Steel Warehouse of Wisconsin, Inc. And Steel Warehouse Co., Inc. v. Howard H. Leach and Henry C. McMicking

RIPPLE, Circuit Judge,

dissenting..

In my view, the fundamental misstep in the majority’s analysis is its emphasis on the lack of presence of the defendants within the state of Wisconsin and on the precise activities that the defendants conducted while within the confines of the state. The appropriate focus of due process analysis1 ought to be on the activity that the defendants caused the corporation to undertake within the state. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (“Thus where the defendant ‘deliberately’ has engaged in significant activities within a State, ... or has created ‘continuing obligations’ between himself and residents of the forum, ... he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by ‘the benefits and protections’ of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.” (internal citations omitted)); Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (holding that conduct in Florida had caused sufficient “effects” in California to justify jurisdiction in California); WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (stating that defendant corporations “carry on no activity whatsoever in Oklahoma” and holding that personal jurisdiction in Oklahoma was not proper).

The gravamen of the complaint is that the defendants, in their capacity as directors of a corporation whose principal place of doing business was in Wisconsin, caused the corporation to misrepresent certain financial information to its suppliers and therefore defrauded those suppliers. 1 think that it is quite compatible'with contemporary notions of due process to conclude that it is fundamentally fair to require that the directors answer for such alleged conduct in the State of Wisconsin oh the basis that their alleged activity caused harm within the state. See Pittsburgh Terminal Corp. v. Mid Allegheny Corp., 831 F.2d 522, 529 (4th Cir.1987) (stating that “a director of a corporation has created a continuing obligation between himself and the corporation, one which inures significantly to the director’s benefit, not to mention that of the. corporation” and holding therefore that jurisdiction in West Virginia over nonresident directors of West Virginia corporation was appropriate, even though *716those directors were never actually in West Virginia); Simmons v. Templeton, 684 So.2d 529, 534 (La.Ct.App.1996) (holding that jurisdiction was proper in Louisiana over nonresident directors of a Louisiana corporation who had been in Louisiana only to attend a meeting to approve the transaction that was at issue in the underlying litigation; stating that “the transactions created fiduciary duties on the part of the nonresident directors flowing to Louisiana residents” and therefore that “the directors engaged in activities which created a continuing obligation between themselves and the Louisiana residents”). Indeed, even those eases that have denied jurisdiction in similar situations have noted that the result would have been different if it had been alleged that the defendants had participated in activities having a significant effect in the state. See, e.g., Kleinerman v. Morse, 26 Mass.App.Ct. 819, 533 N.E.2d 221, 225 (1989) (although declining to extend jurisdiction over nonresident directors at that point in the proceedings, stating that “[i]f the facts as developed show that [the directors] participated in activities having a relevant and significant effect in Massachusetts, they may be added as parties on appropriate motion at a later stage of the ease”).2 Given that the defendants in this case were alleged to have caused harm in Wisconsin through their relationship with that state as directors overseeing a corporation with its principal place of business in Wisconsin, it is appropriate to exercise personal jurisdiction over them.

Moreover, we must also consider, as World-Wide Volkswagen Corp. counsels, the very significant interest of the State of Wisconsin in serving as the forum for a suit involving the conduct of directors of a corporation that has its principal place of doing business in that state. See World-Wide Volkswagen Corp., 444 U.S. at 292, 100 S.Ct. 559.

Accordingly, I would reverse the judgment of the district court and hold that Wisconsin had an adequate specifically affiliating nexus with the directors and their alleged misfeasance to permit the exercise of personal jurisdiction over them.

. Although the typical inquiry would first be to inquire whether jurisdiction is appropriate under the Wisconsin long arm statute prior to addressing due process constraints, there does not appear to be any question here as to whether the Wisconsin long arm statute, see Wis. Stat. § 801.05, would permit jurisdiction if the actions of the defendants committed harm within the state. In addition, because Wisconsin interprets its statute to reach as far as due process will allow, see Zerbel v. H.L. Federman & Co., 48 Wis.2d 54, 179 N.W.2d 872, 875 (1970), I focus here on the due process requirements.

. As a final note, it also does not appear that the fiduciary shield doctrine would shield the defendants under Wisconsin law. The fiduciary shield is an equitable principle that is employed by courts to defeat personal jurisdiction over corporate officials when the only contacts those individuals have with the forum in question are made in their corporate capacity. See Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir.1994) ("This doctrine ... denies personal jurisdiction over an individual whose presence and activity in the state in which the suit is brought were solely on behalf of his employer or other principal.” (internal citations omitted)), cert. denied, 514 U.S. 1111, 115 S.Ct. 1964, 131 L.Ed.2d 855 (1995). In light of various statements made by the Supreme Court and widespread criticism leveled against the doctrine, its continued viability has been questioned by many courts. See generally Mobil Oil Corp. v. Advanced Envtl. Recycling Techs., Inc., 833 F.Supp. 437, 440-43 (D.Del.1993) (reviewing fiduciary shield doctrine and considering, inter alia, the impact of the Supreme Court's decisions in Calder and Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), on the doctrine). It appears that Wisconsin most likely would not consider the shield to bar jurisdiction in this case. See Oxmans' Erwin Meat Co. v. Blacketer, 86 Wis.2d 683, 273 N.W.2d 285, 289 (1979) ("We do not think it appropriate or required by the constitution that a corporate agent be shielded from personal jurisdiction if he, as agent of the corporation, commits a tortious act in the forum.”).