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COURT OF APPEALS
DECISION
DATED AND FILED
May 20, 2010
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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David Rasmussen and Lisa A. Lindsay,
Plaintiffs-Appellants,
v.
General Motors Corporation, General Motors of Canada,
Ltd., Ford Motor Company, Ford Motor Company of Canada,
Ltd., Toyota Motor Corporation, Toyota
Motor Sales USA,
Inc., Toyota Canada, Inc., Honda Motor Company, Ltd.,
American Honda Motor Company, Inc., Honda Canada, Inc.,
Daimler Chrysler, Daimler Chrysler Canada, Inc., Mercedes
Benz Canada, Inc., Nissan North America, Inc., Nissan
Canada, Inc., BMW of North America, Inc., BMW Canada,
National Automobile Dealers Association and Canadian
Automobile Dealers Association,
Defendants,
Nissan Motor Co., Limited,
Defendant-Respondent.
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APPEAL
from an order of the circuit court for Milwaukee County: john
a. franke, Judge. Affirmed.
Before Dykman, P.J., Vergeront and Lundsten, JJ.
¶1 DYKMAN, P.J. David Rasmussen appeals from
an order dismissing the Japan-based Nissan Motor Company (Nissan Japan) from
Rasmussen’s class-action conspiracy and anti-trust action against various local
and foreign automobile companies. Rasmussen contends that Nissan Japan is
subject to personal jurisdiction in Wisconsin
under Wis. Stat. § 801.05
(2007-08),
and that the exercise of that jurisdiction comports with Due Process
principles. Alternatively, Rasmussen
argues that the circuit court erred in limiting the scope of jurisdictional
discovery, thus preventing Rasmussen from obtaining documents he needed to
establish personal jurisdiction over Nissan Japan. We conclude that Nissan Japan is not subject
to personal jurisdiction in Wisconsin
and that we have no basis to disturb the circuit court’s discovery order. Accordingly, we affirm.
Background
¶2 The following facts are taken from the jurisdictional hearing
materials. On September 18, 2003, David
Rasmussen filed a class action anti-trust suit against various automobile
companies, including Nissan Japan
and its wholly owned subsidiary Nissan North America, for conspiring to
maintain new car prices in the United States
at significantly higher levels than prices in Canada for the same vehicles. Rasmussen alleged that, as part of this
conspiracy, the defendants arranged for United
States dealers to not honor warranties on cars imported
from Canada, to prevent the
lower priced Canadian Nissans from being exported to the United States. Rasmussen claimed that the circuit court had personal
jurisdiction over all of the defendants because they all had “directly or
through their subsidiaries, affiliates or agents,” conducted business in
Wisconsin, based on Nissan dealerships throughout the state.
¶3 On December 22, 2003, Nissan Japan filed a motion to dismiss for
lack of personal jurisdiction. Nissan Japan argued that it had no contacts with Wisconsin and thus was
not subject to personal jurisdiction here.
Following a motion hearing, the court denied Nissan’s motion to dismiss
for lack of personal jurisdiction without prejudice, pending a period of
jurisdictional discovery.
¶4 Rasmussen then moved the court to compel discovery from
Nissan Japan. On June 24, 2004, the circuit court ordered
Nissan North America to respond to Rasmussen’s discovery requests relating to
whether the court had jurisdiction over Nissan Japan. It also appointed a Special Master to resolve
any future disputes regarding discovery.
The court set a discovery schedule, ordering Rasmussen to serve his
discovery questions regarding Nissan Japan on Nissan North America.
¶5 Following arguments, a hearing and a telephonic conference,
the Special Master issued an order regarding the parties’ discovery
disputes. The Special Master granted
Rasmussen’s request to depose the president of Nissan Japan. He ordered Nissan Japan’s
president to appear in person, at Nissan Japan’s chosen location, for a
deposition to last up to three hours. He
also granted Rasmussen’s requests to depose a corporate representative of
Nissan Japan on certain
warranty issues, and ordered Nissan Japan
to produce proposed stipulations to respond to Rasmussen’s requests to depose a
corporate representative about contracts between Nissan Japan and Nissan North America. Finally, the Special Master gave the parties
the option of reaching stipulations in lieu of depositions.
¶6 On July 14, 2005, the Special Master ordered the parties to
prepare a joint report on any stipulations they had reached. The parties then entered a joint written
report, which stated that Rasmussen did not seek any further discovery from
Nissan Japan
at that time.
¶7 The circuit court held a jurisdictional hearing on August 14,
2006. At the conclusion of the hearing,
the court found that Wisconsin did not have
personal jurisdiction over Nissan Japan,
and that exercising jurisdiction over Nissan Japan would violate Due
Process. Rasmussen appeals.
Standard of Review
¶8 Whether the facts of a case support a court’s exercise of
personal jurisdiction over a defendant under Wis.
Stat. § 801.05 is a question of law that we review de novo. See Kopke
v. A. Hartrodt S.R.L., 2001 WI 99, ¶10, 245 Wis. 2d 396, 629 N.W.2d 662. The question of whether exercising personal
jurisdiction over a defendant violates Due Process is also a question of law
that we review de novo. See Landreman v. Martin, 191 Wis. 2d 787, 798, 530
N.W.2d 62 (Ct. App. 1995). We will
uphold the circuit court’s findings of historical fact unless those findings
are clearly erroneous. Noll
v. Dimiceli’s, Inc., 115 Wis.
2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983).
Discussion
¶9 Rasmussen argues that Nissan Japan is subject to personal
jurisdiction in Wisconsin
under Wis. Stat. § 801.05
and that exercising jurisdiction over Nissan Japan comports with Due Process
principles. Alternatively, Rasmussen asserts
that the circuit court erroneously exercised its jurisdiction in limiting
Rasmussen’s access to discovery materials, preventing Rasmussen from
establishing personal jurisdiction over Nissan Japan. We reject each of these contentions, and
affirm the circuit court’s order dismissing Nissan Japan from this action for lack of
personal jurisdiction.
¶10 To determine whether a foreign corporation is subject to personal
jurisdiction in Wisconsin,
we apply a two-step inquiry: First, whether the defendant is subject to
jurisdiction under Wis. Stat.
§ 801.05; next, whether exercising that jurisdiction comports with
Due Process principles. Kopke,
245 Wis. 2d
396, ¶8. We liberally construe
§ 801.05 in favor of jurisdiction, but the plaintiff bears the burden of
showing that the statute establishes jurisdiction over the defendant. Kopke, 245 Wis. 2d 396, ¶10.
¶11 We begin, then, with an analysis of whether Nissan Japan is
subject to personal jurisdiction under Wis.
Stat. § 801.05. Rasmussen
asserts that Nissan Japan is subject to personal jurisdiction under two provisions
of the statute: §§ 801.05(1)(d) and (4)(a). Section 801.05(1)(d) provides that Wisconsin has personal
jurisdiction “[i]n any action whether arising within or without this state,
against a defendant who when the action is commenced …. [i]s engaged in substantial and not isolated
activities within this state, whether such activities are wholly interstate,
intrastate, or otherwise.” Under this
section, a defendant is subject to general
jurisdiction in Wisconsin
based on its contacts with the state, whether or not the action arises out of
those contacts. See Insolia v. Philip Morris Inc., 31 F. Supp. 2d 660, 668 (W.D.
Wis. 1998) (explaining that “[w]hen general jurisdiction exists, a nonresident
defendant may be sued in the state regardless of the subject matter of the
lawsuit,” and that Wisconsin
has general jurisdiction over nonresident defendants through
§ 801.05(1)(d)). Section 801.05(4)(a),
on the other hand, allows for specific jurisdiction
over a defendant:
In any action claiming injury
to person or property within this state arising out of an act or omission
outside this state by the defendant, provided in addition that at the time of
the injury, either:
(a) Solicitation or service activities were carried on
within this state by or on behalf of the defendant; or
(b) Products, materials or things processed, serviced or
manufactured by the defendant were used or consumed within this state in the
ordinary course of trade.
Section 801.05(4)(a), then, authorizes Wisconsin
courts to exercise specific jurisdiction over nonresidents under certain
circumstances; that is, personal jurisdiction over the defendant for claims
arising out of the defendant’s particular contacts with the state. See
Insolia,
31 F. Supp. 2d at 671 (explaining specific personal jurisdiction).
¶12 Rasmussen argues first that Nissan Japan is subject to general
jurisdiction under Wis. Stat. § 801.05(1)(d),
based on the acts of its wholly owned subsidiary, Nissan North America. Rasmussen points to the definition of
“defendant” for jurisdictional purposes in Wis.
Stat. § 801.03(1), which includes both the named defendant “and where … acts of the defendant are
referred to, the reference attributes to the defendant any person's acts for
which acts the defendant is legally responsible.” Rasmussen argues that this definition of
“defendant” incorporates agency principles into § 801.05(1)(d). Thus, Rasmussen asserts, when a principal’s
agent is subject to general jurisdiction in Wisconsin under § 801.05(1)(d) based on having
engaged in “substantial and not isolated” activities in Wisconsin, the acts of
the agent subject the principal to general jurisdiction as well. In support, Rasmussen cites Schroeder
v. Raich, 89 Wis. 2d 588 (1979); Pavalon
v. Fishman, 30 Wis. 2d 228, 140 N.W.2d
263 (1966); and Pavlic v. Woodrum, 169 Wis.
2d 585, 486 N.W.2d 533 (Ct. App. 1992).
¶13 In
Pavalon,
30 Wis. 2d at 231-35, the supreme court addressed whether an out-of-state
corporation was subject to specific jurisdiction in Wisconsin based on the acts
of its brokerage firm. A partner from
the brokerage firm Divine & Fishman had telephoned Pavalon in Wisconsin from Illinois,
and arranged for Pavalon to purchase $50,000 of bonds issued by Sulray, Inc. Id.
at 233. In a lawsuit arising from that
transaction, Pavalon asserted that Wisconsin
had personal jurisdiction over Sulray because Divine & Fishman had acted as
Sulray’s agent in arranging the sale. Id. at
234-35. Sulray contested
jurisdiction. Id. at 231-35.
¶14 The
Pavalon
court explained, first, that personal jurisdiction could only be asserted under
Wis. Stat. § 262.05(5)(e)
(1965),
which authorized personal jurisdiction over a non-resident defendant in an
action “[r]elat[ing] to goods, documents of title, or other things of value
actually received by the plaintiff in this state from the defendant without
regard to where delivery to carrier occurred.” Pavalon, 30 Wis. 2d at 232 & n.3. The court then said that the question of
personal jurisdiction turned on whether Divine & Fishman had acted as
Sulray’s agent in the transaction, because the actions of Divine & Fishman
would then be attributed to Sulray. Id. at
234-35. The court cited the jurisdictional
definition of “defendant,” which is identical to the definition in the current
statute. See Pavalon, 30 Wis.
2d at 235 n.7. The court then said that,
because “[t]he general rule, in Wisconsin as well as elsewhere, is that
brokers, whether employed for a single transaction or a series of transactions,
are agents,” Sulray was subject to personal jurisdiction in Wisconsin in the
action arising out of Divine & Fishman’s acts. Id.
at 235.
¶15 We
do not agree with Rasmussen that Pavalon stands for the proposition
that a parent corporation may be subject to general jurisdiction under Wis. Stat. § 801.05(1)(d) based on
the acts of its wholly owned subsidiary under an agency theory. First, Pavalon held only that the acts of
the corporation’s agent subjected the corporation to specific jurisdiction in
that case; that is, the corporation was subject to personal jurisdiction for
acts of its agent in an action arising from those acts, under the corresponding
specific jurisdiction provision. Because
only the issue of specific jurisdiction was before the court, it cited the jurisdictional
definition of “defendant,” encompassing a person’s acts for which the defendant
is responsible, in the context of explaining that the principal was subject to
personal jurisdiction in an action arising out of the acts of the agent. The court did not discuss whether an agency
relationship could subject a corporation to general jurisdiction. We therefore do not find Pavalon instructive on this
point.
¶16 In
Schroeder,
89 Wis. 2d at 590-93, the supreme court addressed whether a partner was subject
to general jurisdiction based on the acts of the partnership. Schroeder had filed suit against Raich, a
non-Wisconsin resident, to recover on a promissory note Raich signed in
purchasing land from Schroeder through a partnership, and Raich contested
personal jurisdiction. Id. at 592. The jurisdictional hearing established that
Raich held interests in two other properties in Wisconsin.
Id.
at 592-93. One of the properties was a
store, owned by Raich and one of his partners.
Id. The other property was also a store, but
there were no other facts in the record as to the extent of Raich’s interest in
that store. Id.
¶17 The
supreme court held that because “each partner is the agent of his or her
copartners for the purpose of the partnership business[,]…. Raich, a partner, may be said to be doing
business in Wisconsin
because the partnership does business in this state and partnership business is
carried on in behalf of each partner.” Id. at
595-96. The court said that “[a]
reasonable inference from the record is that Raich engaged in continuous and
systematic activities in Wisconsin
relating to the real estate whether he did so in person, by mail, by telephone
or by agent.” Id. at 596. Thus, the court concluded that “Raich was
‘engaged in substantial and not isolated activities within’ Wisconsin, within the meaning of [Wis. Stat. §] 801.05(1)(d),” and was
subject to general jurisdiction. Id.
¶18 Schroeder,
therefore, supports a finding of general jurisdiction over a partner based on
the activities of a partnership. In Schroeder,
the court explained at length that the core of its decision to impute the
actions of the partnership to the partner, thus establishing general
jurisdiction under Wis. Stat. § 801.05(1)(d),
was that the essence of a partnership relationship is that the partnership acts
for the partners. Thus, when a
partnership is engaged in substantial and not isolated activities in Wisconsin, the partners
are necessarily engaged in those activities.
A partnership, however, is fundamentally different from a corporation,
where the subsidiary’s acts are not generally imputed to the parent. See
Insolia,
31 F. Supp. 2d at 669 (“Courts begin with the presumption of corporate
separateness. This presumption can be
rebutted only if there is a basis for piercing the corporate veil and thus
attributing the subsidiaries’ torts to the parent.” (citations omitted)). In contrast to Schroeder, this case
presents the question of whether the actions of a wholly owned subsidiary
establish general jurisdiction over a parent corporation. Schroeder, like Pavalon, is not instructive
on this point.
¶19 Finally,
in Pavlic,
169 Wis. 2d at 588, we addressed whether the
acts of one corporate officer subjected another corporate officer to personal
jurisdiction in Wisconsin. Woodrum had organized a corporation outside
of Wisconsin,
and served as its president. Id. His father was also a shareholder and served
as vice president. Id.
Woodrum’s father wrote to Pavlic in Wisconsin to solicit his investment in the
Woodrums’ corporation, which ultimately led to the action in that case. Id. at
588-89. Pavlic asserted that Wisconsin had personal
jurisdiction over Woodrum based on Woodrum’s father’s acts. Id. We analyzed Wis. Stat. § 801.05(4) to determine whether Woodrum’s
father’s acts established specific jurisdiction over Woodrum. Id.
at 590-91. We concluded that there was
no basis to find that Woodrum’s father was acting on Woodrum’s behalf, and
therefore held that, as a matter of law, there was no agency relationship to
support the court’s exercise of jurisdiction over Woodrum. Id.
at 591-92.
¶20 Pavlic,
then, establishes that an agency relationship may support a finding of specific
jurisdiction over the principal under Wis.
Stat. § 801.05(4)(a). It
does not support Rasmussen’s argument that the relationship between a parent
and subsidiary corporation supports a finding of general jurisdiction over the
parent under Wis. Stat. § 801.05(1)(d).
¶21 Instead,
we agree with Nissan Japan that Insolia is persuasive on the issue
of the circumstances under which a parent corporation is subject to general jurisdiction
based on the acts of its subsidiary. In Insolia,
31 F. Supp. 2d at 663, the United States District Court for the Western District
of Wisconsin addressed whether the court had personal jurisdiction over a
foreign parent corporation based on the acts of its domestic indirect subsidiary. The plaintiffs argued that the court had
personal jurisdiction over the parent corporation because the subsidiary was
either an “alter ego” or the agent of the parent. Id.
¶22 The
court first rejected the plaintiffs’ argument that the court had general
jurisdiction over the parent corporation under Wis. Stat. § 801.05(1)(d). Id.
at 668-71. After finding that the facts did
not support “piercing the corporate veil,” and thus that the subsidiary was not
the alter ego of the parent, the court explained that Wisconsin’s long-arm
statute does not support finding general jurisdiction based on an agency
theory. Id. at 668-69, 671. The court said that the only provision in Wisconsin’s personal
jurisdiction statute that supported finding personal jurisdiction based on an
agency theory was Wis. Stat. § 801.05(4)(a),
which authorizes a court to exercise specific jurisdiction over a defendant for
an in-state injury if, in addition, “solicitation or service activities were
carried on within this state by or on
behalf of the defendant.” Insolia,
31 F. Supp. 2d at 671 (emphasis added).
The court cited federal and Wisconsin case law, including Pavlic,
which supported finding specific jurisdiction over a parent corporation based
on actions “on behalf of” the parent, as stated in § 801.05(4)(a), under
an agency theory. Insolia, 31 F. Supp. 2d
at 671. The court concluded that “[n]o
other provision in the statute supports the exercise of jurisdiction based on an
agency theory,” and that the plaintiffs’ argument that the parent corporation
was subject to general jurisdiction based on the wholly-owned subsidiary’s
substantial contacts in Wisconsin was therefore “incorrect.” Id.
¶23 We
agree with Insolia’s analysis, and therefore reject Rasmussen’s argument
that Wisconsin has general jurisdiction over
Nissan Japan based on the
theory that Nissan North America is Nissan Japan’s agent. Rasmussen has not cited any Wisconsin case
law, nor are we aware of any, supporting the exercise of general jurisdiction
over a parent corporation based on the substantial contacts in Wisconsin of its wholly
owned subsidiary, under an agency theory.
As Insolia explains, the corporate
structure and corresponding presumption of separateness requires more than an
agency theory to assert general jurisdiction over a parent corporation. We
conclude, as did the court in Insolia, that the only provision of
our personal jurisdiction statute authorizing personal jurisdiction over a
parent corporation based on an agency relationship with its subsidiary is Wis. Stat. § 801.05(4)(a), which
allows for specific personal jurisdiction over a defendant based on an act of
the defendant or an act “on behalf of the defendant.”
¶24 Next, Rasmussen argues that Nissan Japan is subject to specific
jurisdiction under Wis. Stat. § 801.05(4). Section 801.05(4) authorizes a Wisconsin court to exercise specific jurisdiction over an
out-of-state defendant under certain circumstances. First, § 801.05(4) requires that the
action arise from an act or omission outside of Wisconsin
which the plaintiff claims caused an injury to person or property within Wisconsin. Second, it requires that there were either
solicitation or service activities in Wisconsin
by or on behalf of the defendant, or
that products manufactured by the defendant were consumed in Wisconsin in the ordinary course of
trade. Here, the parties dispute whether
Rasmussen has made a prima facie showing that this action arises out of an
injury to person or property in Wisconsin
based on an out-of-state action by Nissan Japan. We conclude that he has not.
¶25 Rasmussen
argues that two out-of-state acts by Nissan Japan caused injury to Wisconsin
consumers: (1) that Nissan Japan,
along with Nissan North America, established higher prices for Nissan vehicles
distributed in Wisconsin as compared to Nissan vehicles distributed in Canada; and
(2) that Nissan Japan ratified a letter Nissan North America sent to
Wisconsin dealers in February 2002 stating that Nissan North America did not
authorize the Wisconsin Nissan dealers to perform warranty services on Nissan
vehicles originally distributed in Canada, and therefore would not reimburse
the dealers for those services. Nissan Japan responds, first, that the circuit court
found that there was no act of Nissan Japan
to place vehicles in Wisconsin
at higher prices and that Rasmussen has pointed to no evidence contradicting
the court’s finding. Nissan Japan then asserts that the circuit court found
that Nissan Japan did not do any act to direct or encourage Wisconsin Nissan dealers
to not honor warranties on cars distributed in Canada, based on the absence of any
evidence that Nissan Japan ratified the letter from Nissan North America. Rasmussen replies that Nissan Japan
authorized Nissan North America to respond to the letter on its behalf, and
thus is responsible as a principal for the acts of its agent, and does not
reply to Nissan Japan’s argument that we should uphold the circuit court’s
factual finding that Nissan Japan did not act to set prices in Wisconsin at a
higher level than the prices in Canada.
¶26 We
agree with Nissan Japan that
the circuit court’s unchallenged factual findings preclude Wisconsin’s exercise of specific
jurisdiction under Wis. Stat. § 801.05(4). The threshold inquiry under § 801.05(4)
is whether there was an out-of-state act by the defendant that caused injury to
person or property within the state. In
the circuit court, Rasmussen argued that Nissan Japan conspired with Nissan
North America to set higher prices on Nissan vehicles in Wisconsin,
and that Nissan Japan ratified Nissan North America’s instruction not to honor
warranties on vehicles distributed in Canada when it was copied on the February
2002 letter from Nissan North America to Wisconsin Nissan dealers. The circuit court found that Nissan Japan did
not do any act to set higher prices in Wisconsin
and did not ratify the letter from Nissan North America to Wisconsin Nissan
dealers. Rasmussen does not challenge
the circuit court’s factual findings, arguing only that the circuit court
should have inferred that Nissan Japan ratified the letter by directing Nissan
North America to reply to the Wisconsin
dealers and by not challenging Nissan North America’s response. Whether a party has ratified the conduct of
another, however, is a question of fact, and we will not disturb the trier of
fact’s finding on ratification unless that finding is not supported by the
evidence in the record. See, e.g., Home Savings Bank v. Gertenbach,
270 Wis. 386,
401-02, 71 N.W.2d 347 (1955). Accordingly,
we conclude that Rasmussen has not met his burden of showing that jurisdiction
is proper under Wis. Stat. § 801.05(4).
¶27 Finally,
Rasmussen contends that if we conclude, as we have done, that the facts of this
case do not satisfy the requirements for exercising personal jurisdiction over
Nissan Japan, then we should reverse and remand to allow Rasmussen to conduct
jurisdictional discovery on Nissan Japan because the circuit court’s discovery
orders effectively denied Rasmussen a jurisdictional hearing. See
Kavanaugh
Restaurant Supply, Inc. v. MCM Stainless Fabricating, Inc., 2006 WI App
236, ¶¶8-11, 297 Wis.
2d 532, 724 N.W.2d 893 (plaintiff is entitled to an evidentiary hearing on a
challenge to personal jurisdiction).
Rasmussen argues that the circuit court’s order for Rasmussen to direct
his jurisdictional questions to Nissan North America rather than Nissan Japan, and the circuit court’s stated belief
that it could not order Nissan Japan
to respond to discovery,
deprived Rasmussen of the opportunity to obtain information regarding Nissan Japan’s activities in Wisconsin separate from Nissan North
America. Rasmussen also contends that he
was denied the opportunity to obtain any documents from Nissan Japan that would have established that Nissan
Japan caused injury to Wisconsin consumers.
¶28 Nissan
Japan
responds that Rasmussen forfeited any argument as to discovery by failing to
raise it below. See State v. Ndina, 2009 WI 21, ¶¶29-31,
315 Wis. 2d
653, 761 N.W.2d 612. It argues that
Rasmussen did not raise any evidentiary
challenges before the Special Master or seek review in the circuit court; that the
Special Master ordered the president of Nissan Japan to participate in a
deposition with Rasmussen, but that Rasmussen opted instead to negotiate stipulations
in lieu of a deposition; and that Rasmussen entered a final set of stipulations
stating that Rasmussen did not seek any further discovery from Nissan
Japan. Alternatively, Nissan Japan
argues that Rasmussen has not developed an argument as to how the circuit court
erroneously exercised its discretion in limiting the scope of jurisdictional
discovery. See First Interstate Bank of Wisconsin-Southeast v. Heritage Bank &
Trust, 166 Wis.
2d 948, 952, 480 N.W.2d 555 (Ct. App. 1992)
(whether to limit discovery is within the circuit court’s discretion).
¶29 Rasmussen
replies that he was not obligated to object to the circuit court’s order before
the Special Master or to move the circuit court for reconsideration of its
discovery order. Rasmussen also contends
that he reasonably declined to depose the president of Nissan Japan for three hours in Japan, per the Special Master’s
order, because the deposition would have been meaningless without any relevant documents. Rasmussen does not reply to Nissan Japan’s
argument that Rasmussen did not explain how the circuit court erroneously
exercised its discretion in limiting discovery.
¶30 We
conclude, first, that Rasmussen was not denied his right to an evidentiary
hearing under Kavanaugh. Rasmussen
does not argue that the circuit court failed to hold a jurisdictional hearing,
only that the court’s order limiting the scope of jurisdictional discovery
effectively denied him the right to a hearing.
This, however, is simply a repackaging of Rasmussen’s discovery
argument. If there was not reversible
error with respect to limiting discovery, it follows that there is no basis to
order a second jurisdictional hearing because of the same discovery
limitation.
¶31 Next,
we conclude that, even assuming arguendo
that Rasmussen properly preserved his discovery arguments and the circuit court
erroneously exercised its discretion in ordering Rasmussen to direct its
jurisdictional questions to Nissan North America rather than Nissan Japan, that error
was harmless. See Alswager v. Roundy’s, Inc., 2005 WI App 3, ¶17, 278 Wis. 2d 598, 692 N.W.2d
333 (an error is harmless if there is no possibility it would have effected the
outcome of the trial). The record
reveals that, following the circuit court’s initial discovery order, the
parties argued their ongoing discovery disputes before a Special Master. Ultimately, the Special Master ordered the
president of Nissan Japan
to participate in a deposition, and the parties reached stipulations on all of
their disputed discovery issues. We fail
to see how the outcome would have been different if the circuit court had
initially ordered Rasmussen to submit questions to Nissan Japan rather
than Nissan North America. Because we discern no error in the
jurisdictional hearing and the outcome was consistent with Wisconsin’s long-arm statute, we affirm.
By the Court.—Order affirmed.
Not
recommended for publication in the official reports.