United States District Court, W.D. Wisconsin
ERIC HOLMES, on behalf of himself and all others similarly situated, Plaintiff,
SID'S SEALANTS, LLC, NORTH SHORE RESTORATION, LLC, and SID ARTHUR, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
Eric Holmes alleges that he and a group of similarly situated
workers were deprived of wages and overtime pay by defendants
Sid Arthur and his two companies, Sid's Sealants, LLC,
and North Shore Restoration, LLC. Plaintiff brings a
collective action under 29 U.S.C. § 216(b) of the Fair
Labor Standards Act (“FLSA”), as well as claims
under Wisconsin law. Before the court is a renewed motion to
dismiss or transfer this action in which defendants assert if
the action is allowed to proceed at all, then it should be
venued in the Eastern District of Wisconsin where all of the
parties and counsel reside. (Dkt. #19.) Because venue is
proper in this district and any arguable inconvenience of
litigating this case in the Western District is outweighed by
the deference due plaintiff's choice of forum, the court
will deny defendants' motion.
Holmes resides in Milwaukee, Wisconsin, where the principal
courthouse for the Eastern District is located. Nevertheless,
Holmes elected to bring his claim for wage theft and
prevailing wage violations in the Western District of
Wisconsin, whose principal courthouse is in Madison, roughly
80 miles away. In support of his choice of venue, Holmes
asserts that he and other employees performed a substantial
amount of work in the Western District on behalf of the
defendants, at least some of which contributed to their
claims in this case. (Am. Compl. (dkt. #17) ¶ 4.)
so, both corporate defendants share a primary business
address in Port Washington, Wisconsin, not far from Milwaukee
and squarely within the Eastern District. Moreover, company
policy is set at those headquarters, and all payroll and
time-keeping records are made and stored there. (Aff. of
Sidney Arthur (dkt. #11) ¶ 4.) Defendant Arthur also
resides in Port Washington, and counsel for both parties
maintain offices within walking distance of the Eastern
District courthouse in Milwaukee.
Washington is 103 miles from Madison and 27 miles from
Milwaukee, according to Google Maps. The drive from Port
Washington to Madison takes approximately one hour and 40
minutes; Port Washington to Milwaukee takes about 30 minutes.
Motion to Dismiss
is little merit in defendant's motion to dismiss this
action for improper venue under Fed.R.Civ.P. 12(b)(3). When
all defendants are residents of one state, venue is proper in
any district where a defendant resides. 28 U.S.C. §
1391(b)(1). A corporation “resides” in a district
when its contacts in that district would suffice to establish
personal jurisdiction if that district were a separate state.
28 U.S.C. § 1391(d). Thus, in a state with multiple
judicial districts, such as Wisconsin, venue is proper in any
district where a corporation would be subject to personal
jurisdiction if that district were a separate state. KM
Ents., Inc. v. Global Traffic Techs., Inc., 725 F.3d
718, 724 (7th Cir. 2013); see also Fabio v. Diversified
Consultants, Inc., No. 13-cv-524, 2014 WL 713104, at *5
(W.D. Wis. Feb. 25, 2014) (accepting the parties'
argument that “venue for suits against corporations is
proper in a district in which a corporation would otherwise
be subject to personal jurisdiction”) (internal
quotation marks omitted). While the plaintiff bears the
burden of establishing jurisdiction, the court resolves all
disputes concerning relevant facts in the plaintiff's
favor. Purdue Research Found. v. Sanofi-Synthelabo,
S.A., 338 F.3d 773, 782 (7th Cir. 2003). Given that
there is no dispute that defendant Sid Arthur does not reside
in the Western District, plaintiff must demonstrate that this
court has personal jurisdiction over at least one of the
corporate defendants to defeat the motion to dismiss for
KM Enterprises, both parties devote a portion of
their briefs to disputing the scope and applicability of
Wisconsin's long-arm statute to defendants, rather than
focusing on due process. However, applying this test, which
emerged in the diversity context, to a case in which all
parties reside in Wisconsin is pointless since doing so
renders the first element superfluous here. 725 F.3d at 723.
In fact, this case need not involve Wisconsin's long-arm
statute at all, since it is but one avenue of demonstrating
amenability to process under Rule 4. Swaim v. Moltan
Co., 73 F.3d 711, 719-20 (7th Cir. 1996). Even if the court
were to conduct the analysis along those lines, the result
would remain the same since that statute authorizes personal
jurisdiction to the maximum extent permitted by due process.
See Felland v. Clifton, 682 F.3d 665, 678 (7th Cir.
2012) (holding that the Wisconsin long-arm statute is
generally coextensive with due process).
Rule of Civil Procedure 4 states that “[s]erving a
summons . . . establishes personal jurisdiction over a
defendant . . . who is subject to the jurisdiction of a court
of general jurisdiction in the state where the district court
is located.” Fed.R.Civ.P. 4(k)(1)(A). Wisconsin state
courts of general jurisdiction have personal jurisdiction
over individuals domiciled within the state and over domestic
corporations. Wis.Stat. § 801.05(1). Because defendants
in this case comprise two domestic Wisconsin corporations and
one individual domiciled in Wisconsin, they are subject to
the personal jurisdiction of the state courts under the
state's jurisdictional statute. It follows from Rule 4
that service of summons establishes personal jurisdiction in
any district court based in Wisconsin. Defendants are,
therefore, amenable to process in the Western District of
separate determination as to this court's exercise of
personal jurisdiction over defendants for purposes of due
process generally is only a slightly closer question because
the Western District of Wisconsin is treated like a separate
state from its sister district to the east. See 28
U.S.C. § 1391(d); KM Ents., 725 F.3d at 724;
De Ortiz, 910 F.2d at 381. To satisfy due process,
plaintiff must prove that: (1) defendants have purposefully
availed themselves of the privilege of conducting business in
the district or purposefully directed their activities here;
(2) the alleged injury has arisen from defendants'
forum-related activities; and (3) the exercise of
jurisdiction comports with traditional notions of fair play
and substantial justice. Felland, 682 F.3d at 673
(internal quotation marks omitted).
taking the uncontested facts in the complaint as true,
defendants have purposefully availed themselves of the
privilege of conducting business in the Western District.
Although the bulk of the companies' work occurs in the
Eastern District, their employees appear to have travelled
extensively to do work at far-flung jobsites. (Am. Compl.
(dkt. #17) ¶¶ 17-23.) According to plaintiff, a
substantial amount of that work performed on these excursions
occurred in the Western District. (Id. at ¶ 4.)
Although none of the defendants maintain a normal place of
business within the Western District, “lack of physical
presence in the forum . . . is not determinative of personal
jurisdiction.” Fabio, 2014 WL 713104, at *3
(brackets omitted) (citing Daniel J. Hartwig Assocs.,
Inc. v. Kanner, 913 F.2d 1213, 1219 n.3 (7th Cir.
1990)). Because the defendants voluntarily conducted business
in the Western District, therefore, the first due process
element is satisfied.
second element of the due process test is also satisfied. As
discussed above, plaintiff asserts that a substantial amount
of work and travel time took place in the Western District.
Those unpaid (or underpaid) hours form part of the claims in
this case. Although the amount of work and travel done in the
Western District may be minor relative to the hours spent in
the Eastern District, the fact that a smaller proportion of
the alleged wrongful activity occurred in this district does
not remove personal jurisdiction. Cf. Sentry Select Ins.
Co. v. McCoy Corp., 980 F.Supp.2d 1072, 1076 (W.D. Wis.
2013) (“Nowhere in the Wisconsin law or due process
does personal jurisdiction hinge upon an analysis of the
percentage of defendant's own sales in the forum
state.”). The only time when the district ...