Tamburo v. Dworkin

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2406

JOHN F. T AMBURO doing business as

M AN’S B EST F RIEND S OFTWARE and

V ERSITY C ORPORATION,

Plaintiffs-Appellants,

v.

S TEVEN D WORKIN , K RISTEN H ENRY,

R OXANNE H AYES, K AREN M ILLS, and

W ILD S YSTEMS P TY L TD.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 3317—Joan B. Gottschall, Judge.

A RGUED F EBRUARY 26, 2009—D ECIDED A PRIL 8, 2010

Before B AUER, K ANNE, and S YKES, Circuit Judges.

S YKES, Circuit Judge. John Tamburo, an Illinois resident

who operates a dog-breeding software business in Illinois,

filed suit in the Northern District of Illinois alleging

federal and state antitrust violations and several inten-

2 No. 08-2406

tional tort claims under Illinois law. His claims arise out

of a dispute over the contents of a dog-pedigree soft-

ware program he developed by lifting data from the

defendants’ websites. He alleges the defendants used the

Internet to retaliate against him for copying their online

data, which he contends was in the public domain. The

defendants are a Canadian proprietor of a dog-pedigree

website who has never visited or transacted business in

Illinois; three Americans who likewise maintain dog-

pedigree websites and are residents of Colorado, Michigan,

and Ohio with only sporadic contacts with Illinois; and

an Australian software company with insignificant sales

in Illinois. This appeal requires us to apply long-estab-

lished rules for asserting personal jurisdiction over

foreign defendants to the relatively new setting of torts

committed over the Internet.

Tamburo alleges that the individual Canadian and

American defendants engaged in a concerted campaign of

blast emails and postings on their websites accusing him

of stealing their data and urging dog enthusiasts to boy-

cott his products. He also claims they sent some of these

messages to the owner of the Australian company, who

reposted them to a private dog-breeder listserve. These

emails and Internet postings, Tamburo claims, violate

federal and state antitrust laws, were defamatory and

tortiously interfered with his software business, and

constituted a civil conspiracy to boot. The defendants

moved to dismiss for lack of personal jurisdiction and

alternatively for failure to state a claim. The district court

dismissed the case against all defendants for lack of

personal jurisdiction.

No. 08-2406 3

We affirm in part and reverse in part. First, Tamburo’s

federal and state antitrust allegations are woefully inade-

quate under Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007); we affirm the dismissal of those claims on the

alternative basis that they fail to state a claim. Without

a viable federal claim, personal jurisdiction is deter-

mined under Illinois’ long-arm statute, which authorizes

jurisdiction to the full extent permitted by the United

States Constitution. 735 ILL. C OMP. STAT. 5/2-209(c). General

personal jurisdiction is lacking here; none of the defen-

dants has continuous and systematic contacts with Illinois.

Applying Calder v. Jones, 465 U.S. 783 (1984), we conclude

that specific personal jurisdiction lies in Illinois over

the individual Canadian and American defendants on

Tamburo’s intentional tort claims. These defendants are

alleged to have used their websites—or in the case of

the Canadian defendant, blast emails to the online dog-

pedigree community—to defame and tortiously generate

a consumer boycott against Tamburo, knowing that he

lived and operated his software business in Illinois and

would be injured there. Indeed, some of the messages

specifically listed Tamburo’s Illinois address and urged

readers to harass him. This is enough for a prima facie

case of personal jurisdiction under Calder’s “express

aiming” test for personal jurisdiction in intentional-tort

cases. The case for personal jurisdiction over the Australian

company is much weaker. Tamburo alleged only that

the owner of the company received messages from the

other defendants and reposted them on a private listserve.

There is no allegation that he disseminated the messages

more broadly or that he knew that Tamburo operated

his business in Illinois. Accordingly, Tamburo’s allega-

4 No. 08-2406

tions are insufficient to establish a prima facie case for

specific personal jurisdiction over the Australian company.

I. Background 1

John Tamburo, doing business as Man’s Best Friend

Software, lives and operates his business in Illinois. He

designs software for use by dog breeders and noncommer-

cial dog enthusiasts. 2 One of his products, an online

database called The Breeder’s Standard, provides custom-

ers with access to dog-pedigree information. To create the

database, Tamburo developed an automated computer

program that scanned the Internet for information

about dog pedigrees. He then incorporated the data he

retrieved into The Breeder’s Standard.

Defendants Kristen Henry, Roxanne Hayes, Karen Mills,

and Steven Dworkin are proprietors of public websites

that provide free access to dog-pedigree information.

Henry, a Colorado citizen and resident, also breeds and

shows dogs. Hayes, a Michigan citizen and resident, raises,

1

Because this case comes to us from a jurisdictional dismissal

on the pleadings, we take the factual background from the Sixth

Amended Complaint, and where not contradictory, from

affidavits submitted by the parties in connection with their

motion to dismiss.

2

Tamburo was also the president and sole shareholder of

Versity Corporation, the other plaintiff in this suit. Versity

dissolved in May 2004 just before this lawsuit was filed and

appears as a plaintiff by virtue of 805 I LL . C OMP . S TAT. 5/12.80,

the Illinois statute authorizing postdissolution survival of

actions.

No. 08-2406 5

shows, and “places” dogs but does not commercially breed

them. Mills, a citizen and resident of Ohio, raises and

shows dogs. Dworkin, a Canadian citizen who resides

in Ottowa, also raises and shows dogs.3

Tamburo pulled much of the information included in The

Breeder’s Standard from the websites operated by Henry,

Hayes, Mills, and Dworkin. In retaliation Henry, Hayes,

and Mills posted statements on their websites accusing

Tamburo of “theft,” “hacking,” and “selling stolen goods,”

and calling on readers to boycott his products. They also

posted Tamburo’s Illinois address on their websites and

urged readers to contact him to harass him and otherwise

complain. Dworkin retaliated in a different way. First, he

emailed Tamburo and demanded that he remove the

“blatent [sic] theft of data” from The Breeder’s Standard

“within 5 days.” If Tamburo failed to do so, Dworkin

threatened to “publish to each and every dog[-]based list

the sleazy methods” of Tamburo’s operation. When

Tamburo did not comply, Dworkin emailed “all persons

who had a free online database of dog pedigrees on the

Internet” saying that Tamburo’s product contained pedi-

gree data that was “stolen,” “mined,” and “harvested” for

improper “commercial use,” and suggested that all propri-

etors of online dog-pedigree databases “band together to

stop this theft” of their data.

The fifth defendant is Wild Systems Pty Ltd., an Austra-

lian software company that offers a pedigree software

program called Breedmate. Wild Systems also runs a

3

Dworkin died during the pendency of this appeal; defendants’

counsel represents his estate.

6 No. 08-2406

private online Yahoo! email listserve for customers who

have purchased the Breedmate software. Ronald DeJong,

the owner and president of Wild Systems, manages this

email list and must approve any message sent to it. The

individual defendants sent DeJong messages for posting

on the Breedmate listserve; these messages, like the

others, protested that Tamburo had stolen their data.

DeJong in turn transmitted these messages to the

Breedmate listserve. Later, DeJong and the individual

defendants organized a closed Internet chat group—called

the “APDUG Group” 4 —for users of Alfirin software, a

product used to manage dog-pedigree databases. In

messages posted to the APDUG Group, the individual

defendants again accused Tamburo of “theft,” “selling

stolen goods,” and “hacking.”

Tamburo sued the five defendants in the Northern

District of Illinois, seeking a declaratory judgment that

he did not violate any federal law by incorporating the

defendants’ databases into his software. He also sought

damages for federal and state antitrust violations

and asserted claims for defamation, tortious interfer-

ence with existing contracts and prospective economic

advantage, trade libel, and civil conspiracy under Illinois

law.5

The defendants moved to dismiss the complaint for

lack of personal jurisdiction and failure to state a claim.

4

“APDUG” stands for Alfirin Pedigree Database Users Group.

5

Tamburo estimates he lost over $525,000 in sales as a result

of the defendants’ conduct.

No. 08-2406 7

See F ED. R. C IV. P. 12(b)(2), 12(b)(6). The district court

concluded that personal jurisdiction was lacking as to

all defendants and dismissed the case without con-

sidering the alternative failure-to-state-a-claim argu-

ments. Tamburo moved for reconsideration, asking the

court to transfer the case to the Western District of Michi-

gan. This motion was denied and Tamburo appealed.

II. Discussion

A. Antitrust Claims

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the

Supreme Court clarified the pleading requirements for

antitrust claims: “[A] formulaic recitation of the elements

of a cause of action will not do. Factual allegations must

be enough to raise a right to relief above the speculative

level.” Id. at 555-56 (citations and all caps omitted).

“Because § 1 of the Sherman Act does not prohibit [all]

unreasonable restraints of trade . . . but only restraints

effected by a contract, combination, or conspiracy, . . .

[t]he crucial question is whether the challenged

anticompetitive conduct stem[s] from independent deci-

sion or from an agreement, tacit or express . . . .” Id. at 553

(internal quotation marks and citations omitted) (alter-

ations in original). Accordingly, a complaint alleging

an antitrust claim must contain “enough factual matter

(taken as true) to suggest that an agreement was made.” Id.

at 556. In addition, depending on the nature of the

claim, the complaint must plausibly plead the existence

of an antitrust injury; this requires factual allegations

suggesting that the “claimed injuries are of the type the

8 No. 08-2406

antitrust laws were intended to prevent and reflect the

anticompetitive effect of either the violation or of

anticompetitive acts made possible by the violation.”

Kochert v. Greater Lafayette Health Servs., Inc., 463 F.3d 710,

716 (7th Cir. 2006) (internal quotation marks omitted).

Tamburo’s antitrust claims are pleaded in a wholly

conclusory fashion; as such, it is hard to tell what kind

of antitrust violation he is trying to assert. The com-

plaint contains no factual allegations suggesting the

existence of an antitrust conspiracy or an antitrust injury.

The federal claim alleges only that the defendants pos-

sessed “monopoly power in the relevant market of dog

breeding data,” which they acquired “by means of

anticompetitive and/or predatory conduct,” and that

this “violated provisions of Federal Antitrust statutes

including 15 U.S.C. [§§] 1, et seq.” This appears to sweep

in the entire gamut of federal antitrust violations, but

there are no allegations whatsoever regarding an

antitrust injury. The complaint alleges only that Tamburo

“has been damaged” as a result of “the wrongful acts of

Defendants.” This manner of pleading a federal antitrust

claim is plainly improper under Twombly.

Tamburo’s attempt to plead a state-law antitrust viola-

tion fares no better. The complaint asserts a claim under

the Illinois Antitrust Act, 740 ILL. C OMP. S TAT. 10/1 et seq.,

which parallels the federal Sherman and Clayton Acts.

But this section of the complaint simply repeats the

inadequate allegations contained in the federal antitrust

claim. Because federal pleading standards apply when

we sit in diversity, Windy City Metal Fabricators & Supply,

Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 670 (7th Cir.

No. 08-2406 9

2008), Tamburo’s state antitrust claim, like his federal

one, fails to state a claim upon which relief can be

granted. Accordingly, both claims were properly dis-

missed, though on Rule 12(b)(6) grounds rather than

Rule 12(b)(2) grounds.

B. Personal Jurisdiction

We review a dismissal for lack of personal jurisdiction

de novo. GCIU-Employer Ret. Fund v. Goldfarb Corp., 565

F.3d 1018, 1023 (7th Cir. 2009). The plaintiff has the

burden of establishing personal jurisdiction, and where,

as here, the issue is raised by a motion to dismiss and

decided on the basis of written materials rather than

an evidentiary hearing, 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). At this stage, therefore, we take as

true all well-pleaded facts alleged in the complaint and

resolve any factual disputes in the affidavits in favor of

the plaintiff. Id. (“In evaluating whether the prima facie

standard has been satisfied, the plaintiff is entitled to

the resolution in its favor of all disputes concerning

relevant facts presented in the record.” (internal quota-

tion marks omitted)).

Where no federal statute authorizes nationwide

service of process,6 personal jurisdiction is governed by

6

Tamburo argues that nationwide service of process was

authorized pursuant to Rule 4(k)(1)(c) of the Federal Rules

(continued...)

10 No. 08-2406

the law of the forum state. F ED. R. C IV. P. 4(k)(1)(A); see

also Citadel Group Ltd. v. Wash. Reg’l Med. Ctr., 536 F.3d

757, 760 (7th Cir. 2008). A court’s exercise of personal

jurisdiction may be limited by the applicable state statute

or the federal Constitution; the Illinois long-arm statute

permits the exercise of jurisdiction to the full extent

permitted by the Fourteenth Amendment’s Due Process

Clause, 735 ILL. C OMP. S TAT. 5/2-209(c), so here the state

statutory and federal constitutional inquiries merge. See

Citadel Group Ltd., 536 F.3d at 761. The key question is

therefore whether the defendants have sufficient “mini-

mum contacts” with Illinois such that the maintenance

6

(...continued)

of Civil Procedure, together with § 22 of the Clayton Act, 15

U.S.C. § 22, or alternatively, under Rule 4(k)(2). Both juris-

dictional bases, however, require a claim arising under federal

law. Because Tamburo failed to adequately plead a federal

antitrust claim, these jurisdictional options drop out of the case.

We note for completeness that the circuits are divided over

the proper interpretation of the venue and service-of-

process language in § 22 of the Clayton Act. See In re Auto.

Refinishing Paint Antitrust Litig., 358 F.3d 288, 293-97 (3d Cir.

2004) (describing the circuit split). This circuit has not yet

addressed the matter, and because we are affirming the dis-

missal of the federal antitrust claim for failure to state a claim,

we need not do so here. Moreover, as Tamburo’s counsel

properly conceded at oral argument, the presence of a claim

under the Declaratory Judgment Act, 28 U.S.C. § 2201, does not

supply a basis for acquiring personal jurisdiction over the

defendants under Rule 4(k)(1)(C) or Rule 4(k)(2). See Commercial

Nat’l Bank of Chi. v. Demos, 18 F.3d 485, 490 (7th Cir. 1994).

No. 08-2406 11

of the suit “does not offend traditional notions of fair

play and substantial justice.” Int’l Shoe Co. v. Washington,

326 U.S. 310, 316 (1945) (internal quotation marks omitted).

Stated differently, each defendant must have pur-

posely established minimum contacts with the forum

state such that he or she “should reasonably anticipate

being haled into court” there. Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 474 (1985) (quotation marks

omitted). But jurisdiction cannot be avoided “merely

because the defendant did not physically enter the forum

State.” Id. at 476. The Supreme Court has observed that “a

substantial amount of business is transacted solely by

mail and wire communications across state lines, thus

obviating the need for physical presence within a State

in which business is conducted.” Id. Still, we have 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).

The Due Process Clause “gives some minimum assurance

as to where that conduct will and will not render them

liable to suit.” World-Wide Volkswagen v, Woodson, 444

U.S. 286, 297 (1980).

1. General Personal Jurisdiction

The nature of the defendant’s contacts with the forum

state determines the propriety of personal jurisdiction

and also its scope—that is, whether jurisdiction is

proper at all, and if so, whether it is general or specific to

12 No. 08-2406

the claims made in the case. A defendant with “contin-

uous and systematic” contacts with a state is subject to

general jurisdiction there in any action, even if the action

is unrelated to those contacts. Helicopteros Nacionales

de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984). The

threshold for general jurisdiction is high; the contacts

must be sufficiently extensive and pervasive to approxi-

mate physical presence. Purdue Research Found., 338 F.3d

at 787 & n.16. As such, isolated or sporadic contacts—such

as occasional visits to the forum state—are insufficient

for general jurisdiction. Burger King, 471 U.S. at 475. Nor

is the maintenance of a public Internet website suf-

ficient, without more, to establish general jurisdiction.

See Bird v. Parsons, 289 F.3d 865, 874 (6th Cir. 2002).

Illinois cannot exercise general personal jurisdiction

over any of the defendants in this case. Henry has been

to Illinois only twice in ten years. Hayes has been to Illinois

approximately 5 times and has placed 13 dogs with

families in Illinois but did not receive any profits from

these placements. She sold three copies of her book to

individuals in Illinois through her website. Mills grew

up in Illinois but moved away in 1979 and has only trav-

eled back twice since then. Dworkin, the Canadian defen-

dant, has never “been to, stopped in or passed through”

Illinois. Each of the individual defendants maintains a

public website obviously accessible by Illinois residents,

but as we have noted, that is not enough to establish

general personal jurisdiction. Finally, Wild Systems, the

corporate defendant, is an Australian company located

in New South Wales, Australia. It has no offices in

Illinois (or anywhere in the United States, for that matter),

No. 08-2406 13

nor has it ever had a distributor in Illinois. Since it was

incorporated in 1996, Wild Systems has had a total of

$8,634 in sales to customers in Illinois. These sporadic

contacts with Illinois do not approach the level of “contin-

uous and systematic” contacts necessary to establish

general personal jurisdiction.

2. Specific Personal Jurisdiction

The question of specific personal jurisdiction is much

more difficult. To support an exercise of specific per-

sonal jurisdiction, the defendant’s contacts with the

forum state must directly relate to the challenged con-

duct or transaction; we therefore evaluate specific per-

sonal jurisdiction by reference to the particular conduct

underlying the claims made in the lawsuit. See GCIU-

Employer Ret. Fund, 565 F.3d at 1024. Specific personal

jurisdiction is appropriate where (1) the defendant has

purposefully directed his activities at the forum state or

purposefully availed himself of the privilege of con-

ducting business in that state, and (2) the alleged injury

arises out of the defendant’s forum-related activities.

Burger King, 471 U.S. at 472. The exercise of specific per-

sonal jurisdiction must also comport with traditional

notions of fair play and substantial justice as required by

the Fourteenth Amendment’s Due Process Clause. Int’l

Shoe, 326 U.S. at 316. This case primarily concerns the

question whether the defendants “purposefully directed”

their conduct at the forum state.

14 No. 08-2406

a. Conduct “purposefully directed” at the forum state

The purposeful-direction inquiry “can appear in dif-

ferent guises.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc.,

514 F.3d 1063, 1071 (10th Cir. 2008). Personal jurisdiction in

breach-of-contract actions often turns on whether the

defendant “purposefully availed” himself of the privilege

of conducting business or engaging in a transaction in

the forum state. See id.; Schwarzenegger v. Fred Martin

Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). But where,

as here, the plaintiff’s claims are for intentional torts, the

inquiry focuses on whether the conduct underlying

the claims was purposely directed at the forum state.

Dudnikov, 514 F.3d at 1071; see also Calder v. Jones,

465 U.S. 783, 790 (1984). In all cases the point of the pur-

poseful-direction requirement is to “ensure that an out-of-

state defendant is not bound to appear to account for

merely ‘random, fortuitous, or attenuated contacts’ with

the forum state.” Dudnikov, 514 F.3d at 1071 (quoting

Burger King, 471 U.S. at 475).

The Supreme Court’s decision in Calder provides some

contours for the “purposeful direction” requirement in the

context of a suit alleging intentional torts. Calder gave

significant weight to the “effects” of a foreign defendant’s

conduct within the forum state. In Calder actress Shirley

Jones—star of movie musicals and the 1970s television

show The Partridge Family—filed suit in California

against the National Enquirer, its local distributor, and the

writer and editor of an allegedly libelous article that

appeared in the Enquirer. 465 U.S. at 785-86. The Enquirer

is a Florida corporation headquartered in Florida, and

No. 08-2406 15

the writer and editor were Florida residents; the

individual defendants challenged personal jurisdiction in

California. They argued that they were not responsible

for the tabloid’s distribution in California and had no

economic stake in the publication’s sales there, and the

fact that they could foresee the article would be distrib-

uted and have an effect on Jones in California was not

sufficient to confer personal jurisdiction. The Supreme

Court disagreed, focusing on the effects of the article on

its target in California: “[P]etitioners are not charged with

mere untargeted negligence. Rather, their intentional, and

allegedly tortious, actions were expressly aimed at Cali-

fornia.” Id. As the Court explained,

Petitioner South wrote and petitioner Calder edited an

article that they knew would have a potentially devas-

tating impact upon [Jones]. And they knew that the

brunt of that injury would be felt by respondent in the

State in which she lives and works and in which

the National Enquirer has its largest circulation.

Under these circumstances, petitioners must reason-

ably anticipate being haled into court there to answer

for the truth of the statements made in their article.

An individual injured in California need not go to

Florida to seek redress from persons who, though

remaining in Florida, knowingly cause[d] the injury

in California.

Id. at 789-90 (internal quotation marks and citations

omitted).

Calder thus suggests three requirements for personal

jurisdiction in this context: (1) intentional conduct (or

16 No. 08-2406

“intentional and allegedly tortious” conduct); (2) expressly

aimed at the forum state; (3) with the defendant’s knowl-

edge that the effects would be felt—that is, the plaintiff

would be injured—in the forum state. See Dudnikov, 514

F.3d at 1072; IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254,

265-66 (3d Cir. 1998). Extracting these requirements from

Calder is reasonably straightforward; applying them in

specific cases—especially cases like this one alleging

tortious acts committed over the Internet—is more chal-

lenging.7

7

The parties and the district court have approached the

jurisdictional question in this case by reference to the specialized

framework proposed in Zippo Manufacturing Co. v. Zippo Dot

Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), for cases in which

the challenged conduct occurs over the Internet. Zippo devised

an alternative minimum-contacts test for Internet-based claims.

As a general matter, the court in Zippo suggested that “the

likelihood that personal jurisdiction can be constitutionally

exercised is directly proportionate to the nature and quality of

commercial activity that an entity conducts over the Internet.”

Id. at 1124. More specifically, the court articulated a sliding-

scale analysis that considers the degree of “interactivity” of a

website to determine whether the electronic contacts with the

forum are sufficient to satisfy International Shoe’s standard:

At one end of the spectrum are situations where a defendant

clearly does business over the Internet. If the defendant

enters into contracts with residents of a foreign jurisdiction

that involve the knowing and repeated transmission of

computer files over the Internet, personal jurisdiction is

proper. At the opposite end are situations where a defen-

(continued...)

No. 08-2406 17

7

(...continued)

dant has simply posted information on an Internet Web

site which is accessible to users in foreign jurisdictions. A

passive Web site that does little more than make infor-

mation available to those who are interested in it is not

grounds for the exercise [of] personal jurisdiction. The

middle ground is occupied by interactive Web sites

where a user can exchange information with the host

computer. In these cases, the exercise of jurisdiction is

determined by examining the level of interactivity and

commercial nature of the exchange of information that

occurs on the Web site.

952 F. Supp. at 1124 (citations omitted).

Some circuits have followed Zippo when “electronic contacts”

over the Internet are at issue. See, e.g., Revel v. Lidov, 317 F.3d

467, 470 (5th Cir. 2002) (“This circuit has drawn upon the

approach of Zippo . . . in determining whether the operation of

an internet site can support minimum contacts necessary for

the exercise of personal jurisdiction.”); ALS Scan, Inc. v. Digital

Serv. Consultants, Inc., 293 F.3d 707, 713 (4th Cir. 2002)

(“we adopt today the model developed in Zippo”); Cybersell, Inc.

v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997) (examining

a website’s level of interactivity in order to conduct the

minimum-contacts analysis). We have not specifically done

so, although we have considered a website’s degree of

interactivity in at least one personal-jurisdiction case. See

Jennings v. AC Hydraulic A/S, 383 F.3d 546, 549-50 (7th Cir. 2004).

Jennings did not involve intentional-tort claims, however, and

therefore has limited relevance here. As a more general matter,

we hesitate to fashion a special jurisdictional test for Internet-

based cases. Calder speaks directly to personal jurisdiction in

(continued...)

18 No. 08-2406

1. “Intentional” acts or “intentional and allegedly

tortious” acts

The circuits are divided over whether Calder’s “express

aiming” inquiry includes all jurisdictionally relevant

intentional acts of the defendant or only those acts that

are intentional and alleged to be tortious or otherwise

wrongful. Compare Marten v. Godwin, 499 F.3d 290, 297 (3d

Cir. 2007) (focusing on defendant’s intentional and alleg-

edly tortious or wrongful acts), with Yahoo! Inc. v. La Ligue

Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199, 1206

(9th Cir. 2006) (en banc) (considering all jurisdictionally

relevant intentional acts); see also Dudnikov, 514 F.3d at

1072-73 (outlining this conflict). We need not take sides

in this debate. Tamburo alleges that the individual defen-

dants intentionally published defamatory statements

on their websites or in blast emails. He further alleges

that this conduct tortiously interfered with his business,

constituted a trade libel, and that the defendants entered

7

(...continued)

intentional-tort cases; the principles articulated there can be

applied to cases involving tortious conduct committed over

the Internet. See Hy Cite Corp. v. Badbusinessbureau.com, L.L.C.,

297 F. Supp. 2d 1154, 1161 (W.D. Wis. 2004) (declining to adopt

Zippo as a substitute for the traditional minimum-contacts

analysis); C. Douglas Floyd & Shima Baradaran-Robison,

Toward a Unified Test of Personal Jurisdiction in an Era of Widely

Diffused Wrongs: The Relevance of Purpose and Effects, 81 I ND . L.J.

601, 657-58 (2006) (arguing that “a unique test of personal

jurisdiction should not be adopted for cases involving wrongs

committed by means of the Internet”).

No. 08-2406 19

into a conspiracy to commit these wrongful acts against

him. These are intentional-tort allegations, bringing this

case squarely within the Calder formula even if the scope

of the inquiry is more narrowly focused on the alleged

tortious acts.

2. “Express aiming” and knowledge that plaintiff

would be injured in forum state

In Calder the Supreme Court emphasized that the defen-

dants were not “charged with mere untargeted negli-

gence,” but instead had “expressly aimed” their alleged

libel at California, where they knew Jones lived and

worked and would suffer the “brunt of th[e] injury.”

465 U.S. at 789-90. As an analytical matter, Calder’s “ex-

press aiming” inquiry overlaps with the question

whether the defendant knew the plaintiff would suffer

the injury in the forum state, so we consider the two

requirements together.

Some circuits have read Calder’s “express aiming”

requirement fairly broadly, requiring only conduct that

is “targeted at a plaintiff whom the defendant knows to

be a resident of the forum state.” Bancroft & Masters, Inc. v.

Augusta Nat’l Inc., 223 F.3d 1082, 1087 (9th Cir. 2000).

Others have read it more narrowly to require that the

forum state be the “focal point of the tort.” Dudnikov,

514 F.3d at 1074 n.9; see also IMO Indus., Inc., 155 F.3d at

263-65 (“the Calder ‘effects test’ can only be satisfied if

the plaintiff can point to contacts which demonstrate that

the defendant expressly aimed its tortious conduct at the

20 No. 08-2406

forum, and thereby made the forum the focal point of the

tortious activity”); ESAB Group, Inc. v. Centricut, Inc., 126

F.3d 617, 625 (4th Cir. 1997) (conduct must be “intention-

ally targeted at and focused on” the forum state).

Our circuit hasn’t firmly settled on either of these under-

standings of Calder’s “express aiming” requirement.

Indeed, two of our decisions—Wallace v. Herron, 778 F.2d

391 (7th Cir. 1985), and Janmark, Inc. v. Reidy, 132 F.3d 1200

(7th Cir. 1997)—are in some tension regarding the

proper reading of Calder.

In Wallace the question was whether Indiana could

exercise jurisdiction over California defendants who were

sued by an Indiana resident for malicious prosecution

when the allegedly tortious conduct occurred exclusively

in California. Applying Calder, we held that jurisdiction

was not proper in Indiana; in so holding we focused on

the relationship between the defendants’ actions and the

forum state itself, not just on the relationship between

those actions and the plaintiff’s injury. 778 F.2d at 395

(noting that the defendants did not undertake any “action

that created the necessary connection with Indiana”).

We concluded that Calder did not alter the prevailing

jurisdictional requirement that the defendant must

engage in conduct that “create[s] a ‘substantial connec-

tion’ with the forum State.” Id.

Janmark took a broader view of Calder. There, shopping-

cart competitors Janmark and Dreamkeeper sold mini

shopping carts throughout the United States—Dream-

keeper from California and Janmark from Illinois. 132 F.3d

at 1202. Dreamkeeper accused Janmark of infringing its

No. 08-2406 21

copyright in a particular shopping-cart design, but

Janmark refused Dreamkeeper’s demand to stop manu-

facturing the carts. Dreamkeeper contacted a Janmark

customer in New Jersey and threatened the customer

with a contributory-infringement suit if it did not stop

purchasing carts from Janmark. Janmark sued Dream-

keeper in Illinois on a variety of intentional-tort and

intellectual-property theories, and we held that Illinois

could exercise personal jurisdiction over Dreamkeeper.

Id. Noting first that “the location of the injury . . . is vital

to understanding where the tort occurred,” we made

this observation about Calder: “[T]here can be no serious

doubt after Calder . . . that the state in which the victim

of a tort suffers the injury may entertain a suit against

the accused tortfeasor.” Id. We then concluded that

“inducing the customers of an Illinois firm to drop their

orders can be a tort in Illinois[,] and . . . whether or not

it is a tort in Illinois, it is actionable in Illinois.” Id. at 1203.

In other words, jurisdiction was proper in Janmark be-

cause the defendant’s express aim was to tortiously

interfere with an Illinois company’s sales and because

the injury occurred in Illinois.

Another case—one specifically relied on in Janmark—is

also instructive here. Indianapolis Colts, Inc. v. Metropolitan

Baltimore Football Club Ltd. Partnership, 34 F.3d 410, 412

(7th Cir. 1994), involved a suit for copyright infringe-

ment by the National Football League’s Indianapolis

Colts against the Canadian Football League’s Baltimore

Colts—the latter team having been established after the

NFL Colts moved from Baltimore to Indianapolis. We held

that jurisdiction in Indiana was proper under Calder

22 No. 08-2406

because the Indianapolis team’s injury occurred in that

state and because the cable-television broadcasts of the

Canadian team’s games could be considered an “entry”

into Indiana in the same sense that the Enquirer’s dis-

tribution of its tabloid was considered an “entry” into

California in Calder. Id. We noted that in Calder and in

other cases finding jurisdiction based on the Calder ap-

proach, “the defendant had done more than brought

about an injury to an interest located in a particular

state.” Id.

Janmark is hard to reconcile with Wallace and to a lesser

extent, with Indianapolis Colts—at least if Janmark is under-

stood as broadly authorizing personal jurisdiction wher-

ever a tort victim is injured.8 Both Wallace and Indianapolis

Colts read Calder to require a forum-state injury and

“something more” directed at that state before jurisdic-

tion over a foreign defendant may be considered proper.

Importantly, however, the holding in Janmark ultimately

focused on more than the fact that the injury had

8

To the extent Janmark is understood to hold that jurisdiction is

proper wherever the injury occurs, at least one of our sister

circuits has questioned it. See IMO Indus., Inc., 155 F.3d at 263-64

(“We believe [Janmark] interpreted Calder too broadly when it

read that case to hold that the state in which the victim of a tort

suffers the injury may entertain a suit against the accused

tortfeasor. . . . [S]uch a broad sweep fails to accommodate

Calder’s emphasis on the fact that the forum must be the focal

point of the harm and that the defendant must expressly aim

the tortious activity at the forum.” (internal quotation marks

and citation omitted)).

No. 08-2406 23

occurred in Illinois; Janmark’s jurisdictional conclusion

was premised on the Illinois-based injury and the fact

that the defendant acted with the purpose of interfering

with sales originating in Illinois. Thus, despite its broad

language about Calder, Janmark ultimately considered the

relationship between the allegedly tortious conduct and the

forum state itself. See Nerds on Call, Inc. (Indiana) v. Nerds on

Call, Inc. (California), 598 F. Supp. 2d 913, 919 (S.D. Ind.

2008) (Hamilton, J.) (“In [Janmark], the injury was in

Illinois, but Janmark was specifically targeted by a Cali-

fornia company who induced a New Jersey party to

break its contract with Janmark.”).

This case involves both a forum-state injury and tortious

conduct specifically directed at the forum, making the

forum state the focal point of the tort—at least with

respect to the individual defendants. (We will discuss

the corporate defendant in a moment.) Moreover, if the

cable-television broadcasts of Baltimore Colts football

games could be considered an electronic “entry” into

Indiana for purposes of personal jurisdiction in Indiana-

polis Colts, then the individual defendants’ use of their

public websites to defame an Illinois-based businessman

and exhort readers to boycott his products can likewise

be conceptualized as an electronic “entry” into Illinois

for jurisdictional purposes.

More specifically, Dworkin, Henry, Hayes, and Mills are

each alleged to have published false and defamatory

statements about Tamburo, either on their public websites

or in blast emails to other proprietors of online dog-

pedigree databases. In some of these messages, readers

24 No. 08-2406

were encouraged to boycott Tamburo’s products; in

others, Tamburo’s Illinois address was supplied and

readers were urged to contact and harass him. The com-

plaint also alleges that Dworkin personally contacted

Tamburo by email, accusing him of “theft” and demanding

that he remove the “stolen” data from The Breeder’s

Standard. Dworkin threatened to expose Tamburo’s “theft”

to the online dog-pedigree community if he did not

comply. Dworkin, Henry, Hayes, and Mills engaged in

this conduct with the knowledge that Tamburo lived in

Illinois and operated his business there; their affidavits

do not deny this. Thus, although they acted from points

outside the forum state, these defendants specifically

aimed their tortious conduct at Tamburo and his

business in Illinois with the knowledge that he lived,

worked, and would suffer the “brunt of the injury” there.9

These allegations suffice to establish personal jurisdic-

9

We note the circuits are also divided on the proper way to

understand Calder’s emphasis on the defendant’s knowledge

of where the “brunt of the injury” would be suffered. Compare

Dudnikov, 514 F.3d at 1072 (requiring the defendant to have

“knowledge that the brunt of the injury would be felt in the

forum state”) and IMO Indus., Inc., 155 F.3d at 265 (same), with

Yahoo!, 433 F.3d at 1207 (“[T]he ‘brunt’ of the harm need not be

suffered in the forum state. If a jurisdictionally sufficient

amount of harm is suffered in the forum state, it does not

matter that even more harm might have been suffered in

another state.”). Again, we need not enter the fray; here, the

whole of the injury was suffered in Illinois, and the individual

defendants knew that would be the case. As we explain later,

however, the same cannot be said of Wild Systems, the Austra-

lian corporate defendant.

No. 08-2406 25

tion over these defendants under either a broad or a

more restrictive view of Calder.

The Tenth Circuit’s decision in Dudnikov supports this

conclusion. In Dudnikov a Connecticut-based company

notified the online auction host eBay, based in California,

that a line of prints featured in an eBay auction infringed

its copyright. eBay responded by cancelling the auction

for the prints. The online sellers of the prints lived and

operated their business in Colorado; they filed a copy-

right suit in Colorado against the Connecticut-based

company. The district court dismissed the case for lack

of personal jurisdiction. 514 F.3d at 1068-69. In a compre-

hensive decision, the Tenth Circuit reversed. Although

the Connecticut company’s conduct originated outside

of Colorado and was technically directed at eBay in

California, its express goal was to halt sales of an online

auction item originating in Colorado. This satisfied

Calder’s “express aiming” requirement and was sufficient

to establish personal jurisdiction over the Connecticut

company in Colorado. Id. at 1075. The court offered the

following analogy to help explain its decision:

[The defendant’s conduct] is something like a bank

shot in basketball. A player who shoots the ball off of

the backboard intends to hit the backboard, but he

does so in the service of his further intention of

putting the ball into the basket. Here, defendants

intended to send the [copyright notice] to eBay in

California, but they did so with the ultimate purpose

of cancelling plaintiffs’ auction in Colorado. Their

“express aim” thus can be said to have reached into

26 No. 08-2406

Colorado in much the same way that a basketball

player’s express aim in shooting off of the backboard

is not simply to hit the backboard, but to make

a basket.

Id.

Although the circumstances here are not easily

analogized to a basketball bank shot, we take the Tenth

Circuit’s point and agree with its analysis. Here, the

individual defendants purposely targeted Tamburo and

his business in Illinois with the express goal of inflicting

commercial and reputational harm on him there, even

though their alleged defamatory and otherwise tortious

statements were circulated more diffusely across the

Internet.10 Tortious acts aimed at a target in the forum

10

In a case involving a stand-alone Internet-based defamation,

Calder might require a showing that the defendant intended to

reach forum-state readers. See Young v. New Haven Advocate, 315

F.3d 256, 263 (4th Cir. 2002) (In a suit filed by a Virginia resident

in Virginia district court against Connecticut newspapers for a

defamatory online news article, “[s]omething more than

posting and accessibility is needed . . . . The newspapers must,

through the Internet postings, manifest an intent to target and

focus on [forum-state] readers.”). Because the newspaper in

Young—the New Haven Advocate—clearly targeted a local

audience, the case suggests that when a local publication posts

an article on its website, jurisdiction in another state may be

proper only if the publication specifically targets forum-state

readers. But the analysis may be more complex when, for

example, a truly national publication, such as USA Today, is

(continued...)

No. 08-2406 27

state and undertaken for the express purpose of

causing injury there are sufficient to satisfy Calder’s

express-aiming requirement. See Dudnikov, 514 F.3d at

1078 (“actions that ‘are performed for the very purpose

of having their consequences felt in the forum state’ are

more than sufficient to support a finding of purposeful

direction under Calder” (quoting Finley v. River N. Records,

Inc., 148 F.3d 913, 916 (8th Cir. 1998))). Accordingly,

we conclude that Dworkin, Henry, Hayes, and Mills

“purposefully directed” their activities at Illinois; this

prerequisite for the exercise of personal jurisdiction

in Illinois has been met.

The same is not true, however, of Wild Systems, the

Australian corporate defendant. Recall that DeJong,

the owner and president of Wild Systems, allegedly

10

(...continued)

sued for defamation arising out of an article on its website. In

that context the Supreme Court’s decision in Keeton v. Hustler

Magazine, Inc., 465 U.S. 770 (1984), is instructive. In Keeton the

Court held that New Hampshire could exercise jurisdiction

over a nationally circulated magazine, based in Ohio, when an

article in the magazine defamed a New York resident. Empha-

sizing that the magazine “was a national publication aimed at

a nationwide audience” and that it “continuously and deliber-

ately exploited the [New Hampshire] market,” the Court

concluded that “[t]here is no unfairness in calling [the magazine]

to answer for [its] contents . . . wherever a substantial number

of copies are regularly sold and distributed.” Id. We note,

however, that the very broad conception of jurisdiction envi-

sioned in Keeton likely applies only rarely.

28 No. 08-2406

facilitated the posting of some of the individual defen-

dants’ tortious messages on the company’s private

Breedmate Yahoo! email listserve. The complaint does not

say how many, nor does it describe the content of the

messages that were reposted onto the listserve. It

does not allege, for example, that DeJong reposted

emails specifically calling for a boycott of Tamburo’s

Illinois-based business. And unlike the individual defen-

dants, there are no allegations that DeJong or anyone

else associated with Wild Systems acted with the knowl-

edge that Tamburo operated his business in Illinois or

with the specific purpose of inflicting injury there. In

short, we cannot conclude that DeJong’s reposting of an

unspecified number of messages of unspecified (but

tortious) content to a private listserve of unspecified

scope and reach is enough to establish that Wild

Systems “expressly aimed” its allegedly tortious con-

duct at Illinois. As such, the claims against Wild

Systems were properly dismissed for lack of personal

jurisdiction.

b. Injury “arises out of” the defendants’ contacts

with forum state

Our conclusion that the individual defendants’ conduct

was “purposely directed” at the forum state does not end

the jurisdictional inquiry. Tamburo’s injury must “arise

out of” or “relate to” the conduct that comprises the

defendants’ contacts with the forum. See Burger King, 471

U.S. at 472. The Supreme Court has not elaborated on this

requirement, see Helicopteros, 466 U.S. at 415 n.10, and the

No. 08-2406 29

occasional difficulty in applying it has led to conflict

among the circuits.1 1

The First Circuit has held that at least with respect to

intentional tort claims, the defendant’s contacts with the

forum must constitute both the cause in fact and the

proximate cause of the injury. Mass. Sch. of Law at Andover,

Inc. v. Am. Bar Ass’n, 142 F.3d 26, 35 (1st Cir. 1998). The

Ninth and Fifth Circuits, on the other hand, require

only that the contacts constitute a but-for cause of the

injury. Doe v. Am. Nat’l Red Cross, 112 F.3d 1048, 1051 n.7

(9th Cir. 1997); Prejean v. Sonatrach, Inc., 652 F.2d 1260, 1270

n.21 (5th Cir. 1981); see generally Dudnikov, 514 F.3d at 1078

(outlining this conflict); Miller Yacht Sales, Inc. v. Smith, 384

F.3d 93, 102-05 (3d Cir. 2004) (Scirica, C.J., concurring

in part and dissenting in part) (same).

The Third Circuit has taken a middle-ground approach,

holding that “specific jurisdiction requires a closer and

more direct causal connection than that provided by the

but-for test,” but has not adopted a precise rule, opting

instead to proceed on a case-by-case basis. O’Connor v.

Sandy Lane Hotel Co., 496 F.3d 312, 323 (3d Cir. 2007).

Because personal jurisdiction can be conceptualized as a

quid pro quo by which the defendant submits to the

forum’s jurisdiction in exchange for the benefit of its

laws, the Third Circuit suggests that “[t]he causal con-

nection can be somewhat looser than the tort concept of

11

The Supreme Court granted certiorari on this issue in

Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 589 (1991), but

decided the case on other grounds.

30 No. 08-2406

proximate causation, but it must nonetheless be intimate

enough to keep the quid pro quo proportional and per-

sonal jurisdiction reasonably foreseeable.” Id. (citation

omitted).

We have not weighed in on this conflict and need not do

so here.12 Under even the most rigorous approach to the

determination of whether the plaintiff’s injury “arises

out of” the defendant’s contacts with the forum state,

Tamburo’s injury clearly does. We have already concluded

that Dworkin, Henry, Hayes, and Mills expressly aimed

their allegedly tortious conduct at Tamburo and his

Illinois-based business for the purpose of causing him

injury there; these “contacts” with the forum state are

the cause in fact and the legal cause of Tamburo’s in-

jury. That is, Tamburo’s claims arise directly out of the

individual defendants’ contacts with Illinois. See RAR, 107

F.3d at 1278 (in a contract case, holding that “the action

must directly arise out of the specific contacts between

12

An additional approach, adopted by the Second Circuit, is a

sliding-scale analysis that considers the connection between

the contacts and the lawsuit. See Chew v. Dietrich, 143 F.3d 24,

29 (2d Cir. 1998). Under this analytical framework, “the rela-

tionship between the contacts and the suit can be weaker

when the contacts themselves are more extensive.” Dudnikov,

514 F.3d at 1078 (discussing this approach). We rejected this

approach in RAR, instead concluding that aggregating con-

tacts in this manner would not provide a defendant adequate

notice that a particular transaction or act would subject him

to the forum state’s jurisdiction. 107 F.3d at 1277; see also

Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 716-17 (7th Cir. 2002).

No. 08-2406 31

the defendant and the forum state’ ” (quoting Sawtelle v.

Farrell, 70 F.3d 1381, 1389 (1st Cir. 1999) (emphasis

added in RAR))).

c. Traditional notions of fair play and substantial

justice

Our final inquiry is whether Illinois’ exercise of personal

jurisdiction over Dworkin, Henry, Hayes, and Mills would

offend traditional notions of fair play and substantial

justice. See Int’l Shoe, 326 U.S. at 316. The following

factors are relevant: “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 obtaining

the most efficient resolution of controversies, and the

shared interest of the several States in furthering funda-

mental substantive social policies.” Burger King, 471 U.S.

at 477 (internal quotation marks omitted). Applying

these factors here, we see no unfairness in permitting

this suit to proceed against the individual defendants in

Illinois.

First, Illinois has a strong interest in providing a

forum for its residents and local businesses to seek redress

for tort injuries suffered within the state and inflicted

by out-of-state actors. Although Tamburo could have

sued the individual defendants in their home jurisdic-

tions, that would have been cumbersome and impractical;

the American defendants live in separate states and

Dworkin lives in Canada. Neither Canada nor any of the

states where the American defendants live (Colorado,

32 No. 08-2406

Michigan, or Ohio) has a substantial interest at stake here.

And it would be unreasonable to expect Tamburo to file

separate lawsuits to give each defendant the privilege of

defending this litigation in his or her home state when

jurisdiction is otherwise proper in Illinois. Under these

circumstances, it is far more reasonable to conclude that

the defendants should anticipate being haled into court

in Tamburo’s home state of Illinois than a court in a

codefendant’s home jurisdiction. A single suit in Illinois

also promotes the most efficient resolution of these

claims. See Logan Prods., Inc. v. Optibase, Inc., 103 F.3d 49, 54

(7th Cir. 1996). Accordingly, we conclude that the exer-

cise of personal jurisdiction in Illinois over Dworkin,

Henry, Hayes, and Mills comports with traditional

notions of fair play and substantial justice.

For the foregoing reasons, we A FFIRM the district court’s

order dismissing all counts against Wild Systems for lack

of personal jurisdiction and also A FFIRM the dismissal of

the antitrust claims against all defendants for failure to

state a claim. We R EVERSE the district court’s order dis-

missing the state-law tort claims against Dworkin, Henry,

Hayes, and Mills for lack of personal jurisdiction and

R EMAND the case for further proceedings.

4-8-10