed to state
a claim.
9Plaintiffs have filed comprehensive complaints. Bauer’s second
amended complaint is 48 pages, with 233 paragraphs, and includes nine
counts. Webber’s complaint is 36 pages, with 227 paragraphs, and in-
cludes seven counts.
Nos. 21-3198 and 21-3207 41
“Ordinarily … a plaintiff whose original complaint has
been dismissed under Rule 12(b)(6) should be given at least
one opportunity to try to amend her complaint before the en-
tire action is dismissed.” Runnion v. Girl Scouts of Greater Chi.,
786 F.3d 510, 519 (7th Cir. 2015). But decisions in which this
court has remanded to permit amendment where no motion
under Federal Rules of Civil Procedure 59 or 60 was filed after
the entry of judgment are rare. 10
When judgment was entered in Bauer’s case, she had al-
ready amended her complaint twice. Although the district
court suggested that Bauer would have an opportunity to
amend her complaint after the ruling on the Rule 12(b)(6) mo-
tion, Bauer chose to appeal the judgment rather than move to
reopen the pleadings. Webber made the same decision. Nei-
ther plaintiff attempted to file an amended complaint in the
district court after the judgment or propose to this court how
they would amend their complaints if given the opportunity.
Plaintiffs chose to appeal. Accordingly, we decline plaintiffs’
requests to remand for amendment.
VII. Conclusion
For these reasons, we REVERSE the decision in Webber that
personal jurisdiction exists over Gibbon. Because plaintiffs
have failed to state a claim upon which relief can be granted,
we AFFIRM the dismissal in each case.
10 One decision that appears to have been remanded to permit amend-
ment without a Rule 59 or 60 motion is Barry Aviation Inc. v. Land O'Lakes
Mun. Airport Comm'n, 377 F.3d 682 (7th Cir. 2004). But there, the district
court expressly found that amendment would be futile, id. at 686, making
such a motion frivolous.