In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2658
M OBILE A NESTHESIOLOGISTS C HICAGO, LLC,
an Illinois limited liability company,
Plaintiff-Appellant,
v.
A NESTHESIA A SSOCIATES OF H OUSTON M ETROPLEX, P.A.,
a Texas professional association,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-00941—Charles R. Norgle, Sr., Judge.
A RGUED A PRIL 2, 2010—D ECIDED O CTOBER 1, 2010
Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Plaintiff Mobile Anesthesiolo-
gists Chicago is a company based in Chicago that con-
tracts with medical offices to provide on-site anesthesia
services. Defendant Anesthesia Associates of Houston
Metroplex is a much smaller operation consisting of one
doctor providing similar services in Houston, Texas. We
2 No. 09-2658
refer to the parties as Mobile/Chicago and Mobile/Houston.
Mobile/Chicago brought suit against Mobile/Houston
in federal court in Illinois claiming that Mobile/Hous-
ton violated the federal anti-cybersquatting statute
by registering a domain name confusingly similar to
Mobile/Chicago’s registered trademark. The district
court dismissed the suit for lack of personal jurisdiction.
We affirm. First, we conclude that Mobile/Houston
did not waive its personal jurisdiction defense by asking
to delay a preliminary injunction hearing or by asking
for expedited discovery to prepare for that hearing.
Second, we agree with the district court that Mobile/
Houston lacked the required “minimum contacts” with
Illinois to support personal jurisdiction there. Mobile/
Chicago relies principally on the inference that Mobile/
Houston expressly aimed its conduct in Texas at
harming Mobile/Chicago in Illinois. That inference is
based on two inadequate connections between Mo-
bile/Houston and Illinois: (1) Mobile/Houston’s creation
of a website accessible in Illinois but aimed only at the
Houston market, combined with Mobile/Houston’s con-
structive notice of Mobile/Chicago’s trademark via fed-
eral registration of that mark; and (2) Mobile/Houston’s
receipt of Mobile/Chicago’s cease-and-desist letter. These
contacts are not sufficient to establish that Mobile/Hous-
ton’s activities in Texas were calculated to cause
harm in Illinois.
I. Factual and Procedural Background
Mobile/Chicago has been operating in the Chicago area
since 1996. The company has affiliated offices in other
No. 09-2658 3
cities, including Houston. The record does not reveal
exactly when Mobile/Chicago’s Houston affiliate began
operations, but Mobile/Chicago alleges that it advertised
its services in Houston in 2008.
In 2003, Mobile/Chicago registered the website
, which it continues
to operate today. Mobile/Chicago also owns a federally
registered trademark in the words MOBILE ANESTHESI-
OLOGISTS. It obtained the trademark registration in 2005.
Mobile/Houston was established by Dr. Eric Chan, its
sole member, in 2007. On August 22, 2008, Dr. Chan
registered the website .
Working under Mobile/Houston’s name, Dr. Chan oper-
ates as an independent contractor providing anesthesia
services for patients in clinics and medical offices through-
out the Houston area.
Dr. Chan’s professional activities are limited entirely
to the state of Texas. He is licensed as an anesthesiologist
by the State of Texas but has not been licensed in any
other state. He has never advertised his services other
than on his website (which offers anesthesia services
“in the greater Houston area” and provides a Houston-
area phone number) and in a printed advertisement
published in Texas.
Dr. Chan has visited Illinois just once, on vacation in
2003. He has never visited Illinois for business, has
never conducted business in Illinois, and has no agent
or offices in Illinois. He has never attended events or
performed duties in Illinois for any of the professional
associations to which he belongs. And although he
surely knew there were anesthesiologists in Illinois too,
4 No. 09-2658
Dr. Chan was unaware that Mobile/Chicago, its trade-
mark, or its website existed until he received a cease-and-
desist letter from its lawyer in December 2008. There is
no evidence that anyone else associated with Mobile/
Houston has any relevant contacts with Illinois.
The district court dismissed Mobile/Chicago’s suit for
lack of personal jurisdiction. The court pointed out that
Mobile/Houston lacks any meaningful contacts with
Illinois and that its website, though bearing a name
similar to Mobile/Chicago’s, is not directed at Illinois in
any way. The assertion that Dr. Chan, sitting in Houston,
knew about Mobile/Chicago and intended to do it harm
in Illinois, was “entirely unsupported” and an “empty
conclusion.”
II. Waiver
Mobile/Chicago begins with the bold argument that
Mobile/Houston waived its right to argue lack of per-
sonal jurisdiction when it asked for a continuance of the
preliminary injunction hearing and an expedited dis-
covery schedule. We disagree.
Mobile/Chicago filed its lawsuit in the Northern
District of Illinois on February 13, 2009 and requested a
preliminary injunction to stop Mobile/Houston’s use of
its domain name. The court scheduled a hearing for
March 6, 2009. On March 3rd, Mobile/Houston’s counsel
filed a motion to continue the preliminary injunction
hearing, which Dr. Chan could not attend because he
was scheduled to see patients in Texas that day. The
motion also requested expedited discovery to prepare
No. 09-2658 5
for the hearing. Thirteen days later, on March 16, 2009,
Mobile/Houston filed its Rule 12(b)(2) motion to
dismiss for lack of personal jurisdiction.
These preliminary actions do not come close to what
is required for waiver or forfeiture. To waive or forfeit a
personal jurisdiction defense, a defendant must give a
plaintiff a reasonable expectation that it will defend the
suit on the merits or must cause the court to go to some
effort that would be wasted if personal jurisdiction is
later found lacking. See, e.g., American Patriot Ins. Agency,
Inc. v. Mutual Risk Management, Ltd., 364 F.3d 884, 887-88
(7th Cir. 2004) (Rule 12(b)(3) defense of improper venue
was not waived or forfeited when defendant engaged
in preliminary pretrial litigation activity; plaintiff
should have anticipated defendant’s objection, and defen-
dant was not “testing the wind” or causing “wasted
motion by the court”). Faced with an impending prelimi-
nary injunction hearing and unable to produce its key
witness, Mobile/Houston had the right to ask for more
time to learn who was suing it and why without losing
its right to object to personal jurisdiction. The district
court did not err in proceeding to the substance of the
personal jurisdiction defense.
III. Specific Jurisdiction
In a federal question case such as this one, a federal court
has personal jurisdiction over the defendant if either
federal law or the law of the state in which the court sits
authorizes service of process to that defendant. Omni
Capital International, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S.
6 No. 09-2658
97, 104-05 (1987) (federal court should look to a federal
statute or to the state long-arm statute to determine de-
fendant’s amenability to service, which is “a prerequisite
to its exercise of personal jurisdiction”). The federal
statutes on which Mobile/Chicago is suing do not au-
thorize nationwide service. Mobile/Houston is amenable
to service (and hence subject to personal jurisdiction)
only if it could be served in Illinois under Illinois law.
Illinois’s long-arm statute permits the exercise of
personal jurisdiction if it would be allowed under either
the Illinois Constitution or the United States Constitu-
tion. See 735 Ill. Comp. Stat. 5/2-209(c). We have held
that there is no operative difference between these two
constitutional limits. See Tamburo v. Dworkin, 601 F.3d
693, 700 (7th Cir. 2010); Hyatt International Corp. v. Coco,
302 F.3d 707, 715 (7th Cir. 2002). We proceed to the ques-
tion whether the exercise of personal jurisdiction would
violate federal due process.
Under the Supreme Court’s well-established interpret-
ation of the Fourteenth Amendment’s due process
clause, a defendant is subject to personal jurisdiction in
a particular state only if the defendant had “certain
minimum contacts with it such that the maintenance of
the suit does not offend ‘traditional notions of fair play
and substantial justice.’ ” International Shoe Co. v. Washing-
ton, 326 U.S. 310, 316 (1945), quoting Milliken v. Meyer,
311 U.S. 457, 463 (1940). It is unconstitutional to force
a defendant to appear in a distant court unless it has
done something that should make it “reasonably antic-
ipate being haled into court there.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985), quoting World-
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980).
No. 09-2658 7
The Court has also framed the constitutional inquiry
in terms of whether the defendant “purposefully avails
itself” of the benefits and protections of conducting
activities in the forum state. See Hanson v. Denckla, 357
U.S. 235, 253 (1958).
Personal jurisdiction can be general or specific, de-
pending on the extent of the defendant’s contacts. See
Tamburo, 601 F.3d at 701. Mobile/Chicago does not
assert, and the evidence does not support, a claim of
general jurisdiction over Mobile/Houston in Illinois, so
Mobile/Chicago must show that Illinois can exercise
specific jurisdiction over Mobile/Houston for this par-
ticular claim. Specific personal jurisdiction is appro-
priate when the defendant purposefully directs its activi-
ties at the forum state and the alleged injury arises out
of those activities. See, e.g., Burger King, 471 U.S. at 472.
Mobile/Houston did not purposefully direct its
activities at Illinois. It has formed no contracts in Illinois
and has had no physical presence there. Mobile/Chi-
cago points to the fact that Dr. Chan is a member of
two professional associations headquartered in Illinois,
but those are the kinds of fortuitous contacts that the
Supreme Court has repeatedly held do not support per-
sonal jurisdiction where the contacts bear no relation-
ship to the lawsuit. See, e.g., Burger King, 471 U.S. at 475;
World-Wide Volkswagen, 444 U.S. at 295. Mobile/Houston
simply has nothing to do with the state where it is being
called to appear in court.
But Mobile/Chicago contends that Mobile/Houston
has done two things in Texas to subject itself to suit
in Illinois. First, Mobile/Houston has maintained a
8 No. 09-2658
website with a name similar to Mobile/Chicago’s trade-
mark, with constructive notice of that trademark thanks
to Mobile/Chicago’s federal registration. Second, after
receiving the cease-and-desist letter, Mobile/Houston
has maintained its website with actual notice of Mobile/
Chicago’s identity, location, and ownership of a similar
mark. From these facts, Mobile/Chicago argues, we
should infer that Mobile/Houston intended to injure
Mobile/Chicago in Illinois, and from that intent we
should find the contacts needed to satisfy due process.
This argument is not persuasive.
The Supreme Court has held that constitutionally
sufficient contacts can be imputed to a defendant if
the defendant is accused of committing an intentional
tort by actions that are “expressly aimed” at the forum
state. See Calder v. Jones, 465 U.S. 783, 789-90 (1984). The
outcome in Calder was tied closely to its facts: Florida
citizens who lacked sufficient contacts with California
were nonetheless subject to personal jurisdiction in Cali-
fornia because they published an allegedly libelous
story about a California resident where the sources were
all in California and “the brunt of the harm” was suf-
fered by the plaintiff in California. Id. The Supreme
Court emphasized that the defendants’ actions were not
the product of “mere untargeted negligence,” id. at 789,
but rather were “calculated to cause injury to respondent
in California,” id. at 791.1
1
In the past, the reasoning in Calder has been called the “effects
test.” We believe the phrase “express aiming test”—adopted
(continued...)
No. 09-2658 9
As we recognized in Tamburo, 601 F.3d at 704, this
court’s application of Calder has not been entirely consis-
tent. In Wallace v. Herron, 778 F.2d 391 (7th Cir. 1985), we
rejected the contention that Calder meant “any plain-
tiff may hale any defendant into court in the plaintiff’s
home state, where the defendant has no contacts, merely
by asserting that the defendant has committed an in-
tentional tort against the plaintiff.” Id. at 394. Calder’s
“express aiming” requirement, we held, was merely
one means of satisfying the traditional due process stan-
dard set out in International Shoe and its familiar
progeny, not an independent path to jurisdiction that
allowed a defendant to avoid “minimum contacts” alto-
gether. Id. at 395; accord, Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 780-81 (1984) (“The victim of a libel, like
the victim of any other tort, may choose to bring suit
in any forum with which the defendant has certain mini-
mum contacts . . . such that the maintenance of the
suit does not offend traditional notions of fair play and
substantial justice.”) (citation and quotation marks omit-
ted).
Our decision in Indianapolis Colts, Inc. v. Metropolitan
Baltimore Football Club Ltd. P'ship, 34 F.3d 410, 411-12
1
(...continued)
by this court in Tamburo, 601 F.3d at 697—is more faithful to
Calder. It properly focuses attention on whether the defendant
intentionally aimed its conduct at the forum state, rather than
on the possibly incidental and constitutionally irrelevant
effects of that conduct on the plaintiff.
10 No. 09-2658
(7th Cir. 1994), suggested a somewhat broader test, but
did not actually adopt it. There we suggested that the
state in which the alleged victim of a tort suffers the
injury of that tort may automatically obtain personal
jurisdiction over the defendant. We went on, however,
to hold that we “need not rest on so austere a conception
of the basis of personal jurisdiction.” The defendant—a
Canadian Football League team in Baltimore—had
planned to actually “enter” the forum state of Indiana
via national broadcasts of its games, and the combina-
tion of that planned entry and the expected harm in
Indiana was enough to support personal jurisdiction. Id.
at 412.
Janmark, Inc. v. Reidy, 132 F.3d 1200 (7th Cir. 1997),
appeared to extend the reach of Calder even further.
We wrote in Janmark that “there can be no serious doubt
after Calder v. Jones that the state in which the victim of
a tort suffers the injury may entertain a suit against the
accused tortfeasor.” Janmark, 132 F.3d at 1202, citing
Indianapolis Colts, 34 F.3d at 411-12. In Janmark, there
was no “entry,” actual or imputed, into the forum
state. Moreover, we did not discuss whether the defen-
dants in that case had expressly aimed their conduct at
the forum state, or even whether the defendants knew
the plaintiff was located there or had suffered harm there.
We view Wallace as a correct statement of the standard
set down by the Supreme Court. As in Tamburo, we
do not read Indianapolis Colts or Janmark to conflict with
Calder, which made clear that a defendant’s intentional
tort creates the requisite minimum contacts with a state
No. 09-2658 11
only when the defendant expressly aims its actions at
the state with the knowledge that they would cause
harm to the plaintiff there. Tamburo, 601 F.3d at 703.
One can certainly read Indianapolis Colts and Janmark to
arrive at that conclusion by another road, see Tamburo,
601 F.3d at 705-06, but “express aiming” remains the
crucial requirement when a plaintiff seeks to establish
personal jurisdiction under Calder.
Mobile/Chicago’s evidence that Mobile/Houston
took express aim at Illinois is inadequate. Mobile/
Chicago first contends that we should infer express
aiming at Illinois from the fact that Mobile/Houston
operates a website whose domain name is similar to
Mobile/Chicago’s trademark. We disagree. A plaintiff
cannot satisfy the Calder standard simply by showing
that the defendant maintained a website accessible
to residents of the forum state and alleging that the de-
fendant caused harm through that website. See, e.g.,
Panavision International, L.P. v. Toeppen, 141 F.3d 1316,
1322 (9th Cir. 1998) (“We agree that simply registering
someone else’s trademark as a domain name and
posting a web site on the Internet is not sufficient to
subject a party domiciled in one state to jurisdiction in
another.”); Young v. New Haven Advocate, 315 F.3d 256, 264
(4th Cir. 2002) (no express aiming where the defendant
newspapers’ only contacts with the forum state were
through websites aimed at an out-of-state audience).
Still less does Mobile/Houston’s website create con-
stitutionally sufficient contacts with Illinois in the
absence of express aiming. A defendant’s deliberate and
12 No. 09-2658
continuous exploitation of the market in a forum state,
accomplished through its website as well as through
other contacts with the state, can be sufficient to estab-
lish specific personal jurisdiction. See, e.g., uBID, Inc. v.
The GoDaddy Group, Inc., No. 09-3927 (7th Cir. Sept. 29,
2010). Mobile/Houston’s relationship with Illinois stands
in stark contrast to such cases. Dr. Chan is not licensed
to practice medicine outside of Texas. His website does
not contain much, but it does contain a Houston-area
phone number, an e-mail address, and an invitation to
doctors in the “greater Houston area” to contract for
his services. If a doctor in Chicago stumbled upon
Dr. Chan’s website and called for an appointment, their
conversation would be very short.
Trying a second path to show “express aiming,” Mobile/
Chicago argues that its federal trademark registration
gave Mobile/Houston “constructive notice” that it was
infringing Mobile/Chicago’s trademark and could be
called to court in Illinois. This argument misunder-
stands the purpose of federal registration. The federal
trademark statute on which Mobile/Chicago sued does not
authorize nationwide service of process. See, e.g.,
Sunward Electronics, Inc. v. McDonald, 362 F.3d 17, 22 (2d
Cir. 2004). The statute provides that registration serves
as “constructive notice of the registrant’s claim of owner-
ship,” 15 U.S.C. § 1072, but that provision is intended
to protect against users of the registrant’s trademark
who might otherwise raise a defense of innocent misap-
propriation. See In re International Flavors & Fragrances,
Inc., 183 F.3d 1361, 1367 (Fed. Cir. 1999). It does not
No. 09-2658 13
follow from the constructive notice statute that any
alleged infringer, despite its lack of any other contacts
with the forum state, may henceforth be sued in that
state. In other words, trademark owners cannot create
nationwide service of process by this theory of construc-
tive notice.
Finally, Mobile/Chicago points out that Mobile/Houston
also had actual notice of Mobile/Chicago’s trademark
from the moment it received Mobile/Chicago’s cease-and-
desist letter. From that time forward, Mobile/Chicago
argues, Mobile/Houston was intentionally directing its
tortious activities at Illinois in the same way that the
defendants in Calder intentionally directed their tortious
activities at California. This argument finds no support
in the case law. The cases that have found express
aiming have all relied on evidence beyond the plain-
tiff’s mere residence in the forum state. See, e.g., Calder,
465 U.S. at 789-90 (defendants drew allegedly libelous
story from forum state sources and newspaper had its
largest circulation in the forum state); Tamburo, 601 F.3d
at 697 (defendants listed plaintiff’s forum state address
online and encouraged readers to harass him); Panavision,
141 F.3d at 1319, 1322 (defendant’s intent to harm
plaintiff in forum state could be inferred from his broader
scheme of registering prominent trademarks as domain
names for the purpose of extorting money from the
marks’ owners). Here, by contrast, there is only the cease-
and-desist letter. To find express aiming based solely
on the defendant’s receipt of that letter would make
any defendant accused of an intentional tort subject to
personal jurisdiction in the plaintiff’s home state as soon
14 No. 09-2658
as the defendant learns what that state is. Calder requires
more.
A FFIRMED.
10-1-10