Robert Felland v. Patrick Clifton

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1839
R OBERT W. F ELLAND,
Plaintiff-Appellant,
v.
P ATRICK C LIFTON, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 10-cv-664-slc—Stephen L. Crocker, Magistrate Judge.
A RGUED S EPTEMBER 15, 2011 —D ECIDED JUNE 6, 2012
Before F LAUM, M ANION, and S YKES, Circuit Judges.
S YKES, Circuit Judge. While vacationing in Arizona,
Robert and Linda Felland entered into a contract to pur-
chase a condominium unit in a planned beachfront devel-
opment in Puerto Peñasco, Mexico. The project was
managed by a real-estate development firm owned
by Patrick Clifton, an Arizona resident. Robert Felland
signed an agreement that required the couple to
make a down payment in three installments. After
2 No. 11-1839
making the first installment payment, the Fellands became
concerned about the financing and timeliness of the project
and sought reassurance from Clifton that the unit
would be delivered on schedule. Clifton sent several
communications —emails, phone calls, and letters —to the
Fellands at their home in Wisconsin assuring them
the project was properly financed and would be completed
on time, and encouraging the Fellands to pay the addi-
tional installments on the down payment. Relying
on these assurances, they made the payments. Clifton
sent additional com m unications describing the
project’s progress, but did not deliver the unit by
the contractual deadline. Further inquiry by the Fellands’
attorney revealed that the project did not have
financing; instead, advance sales of condominium
units were funding the development.
Robert Felland sued Clifton in Wisconsin state court
alleging intentional misrepresentation and seeking rescis-
sion and damages. Clifton removed the case to federal
district court and moved to dismiss for lack of personal
jurisdiction. The district court granted the motion, finding
that Clifton’s communications to the Fellands in Wisconsin
did not satisfy the due-process minimum-contacts require-
ment for personal jurisdiction. Felland appealed.
We reverse. Felland’s complaint alleges that Clifton’s
repeated communications to his Wisconsin home
were part of a deliberate attempt to lull him into a
false sense of security and to induce him to make
the installment payments. While these communications
might not be directly relevant to a simple breach-of-
No. 11-1839 3
contract claim, they are critical to Felland’s claim
of intentional misrepresentation. Clifton was aware
that Felland lived in Wisconsin, directed multiple commu-
nications to him there, and knew that the harm would be
felt in Wisconsin. These allegations are sufficient to
establish the minimum contacts necessary to satisfy
the due-process requirements for jurisdiction over
Clifton in Wisconsin. We also conclude that Clifton’s
communications satisfy the “local act or omission” provi-
sion of the Wisconsin long-arm statute.
I. Background
This case comes to us from a jurisdictional dismissal,
so we take the following facts primarily from the complaint
and its attached exhibits. The Fellands live in Three Lakes,
Wisconsin. Clifton is a resident of Scottsdale, Arizona,
and owns Clifton Meridian LLC, a real-estate development
firm based in Scottsdale and organized under Arizona
law. He also owns CM La Perla de Peñasco, S. De R.L. De
C.V. (“CM La Perla”), a corporation organized under
the laws of Mexico that specializes in building beachfront
residential projects in northern Mexico.
In 2005 Clifton and Clifton Meridian began a luxury
high-rise condominium project called La Perla del Mar
in Puerto Peñasco, Mexico, a beachfront community about
30 miles from the Arizona border. Clifton formed
CM La Perla to serve as owner of the property on
which the La Perla Project would be built and to maintain
an on-site sales office staffed by Clifton Meridian employ-
ees.
4 No. 11-1839
In February 2006, while the Fellands were vacationing in
Arizona, they traveled to Puerto Peñasco to tour the
La Perla Project’s model unit. They met with Jon Puckett,
Clifton’s sales representative, to whom they provided
their Wisconsin mailing address, telephone number, and
email address. The Fellands were told that construction
would begin in a few weeks and should be completed
by early 2008, but they were not told that Clifton had yet to
secure construction financing or that the start of construc-
tion was contingent upon the sale of additional units.
On February 23, while on the development site in Mexico,
Robert Felland signed a “Reservation of Unit” form,
which noted his Wisconsin address and phone number,
and he paid a refundable $5,000 deposit. Felland was
told he would eventually need to sign a type of contract
under the laws of Mexico called a Promise of Trust Agree-
ment (“PTA”).
Felland returned to Puerto Peñasco in March 2006 to
sign the PTA. The agreement stated that CM La Perla
was represented by Patrick Clifton, but Clifton himself
did not sign the form at this time. It further provided
that Felland’s unit would be delivered no later than
January 31, 2009, and that failure to deliver by this date
would entitle Felland to reimbursement of all money
previously paid to CM La Perla. The purchase price
for Felland’s unit was $680,000, and the PTA required
a 30% down payment of $204,000, payable in three install-
ments of $68,000 over 90 days. Having already paid $5,000,
Felland tendered a check for an additional $63,000 with
the signed PTA. He was told that a fully executed copy
of the PTA would be mailed to him once Clifton had signed
it.
No. 11-1839 5
The next installment was due on April 10, 2006, but by
this time the Fellands had become concerned about the
La Perla Project because they had not received a counter-
signed copy of the PTA or a receipt or verification
of their first payment. Linda Felland emailed Puckett
expressing these concerns, noting that her husband was
“talking about canceling” the purchase and seeking
assurance that the project was on schedule. Puckett
responded by email, indicating that the developer
“was sending out the countersigned PTA ASAP.” He
assured her that “this is a great project and has huge
appreciation potential,” and noted that “I have 168K of
my personal money invested in unit 801[.] I would not sell
something that I am not invested in.” Soon after this
email, Clifton mailed the signed PTA and a receipt to
the Fellands at their Wisconsin address. Relying on
these documents and Puckett’s email, the Fellands pro-
ceeded with the additional down payments by sending
two checks for $68,000, one on April 12 and the other
on May 7, 2006. They received receipts for these payments
by regular mail on April 20 and June 2, 2006, respectively.
Throughout 2006 and 2007, the Fellands also received
about six telephone calls to their Wisconsin home
from Clifton Meridian employees regarding various
aspects of the project; some of these calls were made
before the Fellands paid the full down payment. In
a declaration submitted in response to Clifton’s motion
to dismiss, Robert Felland attested that he would not have
paid the series of installments on the down payment
had he not received Puckett’s reassurance about the
project, the contract documents, and written receipts.
6 No. 11-1839
After the Fellands had paid the full down payment,
Clifton Meridian continued to send them numerous
communications on the status of the La Perla Project,
both by email and regular mail. For example, in July
2006 Puckett sent an email to Linda Felland indicating
that groundbreaking would begin that August
with completion targeted for mid-2008. And in November
2006 Jason Silkey, Clifton Meridian’s Director of Develop-
ment, sent an email indicating that “[e]xcavation work
continues on schedule at the site” and inviting owners
to view the progress on the project’s website. Clifton
also contacted the Fellands by certified mail in
March 2008, noting some problems with the project’s
financing but expressing optimism that a commitment
could be secured with a new lender in short time.
Overall, between May 11, 2006, and February 20, 2009,
Clifton and his associates sent the Fellands 22 emails 1
and two mailed messages. These updates were essential
to Felland’s continued confidence in the La Perla Project;
without them he would have backed out of the purchase
and demanded a refund of his down payment.
Clifton did not deliver the unit by the promised January
31, 2009 date. On February 10, 2009, Clifton sent an
email to unit owners addressing the delays in the develop-
ment and threatening “punitive legal action” against
anyone who might “sabotage our financing attempts
1
Many of these emails were addressed generally to “Friends of
La Perla del Mar” and appear to have been sent to multiple
recipients.
No. 11-1839 7
by organizing some type of legal action against the pro-
ject”:
Unfortunately I must be very clear about the following:
if anyone, I don’t care who they are, engages in
any activities to deliberately sabotage our financing
attempts by organizing some type of legal action
against the project or spread malicious and false
lies about the project or developer I will assure you
that we will take immediate and punitive legal action
against the party or parties at fault.
After receiving this email, the Fellands sought legal
advice, and on February 18, 2009, their attorney contacted
Clifton demanding a refund of their $204,000 down
payment. Clifton refused, and subsequent investigation
revealed that Clifton did not have financing for
the La Perla Project when Felland signed the PTA and
that advance sales of condominium units were funding
the project.
On June 1, 2010, Robert Felland filed this lawsuit in
the Oneida County Circuit Court naming as defendants
Patrick Clifton, Clifton Meridian LLC, and CM La
Perla (collectively, “Clifton”). Felland sought rescission
of the contract and damages, alleging that Clifton
had committed a series of intentional misrepresentations.
In particular, Felland asserted that Clifton concealed
the development’s financing difficulties from the beginning
and that Clifton’s later communications were made
in furtherance of a scheme to defraud the Fellands out of
their down payment.
Clifton removed the suit to federal court in the Western
District of Wisconsin, and the parties consented to proceed
8 No. 11-1839
before a magistrate judge. See 28 U.S.C. § 636(c)(3).
Clifton moved to dismiss for lack of personal jurisdiction.
The judge granted the motion, holding that Clifton
had insufficient contacts with Wisconsin to satisfy the
requirements of due process. In reaching this decision,
the judge disregarded most of the communications Clifton
and his employees sent to Felland in Wisconsin, conclud-
ing that the “alleged misrepresentations upon
which Felland relied to his detriment were made in
Mexico.” Having concluded that Clifton did not have
the minimum contacts with Wisconsin necessary to satisfy
the requirements of due process, the judge did not consider
whether the claim fell within the terms of Wisconsin’s
long-arm statute.
II. Analysis
We review a dismissal for lack of personal jurisdiction de
novo. Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir.
2010). The plaintiff bears the burden of establishing
personal jurisdiction, but where, as here, the issue is
raised on a motion to dismiss, the plaintiff need only
make a prima facie showing of jurisdictional facts.
Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d
773, 782 (7th Cir. 2003). We therefore accept as true
all well-pleaded facts alleged in the complaint and resolve
any factual disputes in the affidavits in favor of the plain-
tiff. Id.No federal statute authorizes nationwide service of
process in this case, so personal jurisdiction is governed
by the law of the forum state. F ED. R. C IV. P. 4(k)(1)(A);
No. 11-1839 9
see also Citadel Grp. Ltd. v. Wash. Reg’l Med. Ctr., 536
F.3d 757, 760 (7th Cir. 2008). The court’s exercise of juris-
diction over the defendant must be authorized by the
terms of the forum state’s personal-jurisdiction statute
and also must comport with the requirements of
the Fourteenth Amendment’s Due Process Clause.
Tamburo, 601 F.3d at 700. Here, the district court addressed
only the due-process question, dismissing the case on
this ground alone. Because we are reversing this decision,
we must also address whether the court’s exercise
of personal jurisdiction is authorized by Wisconsin’s long-
arm statute. The due-process question is the more compli-
cated of the two; once the due-process predicates are
found to exist, the statutory question becomes quite
straightforward.
A. Due Process
For a court to exercise personal jurisdiction over an out-
of-state defendant, the key issue for constitutional pur-
poses is whether the defendant has sufficient “minimum
contacts” with the forum state such that “the maintenance
of the suit ‘does not offend traditional notions of fair play
and substantial justice.’ ” Tamburo, 601 F.3d at 701 (quoting
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
Each defendant must have “purposely established mini-
mum contacts with the forum state such that he or
she ‘should reasonably anticipate being haled into court’
there.” Id. (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 474 (1985)). Jurisdiction cannot be avoided
simply because a defendant did not physically enter
10 No. 11-1839
the forum state, Burger King, 471 U.S. at 476, but we have
also said that “[p]otential defendants should have some
control over—and certainly should not be surprised by—the
jurisdictional consequences of their actions,” RAR, Inc.
v. Turner Diesel, Ltd., 107 F.3d 1272, 1278 (7th Cir. 1997).
Personal jurisdiction may be either general or specific.
Where a defendant has “continuous and systematic”
contacts with a state, that defendant is subject to general
jurisdiction regarding any action, even actions unrelated
to those contacts. Tamburo, 601 F.3d at 701. But the thresh-
old for general jurisdiction is quite high because
“the contacts must be sufficiently extensive and pervasive
to approximate physical presence.” Id. (citing
Purdue Research Found., 338 F.3d at 787 n.16). The facts
here clearly do not give rise to general jurisdiction,
and Felland does not suggest otherwise.
Unlike general personal jurisdiction, a court’s exercise
of specific jurisdiction requires that the defendant’s
contacts with the forum state relate to the challenged
conduct. There are various formulations of the standard
for establishing specific personal jurisdiction, but they
may be condensed to three essential requirements: (1) the
defendant must have purposefully availed himself of
the privilege of conducting business in the forum state
or purposefully directed his activities at the state,
Burger King, 471 U.S. at 472; (2) the alleged injury must
have arisen from the defendant’s forum-related activities,
id.; and (3) the exercise of jurisdiction must comport
with traditional notions of fair play and substantial justice,
Int’l Shoe, 326 U.S. at 316. See also Tamburo, 601 F.3d at
702; Purdue Research Found., 338 F.3d at 780-81.
No. 11-1839 11
1. Conduct “purposefully directed” at the forum state
The heart of this dispute is whether Clifton’s multiple
communications to the Fellands in Wisconsin are properly
characterized as actions “purposefully directed” at
the forum state with regard to the alleged fraudulent
scheme. Clifton argues (and the district court held)
that any misrepresentations by Clifton occurred in Mexico
and Arizona, and that to the extent the copy of the
PTA that Clifton sent to the Fellands in Wisconsin con-
tained misrepresentations, it was merely the same informa-
tion Felland had already been given in Mexico. The judge
further held, and Clifton reiterates here, that the other
communications to the Fellands in Wisconsin —many of
which occurred after they had paid the full down
payment —are irrelevant to the intentional-misrepresenta-
tion claim. By contrast, Felland argues that the emails,
letters, and phone calls directed to his Wisconsin ad-
dress — both before and after he paid the full
down payment —continuously misled him regarding the
progress of the La Perla Project, induced him to make
the installment payments on the down payment, and
convinced him not to cancel his purchase when he other-
wise might have.
We note at the outset that the nature of the purposeful-
direction/purposeful-availment inquiry depends in
large part on the type of claim at issue. For example,
personal jurisdiction in a breach-of-contract suit generally
turns on whether the defendant purposefully availed
himself of the privilege of conducting business in
the forum state. See, e.g., Tamburo, 601 F.3d at 702;
12 No. 11-1839
Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d
1063, 1071 (10th Cir. 2008). So if Felland had brought
only a breach-of-contract claim, the analysis would likely
be limited to Clifton’s conduct during contract formation
in Mexico. See RAR, 107 F.3d at 1278 (“[I]n a breach
of contract case, it is only the ‘dealings between the parties
in regard to the disputed contract’ that are relevant to mini-
mum contacts analysis.” (quoting Vetrotex Certainteed
Corp. v. Consol. Fiber Glass Prods. Co., 75 F.3d 147, 153
(3d Cir. 1996))). Clifton never advertised in Wisconsin,
nor did he or any of his associates conduct any
actual business there, so the exercise of personal jurisdic-
tion would probably not be appropriate had Felland
brought only a breach-of-contract claim.
But of course, the crux of Felland’s complaint is not
(or not just) Clifton’s failure to deliver the condominium
unit by the promised date. Instead, Felland alleges
that Clifton engaged in a continuous fraudulent course of
conduct —including the repeated communications sent to
his home in Wisconsin —in a knowing and deliberate
attempt to cover up the La Perla Project’s lack of financing,
to deceive him regarding the status of the development,
and to induce him to make the remaining installment
payments on his down payment and not to cancel the
purchase.
Under Wisconsin law a claim of intentional misrepresen-
tation has the following three elements: (1) the defendant
made a false representation of fact; (2) the false representa-
tion was made with the intent to defraud and for
the purpose of inducing another to act on it; and (3) the
No. 11-1839 13
plaintiff relied on the representation to his or her detri-
ment. Korhumel Steel Corp. v. Wandler, 600 N.W.2d 592,
596 (Wis. Ct. App. 1999) (citing Lundin v. Shimanski,
368 N.W.2d 676, 680-81 (Wis. 1985)). The district
court characterized Felland’s decision to bring a fraud
claim instead of a contract claim as a “tactical maneuver,”
but tactical or not, the tort-vs.-contract distinction is
highly significant to the personal-jurisdiction analysis.
Where a plaintiff’s claim is for an intentional tort,
“the inquiry focuses on whether the conduct underlying
the claim[] was purposely directed at the forum state.”
Tamburo, 601 F.3d at 702 (citing Dudnikov, 514 F.3d at 1071).
We explained in Tamburo that the Supreme Court’s
important decision in Calder v. Jones, 465 U.S. 783 (1984),
provides useful contours in conducting the purposeful-
direction analysis in a tort case. In Calder the Court
held that a California court could exercise personal juris-
diction over a reporter and editor for the National
Enquirer, Florida residents who had written and edited an
allegedly libelous article concerning an actress who was
a California resident. Id. at 785-86. The Court turned aside
the defendants’ arguments that they were not responsible
for the tabloid’s distribution in California and had no
stake in its publication there, holding instead that their
intentional and allegedly tortious actions were expressly
aimed at California. Id. at 789. Our opinion in Tamburo
distilled three requirements from Calder for determining
whether conduct was “purposefully directed” at the
forum state: “(1) intentional conduct (or ‘intentional
and allegedly tortious’ conduct); (2) expressly aimed at the
forum state; (3) with the defendant’s knowledge that
14 No. 11-1839
the effects would be felt —that is, the plaintiff would be
injured —in the forum state.” 601 F.3d at 703. If the plaintiff
makes these three showings, he has established that the
defendant “purposefully directed” his activity at the
forum state.
The first and third requirements of Calder are fairly
easily met in this case. As alleged in the complaint,
Clifton’s communications were intentional misrepresenta-
tions under Wisconsin law, which suffices to establish
“intentional and allegedly tortious conduct 2 .” Likewise,
there is no doubt that Clifton knew the alleged harm
would be felt in Wisconsin. Clifton and his associates
knew from the beginning that the Fellands were Wisconsin
residents; their Wisconsin residency was noted in various
documents possessed and signed by Clifton, and
Clifton directed multiple communications via several
different media to the Fellands’ Wisconsin home.
The main disagreement here concerns the second re-
quirement from Calder —whether Clifton’s conduct was
2
We explained in Tamburo that the circuits are divided on
whether Calder’s “express aiming” inquiry includes all of the
defendant’s jurisdictionally relevant intentional acts or only
those intentional acts that are also alleged to be tortious
or otherwise wrongful—in essence, “intentional” vs. “intentional
and allegedly tortious” acts. Tamburo v. Dworkin, 601 F.3d
693, 704 (7th Cir. 2010) (citing cases). We did not need to take
sides in the split in Tamburo, and the same is true here. Felland’s
allegations are sufficient even under the narrower formula
focusing only on the defendant’s “intentional and allegedly
tortious” acts.
No. 11-1839 15
“expressly aimed” at Wisconsin. On this point the
district court made an analytical error. The court held
that the only misrepresentations that counted were those
that occurred prior to contract formation in Mexico;
the judge thought that to the extent that the later communi-
cations contained misrepresentations, they were
“too attenuated to support specific personal jurisdiction.”
Clifton defends this circumscribed focus on appeal,
arguing that our inquiry is limited to the alleged misrepre-
sentations that occurred prior to Felland’s final
down payment on May 7, 2006. Whatever tort was commit-
ted, says Clifton, was committed by this time, and
the subsequent communications could not possibly
give rise to the harm that Felland now alleges.
This argument views the fraud claim too narrowly. It
may well be that the initial fraudulent conduct at
issue here —namely, that Clifton concealed the lack of
financing from Felland from the get-go—occurred in
Mexico. But under Felland’s theory of the case, the myriad
additional communications to his Wisconsin address
were part of a comprehensive and ongoing scheme to
perpetuate this initial fraud. In essence, Felland is arguing
that Clifton’s repeated communications lulled him into
a false sense of security, induced him to pay the install-
ments on his down payment, and reassured him that
there was no reason to cancel his purchase and demand a
refund. It is well established that such “lulling” communi-
cations can be considered part of a larger scheme
to defraud, even after the money itself was obtained.
See, e.g., United States v. Brocksmith, 991 F.2d 1363, 1367-68
(7th Cir. 1993); United States v. Chappell, 698 F.2d 308,
16 No. 11-1839
311 (7th Cir. 1983) (“Precedent has established that the use
of the mails to ‘lull’ victims into a false sense of security
may be ‘for the purpose of executing’ a scheme to defraud,
even though the mailings were made after the money
had been fraudulently obtained.” (citing cases)). And such
lulling communications are relevant to the evaluation
of the defendant’s minimum contacts with the forum state
for purposes of establishing personal jurisdiction in a
case alleging a fraud. See Master Tech Prods., Inc. v.
Smith, 181 F. Supp. 2d 910, 912 (N.D. Ill. 2002) (denying
a motion to dismiss for lack of personal jurisdiction
where the defendant called the plaintiff in his home
state after the defendant had allegedly tricked the plaintiff
into disclosing confidential information, holding that
the phone call “was in furtherance of the scheme to de-
fraud”).
Clifton argues that this case is distinguishable from
Master Tech because the communications at issue here “did
not lull Felland into thinking that his unit would be
delivered on time.” But whether Clifton’s communications
were in fact “lulling” communications that did deceive
Felland is not important on a motion to dismiss for lack of
personal jurisdiction. Felland alleges, and we must accept
as true, that Clifton intentionally misrepresented important
information about the progress and financing of the La
Perla Project. He further alleges that his concerns about the
development caused him to consider suspending his
down payments, backing out of the deal, and demanding
his money back, but that Clifton’s letters, phone calls,
and emails were crucial in assuring him that the project
was proceeding as planned. His claim is not just
No. 11-1839 17
that Clifton intentionally misled him at the time he entered
into the agreement in Mexico, but that Clifton engaged in
an ongoing fraudulent scheme that included several letters,
multiple phone calls, and almost two dozen emails, all
to the Fellands’ home in Wisconsin.3 The point of these
additional communications was to keep the installment
payments coming and to forestall cancellation and a
demand for a refund. Understood from this perspective,
Clifton’s ongoing misrepresentations were “expressly
aimed” at Wisconsin; under the doctrine established
in Burger King and Calder, Clifton’s actions are properly
considered as having been purposefully directed at
the forum state.
2. Injury “arises out of” the defendant’s contacts with
the forum state
Even where a defendant’s conduct is purposefully
directed at the forum state, the plaintiff must also show
3
Of course, email accounts can generally be accessed in any
state, so it may not make much sense to say that they were “sent
to” a Wisconsin address. Nevertheless, Felland does note that
these emails went through the computer server of his Wisconsin-
based internet service provider. And more importantly, Clifton
purposefully sent these emails to Wisconsin residents knowing
that they would most likely be read and have their effect
in Wisconsin. This manner of communication is similar to
mailed letters or telephone calls, so the emails are properly
considered as contributing to Clifton’s minimum contacts with
the forum state.
18 No. 11-1839
that his injury “arises out of” or “relates to” the conduct
that comprises the defendant’s contacts. See Tamburo,
601 F.3d at 708 (citing Burger King, 471 U.S. at 472). We
noted in Tamburo that the Supreme Court has not elabo-
rated on the details of this requirement, and the
circuits have split on how close the causal connection
must be; more specifically, the circuits disagree about
whether the defendant’s contacts must have been
the factual cause of the plaintiff’s injury, the factual and
proximate cause, or perhaps some intermediate standard
between the two. See id. at 708-09 (citing cases); see
also Dudnikov, 514 F.3d at 1078 (outlining this conflict).
We have suggested in passing that a mere “but for” causal
relationship is insufficient to establish the required nexus
between a defendant’s contacts and the underlying
cause of action, see GCIU-Emp’r Ret. Fund v. Goldfarb Corp.,
565 F.3d 1018, 1025 (7th Cir. 2009) (citing O’Connor v.
Sandy Lane Hotel Co., 496 F.3d 312, 322 (3d Cir. 2007)),
but we have declined to definitively resolve the question,
Tamburo, 601 F.3d at 709.
We do not need to decide the matter here because
Felland’s complaint is sufficient even under the strictest
understanding of the “arising out of” requirement. Con-
trary to the district court’s analysis, Felland’s allegations
are sufficient for more than mere but-for causation.
We have already concluded that the communications
at issue here were tortious misrepresentations expressly
aimed at Wisconsin for the purpose of causing injury there.
The communications were not just incidental but
are central to the fraudulent course of conduct alleged
in the complaint, and are sufficient as evidence of both
No. 11-1839 19
the factual and proximate cause of Felland’s alleged injury.
Felland’s injury “arises out of” Clifton’s contacts with
Wisconsin.
3. Traditional notions of fair play and substantial
justice
The final inquiry in the specific-jurisdiction analysis
is whether the exercise of personal jurisdiction over an out-
of-state defendant would offend traditional notions
of fair play and substantial justice. See Int’l Shoe, 326 U.S.
at 316. The following factors are relevant in making
this determination: “the burden on the defendant,
the forum State’s interest in adjudicating the dispute,
the plaintiff’s interest in obtaining convenient and effective
relief, the interstate judicial system’s interest in obtain-
ing the most efficient resolution of controversies, and
the shared interest of the several States in furthering
fundamental substantive social policies.” Burger King,
471 U.S. at 477 (internal quotation marks omitted). Jurisdic-
tional rules may not be employed in a manner that puts
a defendant at a severe disadvantage, but “where a defen-
dant who purposefully has directed his activities at
forum residents seeks to defeat jurisdiction, he must
present a compelling case that the presence of some
other considerations would render jurisdiction unreason-
able.” Id. A party’s concern that a forum is particularly
unfair or inconvenient “usually may be accommodated
through means short of finding jurisdiction unconstitu-
tional.” Id.20 No. 11-1839
Clifton has not discussed this specific aspect of the
jurisdictional analysis in any detail, and it received only
passing attention from the district court. Applying the
Burger King factors, we see no unfairness in permitting this
suit to proceed against Clifton in Wisconsin. First, as
is almost always the case, Wisconsin has a strong interest
in providing a forum for its residents to seek redress
for torts inflicted by out-of-state actors and injuries suf-
fered within the state. Clifton does, of course, face
some burden in being forced to defend an action in another
state, but out-of-state defendants always face such
a burden, and there is no suggestion that Clifton’s hardship
would be any greater than that routinely tolerated
by courts exercising specific jurisdiction against nonresi-
dents. And Felland might well face a heavier burden
if forced to litigate out of state himself because the defen-
dants are spread across two different jurisdictions, one
of which is a foreign country. There is no compelling
reason to assume that a single suit in Wisconsin would
not be the most efficient means of resolving these claims.4
Cf. Tamburo, 601 F.3d at 709-710 (concluding that a single
suit in the plaintiff’s home state would be the most
efficient way to resolve a case with multiple defendants,
one of whom resided in Canada).
4
Although Clifton himself has not raised this point, we are
sensitive to the possibility that he might be facing other lawsuits
from similarly aggrieved purchasers. But even if Clifton faces
the prospect of defending similar suits across multiple jurisdic-
tions, there are other options to address this concern short
of denying personal jurisdiction entirely. See, e.g., 28 U.S.C.
§ 1404 (regarding change of venue).
No. 11-1839 21
The limited extent to which the district court addressed
the specific question of fair play and substantial justice
effectively merged this inquiry with the rest of the
minimum-contacts analysis. For example, the judge
suggested that it would be unfair to subject Clifton to
jurisdiction in Wisconsin “simply because a Wisconsin
resident happened to make a large purchase in Mexico.”
But for the reasons we have already discussed, the
many communications that Clifton purposefully directed
to Wisconsin —including those sent after Felland signed the
PTA and paid the down payment —are properly part of
the personal-jurisdiction analysis for a fraud claim like
this one. The judge also noted that Clifton did not initiate
the communications encouraging Felland to complete
the installment payments, but that fact is irrelevant.
Whether Clifton initiated them or not, under Felland’s
theory of the case, these communications were intentional
misrepresentations directed at the forum state that caused
the harm felt by residents there. Under these circum-
stances, Clifton could reasonably anticipate being
haled into a Wisconsin court. Accordingly, the district
court’s exercise of personal jurisdiction comports
with traditional notions of fair play and substantial justice.
All the requirements of the Due Process Clause are met.
B. Wisconsin’s Long-arm Statute
The district court did not address the question whether
personal jurisdiction is authorized by Wisconsin’s long-
arm statute. Based on our conclusion that the requirements
of due process are satisfied, the statutory issue is
22 No. 11-1839
easily resolved. Wisconsin’s long-arm statute, W IS. S TAT.
§ 801.05, has been interpreted to confer jurisdiction “to
the fullest extent allowed under the due process clause.”
Daniel J. Hartwig Assocs., Inc. v. Kanner, 913 F.2d 1213,
1217 (7th Cir. 1990); see also Kopke v. A. Hartrodt S.R.L.,
629 N.W.2d 662, 668 (Wis. 2001) (“Wisconsin’s long-arm
statute is liberally construed in favor of jurisdiction.”).
Wisconsin courts often treat the personal-jurisdiction
analysis as a two-step process, putting the statutory
question before the constitutional one. See
Kopke, 629 N.W.2d at 667-68. But that framework should
not be taken to imply that the long-arm statute limits
the exercise of personal jurisdiction any more than basic
considerations of due process. To the contrary, the consti-
tutional and statutory questions tend to merge;
compliance with the Wisconsin long-arm statute creates
a presumption that constitutional due process is satisfied,
although the defendant of course has the opportunity
to dispute personal jurisdiction on purely constitutional
grounds. Id. at 671-72. Once the requirements of
due process are satisfied, then there is little need to con-
duct an independent analysis under the specific terms
of the Wisconsin long-arm statute itself because the statute
has been interpreted to go to the lengths of due process.
Still, applying the long-arm statute, we have no trouble
concluding that Felland has established a prima facie
case for personal jurisdiction under the “local act or
omission” provision, which authorizes jurisdiction
“[i]n any action claiming injury to person or property
within or without this state arising out of an act or omis-
sion within this state by the defendant.” W IS. S TAT.
No. 11-1839 23
§ 801.05(3). For the reasons we have already explained,
Felland’s complaint sufficiently alleges that Clifton’s
W isconsin-directed com m unications were inten-
tional misrepresentations designed to deceive the
Fellands as to the progress and financing of the
La Perla Project. This series of alleged misrepresenta-
tions amounts to a “local act” causing “injury to person
or property within . . . this state”; it is well established
that injury through mail or electronic communications
satisfies section 801.05(3). See, e.g., Stein v. Ill. State Assis-
tance Comm’n, 535 N.W.2d 101, 105 (Wis. Ct. App.
1995) (affirming personal jurisdiction under section
801.05(3) where plaintiff had received several threatening
letters from the defendant at his Milwaukee address).
Clifton relies on a line of cases holding that in some
circumstances letters, telephone calls, or other communica-
tions sent from out of state are insufficient to satisfy
the “local act or omission” provision of section 801.05(3).
Coté v. Wadel, 796 F.2d 981 (7th Cir. 1986), is a representa-
tive example. Coté held that a handful of letters and
phone calls between a Michigan attorney and a Wisconsin
resident did not create personal jurisdiction for a malprac-
tice suit against the attorney in Wisconsin. Id. at 984.
But Felland does not claim, and we do not hold,
that letters, phone calls, and emails always constitute
“acts or omissions” under the Wisconsin long-arm statute,
any more than such communications always establish
minimum contacts for due-process purposes. The
more precise question is whether the particular Wisconsin-
directed communications at issue here were part of
the wrongful conduct that forms the basis of the claim.
24 No. 11-1839
In Coté, for example, the handful of interstate communi-
cations between the parties were at best only tenuously
connected to the conduct underlying the malpractice
suit. The “act or omission” at the heart of the claim was
the lawyer’s failure to prosecute a case and failure
to cooperate with another attorney, both of which took
place entirely in Michigan. Id. Here, in contrast, Clifton’s
communications to Felland at his Wisconsin home
are themselves a key component of Felland’s claim
for intentional misrepresentation. These communications
satisfy section 801.05(3).
For the foregoing reasons, we R EVERSE the district court’s
decision dismissing this case for lack of personal jurisdic-
tion and R EMAND for further proceedings consistent
with this opinion.
6-6-12