Date: 07-01-2011

Case Style: David Rasmussen v. General Motors Corporation

Case Number: 2007AP35

Judge: Patience Drake Roggensack

Court: Supreme Court of Wisconsin on appeal from the Circuit Court for Milwaukee County

Plaintiff's Attorney: For the plaintiffs-appellants-petitioners there were briefs and oral argument by Owen Thomas Armstrong, Jr., von Briesen & Roper, S.C., Milwaukee.

An amicus curiae brief was filed by Katherine Stadler, Bryan J. Cahill and Godfrey & Kahn, S.C., Madison and Andrew C. Cook, Madison for the Wisconsin Civil Justice Council, Inc.

Defendant's Attorney: For the defendant-respondent there were briefs and oral argument by Daniel L. Goldberg, Bingham McCutchen, LLP, Boston, MA.

An amicus curiae brief was filed by Jamison E. Lynch and Mayer Brown LLP, Chicago and Dan Himmelfarb (admitted pro hac vice), Brian J. Wong (admitted pro hac vice) and Mayer Brown LLP, Washington, DC. For the Association of International Automobile Manufacturers, Inc. and the Organization for the International Investment.

Description: We review an unpublished decision of the court of appeals[1] affirming the circuit court's[2] order dismissing for lack of personal jurisdiction a defendant, the Japan-based Nissan Motor Company (Nissan Japan), from David Rasmussen's (Rasmussen) class-action lawsuit. The issue presented to this court is whether Wisconsin has general personal jurisdiction over Nissan Japan.[3] Accordingly, we are asked to address whether under Wis. Stat. § 801.05(1)(d) (2007-08),[4] Wisconsin's long-arm statute granting general personal jurisdiction over individuals engaged in "substantial and not isolated activities within" Wisconsin, Nissan Japan is subject to general personal jurisdiction here. If the answer to that question is yes, we are asked to decide whether the exercise of general personal jurisdiction over Nissan Japan comports with due process.

¶2 Rasmussen contends that Wisconsin has general personal jurisdiction over Nissan Japan[5] under Wis. Stat. § 801.05(1)(d) based on the "substantial and not isolated activities" of Nissan North America, Inc. (Nissan North America),[6] Nissan Japan's wholly owned subsidiary. For the reasons set out below, we conclude that even assuming arguendo that Nissan North America were the agent of Nissan Japan, absent control by Nissan Japan sufficient to cause us to disregard the separate corporate identities of Nissan Japan and Nissan North America, the activities of the subsidiary corporation are insufficient to subject its nonresident parent corporation to general personal jurisdiction under § 801.05(1)(d). We also conclude that Rasmussen has not met his burden to show that the corporate separateness of Nissan Japan and Nissan North America should be disregarded such that the activities of Nissan North America in Wisconsin should be imputed to Nissan Japan. Accordingly, the statutory prerequisites for general personal jurisdiction under § 801.05(1)(d) have not been met.

¶3 Because we conclude that the statutory requirements for general personal jurisdiction have not been met, we need not discuss whether exercising general personal jurisdiction over Nissan Japan comports with due process. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶4 On September 18, 2003, Rasmussen filed a class-action complaint against numerous automobile companies, including Nissan Japan and its wholly owned subsidiary, Nissan North America. The complaint alleges that the automobile company defendants violated Wisconsin's antitrust and conspiracy laws. Namely, Rasmussen alleges that defendants conspired to restrain "competition in the sale and lease of new cars in Wisconsin and throughout the United States" by "eliminat[ing] the import[ing] of [lower priced] new cars from Canada into the United States and thereby rais[ing], fix[ing], stabiliz[ing] or maintain[ing] prices of new automobiles sold or leased in the State of Wisconsin . . . at artificially high levels."[7]

¶5 The complaint further alleges that in an effort to advance a price-fixing scheme, the defendants required their United States dealers to, among other things, refuse to honor new car warranties on cars imported from Canada and refuse to provide recall information relating to new cars imported from Canada.[8] According to the complaint, the defendants required their Canadian car dealers to investigate prospective buyers in an effort to identify buyers who may export the automobiles for resale in the United States, and to refuse to sell to those buyers.[9] Rasmussen alleged that Canadian dealers were also required to enter into "No Export" agreements with their customers that required the customer to pay a percentage of the car's value if the car was later found to have been resold in the United States.[10]

¶6 On December 22, 2003, Nissan Japan moved to dismiss the action against it for lack of personal jurisdiction. With regard to Wis. Stat. § 801.05(1)(d),[11] Nissan Japan argued that it fell outside the scope of this provision because it did not engage in any activities, much less substantial activities, in Wisconsin. Moreover, Nissan Japan argued that it was not subject to personal jurisdiction based on the activities of Nissan North America because Nissan Japan and Nissan North America are separate and distinct corporations, with their own respective employees, facilities and records. In addition, Nissan Japan maintained that Nissan North America has never been an agent or instrumentality of Nissan Japan.

¶7 On April 5, 2004, a hearing was held on Nissan Japan's motion to dismiss for lack of personal jurisdiction. Following the hearing, the circuit court[12] denied Nissan Japan's motion without prejudice. The circuit court then ordered a period of jurisdictional discovery, after which time Nissan Japan would be free to renew its motion to dismiss for lack of personal jurisdiction.[13]

¶8 After more than two years of discovery, the circuit court held a jurisdictional hearing. At that hearing, Rasmussen argued that general personal jurisdiction was proper under Wis. Stat. § 801.05(1)(d) for two reasons. First, Rasmussen argued that under the definition of "manufacturer" in Wisconsin's Lemon Law, Wis. Stat. § 218.0171, Nissan North America is the agent of Nissan Japan, and therefore it is proper to impute the activities of Nissan North America to Nissan Japan.[14] Second, Rasmussen argued that under the alter-ego theory of jurisdiction, Nissan Japan had sufficient control over Nissan North America to warrant exercise of general personal jurisdiction over Nissan Japan.[15]

¶9 Nissan Japan contended that Rasmussen's Lemon Law-agency argument had no merit because Nissan Japan is not a warrantor and Nissan Japan has never been brought into any Lemon Law case "under any theory let alone a theory of agency."[16] Moreover, with regard to the alter-ego theory of jurisdiction, Nissan Japan argued that the day-to-day functioning of Nissan North America is reserved to Nissan North America, and there is no basis to conclude that the relationship between Nissan Japan and Nissan North America contravenes corporate formalities.

¶10 At the conclusion of the hearing, the circuit court made findings of fact on the jurisdictional issues that relate to the conspiracy to price fix that Rasmussen alleged. The findings relevant to this review are:

· "In terms of general jurisdiction under Section 801.05(1)(d), it seems absolutely clear that this section cannot be satisfied directly. It is only satisfied if one accepts the plaintiffs' argument and alleged showing that the activities of the subsidiary should be imputed to the parent."

· "[A]s to Nissan Japan . . ., there is not evidence of complete control or the sort of domination that requires that we fold one corporate entity into another for these purposes. There's been no significant showing, no showing at all really that corporate formalities were disregarded and certainly no evidence of fraud or undercapitalization."

· "[T]here has not been a showing that there was not independent decision-making by the subsidiary."

· "There appears to have been observance of formal corporate legal requirements, at least no showing to the contrary."[17]

¶11 Based on these findings of fact, the circuit court concluded that "there has clearly been a failure to demonstrate the corporate veil ought to be pierced[,] or that on any other theory, jurisdiction over Nissan Japan could be obtained because the subsidiary was simply a tool or an extension of the parent." Accordingly, the court dismissed Nissan Japan from the suit based on a lack of personal jurisdiction.

¶12 Rasmussen appealed and the court of appeals affirmed the dismissal. Rasmussen v. Gen. Motors Corp., No. 2007AP35, unpublished slip op. (Wis. Ct. App. May 20, 2010). The court of appeals, relying on Insolia v. Philip Morris Inc., 31 F. Supp. 2d 660 (W.D. Wis. 1998), held that "the only provision of [Wisconsin's] 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." Rasmussen, No. 2007AP35, unpublished slip op., ¶23. Therefore, an agency theory provides no basis on which to ground general personal jurisdiction pursuant to § 801.05(1)(d), based on the acts of the nonresident parent's subsidiary. Id. The court noted, "the corporate structure and corresponding presumption of separateness requires more than an agency theory to assert general jurisdiction over a parent corporation."[18] Id.

¶13 We granted review and now affirm the court of appeals.

II. DISCUSSION

A. Standard of Review

¶14 Whether there is personal jurisdiction under Wisconsin's long-arm statute is a question of law that we review independently. Kopke v. A. Hartrodt S.R.L., 2001 WI 99, ¶10, 245 Wis. 2d 396, 629 N.W.2d 662. While our review is independent, we benefit from the analyses of the circuit court and the court of appeals. State v. Aufderhaar, 2005 WI 108, ¶10, 283 Wis. 2d 336, 700 N.W.2d 4. We will not reverse the factual findings of the circuit court unless they are clearly erroneous. Wis. Stat. § 805.17(2). Stated otherwise, findings of fact will not be disturbed on appeal unless they are contrary to the great weight and clear preponderance of the evidence. State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748.

B. Long-Arm Personal Jurisdiction Principles

¶15 Under Wisconsin's long-arm statute, personal jurisdiction over nonresident defendants is of two basic types: general personal jurisdiction and specific personal jurisdiction.[19] If general personal jurisdiction is accorded over a nonresident defendant, the defendant may be brought before Wisconsin courts for claims that are unrelated to the defendant's activities in Wisconsin. Insolia, 31 F. Supp. 2d at 668. On the other hand, specific personal jurisdiction is more limited in nature. In the exercise of specific personal jurisdiction, the claim for relief for which personal jurisdiction is sought must be substantially connected to or arise out of the defendant's contacts with Wisconsin. Id.

¶16 In determining whether personal jurisdiction may be exercised over a nonresident defendant, we employ a two-step inquiry. Kopke, 245 Wis. 2d 396, ¶8. The first step is to determine whether the defendant meets the criteria for personal jurisdiction under the Wisconsin long-arm statute. Id. If the requirements set out in the long-arm statute are satisfied, "then the court must consider whether the exercise of jurisdiction comports with due process requirements." Id. at 409.

¶17 The plaintiff has a "minimal burden" of showing that the statutory and constitutional requirements are met. Id. In performing this jurisdictional analysis, "we may consider documentary evidence and weigh affidavits in reaching a determination as to whether this burden has been met. Factual doubts are to be resolved in favor of the plaintiff." Id. (internal quotation marks and citation omitted). Finally, the Wisconsin long-arm statute is to be construed liberally in favor of the exercise of personal jurisdiction. Clement v. United Cerebral Palsy of S.E. Wis., Inc., 87 Wis. 2d 327, 332, 274 N.W.2d 688 (1979).

C. Wisconsin Stat. § 801.05(1)(d)

¶18 Pursuant to Wis. Stat. § 801.05(1), Wisconsin courts may exercise general personal jurisdiction over a defendant when that defendant takes up "local presence or status" within the state.[20] See Druschel v. Cloeren, 2006 WI App 190, ¶¶7-8, 295 Wis. 2d 858, 723 N.W.2d 430. Subsection (d) provides that a nonresident defendant has the requisite "local presence or status" when he or she "[i]s engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise." When the statutory criteria set out in § 801.05(1)(d) are met, general personal jurisdiction may nevertheless be limited by the requirements of due process. Vt. Yogurt Co. v. Blanke Baer Fruit & Flavor Co., 107 Wis. 2d 603, 607, 321 N.W.2d 315 (Ct. App. 1982).

¶19 In evaluating whether general personal jurisdiction lies over a nonresident defendant pursuant to Wis. Stat. § 801.05(1)(d), we must determine whether the defendant has engaged in "substantial and not isolated activities" in Wisconsin.[21] Our examination encompasses the defendant's general contacts with the state. The factors we consider are the quantity of the contacts, the nature and quality of those contacts, the source and connection of the contacts to the claim made, the interest of Wisconsin in the action and the convenience of the parties. Nagel v. Crain Cutter Co., 50 Wis. 2d 638, 648, 184 N.W.2d 876 (1971). We consider the jurisdictional factors in relation to each other, recognizing that the contacts would have to be more significant in order to subject a defendant to general personal jurisdiction than if specific personal jurisdiction were sought. Id.

¶20 Although we do not discuss due process directly in the first step of a personal jurisdiction analysis, the legislative history underlying Wis. Stat. § 801.05(1)(d) shows that the statutory criteria and due process are intertwined. This is so because § 801.05 "was intended to provide for the exercise of jurisdiction over nonresident defendants to the full extent consistent with the requisites of due process of law."[22] Flambeau Plastics Corp. v. King Bee Mfg. Co., 24 Wis. 2d 459, 464, 129 N.W.2d 237 (1964), overruled on other grounds by Pavalon v. Thomas Holmes Corp., 25 Wis. 2d 540, 131 N.W.2d 331 (1964); see also Vt. Yogurt, 107 Wis. 2d at 607 (explaining that "the legislature's purpose in creating the various subsections of the long-arm statute was to codify the due process requirements of 'minimum contacts' required under International Shoe Co. v. Washington, 326 U.S. 310 (1945)").

¶21 The five factors that we have considered in our due process analysis are: (1) the quantity of defendant's contacts; (2) the nature and quality of defendant's contacts; (3) the source and connection of the cause of action with those contacts; (4) the interests of Wisconsin in the action; and (5) the convenience to the parties of employing a Wisconsin forum. Clement, 87 Wis. 2d at 334-35; Vt. Yogurt, 107 Wis. 2d at 608. Because of the due process concerns that underlie the statutory criteria for personal jurisdiction, there are occasions, such as occurred in Nagel discussed above, when some of the due process factors also are employed in the statutory analysis. See also Insolia, 31 F. Supp. 2d at 668; Vt. Yogurt, 107 Wis. 2d at 608.

¶22 Occasionally, the "substantial and not isolated activities" language has been examined in light of the activities of someone other than the defendant for whom personal jurisdiction is sought, such as an agent of a corporation or the subsidiary of a nonresident parent corporation. In those circumstances, we examine the relationship between the nonresident defendant and the alleged agent or corporation who conducted activities in Wisconsin. When a corporation is involved, discussions generally focus on the functional integrity, or lack thereof, of the corporate form of existence.

¶23 In Pavalon v. Fishman, 30 Wis. 2d 228, 140 N.W.2d 263 (1966), we were asked to determine whether the brokerage firm that handled Pavalon's purchase of a note and stock warrant was the agent of the defendant so that the court had specific personal jurisdiction over the defendant under Wis. Stat. § 262.05(5)(e) (1965).[23] Id. at 233-35. We noted that "[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." Id. at 235. The circuit court concluded that an agency relationship existed based on this general principle, as well as on several documents that listed the brokerage firm as "agent." Id.

¶24 While Pavalon could be cited as support for the premise that the acts of an agent may be sufficient to support specific personal jurisdiction over a nonresident defendant under some circumstances, no Wisconsin appellate court has held that an agency relationship, without consideration of any other factor, is sufficient to support general personal jurisdiction over a nonresident defendant.[24] As Insolia correctly notes, no other provision of Wisconsin's long-arm statute besides Wis. Stat. § 801.05(4), which relates to specific personal jurisdiction, "supports the exercise of jurisdiction based on an agency theory." Insolia, 31 F. Supp. 2d at 671. Specific personal jurisdiction is not at issue in the case before us.

¶25 Although the concept of piercing the corporate veil generally is associated with attaching liability for corporate actions to someone other than the corporation, the analysis is somewhat similar to the analysis we employ in evaluating whether there is general personal jurisdiction under Wis. Stat. § 801.05 over a nonresident defendant for the acts of another. Consider, for example, Consumer's Co-op of Walworth County v. Olsen, 142 Wis. 2d 465, 419 N.W.2d 211 (1988), where we were asked to pierce the corporate veil and impute the actions of a corporation to its shareholders so that a judgment against the corporation would become the shareholders' liability. Id. at 470. We noted that under the law, a corporation is treated as an entity separate from its shareholders and that separateness is not to be lightly disregarded. Id. at 474. However, we explained that corporate separateness could be disregarded when observing it "would accomplish some fraudulent purpose, operate as a constructive fraud, or defeat some strong equitable claim." Id. at 475 (quoting Milwaukee Toy Co. v. Indus. Comm'n of Wis., 203 Wis. 493, 496, 234 N.W. 748 (1931)). We also explained that corporate separateness could be disregarded where the shareholders "made no serious attempt to hold corporate meetings or to maintain records of corporate meetings and that the corporation had no substantial assets." Id. (brackets and citation omitted). We concluded that the plaintiff had not met its burden to show that corporate integrity should be disregarded; and therefore, we did not permit the plaintiff to pierce the corporate veil. Id. at 488.

¶26 The relationship between corporations has generated significant discussion about the conditions under which the actions of one corporation are sufficient to impute those actions to another corporation. For example, in Kerl v. Dennis Rasmussen, Inc., 2004 WI 86, 273 Wis. 2d 106, 682 N.W.2d 328, we examined the relationship between a franchisor and franchisee when plaintiffs asserted a vicarious liability claim against the franchisor based on the alleged negligence of the franchisee. We concluded that "a franchisor may be held vicariously liable for the tortious conduct of its franchisee only if the franchisor has control or a right of control over the daily operation of the specific aspect of the franchisee's business that is alleged to have caused the harm." Id., ¶7. We noted that a master servant relationship is a type of agency and unless the agent is also a servant, vicarious liability generally cannot flow to the master. Id., ¶20.[25]

¶27 In Conservatorship of Prom v. Sumitomo Rubber Industries, Ltd., 224 Wis. 2d 743, 592 N.W.2d 657 (Ct. App. 1999), the court of appeals discussed whether a corporation that distributed its tires through a wholly owned subsidiary transacted business in Wisconsin such that the Secretary of State was a proper agent for service of process on the corporation. In its discussion, the court of appeals affirmed the long held rule that "[t]he mere existence of a parent-subsidiary relationship between two corporations is not sufficient to provide a court with jurisdiction." Id. at 760. The court of appeals explained that in order for a subsidiary to provide the necessary connections to Wisconsin, "the record must establish that the parent corporation had control over the subsidiary corporation . . . to such an extent that the separate corporate identity of the subsidiary should be disregarded." Id. The court of appeals noted that Cemetery Services, Inc. v. Wisconsin Department of Regulation & Licensing, 221 Wis. 2d 817, 827, 586 N.W.2d 191 (Ct. App. 1998), lists 15 factors that may be considered in determining whether the requisite control exists. Conservatorship of Prom, 224 Wis. 2d at 760-61.

D. Application of Wis. Stat. § 801.05(1)(d)

¶28 In regard to whether Wis. Stat. § 801.05(1)(d) accords general personal jurisdiction over Nissan Japan, Rasmussen argues that the "substantial and not isolated activities" of Nissan North America are imputed to Nissan Japan either through an agency theory[26] or because Nissan Japan exercised sufficient control over Nissan North America to override the corporate integrity of Nissan North America.[27]

¶29 In a jurisdictional analysis under Wisconsin's long-arm statute, we generally consider the quantity of contacts; the nature and quality of the contacts; the source and connection of the cause of action with those contacts; the interests of Wisconsin in the action; and the convenience to the parties of employing a Wisconsin forum. Clement, 87 Wis. 2d 334-35; Vt. Yogurt, 107 Wis. 2d at 608.

¶30 However, here, there is no dispute that Nissan North America has had contacts with Wisconsin that are sufficient to afford general personal jurisdiction over Nissan North America. Rather, the question presented is whether the relationship between Nissan Japan and Nissan North America is such that Nissan North America's substantial and not isolated activities within Wisconsin should be imputed to Nissan Japan. Therefore, much of our discussion is focused on the relationship between the two corporations and how that impacts on the question of general personal jurisdiction.

¶31 We begin by underscoring that Rasmussen is seeking general personal jurisdiction over Nissan Japan. We have never grounded general personal jurisdiction of a corporation in an alleged agency relationship with another corporation. Rasmussen provides no citation to a State of Wisconsin appellate decision that does so.

¶32 It is true that in Pavalon liability was grounded in an agency relationship, that of a broker and client. However, we accorded only specific personal jurisdiction, i.e., a limited jurisdiction that focuses on specific acts of an agent in a specifically delineated agency relationship. Pavalon, 30 Wis. 2d at 235. Specific personal jurisdiction was also accorded in Kopke. There, we assessed whether a nonresident corporation engaged in conduct of the type described in Wis. Stat. § 801.05(4), which statute provides for specific, not general, personal jurisdiction. Kopke, 245 Wis. 2d 396, ¶11.

¶33 Rasmussen asks us to extend the jurisprudence attendant to specific personal jurisdiction that applies to acts of an alleged agent to general personal jurisdiction based on the acts of an alleged agent. Agency is grounded in the "manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Marten Trans., Ltd. v. Hartford Specialty Co., 194 Wis. 2d 1, 13-14, 533 N.W.2d 452 (1995) (internal quotation marks omitted). We agree with Rasmussen that a corporation may act through its agents. State v. Dried Milk Prods. Co-op, 16 Wis. 2d 357, 361, 114 N.W.2d 412 (1962).

¶34 We note that Wis. Stat. § 801.05(4) provides for specific personal jurisdiction based on the acts of an agent so that a Wisconsin forum is not denied when the facts show that a Wisconsin forum should be accorded. Pavlic v. Woodrum, 169 Wis. 2d 585, 590-91, 486 N.W.2d 533 (Ct. App. 1992); Insolia, 31 F. Supp. 2d at 671. Specific personal jurisdiction is a limited form of personal jurisdiction well tailored to an agency relationship.

¶35 However, in order to accord general personal jurisdiction over a nonresident corporate defendant based on an alleged agency relationship, there must be something more than merely an agency relationship. As in other circumstances where general personal jurisdiction is sought for a nonresident defendant based on the acts of another in an alleged agency relationship with a subsidiary, there also must be control by the nonresident parent corporation sufficient to cause us to disregard the separate corporate identities of the subsidiary and the parent corporations. See Conservatorship of Prom, 224 Wis. 2d at 760; Insolia, 31 F. Supp. 2d at 669.

¶36 Furthermore, Rasmussen has provided us with no reason why we should expand the law that provides a Wisconsin forum under principles applicable to specific personal jurisdiction to also accord a forum based on general personal jurisdiction, and we perceive none. Accordingly, even if we were to assume, arguendo, that Nissan North America were the agent of Nissan Japan, we decline to expand Wisconsin law attendant to specific personal jurisdiction such that general personal jurisdiction may rest solely on an alleged agency relationship.

¶37 However, as Rasmussen also asserts, we have ascribed actions of another to a corporation when sufficient factors were present to cause us to disregard the corporate existence. See Clement, 87 Wis. 2d at 336-37. Cemetery Services lists 15 factors, by way of example, that a court may consider in assessing control, as it relates to corporate integrity; however, all factors are not relevant in all cases. Cemetery Servs., 221 Wis. 2d at 826-27.[28]

¶38 As we consider the applicable law and apply it to the facts found, we note that in assessing corporate separateness, Wisconsin courts have focused most directly on the amount of control that one corporation exercises or has the right to exercise over the other; whether both corporations employ independent decision-making; whether corporate formalities were observed; whether the corporations operated as one corporation; and whether observing the corporate separateness would facilitate fraud. See Consumer's Co-op, 142 Wis. 2d at 483-84; Clement, 87 Wis. 2d at 336-37; Conservatorship of Prom, 224 Wis. 2d at 760.

¶39 Here, the circuit court found no factor that would weigh in favor of ignoring the separate corporate identities of Nissan Japan and Nissan North America. To the contrary, the circuit court found that: (1) Nissan Japan did not have "complete control" or "domination" of Nissan North America; (2) requisite corporate formalities were observed; (3) there was no showing that Nissan North America did not exercise independent decision-making; (4) there was no showing that corporate legal requirements were not followed; and (5) there was no showing of fraud or undercapitalization. These findings have not been challenged, and in addition, our examination of the record shows that they are not clearly erroneous.

¶40 Given the law, which presumes corporate separateness, and the facts found about the relationship between Nissan Japan and Nissan North America, we conclude that Nissan Japan did not have control over Nissan North America sufficient to cause us to disregard the separate corporate identities of the nonresident parent and the subsidiary such that we impute the acts of the subsidiary to the parent. The reasoning of Insolia is consistent with our conclusion.

¶41 The issue in Insolia was whether Wisconsin had general personal jurisdiction over a nonresident parent corporation based on the Wisconsin activities of its subsidiary. In order to make the required determination, the court examined the degree to which the two corporations actually were separate entities. In that regard, the court noted that while "[c]ourts begin with the presumption of corporate separateness":

courts confronted with this issue . . . have focused on an additional factor: whether the parent managed the subsidiary with a degree of control greater than that normally associated with common ownership and directorship. This factor is borrowed from the so-called "alter-ego" doctrine, applicable to shareholders who exert "not mere majority or complete stock control, but complete domination . . . so that the corporate entity [has] . . . no . . . separate existence of its own."

Insolia, 31 F. Supp. 2d at 669 (quoting Consumer's Co-op, 142 Wis. 2d at 484) (other internal citations and quotation omitted; alterations in original). The court in Insolia concluded that while "'[p]arents of wholly owned subsidiaries necessarily control, direct and supervise the subsidiaries to some extent' . . . anything less than the degree of control necessary to pierce the parent corporation's veil of liability is insufficient to establish personal jurisdiction over the parent." Id. (quoting IDS Life Ins. Co. v. SunAmerica Life Ins. Co., 136 F.3d 537, 540 (7th Cir. 1998)). Insolia ultimately concluded that the nonresident parent was not the alter ego of the subsidiary and that there was no basis for disregarding the corporate integrity of the subsidiary; therefore, there was no basis on which to accord general personal jurisdiction over the nonresident parent corporation. Id.

¶42 Here too, the facts found by the circuit court demonstrate the corporate integrity of Nissan North America has not been overridden by Nissan Japan's control of its subsidiary.

¶43 The reasoning in Conservatorship of Prom, which addressed under what factual scenario service of process on the Secretary of State is sufficient to accord personal jurisdiction over a nonresident corporation, is also helpful when examining corporate separateness. Conservatorship of Prom, 224 Wis. 2d at 752. The court's reasoning is consistent with the reasoning of Insolia. In Conservatorship of Prom, the court held that in order to employ service on the Secretary of State as service on the nonresident defendant based on the activities of the subsidiary, it was necessary that the record establish that the nonresident parent corporation "controls its subsidiary to such an extent that the separate corporate identity of the subsidiary should be disregarded." Id. at 760. The mere presence of a subsidiary that conducts business in Wisconsin was insufficient. Id. In deciding whether facts sufficient to disregard the corporate identity of the subsidiary had been established, the court considered the 15 factors set out in Cemetery Services. Id. at 760-61.

¶44 Accordingly, based on the facts found, the law applicable and the reasoning we have held to be persuasive, we conclude that Rasmussen has not met his burden of showing a basis for disregarding the corporate integrity of Nissan North America. He has provided no evidence of control by Nissan Japan sufficient to cause us to disregard the separate corporate identities of the subsidiary and parent. There is no evidence that Nissan Japan and Nissan North America were not operated as separate and independent corporations; no evidence that Nissan North America did not independently decide how to operate; and no evidence of fraud or undercapitalization. In sum, Rasmussen has not shown that the activities of Nissan North America can be imputed to Nissan Japan. Without the attribution of Nissan North America's activities in Wisconsin to Nissan Japan, Rasmussen has provided no basis to demonstrate the "substantial and not isolated activities" within Wisconsin that Wis. Stat. § 801.05(1)(d) requires for general personal jurisdiction over Nissan Japan. Accordingly, we conclude that Nissan Japan was properly dismissed for lack of personal jurisdiction.

¶45 Rasmussen cites Huck v. Chicago, St. Paul, Minneapolis & Omaha Railway Co., 4 Wis. 2d 132, 90 N.W.2d 154 (1958) and Lau v. Chicago & North Western Railway Co., 14 Wis. 2d 329, 111 N.W.2d 158 (1961), as decisions that support his position. Neither case is helpful to Rasmussen's cause.

¶46 In Huck, the issue was whether Wisconsin had jurisdiction over a nonresident defendant under the "doing business" general personal jurisdiction statute in place at the time.[29] Huck, 4 Wis. 2d at 135. There, we held that even though the nonresident corporation's only activity in the state was solicitation, the solicitation included maintaining an office in Milwaukee to facilitate its activities that were "substantial and extensive" enough to subject the corporation to jurisdiction of Wisconsin courts. Id. at 139-41.

¶47 Similarly, in Lau, we concluded that under the same statute at issue in Huck, there was general personal jurisdiction over a Missouri corporation based on the solicitation activities of its employees in Wisconsin and the Milwaukee office it maintained. Lau, 14 Wis. 2d at 331-32. Neither Huck nor Lau considered whether there was jurisdiction over a corporation based on the actions of its subsidiary. Rather, as Nissan Japan points out, Huck and Lau "stand for the unremarkable proposition that, when corporations maintain offices in Wisconsin, have employees who permanently staff those offices in Wisconsin, and regularly solicit business in Wisconsin, they are subject to general [personal] jurisdiction."

¶48 Rasmussen also points us to Clement. In Clement, we held that Wisconsin had general personal jurisdiction over the United Cerebral Palsy Association (United Cerebral Palsy), a New York non-profit corporation. The plaintiff brought a breach of employment contract claim against United Cerebral Palsy and United Cerebral Palsy of Southeastern Wisconsin, Inc. (Wisconsin Cerebral Palsy), a Wisconsin non-profit, when Wisconsin Cerebral Palsy found itself without adequate funds to pay plaintiff's salary. Clement, 87 Wis. 2d at 330. Prior to the contract dispute, United Cerebral Palsy loaned Wisconsin Cerebral Palsy $13,000 on the condition that a controlling number of United Cerebral Palsy representatives would be placed on the Wisconsin Cerebral Palsy board of directors. Id. at 329. Consequently, our conclusion that there was general personal jurisdiction over United Cerebral Palsy was based in large part on the amount of control the circuit court found that the United Cerebral Palsy had over Wisconsin Cerebral Palsy. Id. at 336. For example, the trial court found that United Cerebral Palsy used its controlling vote on the board to overrule previous decisions made by Wisconsin Cerebral Palsy. Id. at 337.

¶49 Control sufficient to cause a court to disregard separate corporate identities is the sine qua non of the alter-ego theory for piercing the corporate veil.[30] And, while the alter-ego theory of personal jurisdiction was not mentioned in Clement, the amount of control exercised by United Cerebral Palsy over Wisconsin Cerebral Palsy mirrors the control parent corporations have over subsidiaries in cases where courts have disregarded the separateness of corporate identities.[31]

¶50 We are not persuaded that the decisions Rasmussen cited should lead us to the conclusion he seeks. Accordingly, we conclude that Rasmussen has provided no factual or legal predicates for disregarding the separate corporate identities of Nissan Japan and Nissan North America. Therefore, Nissan Japan is not subject to general personal jurisdiction based on the substantial and not isolated activities of Nissan North America.

* * *

See: http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=67136

Outcome: ¶51 We conclude that even assuming arguendo that Nissan North America were the agent of Nissan Japan, absent control by Nissan Japan sufficient to cause us to disregard the separate corporate identities of Nissan Japan and Nissan North America, the activities of the subsidiary corporation are insufficient to subject its nonresident parent corporation to general personal jurisdiction under Wis. Stat. § 801.05(1)(d). We also conclude that Rasmussen has not met his burden to show that the corporate separateness of Nissan Japan and Nissan North America should be disregarded such that the activities of Nissan North America in Wisconsin should be imputed to Nissan Japan. Accordingly, the statutory prerequisites for general personal jurisdiction under § 801.05(1)(d) have not been met.

¶52 Because we conclude that the statutory requirements for general personal jurisdiction have not been met, we need not discuss whether exercising general personal jurisdiction over Nissan Japan comports with due process. Accordingly, we affirm the decision of the court of appeals.

By the Court.——The decision of the court of appeals is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: