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