United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER, MAGISTRATE JUDGE.
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.
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.
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:
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
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.
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,
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.
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)
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 ...