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Estate of Winnig v. Bank of America, N.A.

United States District Court, W.D. Wisconsin

April 17, 2019

ESTATE OF SUSAN WINNIG by Joel Winnig, Special Administrator, Plaintiff,
BANK OF AMERICA, N.A., Defendant.



         Plaintiff Estate of Susan Winnig alleges that defendant Bank of America, N.A. (“BOA”) failed to honor three of its travelers checks purchased by Winnig's father, William Rubnitz, and presented by Susan for payment at one of its branch banks in Memphis, Tennessee. Before the court is defendant's motion to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). (Dkt. #12.) For the reasons set forth below, the court will grant that motion.

         ALLEGED FACTS[1]

         On an unknown date before 2006, BOA issued three travelers checks to William Rubnitz through a “correspondent bank” in Wisconsin. Rubnitz passed away in Wisconsin in 2006, and his wife passed away in Tennessee in 2017. As part of settling her own personal and financial affairs as a terminal cancer patient, Susan Winnig took possession of the travelers checks as her parents' heir and sought to cash them out. After allegedly being advised by a BOA representative that the travelers checks “would be paid if presented in person, ” Winnig presented the travelers checks for payment at a BOA branch in Memphis, Tennessee in June of 2017. Nevertheless, even though physically, the BOA branch refused Winnig to redeem the travelers checks, allegedly causing Winnig distress. This lawsuit followed.


         As a general matter, a federal court may exercise personal jurisdiction over a nonresident defendant “whenever the person would be amenable to suit under the laws of the state in which the federal court sits (typically under a state long-arm statute), subject always to the constitutional due process limitations encapsulated in the familiar ‘minimum contacts' test.” KM Enters., Inc. v. Global Traffic Technologies, Inc., 725 F.3d 718, 723 (7th Cir. 2013). Wisconsin's long-arm statute, Wis.Stat. § 801.05, confers jurisdiction to the maximum extent allowed by the due process clause. See Felland v. Clifton, 682 F.3d 665, 678 (7th Cir. 2012) (“Once the requirements of due process are satisfied, then there is little need to conduct 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.”).

         Plaintiff has the burden of establishing personal jurisdiction. See Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir. 2010). On a motion to dismiss in particular, plaintiff need only make a prima facie showing of jurisdictional facts, with all well-pleaded facts are taken as true. Id. Still, plaintiff must show that defendant purposely established minimum contacts in the forum state such that it “should reasonably anticipate being haled into court there.” Id. at 701 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). The nature of defendant's contacts with the forum state determines the propriety of personal jurisdiction, while the nature of the claims made determines whether personal jurisdiction is general or specific. Id.

         Plaintiff suggests that this court's exercise of general jurisdiction over BOA would be fair, particularly given its apparent participation in thousands of past lawsuits in the State of Wisconsin, but plaintiff principally relies on specific jurisdiction as the basis of proceeding against BOA in this case. General jurisdiction is appropriate where a defendant's affiliations with the forum state “are so constant and pervasive as to render it essentially at home in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 122 (2014) (internal citations omitted). For a corporation, the most “easily ascertainable” and “unique” bases for establishing forum states are the states in which defendant maintains it principal place of business and in which it is incorporated, although there are not the only possible states of citizenship for personal jurisdiction. Id. at 137; Kipp v. Ski Enter. Corp. of Wis., 783 F.3d 695, 699 (7th Cir. 2015) (acknowledging that “Goodyear and Daimler may have left some room for the exercise of general jurisdiction in the absence of incorporation or principal place of business in the forum state”).

         While plaintiff asks the court to take judicial notice of numerous examples of BOA's past participation in litigation in Wisconsin, that approach is in doubt after the Supreme Court's decisions in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011), and Daimler. See Craig Sanders, Note, Of Carrots and Sticks: General Jurisdiction and Genuine Consent, 111 Northwestern L. Rev. 1323 (2017); see also Daimler, 571 U.S. 117. Regardless, plaintiff's general citations to past litigation -- much of which involve BOA being haled into this state involuntarily based on existence of specific jurisdiction as to those claims or as a plaintiff pursuing a defendant only available for suit in this state -- fail to meet the “high threshold” needed to establish general jurisdiction. See Tamburo, 601 F.3d at 701. The court thus turns to the issue of specific jurisdiction.

         Specific jurisdiction is appropriate where the defendant's contacts with the forum state directly relate to the conduct underlying the claims asserted in the lawsuit itself. Tamburo, 601 F.3d at 702. Specific jurisdiction may be exercised where: (1) defendant purposefully directed its activities at the forum state or purposefully availed itself of the privilege of conducting business in the forum state; (2) the alleged injury arose out of those forum-related activities; and (3) doing so would comport with the traditional notions of fair play and substantial justice required by the Fourteenth Amendment's Due Process Clause. Id.; Brook v. McCormley, 873 F.3d 549, 552 (7th Cir. 2017), reh'g and suggestion for reh'g en banc denied (Nov. 14, 2017) (citing Tamburo for proposition that the” contacts with the forum State [must] be directly related to the conduct pertaining to the claims asserted”).

         Whether a defendant “purposefully directed” their conduct at a forum state depends on the nature of the underlying claim at issue. Id. A breach of contract claim may give rise to specific jurisdiction where the defendant “purposefully availed” itself of the privilege of conducting business or engaging in a transaction in the forum state. Id. at 702. On the other hand, where a plaintiff's claim is for an intentional tort, “the inquiry focuses on whether the conduct underlying the claims was purposefully directed at the forum state.” Id. The Seventh Circuit has explained that tortious conduct is “purposefully directed” at a forum state where intentional conduct was expressly aimed at the forum state and defendant knew that the plaintiff would be injured in the forum state. Id. at 703.

         Not surprisingly, since it is likely outcome determinative as to personal jurisdiction, the parties dispute the essential nature of plaintiff's claim at issue here. Plaintiff asserts that the claim sounds in contract, originally stemming as it does from defendant's issuance of the travelers checks in Wisconsin through a correspondence bank some time before 2006. Plaintiff focuses then on BOA's alleged commercial activities in Wisconsin at the time the travelers checks were issued, arguing that: (1) its practice of selling travelers checks, even if only through a third-party agent, in this state was purposefully directed at Wisconsin residents; and (2) BOA availed itself of the privilege of conducting business in Wisconsin.

         In contrast, defendant asserts that the nature of plaintiff's claim sounds in tort, stemming as it does from BOA's alleged refusal to cash the travelers checks in Tennessee in 2017. Focusing on the conduct that allegedly caused the injury to Winnig and gave rise to her claim -- the refusal to cash the travelers checks in Tennessee -- defendant argues the relevant conduct has no connection to Wisconsin. BOA further asserts that because the defendant is not located in Wisconsin and the injury did not occur in Wisconsin, the allegedly tortious conduct was not “directed at” Wisconsin and cannot give rise to specific jurisdiction in Wisconsin.

         In reviewing the amended complaint, the court concludes that the essential claim here is for the wrongful conversion of a negotiable instrument. See, e.g., Schmitz v. Firstar Bank Milwaukee,2003 WI 21, 260 Wis.2d 658 N.W.2d 442 (holding that Wis.Stat. § 403.201 -- Wisconsin's adoption of the U.C.C. -- is to be applied to a claim of conversion of a negotiable instrument). Of course, plaintiff rightly points out that a negotiable instrument is a contract between seller (here, BOA) and buyer (here, William Rubnitz), albeit apparently one now some sixty years old, and BOA's refusal to honor Mr. Rubnitz's presentation of the check for payment would constitute a breach, as arguably would a refusal to pay anyone he may designate as payee on the check.[2] Perhaps the Estate could even assert a ...

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