In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-3198 

RICHARD WEBBER, as Special Administrator of the Estate of 

Sara J. Schmidt, 

Plaintiff-Appellant, 

v.

ARMSLIST LLC and JONATHAN GIBBON, 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Eastern District of Wisconsin. 

No. 1:20-cv-01526-WCG — William C. Griesbach, Judge. 

____________________ 

No. 21-3207 

ERIN BAUER and ESTATE OF PAUL BAUER, 

Plaintiffs-Appellants, 

v.

ARMSLIST LLC and JONATHAN GIBBON, 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Eastern District of Wisconsin. 

No. 2:20-cv-00215-PP — Pamela Pepper, Chief Judge. 
2 Nos. 21-3198 and 21-3207 

____________________ 

ARGUED SEPTEMBER 13, 2022 — DECIDED JUNE 12, 2023 

____________________ 

Before FLAUM, BRENNAN, and SCUDDER, Circuit Judges. 

BRENNAN, Circuit Judge. In these cases, we consider

whether a website that hosts advertisements for the sale and 

purchase of firearms can be held liable under Wisconsin law 

for the deaths of two shooting victims. The circumstances giving rise to the complaints at issue are grave and the allegations are serious. 

Erin Bauer and Richard Webber are the legal representatives and family members of two individuals killed using 

guns that had been listed on armslist.com, an online firearms 

marketplace. Bauer and Webber each sued Armslist LLC and 

its member manager, Jonathan Gibbon, in separate diversity 

actions, alleging negligence and other Wisconsin state law 

claims. The plaintiffs assert that the defendants designed the

website to encourage and assist individuals in circumventing 

federal and state law regulating firearms. The defendants argue that the plaintiffs have failed to state a claim upon which 

relief can be granted because publishing third-party offers to 

sell firearms does not establish tort or other liability under 

Wisconsin law. 

The district court dismissed the negligence claim in both 

cases, concluding that the plaintiffs failed to plausibly allege 

the website’s design caused the deaths. The remaining claims

were also dismissed, and in Bauer, Gibbon was dismissed 

from the lawsuit for lack of personal jurisdiction. Bauer seeks 

reversal of Gibbon’s dismissal, and Armslist LLC challenges 
Nos. 21-3198 and 21-3207 3

the exercise of personal jurisdiction over Gibbon in Webber. At 

the heart of these appeals, Bauer and Webber also challenge 

the dismissal of their claims under Federal Rule of Civil Procedure 12(b)(6). The defendants ask us to affirm the dismissal 

of the plaintiffs’ claims, either on the merits under Wisconsin 

law or as preempted by the Communications Decency Act

(CDA), 47 U.S.C. § 230. The CDA precludes a website from 

being “treated” as the “publisher or speaker of any 

information provided by another information content provider.” § 230(c)(1). We agree with the defendants that the district court lacked personal jurisdiction over Gibbon. We also 

affirm the district court’s dismissal of the plaintiffs’ negligence and other state law claims against Armslist LLC. Because we affirm on the state law claims, we decline to rule on 

the preemption issue. 

We first describe the factual and procedural background 

of the cases. Then we address the exercise of personal jurisdiction over Gibbon, followed by the question of preemption 

by the CDA. Next, we review the plaintiffs’ negligence claim, 

as well as their other state law claims. Finally, we consider the 

plaintiffs’ requests to amend their complaints.1 

1 Armslist LLC argues that Illinois law should govern Bauer’s claims. 

Although the company acknowledges that Wisconsin’s choice-of-law 

rules require this court to analyze whether an outcome-determinative conflict exists between Wisconsin and Illinois law, see State Farm Mut. Auto. 

Ins. Co. v. Gillette , 641 N.W.2d 662, 675 (Wis. 2002); Hunker v. Royal Indem. 

Co., 204 N.W.2d 897, 901 (Wis. 1973), it contends in a conclusory fashion 

that Bauer’s allegations cannot state any claim under either state’s law. 

Armslist LLC offers no arguments about the standard governing Bauer’s 

claims under Illinois law and fails to engage with the district court’s reasoning as to why Wisconsin law applies. We conclude that Armslist LLC 

has waived its challenge to the application of Wisconsin law. See Cont’l W. 
4 Nos. 21-3198 and 21-3207 

I. Background

Under federal law, only licensed gun dealers may “engage 

in the business of importing, manufacturing, or dealing in 

firearms, or importing or manufacturing ammunition.” 18 

U.S.C. § 923(a); see also § 922(a)(1).2 Among other requirements, licensed dealers must contact the national instant 

criminal background check system prior to completing a 

transfer, verify the identity of any purchaser, and maintain 

records of importation, production, shipment, receipt, sale, or 

other disposition. § 922(t)(1); § 923(g)(1)(A); 27 C.F.R. 

§ 478.124. 

Under Wisconsin law, a firearms dealer, defined as “any 

person engaged in the business of importing, manufacturing 

or dealing in firearms and having a license as an importer, 

manufacturer or dealer issued by the federal government,” is 

subject to similar requirements. WIS. STAT. § 175.35(1)(ar), (2). 

Private sellers may also sell firearms in Wisconsin consistent 

with state and federal law. See 18 U.S.C. §§ 921(a)(21)(C), 

923(a); Daniel v. Armslist, LLC, 926 N.W.2d 710, 722 (Wis. 

2019). A private seller is not engaged in the business of selling 

firearms as defined under federal and state law and therefore 

is not subject to the same requirements as firearms dealers. 

§ 921(a)(21)(C); § 923(a); § 175.35(1)(ar), (2). 

Ins. Co. v. Country Mut. Ins. Co., 3 F.4th 308, 318 (7th Cir. 2021); Puffer v. 

Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012). 

2 Unless otherwise indicated, all federal and state statutory and regulatory citations are to the versions in effect at the time of the shootings and 

the purchases of the firearms. 
Nos. 21-3198 and 21-3207 5

A. Factual

Armslist.com is an online marketplace for firearms. Defendants Armslist, LLC, a Pennsylvania limited liability company, and Jonathan Gibbon, a Pennsylvania resident, are the 

operator and member manager of armslist.com.3 Armslist 

LLC is not engaged in the business of selling firearms. Rather, 

its website hosts “for sale” and “want to buy” ads posted by 

users. 

Plaintiff Erin Bauer is the widow and executor of the estate 

of Paul Bauer and resides in Illinois. Thomas Caldwell, a private seller from Wisconsin, listed a Glock 26 9mm handgun

for sale on armslist.com. That gun was purchased by Ron 

Jones from Milwaukee in 2017. According to Bauer’s complaint, Jones resold that Glock handgun “into the broader 

criminal market where it ultimately was obtained” by 

Shomari Legghette. Legghette used the gun to shoot and kill 

Chicago Police Commander Paul Bauer on February 13, 2018, 

in downtown Chicago. 

Plaintiff Richard Webber is the special administrator of the 

estate of his deceased daughter, Sara Schmidt, of Harrison, 

Wisconsin. She was the victim of domestic violence by her estranged husband, Robert Schmidt, who was arrested. A court 

prohibited him from possessing any firearms, but he purchased a gun on January 8, 2018 from a private party, Brock 

Verstagen, through armslist.com. Schmidt used the handgun

to kill Sara and himself the next day. 

3 We use the title reflected in Jonathan Gibbon’s affidavits in support 

of his motions to dismiss. 
6 Nos. 21-3198 and 21-3207 

Webber sued Armslist LLC and Gibbon under diversity 

jurisdiction, alleging negligence and six other causes of action.4 Bauer sued the same defendants, making the same 

claims and adding causes of action for aiding and abetting 

tortious conduct as well as loss of consortium. 

The plaintiffs level serious accusations against the defendants. They allege that armslist.com allows individuals to engage in the business of selling firearms without a license and 

to circumvent federal and state law governing firearms dealers, including avoiding background checks. The defendants 

purportedly accomplished this through design and content 

features. Among these are choosing to label purchases and 

sales as private party transactions by default. The plaintiffs 

also claim that armslist.com allows users to filter listings to 

identify private party sellers. This “filter function” allegedly

facilitates the private sale of firearms without background 

checks to individuals prohibited from possessing firearms. 

The plaintiffs also contend the defendants provided certain assurances that enabled both buyers and sellers to operate anonymously, including that: 

• “ARMSLIST DOES NOT become involved in transactions between parties and does not certify, investigate, or in any way guarantee the legal capacity of 

any party to transact”; 

• “ARMSLIST can not and will not be a party in transactions. It is the sole responsibility of the buyer and 

seller to conduct safe and legal transactions”; 

4 Negligence per se, public nuisance, civil conspiracy, wrongful death, 

a survival action, and piercing the corporate veil. 
Nos. 21-3198 and 21-3207 7

• “You can perform all of the major functions without creating an account”; and

• Armslist will not contact a seller on behalf of a user 

or provide a user with information about another 

user but can provide this information to law enforcement during due process of law. 

In addition to contending that the website’s design is 

flawed, Bauer and Webber allege that Armslist LLC and Gibbon should have implemented certain design features, 

adopted by other online firearm marketplaces, to prevent illegal transactions. These include requiring evidence of the legality of the transactions, background checks and transaction 

records, delivery through federal firearms licensees, and a 

waiting period. They also include taking certain actions with 

respect to high volume sellers, allowing users to flag illegal 

conduct, and providing updated information on firearms 

laws.

B. Procedural

These two diversity cases proceeded before different district judges. Gibbon sought dismissal for lack of personal jurisdiction in both cases. In each case, both defendants moved 

under Federal Rule of Civil Procedure 12(b)(6) to dismiss the 

complaints for failure to state a claim. 

In Bauer, the plaintiffs amended their complaint twice before the defendants moved to dismiss for lack of personal jurisdiction and failure to state a claim. The district court held a 

hearing at which it granted Gibbon’s motion to dismiss for 

lack of personal jurisdiction. At the hearing, counsel in Bauer

asked whether they could amend their complaint to remedy 

the personal jurisdiction issues. The court responded 
8 Nos. 21-3198 and 21-3207 

affirmatively but advised the plaintiffs to wait to do so until 

after the court had ruled on Armslist LLC’s motion to dismiss. 

After the hearing, the court granted Armslist LLC’s motion to 

dismiss for failure to state a claim and entered judgment dismissing the case. The court ruled that Bauer sufficiently alleged duty, breach, and damages, but not causation. 

Webber moved to transfer his case to federal court in Pennsylvania. But the Eastern District of Wisconsin court denied 

that motion. It also denied Gibbon’s motion to dismiss for lack 

of personal jurisdiction and granted the defendants’ motion 

to dismiss for failure to state a claim. The court found that 

Webber sufficiently alleged all elements of a negligence claim 

except causation. Judgment was entered dismissing the Webber case. 

Armslist LLC and Gibbon further asserted in their motions to dismiss that § 230 of the CDA barred Bauer’s and 

Webber’s state law claims. The district court rejected the defendants’ arguments, however. In Webber, the court concluded

that the plaintiffs sought to hold Armslist LLC and Gibbon 

responsible for their own role in developing content, and that 

neither plaintiff sought to treat the defendants as the publisher or speaker of third-party content, which the CDA prohibits. Bauer reached the same conclusion. The court also dismissed the plaintiffs’ remaining claims, including because 

failure to plead negligence was fatal to many of them. 

II. Personal Jurisdiction

We consider first whether the defendants waived their 

right to challenge the court’s ruling in Webber that personal 

jurisdiction existed over Gibbon. 
Nos. 21-3198 and 21-3207 9

The plaintiffs argue a cross-appeal is necessary to reach 

this question, but we do not agree. A cross-appeal is required 

when a party seeks to modify the district court’s judgment. 

Wellpoint, Inc. v. Comm’r of Internal Revenue, 599 F.3d 641, 649 

(7th Cir. 2010). “The judgment is not the court’s opinion or 

reasoning; it is the court’s bottom line ... .” Id. at 650. A crossappeal permits an appellant “the same right to respond to his 

opponent’s brief” and “alert[s] the court to the dual role of the 

parties in the appeal.” Id. 

Here, the judgment is the dismissal of the case and entry 

of final judgment. Dismissing the case for lack of personal jurisdiction would not modify that judgment. Additionally, 

Bauer already appealed the grant of Armslist LLC and Gibbon’s motion to dismiss for lack of personal jurisdiction, so

we are aware of this issue and the positions of the parties in 

both cases. Gibbon therefore has not waived his challenge on 

this point.

In Bauer, the district court concluded that it lacked 

personal jurisdiction over Gibbon. It reasoned that specific jurisdiction was absent because, although Armslist LLC’s activities could be attributed to Gibbon, there was no indication 

that Gibbon or Armslist LLC targeted the forum state of Wisconsin. 

But in Webber the court ruled differently, concluding that 

subsection (4)(a) of Wisconsin’s long-arm statute for “[s]olicitation or service activities ... carried on within” Wisconsin 

conferred jurisdiction over Gibbon. WIS. STAT. § 801.05(4)(a). 

Under the due process prong of the personal jurisdiction inquiry, the court reasoned that the complaint sought to hold 

Gibbon responsible for his role as a creator, designer, and administrator of armslist.com, and not merely because of his 
10 Nos. 21-3198 and 21-3207 

corporate role. Because Gibbon was willing to serve and sell 

to customers in Wisconsin and collect the benefits flowing 

therefrom, the court found that personal jurisdiction existed 

over Gibbon. 

Dismissal for lack of personal jurisdiction is reviewed de 

novo. Curry v. Revolution Lab’ys, LLC, 949 F.3d 385, 392 (7th 

Cir. 2020). Where there has been no evidentiary hearing, a

plaintiff need only make a prima facie showing that the court 

has personal jurisdiction over the defendant. Id. at 392–93. 

Federal courts sitting in diversity must apply the personal jurisdiction rules of the forum state. Kipp v. Ski Enter. Corp. of 

Wis., Inc., 783 F.3d 695, 697 (7th Cir. 2015). A federal court sitting in Wisconsin may exercise jurisdiction only if it comports 

with Wisconsin’s long-arm statute, WIS. STAT. § 801.05, and 

Fourteenth Amendment due process. Felland v. Clifton, 682 

F.3d 665, 672 (7th Cir. 2012). 

Two subsections of Wisconsin’s long-arm statute have 

been argued or held to establish jurisdiction over Gibbon:

Wisconsin Statute § 801.05(3) and (4)(a). Plaintiffs contend

that specific jurisdiction over Gibbon exists under § 801.05(3), 

which provides that Wisconsin courts have personal jurisdiction in an action “claiming injury to person or property within 

or without this state arising out of an act or omission within 

this state by the defendant.” In Webber, the court concluded 

that jurisdiction could be exercised under § 801.05(4)(a), 

which provides for jurisdiction in an 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...[s]olicitation or service 

activities were carried on within this state by or on behalf of 

the defendant.” 
Nos. 21-3198 and 21-3207 11

Plaintiffs argue that Gibbon designed armslist.com to 

solicit business “in many states, including Wisconsin.” By instituting design elements that permitted users to search for 

private sellers in Wisconsin, according to the plaintiffs, Gibbon subjected himself to personal jurisdiction in the forum. 

In dispute is whether Armslist LLC’s business in Wisconsin may be attributed to Gibbon by virtue of his corporate role

for purposes of personal jurisdiction. Under Wisconsin law, 

showing that an officer has control over a corporation allows 

for attribution of the corporation’s activities to that officer. 

Yet, a corporation’s contacts with a forum must have existed 

by virtue of the officer’s control.

In Pavlic v. Woodrum, 486 N.W.2d 533, 534 (Wis. Ct. App. 

1992), Louis Woodrum solicited the plaintiff’s investment in 

a corporation organized with his son Timothy. After the 

plaintiff agreed to invest, Timothy sent the stock certificates 

by mail to the plaintiff’s Wisconsin address, and later sent a 

letter to the same address informing the plaintiff that the corporation had failed. Id. The plaintiff sued Timothy for damages in Wisconsin, arguing that personal jurisdiction could be 

exercised over him based on the sending of the stock certificate and letter. See id. at 534–35. The Wisconsin Court of Appeals held that Louis’s and the corporation’s contacts with 

Wisconsin could not be attributed to Timothy solely because 

of his role as an officer. Id. at 534. That court analyzed Timothy’s contacts with the forum—the stock certificate and the 

letter—and held that these were insufficient to establish longarm jurisdiction over Timothy for soliciting business in Wisconsin. Id. at 535. The court reasoned that Timothy could not 

have anticipated a financial benefit when he made the two 

mailings. Id. Rather, the mailing of the stock certificate was a 
12 Nos. 21-3198 and 21-3207 

ministerial duty required because of Louis’s contact, and the 

letter merely informed the plaintiff of dissolution. See id. That 

court then considered whether personal jurisdiction existed 

over Timothy under State v. Advance Marketing Consultants, 

Inc., 225 N.W.2d 887 (Wis. 1975). Pavlic, 486 N.W.2d at 536. 

In Advance Marketing, the Wisconsin Supreme Court concluded that “the placing of advertisements in newspapers circulated in Wisconsin” constituted an act or omission within 

the state from which the injury arose. 225 N.W.2d at 892. This 

activity was undertaken by virtue of the corporate officer’s 

control of the corporation, as shown through trial testimony, 

and therefore could be attributed to him for purposes of exercising personal jurisdiction. See id. at 891–92. In Pavlic, the 

Wisconsin Court of Appeals explained that Advance Marketing 

could not be understood to conclude that an officer of a corporation who commits a personal tort—in those cases, involving fraud or misrepresentation—is always subject to personal 

jurisdiction. See Pavlic, 486 N.W.2d at 536. Rather, “[t]here 

must be some act or omission by that officer in Wisconsin to 

justify personal jurisdiction.” Id. Pavlic explained that the “advertisements [in Advance Marketing] were circulated in Wisconsin by virtue of the officer’s control” and therefore could 

be attributed to the officer. Id. Because Timothy had not acted 

in Wisconsin, Advance Marketing was not controlling. Pavlic, 

486 N.W.2d at 536. 

As in Pavlic, Gibbon’s activities cannot be considered 

actions within Wisconsin for purposes of exercising personal 

jurisdiction over him. Plaintiffs have alleged that Gibbon designed armslist.com to permit it to be accessed “in many 

states, including Wisconsin.” But they have failed to plead 

that in designing the website, Gibbon anticipated receiving a 
Nos. 21-3198 and 21-3207 13

financial benefit from users in Wisconsin because he made the 

decision to solicit business in that state. In other words, the 

plaintiffs do not allege that Gibbon was responsible for Armslist LLC’s decision to target the forum. Instead, plaintiffs 

plead only that Gibbon “played a role in the design, architecture, and administration of Armslist.com” and “controls its 

operations.” We decline to draw from these allegations the 

unsupported inference that Gibbon’s “role” or “control” encompassed deciding that Armslist LLC would solicit business 

from Wisconsin.5 Plaintiffs have therefore not alleged an act 

or omission occurring within the state or solicitation or service activities outside of the state by Gibbon that would bring 

him within the grasp of Wisconsin’s long-arm statute. 

Under this reasoning, the district court did not have personal jurisdiction over Gibbon.

III. Communications Decency Act

The defendants argue in each case that the plaintiffs’ state 

law claims are preempted by the Communications Decency 

Act (CDA), 47 U.S.C. § 230. The provision at issue states:

Protection for “Good Samaritan” blocking and 

screening of offensive material

(1) Treatment of publisher or speaker 

No provider or user of an interactive computer 

service shall be treated as the publisher or 

5 Gibbon describes his role as a “member manager,” and Bauer suggests there may be additional “members” of Armslist LLC. This is an additional reason to be cautious to attribute Armslist LLC’s decision to solicit

business in Wisconsin to Gibbon given only a vague allegation that Gibbon “controls [Armslist LLC’s] operations.”
14 Nos. 21-3198 and 21-3207 

speaker of any information provided by another 

information content provider. 

§ 230(c)(1). Two terms in this statute are defined in § 230(f). 

First, an “interactive computer service” is “any information 

service, system, or access software provider that provides or enables computer access by multiple users to a computer server, 

including specifically a service or system that provides access 

to the Internet and such systems operated or services offered 

by libraries or educational institutions.” § 230(f)(2) (emphasis 

supplied). An ”access software provider” is a provider of software (including client or server software), or enabling tools 

that do any one or more of the following:

(A) filter, screen, allow, or disallow content; 

(B) pick, choose, analyze, or digest content; or

(C) transmit, receive, display, forward, cache, 

search, subset, organize, reorganize, or translate 

content.

§ 230(f)(4). This court has previously considered websites 

hosting third-party advertisements, like armslist.com, to fall 

within the definition of “interactive computer service.” See 

Chicago Laws.’ Comm. for Civ. Rts. Under L., Inc. v. Craigslist, 

Inc., 519 F.3d 666, 668, 671–72 (7th Cir. 2008) (treating the 

online host of third-party housing advertisements as an interactive computer service). Second, § 230(f)(3) defines an “information content provider” as “any person or entity that is 

responsible, in whole or in part, for the creation or development of information provided through the Internet or any 

other interactive computer service.”

Whether the CDA preempts plaintiffs’ state law claims is 

a pure question of law that we review de novo. See Talignani 
Nos. 21-3198 and 21-3207 15

v. United States, 26 F.4th 379, 381 (7th Cir. 2022); White v. United 

Airlines, Inc., 987 F.3d 616, 620 (7th Cir. 2021). As a federal 

court sitting in diversity, we are not bound by the decisions 

of state courts interpreting a federal statute.6 

This court first examined § 230(c)(1) in Doe v. GTE Corp., 

347 F.3d 655 (7th Cir. 2003). There, the plaintiffs sued corporations that provided web hosting services to websites that 

offered hidden camera videos of the plaintiffs for sale. Id. at 

656. Others provided the video and website content, although 

the corporations may have provided “technical or artistic assistance in the creation and maintenance of” the websites. Id.

at 657. This court proposed two potential readings of 

§ 230(c)(1). See id. at 660. First, § 230(c)(1) might be read as a 

clause defining “provider or user” for immunity under 

§ 230(c)(2). Id. Thus, if the objectionable information came 

from someone else, then the defendant would be eligible for 

immunity under § 230(c)(2); but if the defendant created the 

objectionable information, it would be a “publisher or 

speaker” of that content and fall outside of § 230(c)(2). Id. Second, § 230(c)(1) might preclude liability to the extent an internet service provider could be considered a “publisher” of 

6 In each case, the parties argue for the interpretations of the CDA by 

Wisconsin’s appellate courts in Daniel v. Armslist, LLC, 913 N.W.2d 211 

(Wis. Ct. App. 2018), rev’d, 926 N.W.2d 710 (Wis. 2019)—the plaintiffs for 

the ruling by the state appellate court, and the defendant for that by the 

state supreme court. 

We apply Wisconsin substantive law as a court sitting in diversity, but 

that state’s appellate decisions do not govern our interpretation of the federal CDA. Cf. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 198 (1988) 

(citations omitted) (“Although state law generally supplies the rules of decision in federal diversity cases, it does not control the resolution of issues 

governed by federal statute.”). 
16 Nos. 21-3198 and 21-3207 

another’s content. Id. But the court did “not decide which understanding of § 230(c) is superior” because plaintiffs failed to 

plead any underlying state claim. Id.

In Craigslist, the Chicago Lawyers’ Committee for Civil 

Rights Under Law sued Craigslist under the Fair Housing Act 

for allegedly discriminatory ads that were posted by third

parties. 519 F.3d at 668. The Lawyers’ Committee argued that 

Craigslist caused these ads “to be made, printed, or published” under 42 U.S.C. § 3604(c). Craigslist, 519 F.3d at 671. 

This court explained that § 230(c)(1) does not grant “comprehensive immunity from civil liability for content provided by 

a third party,” illustrated by the liability of information content providers “for contributory infringement if their system 

is designed to help people steal music or other material in 

copyright.” Id. at 670 (citing Metro-Goldwyn-Mayer Studios Inc. 

v. Grokster, Ltd., 545 U.S. 913 (2005)). But we concluded that

the only way Craigslist could be held liable under § 3604(c) 

was if it was treated as a publisher or speaker of advertisements authored by third parties, which § 230(c)(1) precluded. 

See id. at 671. 

Later, in City of Chicago v. Stubhub!, Inc., an internet auction 

site invoked the CDA in response to an action by the City of 

Chicago to collect and remit taxes for tickets sold. 624 F.3d 

363, 364–65 (7th Cir. 2010). We held that § 230(c)(1) did not 

apply because the City did not seek to hold StubHub! liable 

as a publisher or speaker of information, such as through a 

defamation, obscenity, or copyright infringement suit. See id. 

at 366. 

Five years later in Backpage.com, LLC v. Dart, this court considered whether a county sheriff violated the First Amendment by threatening credit card companies with criminal 
Nos. 21-3198 and 21-3207 17

prosecution as accomplices to illegal activity being advertised 

on an online forum. See 807 F.3d 229, 233–34 (7th Cir. 2015). 

This court referred to Doe, 347 F.3d at 659, in noting that under 

ordinary understandings of culpable assistance of wrongdoers, entities that know the information’s content do not become liable for the poster’s words. Backpage, 807 F.3d at 234. 

We therefore expressed doubt that the online forum could be 

held liable for aiding and abetting a crime just because they 

were aware that users had posted ads for illegal conduct. See 

id. We acknowledged, however, that the CDA did not immunize the online forum from federal criminal liability. Id. 

Most recently, in Huon v. Denton, this court implicitly accepted the second of Doe’s descriptions of § 230(c)(1)’s effect: 

that the provision precludes liability whenever the cause of 

action treats an interactive computer service as the publisher 

of another’s content. 841 F.3d 733, 741 (7th Cir. 2016) (describing that Doe “explain[ed] that ‘entities that know the information’s content do not become liable for the sponsor’s 

deeds,’ and not[ed] that § 230(c) preempts contrary state law” 

(quoting Doe, 347 F.3d at 658–59)). In Huon, this court reversed 

dismissal of a defamation claim where the plaintiff plausibly 

alleged that employees of the defendant website “helped 

create and develop” some of the allegedly defamatory comments. Id. at 736–37. We explained that “for purposes of defamation and other related theories of liability, a company ... 

cannot be considered the publisher of information simply because the company hosts an online forum for third-party users to submit comments.” Id. at 741. But the CDA does not 

preclude liability against companies “for creating and posting, inducing another to post, or otherwise actively participating in the posting of” content. Id. at 742. 
18 Nos. 21-3198 and 21-3207 

These precedents show that § 230(c)(1) is not a comprehensive grant of immunity for third-party content. Instead, 

that subsection precludes liability only where the success of 

the underlying claims requires the defendant to be considered 

a publisher or speaker of that content. But § 230(c)(1) may not 

necessarily preclude liability if the underlying claims identify 

the interactive computer service’s own content as objectionable. 

Plaintiffs argue their claims are based on content Armslist 

LLC created to allegedly encourage and assist prohibited 

third parties to engage in illegal firearms transactions. To 

Webber and Bauer, armslist.com enables anyone to identify 

themselves as a “Private Party.” The website also applies that 

phrase to all advertisements created by users without an account. Both complaints further allege that Armslist LLC created content that informed users that the company does not 

become involved in transactions or certify, investigate, or 

guarantee the legal capacity of any party to transact. According to the plaintiffs, these features enabled individuals to circumvent federal and state firearms laws. 

Armslist LLC responds that the plaintiffs seek to impose 

upon it a duty of care to protect others from harm that arises

from publication of third-party advertisements on armslist.com. The plaintiffs’ theory, in Armslist LLC’s view, is 

that prohibited possessors and sellers used armslist.com to 

advertise illegal gun transactions. According to Armslist LLC, 

any state cause of action for failing to prevent illegal transactions treats Armslist LLC as a publisher of third-party advertisements. Along the same line, Armslist LLC submits that the 

decision to create a listing with the private-party label was ultimately the user’s decision. 
Nos. 21-3198 and 21-3207 19

Our analysis is aided by this court’s discussion in Craigslist

about the interaction between § 230(c)(1) and contributory 

copyright infringement suits. 519 F.3d at 670. Plaintiffs’ allegations that armslist.com was designed to encourage and assist individuals to engage in illegal gun sales and purchases 

are similar to the allegations that the software products of 

Grokster, Ltd. and StreamCast Networks, Inc. were designed 

to encourage the illegal obtaining of music or other copyrighted material. See Grokster, 545 U.S. at 918–19, 936–37. We 

explained in Craigslist that § 230(c)(1)’s limited role meant 

that the cause of action in Grokster would not necessarily be 

precluded because § 230(c)(1) is not a grant of comprehensive 

immunity for content provided by a third party. Craigslist, 519 

F.3d at 670. Even so, we need to decide whether § 230(c)(1) 

precludes the plaintiffs’ claims only if they have stated a cause 

of action against Armslist LLC. See Doe, 347 F.3d at 660. We 

therefore assess those claims.

IV. Negligence

We next address whether the plaintiffs have plausibly 

pleaded common law negligence claims against Armslist 

LLC. As in our personal jurisdiction analysis, the substantive

law of the forum state controls, Erie R.R. Co. v. Tompkins, 204 

U.S. 64, 78 (1938), here, Wisconsin tort law. If the Wisconsin 

Supreme Court has not yet addressed an issue before us, we 

look to the decisions of the Wisconsin Court of Appeals to predict that state’s law. In re Zimmer, NexGen Knee Implant Prods. 

Liab. Litig., 884 F.3d 746, 751 (7th Cir. 2018). 

To the extent a conflict exists between the state and federal 

pleading standards, see Cattau v. Nat’l Ins. Servs. of Wis., 926 

N.W.2d 756, 758–59 (Wis. 2019), we apply the federal pleading 

standard to assess the sufficiency of the allegations on a 
20 Nos. 21-3198 and 21-3207 

motion to dismiss. Windy City Metal Fabricators & Supply, Inc. 

v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 670–72 (7th Cir. 2008). 

“To survive a motion to dismiss, a plaintiff must allege 

‘enough facts to state a claim to relief that is plausible on its 

face.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 365–

66 (7th Cir. 2018) (quoting Bell Alt. Corp. v. Twombly, 550 U.S. 

544, 570 (2007)). “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009)). 

A. Wisconsin common law of negligence, including 

public policy factors

A negligence claim under Wisconsin law consists of four 

elements: duty, breach, causation, and damages. See Brenner 

v. Amerisure Mut. Ins. Co., 893 N.W.2d 193, 198 (Wis. 2017) (citing Gritzner v. Michael R., 611 N.W.2d 906, 912 (Wis. 2000)). 

Armslist LLC does not dispute that damages have been alleged. Among the other three elements, we focus on the third, 

causation.

Legal cause under Wisconsin law has two components: 

cause-in-fact and public policy factors. See Fandrey ex rel. Connell v. Am. Fam. Mut. Ins. Co., 680 N.W.2d 345, 351–52 (Wis. 

2004); see also Wis. JI-CIVIL 1500 cmt. Cause-in-fact is established using the “substantial factor” test. Fandrey, 680 N.W.2d 

at 351. The public policy factors address whether the cause of 

the harm is legally sufficient to permit recovery. See id. at 353. 

In other words, under Wisconsin law, “[p]roximate cause involves public policy considerations for the court,” although 

the term “proximate cause” is no longer used. Id. at 352–53. 
Nos. 21-3198 and 21-3207 21

The six public policy factors Wisconsin courts consider 

when deciding whether to limit liability are: (1) “[T]he injury 

is too remote from the negligence”; (2) “Recovery is ‘too 

“wholly out of proportion to the culpability of the negligent 

tort-feasor”’”; (3) “[I]n retrospect it appears too highly extraordinary that the negligence should have brought about 

the harm”; (4) “Allowing recovery ‘would place too unreasonable a burden upon [the tortfeasor]’”; (5) “Allowing recovery 

would be ‘too likely to open the way to fraudulent claims’”; 

or (6) “Allowing recovery ‘would “enter a field that has no 

sensible or just stopping point.”’” Id. at 348 n.1 (quoting Colla 

v. Mandella, 85 N.W.2d 345, 348 (Wis. 1957)). Because these 

factors are set out in the disjunctive, a finding that one is satisfied is sufficient to preclude liability. See Tobias v. Cnty. of 

Racine, 507 N.W.2d 340, 342 (Wis. Ct. App. 1993). 

The application of these public policy factors is a question 

of law. Fandrey, 680 N.W.2d at 350. The Wisconsin Supreme 

Court has emphasized that when courts limit liability as part 

of the legal cause analysis, they are not pronouncing on “what 

is politically appropriate for the state as a whole.” Id. at 354. 

Rather, they are engaged in an analysis that is “inexorably 

tied to legal cause in Wisconsin,” id. at 354, and is “a function 

of the court.” Stephenson v. Universal Metrics, Inc., 641 N.W.2d 

158, 168–69 (Wis. 2002). But that function must be exercised 

with due respect for legislative choices expressed in its enactments. See Hoida, Inc. v. M & I Midstate Bank, 717 N.W.2d 17, 

33–34 (Wis. 2006); Smaxwell v. Bayard, 682 N.W.2d 923, 941, 

941 n.15 (Wis. 2004); Stephenson, 641 N.W.2d at 168–69. 

In conducting the public policy analysis, Wisconsin courts 

have tread carefully when it comes to subject matters that are 

“highly regulated by the legislature.” Stephenson, 641 N.W.2d 
22 Nos. 21-3198 and 21-3207 

at 170. On those topics, the Wisconsin Supreme Court has expressed a particular reluctance “to create liability where the 

legislature has not expressed that there should be any.” Id.

That court has sometimes addressed the relevance of legislative enactments under the sixth public policy factor; on other 

occasions, it has considered certain statutes apart from its discussion of the relevant factors. Compare Smaxwell, 682 N.W.2d 

at 939–42 and Nichols v. Progressive N. Ins. Co., 746 N.W.2d 220, 

229–31 (Wis. 2008), with Hoida, 717 N.W.2d at 33–35. 

The Wisconsin Supreme Court has expressed that “the 

better practice is to submit the case to the jury before determining whether the public policy considerations preclude liability.” Alvarado v. Sersch, 662 N.W.2d 350, 355 (Wis. 2003). 

But it has also stated that a court may apply public policy considerations before trial where the policy questions are fully 

presented and the facts are easily ascertainable. Fandrey, 680 

N.W.2d at 358; see Hornback v. Archdiocese of Milwaukee, 752 

N.W.2d 862, 875–76 (Wis. 2008). 

Plaintiffs contend the district court in Webber erred in addressing the public policy factors at the motion to dismiss 

stage because the facts are insufficiently established. But the 

public policy factors have previously been applied on motions to dismiss. See, e.g., Nichols, 746 N.W.2d at 222–23, 227. 

Important to our consideration is that the relevant public policy to be applied in these cases stems from legislative enactments. The parties acknowledge that Armslist LLC does not 

sell firearms, let alone engage in the business of selling firearms, so the interpretation and application of statutes to these 

cases does not require full development of the facts. Moreover, the pleadings and briefing present a question of public 

policy. See Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d 
Nos. 21-3198 and 21-3207 23

432, 443 (Wis. 1994). That question is whether it contravenes 

statutes for a website hosting firearms transactions to be held 

to the standards regulating firearms dealers in Wisconsin, or 

to charge such a website with enforcing those standards. The 

parties submitted substantial briefing addressing the first, 

second, fourth, and sixth public policy factors, and the scope 

of Wisconsin statutes regulating firearms transactions appears on the face of the complaints. For these reasons, the 

public policy factors are appropriately considered in resolving these cases at the motion to dismiss stage. 

B. Wisconsin statute on purchase of handguns 

The key legislative enactment guiding our discussion is 

Wisconsin Statute § 175.35, which regulates the purchase of 

handguns. That statute defines “firearms dealer” as “any person engaged in the business of importing, manufacturing or 

dealing in firearms and having a license as an importer, manufacturer or dealer issued by the federal government.” 

§ 175.35(1)(ar). By referring to the federal licensing scheme, 

the state statute incorporates certain definitions provided under federal law. First, a “licensed dealer” is “any dealer who 

is licensed under the provisions of this chapter,” and a 

“dealer” includes “any person engaged in the business of selling firearms at wholesale or retail.” 18 U.S.C. § 921(a)(11). The 

term “engaged in the business,” however, “shall not include 

a person who makes occasional sales, exchanges, or purchases 

of firearms for the enhancement of a personal collection or for 

a hobby, or who sells all or part of his personal collection of 

firearms.” § 921(a)(21)(C). Therefore, the provisions of 

§ 175.35 governing firearms dealers exclude individuals making occasional sales and exchanges—that is, private sellers. 

Wisconsin law compels firearms dealers to obtain evidence of 
24 Nos. 21-3198 and 21-3207 

the legality of the transaction, conduct background checks, 

and keep transaction records, among other requirements. See

§ 175.35. To aid our evaluation, we consider these statutory 

demands on firearms dealers.

Evidence of transaction’s legality. Before transferring possession of a handgun, a firearms dealer must, among other 

things, obtain identification and a completed notification 

form from a transferee. § 175.35(2)(a)–(b). Section 175.35(2g)(a) specifies, “The department of justice shall 

promulgate rules prescribing procedures for a transferee to 

provide and a firearms dealer to inspect identification containing a photograph of the transferee.” The Wisconsin State 

Department of Justice promulgated Wisconsin Administrative Code § Jus. 10.01, which declared the purpose of the 

chapter to be “to establish the procedures, as required under 

s. 175.35(2g), Stats., for searching the records of persons to 

whom a handgun dealer proposes to transfer a handgun.”7

Section Jus. 10.06(1)(a) states that a dealer “shall require each 

handgun transferee to show the dealer, for the dealer’s inspection, a reliable identification document. The identification 

document shall include a photograph of the transferee.” A 

dealer must also “require each transferee to complete an official notification form obtained from the department,” which 

collects information including a transferee’s legal name, birth 

date, gender, race, social security number, and current address. § Jus. 10.06(1)(c)(1). This information is then used to 

7 “Handgun dealer” or “dealer” as used in the chapter refers to “a 

firearms dealer as defined in s. 175.35(1)(ar), Stats., who offers one or more 

handguns for sale.” WIS. ADMIN. CODE § Jus. 10.03. 
Nos. 21-3198 and 21-3207 25

certify the legality of a handgun transfer. See generally § Jus. 

10.06(1)(d)–(2).

Background Checks and Transaction Records. Before transferring a handgun, a firearms dealer must also request a “firearms restrictions record search.” WIS. STAT. § 175.35(2)(c). 

That includes “a search in the national instant criminal background check system.” § 175.35(at). Further, a firearms dealer 

must keep “the original record of all completed notification 

forms and a record of all confirmation numbers and corresponding approval or nonapproval numbers.” § 175.35(2j); see 

also WIS. ADMIN. CODE § Jus. 10.10(1). 

Delivery and Waiting Period. Wisconsin Statute § 175.35 

does not require purchasers of firearms from private sellers to 

take delivery in any specific way, nor does it impose a waiting 

period on the delivery of a firearm to the purchaser after a 

confirmation number from a firearms restrictions record 

search is obtained, see Daniel, 926 N.W.2d at 722. Moreover, 

Wisconsin Statute § 66.0409 governs the local regulation of 

weapons. That statute specifies “[n]othing in this section prohibits a political subdivision from continuing to enforce until 

November 30, 1998, an ordinance or resolution that is in effect 

on November 18, 1995, and that requires a waiting period of 

not more than 7 days for the purchase of a handgun.” 

§ 66.0409(am) (emphasis added). 

C. Plaintiffs’ negligence allegations

The allegations of Armslist LLC’s negligence track the 

same three categories: 

1. Evidence of Legality. Bauer and Webber contend Armslist 

LLC breached its duty by failing to require buyers and sellers 

to provide information about the legality of transactions. 
26 Nos. 21-3198 and 21-3207 

They specifically allege that Armslist LLC failed to demand 

greater transparency from users, such as by requiring both 

buyers and sellers to create accounts and provide credit-card 

verified evidence of their identities. They also aver Armslist 

LLC failed to oblige buyers and sellers to certify and provide 

evidence that they are legal transactors. Bauer adds that Armslist LLC was negligent in failing to require buyers and sellers 

to register. 

2. Background Checks and Transaction Records. Bauer and 

Webber further allege that Armslist LLC breached its duty by 

failing to require or recommend that sellers conduct background checks. Webber adds that Armslist was negligent in 

failing to require or recommend that sellers create transaction 

records. 

3. Delivery and Waiting Period. Bauer and Webber also 

claim that Armslist LLC was negligent in failing to require 

purchasers from private sellers to take delivery of the firearm 

through a federal firearms licensee, who would run a background check and create transaction records. Webber further 

alleges that Armslist LLC was negligent in failing to impose a 

reasonable waiting period for delivery of a firearm purchased 

through the website. 

As shown above, Wisconsin Statute § 175.35 regulates 

each of these aspects of handgun sales. Concluding that the 

allegations in these three categories state a negligence claim 

would directly contravene the Wisconsin legislature’s judgments, as reflected in Wisconsin Statute §§ 175.35 and 66.0409. 

Section 175.35 requires firearms dealers—not websites, 

private sellers, or other entities—to obtain certain evidence of 

the legality of a transaction, the first category. Armslist LLC 
Nos. 21-3198 and 21-3207 27

is not a firearms dealer. Concluding that the allegations in this 

first category can proceed would impose the responsibilities 

of firearms dealers on actors which the Wisconsin legislature 

has not chosen to regulate in this manner. It would also hold 

Armslist LLC liable for failing to operate as an arm of the state 

where Wisconsin has not given it this function. Just so, on allegations about background checks and transaction records—

the second category—the Wisconsin legislature has not chosen to regulate websites or private sellers, such as Verstagen, 

or to oblige them with enforcement. 

Under § 175.35, neither a method of delivery nor a waiting 

period is specified—the third category—even for firearms 

dealers. That statute also incorporates the federal definition in 

18 U.S.C. § 921 of “engaged in the business” of dealing in firearms, which expressly exempts private sellers from its requirements. Therefore, the Wisconsin legislature has chosen 

not to impose delivery specifications on handguns obtained 

via private sale, the third category. Nor has it imposed a waiting period on transactions. In fact, a forty-eight-hour waiting 

period that formerly existed under Wisconsin law was eliminated in later versions of § 175.35. See Act of June 24, 2015, § 3, 

2015Wis. Legis. Serv. 22 (West) (eliminating a minimum waiting period of forty-eight hours).

Armslist LLC is not a firearms dealer—rather, it operates 

a website that hosts third-party advertisements for the sale 

and purchase of firearms. The state has not entrusted it with 

enforcing the provisions of the regulatory scheme governing 

handgun transfers. It follows that Armslist LLC has no 

statutory obligation to collect identification, require 

certification and evidence of legal transactions, mandate or 

recommend background checks or recordkeeping, or regulate 
28 Nos. 21-3198 and 21-3207 

the delivery of firearms. If we decided that plaintiffs stated a 

negligence claim against Armslist LLC based on these three 

categories of allegations, that conclusion would contravene 

the Wisconsin legislature’s judgment on which entities—i.e., 

firearms dealers—will be held liable for meeting the 

requirements of state and federal law. Wisconsin has not 

chosen to include websites hosting firearms transactions as 

among the actors regulated in the ways plaintiffs allege, a 

decision that must be respected. Wisconsin has also chosen to 

exempt private sellers, like Verstagen, from certain 

requirements, WIS. STAT. § 175.35(1)(ar), and has made the 

decision to eliminate a waiting period on handgun purchases, 

see Act of June 24, 2015, § 3, 2015 Wis. Legis. Serv. 22 (West). 

We decline to redefine what is politically appropriate for the 

state or to find liability where Wisconsin has not expressed it 

should exist. See Hoida, 717 N.W.2d at 27; Stephenson, 641 

N.W.2d at 170. Just so, we note that state officials can take 

measures to ensure that this regulatory scheme, enacted by 

elected representatives, is complied with so its requirements 

do not become a “dead letter.” 

Although most of plaintiffs’ allegations fall into these 

three categories and are in unmistakable tension with Wisconsin’s legislative enactments, we see three sets of allegations that are not: 

• High Volume Sellers. Bauer alleges Armslist LLC was 

negligent in failing to: monitor high volume sellers, 

design its website to prevent unlawful high volume 

sales, remove sellers engaged in the business of selling firearms without a license, provide users with 

tools to report repeat offenders, notify law enforcement of users engaged in the business of selling 
Nos. 21-3198 and 21-3207 29

firearms, and inform users that law enforcement 

will be notified of persons who appear to be engaged in selling firearms without a license. 

• Flagging Illegal Conduct. Plaintiffs also claim Armslist LLC was negligent in failing to enable users to 

flag potentially illegal conduct and alert it and law 

enforcement of this activity. 

• Providing Updated Firearms Law. Bauer and Webber 

aver Armslist LLC breached its duty by failing to 

provide “extensive and regularly updated” information regarding all applicable firearms laws. 

We consider next whether plaintiffs have plausibly pleaded 

causation in any of these three sets of allegations. 

“The phrase ‘substantial factor’ denotes that the defendant’s conduct has such an effect in producing the harm as to 

lead the trier of fact, as a reasonable person, to regard it as a 

cause, using that word in the popular sense.” Merco Distrib. 

Corp. v. Com. Police Alarm Co., 267 N.W.2d 652, 654 (Wis. 1978) 

(citing Restatement (Second) of Torts § 431, cmt. a (1965)). Under Wisconsin law, causation is not restricted to a single act 

or omission: “[T]here can be more than one substantial factor 

contributing to the same result and thus more than one causein-fact.” Morgan v. Pa. Gen. Ins. Co., 275 N.W.2d 660, 666 (Wis. 

1979). Causation is a factual question for a jury if reasonable 

people “could differ on the issue.” Id. It becomes a question 

of law if reasonable people “could not disagree.” Id. 

“Cause-in-fact has also been described as requiring an unbroken sequence of events connecting the negligent act and 

the injury.” Hoida, 717 N.W.2d at 33 n.19; see also Cefalu v. 

Cont’l W. Ins. Co., 703 N.W.2d 743, 747 (Wis. App. 2005); 
30 Nos. 21-3198 and 21-3207 

Fondell v. Lucky Stores, Inc., 270 N.W.2d 205, 210 (Wis. 1978). 

In other words, the defendant’s negligence must be “actively 

operating at the time of the accident which produced the 

plaintiff’s injury.” Cefalu, 703 N.W.2d at 747. 

Bauer’s high-volume seller claim fails due to a break in the 

chain of causation. Even if we assume Bauer’s high volume 

seller allegations adequately plead duty and breach, Bauer 

does not plead any facts that demonstrate Jones was prohibited by law from purchasing firearms. Rather, Bauer alleges 

only that Jones had been previously arrested on drug charges; 

Bauer does not claim that Jones had been charged with any 

crime that would have precluded him from lawfully obtaining a firearm. What is more, Bauer pleads only that Jones 

“may have feared” he would be unable to pass a background 

check, as opposed to alleging that a background check would 

have affirmatively prevented him from buying a gun. Private 

sales are legal in Wisconsin, see 18 U.S.C. § 921(a)(21)(C); Daniel, 926 N.W.2d at 722, and Bauer has not alleged that Jones 

unlawfully obtained the firearm at issue. Reasonable people

could not disagree that Bauer failed to plead that Armslist 

LLC’s alleged negligence was actively operating when Jones 

obtained the firearm. See Cefalu, 703 N.W.2d at 747. Bauer thus 

has not alleged causation as a matter of law in a high-volume

seller claim.

We reach the same conclusion as to the other two sets of 

allegations. Causation is not established where the harm 

would have occurred even absent the defendant’s negligence. 

See Beacon Bowl, Inc. v. Wis. Elec. Power Co., 501 N.W.2d 788, 

807 (Wis. 1993). Bauer and Webber have failed to plausibly 

plead that the deaths would not have occurred but for Armslist LLC’s failure to permit users to flag illegal conduct. In 
Nos. 21-3198 and 21-3207 31

fact, in its website’s terms of use, Armslist LLC provided the 

contact information number for the Bureau of Alcohol, Tobacco, Firearms and Explosives. Given that users could report 

the same conduct directly to ATF, plaintiffs do not explain 

how allowing users to flag conduct would plausibly have prevented the deaths. 

Plaintiffs have also failed to plausibly allege that the 

deaths would not have occurred but for Armslist’s failure to 

provide updated firearms laws. Bauer and Webber do not allege any facts about the effect of providing updated firearms

information on the likelihood that individuals will engage in 

illegal transactions. Without these allegations, we cannot conclude that plaintiffs have plausibly alleged providing updated firearms laws would have prevented the deaths.

Even if we assume the duty and breach elements of negligence have been satisfied, these three additional sets of allegations, not precluded by Wisconsin Statute § 175.35, do not 

survive the plausibility standard necessary to plead a negligence claim. None of these allegations plead factual content 

that allows the court to draw the reasonable inference that the 

defendants are liable for the misconduct alleged. See Boucher, 

880 F.3d at 365–66. Put another way, the allegations in any of 

these three sets do not plausibly show that Armlist LLC

caused the deaths of Commander Bauer and Sara Schmidt. 

D. Application of public policy factors

As noted above, in addition to cause-in-fact, Wisconsin 

law on causation includes public policy considerations. Fandrey, 680 N.W.2d at 352; see also Wis. JI-CIVIL 1500 cmt. As an 

alternative causation analysis, we consider plaintiffs’ allegations under two of the public policy factors, the second 
32 Nos. 21-3198 and 21-3207 

(disproportionate liability) and the sixth (no sensible or just 

stopping point).

In Webber, the district court ruled that the plaintiff’s negligence claim was precluded, including by the second policy 

factor of disproportionate liability. He concluded that imposing civil liability here would likely destroy Armslist LLC’s 

business. In Bauer, the district court declined to base its decision on the public policy factors. 

Out of proportion to culpability. Bauer and Webber argue 

that Wisconsin courts have invoked this public policy factor 

only when the defendant’s blameworthiness is minimal at the 

time the risk materializes, or if it is more than minimal, the 

cost of injury is so high that it is out of proportion with the 

defendant’s culpability. Among the cases plaintiffs cite for 

this proposition is Stephenson. 

Armslist LLC counters that because it did not use, distribute, or sell a firearm to anyone, holding it responsible for the 

murders would be disproportionate to its culpability. It also 

refers to Daniel and argues that creating and operating a website that enables buyers to find information posted by thirdparty sellers is legal.

In Stephenson, the Wisconsin Supreme Court concluded 

that recovery was precluded on this factor against an individual who agreed to drive an inebriated person home, causing 

a bartender to serve that person more alcohol. 641 N.W.2d at 

160, 169. It reasoned, in relevant part, that liability was disproportionate considering the state’s immunity laws. If the 

defendant had been a social host who had served alcohol to 

the defendant, he would be immune from suit. “It defies 

common sense to hold someone in [the defendant]’s position 
Nos. 21-3198 and 21-3207 33

liable while immunizing someone who serves or even encourages alcohol consumption.” Id. at 169. 

Based on Stephenson, this second factor precludes liability

in Webber on all allegations within the three categories referred to above. As in that case, statutes inform culpability. 

Private sellers are exempt from the requirements plaintiffs 

seek to impose. Verstagen is a private seller, and thus has no 

obligation to certify, investigate, or delay the transaction. To 

impose those requirements on Armslist LLC, the website 

hosting Verstagen’s transaction, would place liability on an 

actor one step removed from Verstagen, and circumvent legislative judgment. See id. For these reasons, we agree with the 

district court’s analysis and conclusion on this second factor

in Webber. 

No sensible or just stopping point. Under the sixth public policy factor, Armslist LLC contends that because plaintiffs will 

always conjure creative arguments about what a firearms 

platform should have done to prevent harm, liability here has 

no sensible or just stopping point. Armslist LLC argues that 

potential harm is not limited to firearms and could apply to 

any product that could harm someone. Plaintiffs respond 

there is no liability if a defendant played no role in a harm, 

but here the defendants consciously created, designed, and 

maintained a website to allow and encourage illegal firearms 

sales. Per plaintiffs, the stopping point would be a jury’s decision that Armslist LLC acted reasonably. 

At the end of its discussion of this sixth factor in Stephenson, the Wisconsin Supreme Court stated that “the possibilities for expanding liability ... would also threaten to run 

counter to the legislative enactments regarding immunity.” 

641 N.W.2d at 170. That court continued, “Finally, we give 
34 Nos. 21-3198 and 21-3207 

significant weight to the fact that the production, sale, distribution, vending, and consumption of alcoholic beverages are 

highly regulated by the legislature.” Id. “Given this history 

and the current state of the law, we are reluctant to create liability where the legislature has not expressed that there 

should be any. We think that it is more appropriate that the 

legislature decide whether or not someone who agrees to 

drive an intoxicated person home should be an exception to 

the legislature’s general policy of holding the intoxicated persons themselves liable for injuries they cause.” Id. 

In Smaxwell, the same court ruled that the sixth factor

precluded liability against a landowner for harm caused by a 

tenant’s dogs. 682 N.W.2d at 939. This was in part because allowing liability would contradict a state statute imposing 

strict liability exclusively on owners for injuries caused by 

dogs. Id. at 941. 

Under the reasoning of Stephenson and Smaxwell, this sixth 

factor precludes liability in Webber and Bauer. The same concerns exist with expanding liability counter to legislative enactments on the purchase of handguns. Wisconsin statutes 

regulate the entities that qualify as firearms dealers; other actors are not subject to those statutes and have not been 

charged with enforcing them. To allow liability on those other 

actors, such as private sellers—and here a website—would 

contradict that legislative judgment. The same holds true for 

the lack of a principled stopping point. If liability is permitted 

here, there would be no distinction between firearms dealers 

and exempt entities, a line Wisconsin law has drawn.

Because the public policy factors are considered in the disjunctive, a finding that one is satisfied is sufficient to preclude 

liability. See Tobias, 507 N.W.2d at 342. Most of the allegations 
Nos. 21-3198 and 21-3207 35

in Webber fail under the second factor, and the first three categories of allegations in both cases fail under the sixth factor.

* * * 

Concluding that plaintiffs’ allegations would state causation for a negligence claim would directly contravene Wisconsin statutes on the regulation of handguns. The remaining 

allegations do not state a claim under Wisconsin tort law, so 

we need not review the questions of duty and breach. Two of 

Wisconsin’s public policy factors also preclude plaintiffs’ 

claims. For these reasons, we conclude that plaintiffs have not 

stated common law negligence claims against Armslist LLC.

V. Other Claims

Plaintiffs argue the district court erroneously dismissed 

their public nuisance, wrongful death, survivorship, and consortium claims. But their failure to plausibly plead negligence 

claims disposes of these other causes of action. 

Public nuisance requires a showing of negligence. WIS. JICIVIL 1928 (“To sustain a claim of nuisance in this case, plaintiff must prove ... [that the] defendant was negligent.”). 

Wrongful death actions in Wisconsin require an underlying 

wrongful act, neglect, or default. WIS. STAT. § 895.03 (providing that liability exists “[w]henever the death of a person shall 

be caused by a wrongful act, neglect or default”); see also 

Rosenthal v. Ascension Health, No. 21-cv-344-wmc, 2022 WL 

203475, at *2 (W.D. Wis. Jan. 24, 2022) (stating that § 895.03 “is 

a ‘derivative tort action[]’ and thus, specifically premised on 

the existence of an underlying common law tort” (quoting 

Christ v. Exxon Mobil Corp., 866 N.W.2d 602, 609 (Wis. 2015))).

Similarly, the survival action depends on an underlying tort, 

since the “action is brought by the representative of the 
36 Nos. 21-3198 and 21-3207 

deceased for personal injury damages suffered by the deceased prior to his death.” Force ex rel. Welcenbach v. Am. Fam. 

Mut. Ins. Co., 850 N.W.2d 866, 878 n. 30 (Wis. 2014) (quoting 

Prunty v. Schwantes, 162 N.W.2d 34, 37 (Wis. 1968)). Loss of 

consortium is also a derivative claim, relying on the existence 

of an underlying tort—here, negligence. Cf. Finnegan ex rel. 

Skoglind v. Wis. Patients Comp. Fund, 666 N.W.2d 797, 804–05 

(Wis. 2003) (characterizing consortium as a derivative claim).

Because plaintiffs cannot show negligence, there is no underlying tort for these claims, and their dismissal was proper.

Two more claims, unrelated to any alleged negligence by 

Armslist LLC, require discussion: aiding and abetting tortious 

conduct (only pleaded in Bauer), and civil conspiracy.

The district court held that Bauer failed to state a claim for 

aiding and abetting tortious conduct because he did not sufficiently allege that defendants consciously desired or intended to assist illegal sales. Bauer argues on appeal that she 

pleaded that defendants deliberately chose to implement certain design features and that they designed and administered 

armslist.com to assist illegal purchases. 

“A person is liable in tort for aiding and abetting if the person (1) undertakes conduct that as a matter of objective fact 

aids another in the commission of an unlawful act; and 

(2) consciously desires or intends that his conduct will yield 

such assistance.” Tensfeldt v. Haberman, 768 N.W.2d 641, 649 

n.12 (Wis. 2009). “Mere presence, with no effort to prevent unlawful conduct, is not aiding and abetting unless an intent to 

assist is communicated.” See Winslow v. Brown, 371 N.W.2d 

417, 423 (Wis. 1985). The underlying tortious conduct alleged 

by Bauer is the “transferring [of] weapons to dangerous individuals displaying a propensity to misuse such weapons in a 
Nos. 21-3198 and 21-3207 37

manner that would cause harm to innocent third-parties.” As 

an allegation of intent to aid this conduct, Bauer points to his 

claim that “the Armslist Defendants chose to implement design, policy and content choices which made the transfer of 

firearms to the criminal market an inevitable and major part 

of the commerce on Armslist.com.” Bauer also refers to his 

allegation that despite notice of criminal activity, “the Armslist Defendants continued to design and administer Armslist.com to fuel an online black market in firearms.” 

Bauer’s allegations do not raise a plausible inference that 

Armslist LLC aided and abetted illegal sales. At most, he 

pleads facts consistent with both an intent to aid and abet and 

mere presence, and Armslist LLC’s actions are more likely explained by the latter. See Iqbal, 556 U.S. at 680. The fact that 

private sales are legal in Wisconsin provides an obvious alternative explanation for armslist.com’s design. Bauer also fails 

to point to a specific action Armslist LLC took in “continuing” 

to design and administer the website to promote illegal sales 

that might indicate an intent to assist; rather, Bauer seems to 

contend that armslist.com aided and abetted illegal transactions simply by virtue of its continued existence. But the failure to prevent unlawful conduct is alone insufficient to state 

a claim for aiding and abetting. See Winslow, 371 N.W.2d at 

423. 

Mere presence can support aiding and abetting liability if 

an intent to assist is communicated. Id. As evidence of such a 

communication, Bauer asserts Armslist included the following disclosures on its website: 

• “ARMSLIST DOES NOT become involved in transactions between parties and does not certify, 
38 Nos. 21-3198 and 21-3207 

investigate, or in any way guarantee the legal capacity of any party to transact”; and 

• “ARMSLIST can not and will not be a party in transactions. It is the sole responsibility of the buyer and 

seller to conduct safe and legal transactions.” 

But the plaintiffs’ interpretation of these disclaimers presents 

only a sheer possibility of unlawful conduct. See Iqbal, 556 U.S. 

at 678. The obvious alternative explanation for the disclaimers 

is that they operate as “at your own risk” provisions. These 

provisions no more endorse illegal activity than a “swim at 

your own risk” sign placed at a hotel pool endorses using the 

pool to drown another. In fact, armslist.com’s terms of use require users to certify that they “will not use Armslist.com for 

any illegal purpose.” Bauer’s claim for aiding and abetting 

tortious conduct therefore fails.

In each case the district court also dismissed plaintiffs’ 

civil conspiracy claims. In Webber, the court reasoned that the 

claim suffered from the same failure to adequately plead causation and was subject to the same public policy considerations as apply to the negligence claim. And in Bauer, the court 

concluded that the allegations were too vague to state a claim, 

since plaintiffs alleged that Gibbon and Armslist “and/or 

other parties” conspired. That court also observed that the 

complaint alleged only in a conclusory fashion that Armslist 

LLC intended to conspire to promote unlawful transactions. 

Plaintiffs contend that Armslist LLC and co-conspirators 

intended to supply firearms to prohibited possessors. They 

allege they did so by encouraging the operation of “stores” 

through which unlicensed firearms dealers would sell firearms, and by motivating prohibited possessors to transact on 
Nos. 21-3198 and 21-3207 39

the website through its design features. Bauer also argues that 

Armslist LLC conspired with Gibbon and other unknown 

parties. Armslist LLC responds that the allegations of civil 

conspiracy are too vague to state a claim. 

To support a claim for civil conspiracy, “[t]here must be 

intentional participation in the transaction with a view to the 

furtherance of the common design.” Coopman v. State Farm 

Fire & Cas. Co., 508 N.W.2d 610, 613 (Wis. Ct. App. 1993). 

“[M]ere knowledge, acquiescence or approval of a plan, without cooperation or agreement to cooperate, is not enough to 

make a person a party to a conspiracy.” Id. (quoting Winslow, 

371 N.W.2d at 420)). Plaintiffs plead facts consistent with cooperation in furtherance of an unlawful purpose, but they are 

also compatible—and more readily explained by—mere 

acquiescence. As explained above, an obvious alternative explanation for Armslist LLC’s conduct is that it designed its 

website to permit private sales consistent with Wisconsin law. 

The plaintiffs have therefore failed to move their complaints 

over the line from conceivable to plausible. Iqbal, 556 U.S. at 

680.8

8 For completeness, we note two items. First, because plaintiffs have 

not plausibly alleged a cause of action, we need not resolve the CDA 

preemption issue. See Gonzalez v. Google LLC, 143 S. Ct. 1191 (2023). 

Second, plaintiffs’ claims of piercing the corporate veil were properly dismissed. Armslist LLC is a Pennsylvania limited liability company. We apply Wisconsin’s choice-of-law rules to determine whether Wisconsin or 

Pennsylvania law on piercing the corporate veil applies. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Under Wisconsin’s conflict of 

laws rules, “the threshold question for a court is ‘whether a genuine conflict exists between Wisconsin law and the law of the other state.’” Waranka 

v. Wadena Ins. Co., 847 N.W.2d 324, 332 (Wis. 2014) (quoting Sharp ex rel. 

Gordon v. Case Corp., 595 N.W.2d 380, 384 (1999)). Wisconsin law applies 
40 Nos. 21-3198 and 21-3207 

VI. Amending the Complaints

Last, Bauer and Webber argue that the district court erred 

in entering judgment instead of dismissing their complaints 

and permitting amendment. They ask us to remand with instructions to allow them to file amended complaints, if we 

deem amendment necessary. 

These two cases have somewhat different procedural postures. When the district court entered judgment in each case, 

Bauer had twice amended her original complaint, and Webber was standing on his original complaint.9 

“When a district court enters final judgment at the same 

time as it dismisses a complaint, the plaintiff should file a 

post-judgment motion for leave to amend under Federal Rule 

of Civil Procedure 59(e).” White v. Ill. State Police, 15 F.4th 801, 

808 (7th Cir. 2021). “We have rejected the argument that Rule 

15 requires a district court dismissing a plaintiff’s original 

complaint with prejudice to sua sponte grant leave to amend 

the complaint. Even after judgment is entered, a plaintiff seeking to amend a complaint must properly move to amend in 

the district court.” Id. (citations omitted).

when there is no conflict between the two states’ laws. Sharp, 595 N.W.2d 

at 384. A request to pierce the corporate veil is not an independent cause 

of action under Wisconsin and Pennsylvania law. Commonwealth v. Golden 

Gate Nat’l Senior Care LLC, 194 A.3d 1010, 1035 (Pa. 2018); see Spearing v. 

Cnty. of Bayfield, 394 N.W.2d 761, 765 (Wis. Ct. App. 1986). Therefore, there 

is no conflict, Wisconsin law applies, and the plaintiffs have failed to state 

a claim. 

9 Plaintiffs have filed comprehensive complaints. Bauer’s second 

amended complaint is 48 pages, with 233 paragraphs, and includes nine 

counts. Webber’s complaint is 36 pages, with 227 paragraphs, and includes seven counts.
Nos. 21-3198 and 21-3207 41

“Ordinarily ... a plaintiff whose original complaint has 

been dismissed under Rule 12(b)(6) should be given at least 

one opportunity to try to amend her complaint before the entire action is dismissed.” Runnion v. Girl Scouts of Greater Chi., 

786 F.3d 510, 519 (7th Cir. 2015). But decisions in which this 

court has remanded to permit amendment where no motion 

under Federal Rules of Civil Procedure 59 or 60 was filed after 

the entry of judgment are rare.10

When judgment was entered in Bauer’s case, she had already amended her complaint twice. Although the district 

court suggested that Bauer would have an opportunity to 

amend her complaint after the ruling on the Rule 12(b)(6) motion, Bauer chose to appeal the judgment rather than move to 

reopen the pleadings. Webber made the same decision. Neither plaintiff attempted to file an amended complaint in the 

district court after the judgment or propose to this court how 

they would amend their complaints if given the opportunity. 

Plaintiffs chose to appeal. Accordingly, we decline plaintiffs’ 

requests to remand for amendment.

VII. Conclusion

For these reasons, we REVERSE the decision in Webber that 

personal jurisdiction exists over Gibbon. Because plaintiffs 

have failed to state a claim upon which relief can be granted, 

we AFFIRM the dismissal in each case. 

10 One decision that appears to have been remanded to permit amendment without a Rule 59 or 60 motion is Barry Aviation Inc. v. Land O'Lakes 

Mun. Airport Comm'n, 377 F.3d 682 (7th Cir. 2004). But there, the district 

court expressly found that amendment would be futile, id. at 686, making 

such a motion frivolous.