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Eurochem Trading USA Corp. v. Ganske

United States District Court, W.D. Wisconsin

March 7, 2019

EUROCHEM TRADING USA CORPORATION, Plaintiff,
v.
W. KENT GANSKE, individually and d/b/a and sole proprietor of AG CONSULTANTS, and JULIE L. GANSKE, Defendants. W. KENT GANSKE, individually and d/b/a AG CONSULTANTS, and JULIE GANSKE, Counter-Plaintiffs and Third-Party Plaintiffs, and WS AG CENTER, INC., Third-Party Plaintiffs,
v.
EUROCHEM TRADING USA CORPORATION, Plaintiff and Counter-Defendant, and EUROCHEM GROUP AG, SCOTT SIMON, IVAN BOASHERLIEV, BENTREI FERTILIZER, LLC and BEN-TREI, LTD., Third-Party Defendants.

          OPINION AND ORDER

          STEPHEN L. CROCKER, MAGISTRATE JUDGE.

         This case presents disputes arising from plaintiff EuroChem Trading USA Corporation's (ECTUS's) sale of agricultural chemicals to one or more agri-businesses owned or controlled by defendant W. Kent Ganske, a Wisconsin resident. In a third-party complaint related to the underlying lawsuit, W. Kent and Julie Ganske, AG Consultants, and WS AG Center, Inc. (“WSAG”) - to whom I will refer collectively as “Ganske”- allege that third-party defendant Scott Simon, the chief financial officer of ECTUS and the other corporate third-party defendants, spread false and malicious rumors about the financial stability of Ganske's businesses to Ganske's customers and vendors, in violation of federal and Wisconsin state law related to tortious interference with contract, misrepresentation and deceptive practices, trade secrets, and defamation. See dkt. 15, ¶¶ 59-61.

         Now before the court is Simon's motion to dismiss the third-party complaint against him for lack of personal jurisdiction. Dkt. 43. For the reasons stated below, I am denying the motion.

         From the complaint and the documents submitted by the parties in connection with the pending motion, I draw the following facts, solely for the purpose of deciding this motion:

         JURISDICTIONAL FACTS

         Scott Simon has been a resident of Oklahoma since 2000 and is the chief financial officer of plaintiff EuroChem Trading USA Corporation (“ECTUS”) and third party defendants Ben-Trei Fertilizer Company, LLC (“BT Fertilizer”) and Ben-Trei, Ltd. (“Ben-Trei”). Simon has never resided in Wisconsin, he only visited Wisconsin once 10 years ago for 24 hours, and he does not personally do any business in Wisconsin. Simon's employers- ECTUS, BT Fertilizer, and Ben-Trei-sell and ship products to customers located in Wisconsin.

         In November and December, 2017, Simon contacted four of Ganske's creditors (or suppliers) located in Wisconsin to discuss the possibility of filing an involuntary bankruptcy proceeding against Ganske. Simon left messages with two of the creditors, but his calls were not returned and Simon never spoke with anyone at the two companies. With respect to the remaining two creditors, Simon had a single, brief telephone conversation with a representative at each company, which consisted of Simon reading a script prepared for the creditor calls identifying ECTUS as a creditor of AG Consultants and WSAG, explaining the nature of an involuntary bankruptcy case and the filing requirements for one, and asking if the creditor would be interested in joining such a proceeding. Simon avers that he spoke with or left messages for the chief financial officer, controller, or credit manager of each respective creditor and that he never attempted to speak to any sales person or employee involved in buying or purchasing.

         Simon has not disclosed whom he called or the contents of the script that he used, but Ganske has submitted the contents of a message that Simon left on December 14, 2017 for Steve Guetter, the Executive Vice President of Finance at Rosen's Inc., which has headquarters in Minnesota and extensive operations in Wisconsin. In his message to Guetter, Simon states:

Hello Steve my name is Scott Simon, I am the CFO for Eurochem North America, including Eurochem Trading USA, we have a mutual customer - Creditor in the form of WS Ag/Ag Consultants, I have a prepared statement from Counsel concerning a petition against WS Ag/Ag Consultants for an involuntary bankruptcy proceeding, I would like to have an opportunity to read the prepared statement from Counsel and then determine if any future steps are interested or future action between us in that endeavor would make sense for your organization. So if you could give me a call at your earliest convenience I would appreciate it . . .
Guetter Aff., dkt. 51, exh. 1 at ¶ 12.

         OPINION

         I. Legal Standard

         On a motion to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2), the burden of proof rests on the party asserting jurisdiction-here, Ganske-to make a prima facie showing of personal jurisdiction over the moving party. Hyatt International Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002). In deciding the motion, the court must take as true all well-pleaded facts alleged in the complaint and resolve “all disputes concerning relevant facts presented in the record” in Ganske's favor. Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003) (quoting Nelson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir. 1983)); see also Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir. 2010) (quoting same).

         A federal court has personal jurisdiction over a non-consenting, nonresident defendant to the extent authorized by the law of the state in which that court sits, Giotis v. Apollo of the Ozarks, Inc.,800 F.2d 660, 664 (7th Cir. 1986), unless the federal statute at issue permits nationwide service or the defendant is not subject to personal jurisdiction in any state in the United States, see Fed.R.Civ.P. 4(k)(1) and Janmark, Inc. v. Reidy,132 F.3d 1200, 1201-02 (7thCir. 1997). Because the parties do not assert that either of ...


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