In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1407

STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

HEMI GROUP LLC,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 3:08-cv-03050—Jeanne E. Scott, Judge.

ARGUED SEPTEMBER 24, 2009—DECIDED SEPTEMBER 14, 2010

Before BAUER, KANNE, and EVANS, Circuit Judges.

KANNE, Circuit Judge. The state of Illinois sued Hemi

Group LLC for selling cigarettes to Illinois residents in

violation of state laws and for failing to report those

sales in violation of federal law. The district court denied

Hemi’s motion to dismiss for lack of personal jurisdiction, finding that the Internet transactions sufficed to

establish personal jurisdiction over Hemi in Illinois. We

affirm.
2 No. 09-1407

At oral argument, counsel for Illinois indicated that Hemi 1

has subsequently increased the number of states to which it

will not ship cigarettes, although the additional states

are not part of the record on appeal.

I. BACKGROUND

Hemi, based out of New Mexico, sells discount cigarettes through its many websites. Customers may place

orders online or through mail, telephone, or fax. Customers

online may determine their shipping costs by inputting

their zip codes on the website. Illinois alleges that

Hemi sold cigarettes to Illinois residents through its websites. The only specific sales to an Illinois resident that

Illinois identified in its complaint were instigated by

a special senior agent of the Illinois Department of Revenue, who purchased more than three hundred packs of

cigarettes from Hemi-operated websites in 2005 and 2007.

On several of its websites, Hemi states that it will not

sell cigarettes to New York residents; on one of those 1

sites, it explains that ongoing litigation in New York led

to the decision not to sell cigarettes there. On another of

those sites, Hemi notes that it sells to every state except

New York. Hemi does not specifically single out Illinois

residents on any of its websites.

Hemi pays the federal tax on the cigarettes that it sells

via its websites, but Illinois law leaves it to the buyers

to pay the applicable state tax on cigarettes purchased

over the Internet or by mail, phone, or fax. Hemi’s websites direct customers to check with their states to determine their responsibility for paying state taxes.
No. 09-1407 3

The parties agree that Hemi is not a resident of Illinois.

It is not incorporated or organized under Illinois law, it

is not registered to do business in Illinois, it does not

have any offices or employees in Illinois, it does not bank

in Illinois, and it has not advertised in print media

in Illinois.

Illinois sued Hemi in Illinois state court for failing to

submit to Illinois monthly reports of sales to Illinois

residents as required by the Jenkins Act, for violating

the Prevention Act by shipping cigarettes to Illinois

residents that were not licensed distributors or export

warehouse operators, and for violating the Enforcement

Act and the Consumer Fraud Act by selling brands of

cigarettes to Illinois residents that were not in the Illinois

Directory.

Hemi removed the case to federal court and moved to

dismiss for lack of personal jurisdiction. The district court

denied Hemi’s motion, finding that Hemi purposefully

availed itself of the opportunity to do business with

Illinois residents and that due process was not offended

by exercising personal jurisdiction over Hemi. The

district court, however, stayed the proceedings below to

allow Hemi to pursue this interlocutory appeal of the

district court’s order.

II. ANALYSIS

The sole question on appeal is whether the district court

in Illinois may properly exercise personal jurisdiction over Hemi. We review questions of personal jurisdic-
4 No. 09-1407

tion de novo. Kinslow v. Pullara, 538 F.3d 687, 690 (7th

Cir. 2008). 

A. Scope of Illinois Constitution

Because the Jenkins Act does not provide for service

of process, the district court may exercise personal jurisdiction over Hemi only to the extent that a court of

general jurisdiction in Illinois could. Fed. R. Civ. P.

4(k)(1)(A). Illinois’s long-arm statute provides for jurisdiction “on any . . . basis now or hereafter permitted by

the Illinois Constitution or the Constitution of the

United States.” 735 ILCS 5/2-209(c). The district court

may exercise jurisdiction only if both the state and

federal constitutional requirements are satisfied. See

Sabados v. Planned Parenthood of Greater Indiana, 882

N.E.2d 121, 125 (Ill. App. Ct. 2007).

The Illinois Constitution allows a state court to exercise personal jurisdiction “only where it is fair, just, and

reasonable . . . considering the quality and nature of the

defendant’s acts which occur in Illinois or which affect

interests located in Illinois.” Citadel Group Ltd. v. Washington Reg’l Med. Ctr., 536 F.3d 757, 761 (7th Cir. 2008) (internal quotation marks omitted). Although the Illinois

Supreme Court has stated that “the scope of Illinois’s longarm statute may not be co-extensive with the jurisdictional aspect of the Federal due process clause in

any particular situation,” Rollins v. Ellwood, 565 N.E.2d

1302, 1315 (Ill. 1990), subsequent courts have noted that

no case has yet arisen where federal due process would

allow the exercise of personal jurisdiction over a defen-
No. 09-1407 5

dant but the Illinois Constitution would not. See Kinslow,

538 F.3d at 691; Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 715-

16 (7th Cir. 2002); Sabados, 882 N.E.2d at 125 n.2. Hemi

argues, however, that a series of recent Illinois appellate

court decisions demonstrates that Illinois does in fact

require more than federal law. See Estate of Isringhausen

v. Prime Contractors and Associates, Inc., 883 N.E.2d 594 (Ill.

App. Ct. 2008); Hanson v. Ahmed, 889 N.E.2d 740 (Ill. App.

Ct. 2008); Sabados, 882 N.E.2d 121; Bolger v. Nautica

Int’l, Inc., 861 N.E.2d 666 (Ill. App. Ct. 2007).

We are not convinced. None of the cases cited by

Hemi even suggests, much less holds, that there is a

meaningful difference between the federal and Illinois

due process standards. In fact, the court in Sabados—a

case cited by Hemi in support of its position—noted

that the distinction was theoretical, and that it was unaware of any case actually holding that “personal jurisdiction could be satisfied under the federal constitution, but

not the Illinois Constitution.” 882 N.E.2d at 125 n.2 (citing

Kostal v. Pinkus Dermatopathology Lab., 827 N.E.2d 1031,

1037 (Ill. App. Ct. 2005)). We are not interested in

usurping Illinois’s conceptualization of due process.

However, we are still unable to discern an “operative

difference between the limits imposed by the Illinois

Constitution and the federal limitations on personal

jurisdiction.” Hyatt Int’l Corp., 302 F.3d at 715. Therefore,

we will limit our analysis to whether exercising jurisdiction over Hemi comports with the federal guarantee

of due process. See Citadel Group, 536 F.3d at 761.
6 No. 09-1407

B. Federal Constitutional Limits on Personal Jurisdiction

We recently described the “current state of the constitutional dimension of personal jurisdiction”:

[T]he defendant must have minimum contacts with

the forum state such that the maintenance of the

suit does not offend traditional notions of fair

play and substantial justice. Those contacts may

not be fortuitous. Instead, the defendant must

have purposefully established minimum contacts

within the forum State before personal jurisdiction will be found to be reasonable and fair.

Crucial to the minimum contacts analysis is a

showing that the defendant should reasonably

anticipate being haled into court in the forum

State, because the defendant has purposefully

availed itself of the privilege of conducting activities there.

Kinslow, 538 F.3d at 691 (internal quotation marks omitted).

The district court held, and Illinois does not appear to

disagree, that Hemi does not have the continuous and

systematic general business contacts with Illinois to

justify exercising general jurisdiction over Hemi. Illinois

v. Hemi Group LLC, No. 08-3050, 2008 WL 4545349, at *2

(C.D. Ill. Oct. 10, 2008); see also RAR, Inc. v. Turner Diesel,

Ltd., 107 F.3d 1272, 1277 (7th Cir. 1997). Therefore, we

consider only whether the district court may exercise

specific jurisdiction over Hemi. 
No. 09-1407 7

1. Minimum Contacts

We find that Hemi’s contacts with Illinois were sufficient to satisfy due process. Hemi maintained commercial websites through which customers could purchase cigarettes, calculate their shipping charges using

their zip codes, and create accounts. Hemi stated that

it would ship to any state in the country except New

York. This statement is important for two reasons.

First, Hemi expressly elected to do business with the

residents of forty-nine states. Although listing all fortynine states by name would have made a stronger case

for jurisdiction in this case, inasmuch as it would

have expressly stated that Hemi wanted to do business

with Illinois residents, the net result is the same—Hemi

stood ready and willing to do business with Illinois

residents. Cf. Neogen Corp. v. Neo Gen Screening, Inc.,

282 F.3d 883, 891 (6th Cir. 2002). And Hemi, in fact,

knowingly did do business with Illinois residents. In

light of this, Hemi’s argument that it did not purposefully avail itself of doing business in Illinois rings

particularly hollow.

Second, the fact that Hemi excluded New York residents

from its customer pool shows both that Hemi knew that

conducting business with residents of a particular state

could subject it to jurisdiction there and also that

it knew how to protect itself from being haled

into court in any particular state. Due process requires

that “potential defendants should have some control

over—and certainly should not be surprised by—the

jurisdictional consequences of their actions.” RAR, Inc., 107
8 No. 09-1407

F.3d at 1278. That requirement is satisfied here. While

Hemi is correct that its contacts, or lack of contacts, with

any other state has no bearing on whether it is subject

to personal jurisdiction in Illinois, its election not to do

business with New York demonstrates that it should

have foreseen being subject to litigation in Illinois as a

result of its cigarette sales to Illinois customers.

Hemi argues that its sales to customers, specifically

the sales to the special agent of the Illinois Department of

Revenue, cannot constitute the required minimum contacts because the purchases were unilateral actions by

the customers. See Kulko v. Superior Court of Calif., 436

U.S. 84, 93-94 (“ ‘The unilateral activity of those who

claim some relationship with a nonresident defendant

cannot satisfy the requirement of contact with the

forum State.’ ” (quoting Hanson v. Denckla, 357 U.S. 235,

253 (1958))). Characterizing the sales as unilateral is

misleading, however, because it ignores several of Hemi’s

own actions that led up to and followed the sales. Hemi

created several commercial, interactive websites through

which customers could purchase cigarettes from Hemi.

Hemi held itself out as open to do business with every

state (including Illinois) except New York. After the

customers made their purchases online, Hemi shipped

the cigarettes to their various destinations. It is Hemi

reaching out to residents of Illinois, and not the

residents reaching back, that creates the sufficient minimum contacts with Illinois that justify exercising

personal jurisdiction over Hemi in Illinois.

We wish to point out that we have done the entire

minimum contacts analysis without resorting to the
No. 09-1407 9

sliding scale approach first developed in Zippo Mfg.

Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124

(W.D. Pa. 1997). This was not by mistake. Although

several other circuits have explicitly adopted the sliding

scale approach, see Tamburo v. Dworkin, 601 F.3d 693, 703

n.7 (7th Cir. 2010) (collecting cases), our court has expressly declined to do so. In Tamburo, we said that we

were hesitant “to fashion a special jurisdictional test

for Internet-based cases.” Id. That case dealt specifically

with an intentional tort (defamation) committed over

the Internet and through e-mail. Long before the Internet

became a medium for defamation, the Supreme Court

in Calder v. Jones, 465 U.S. 783 (1984), had decided the

relevant jurisdictional standard for intentional torts that

cross state lines. We concluded that “the principles articulated [in Calder] can be applied to cases involving tortious

conduct committed over the Internet.” Tamburo, 601 F.3d

at 703.

We reach the same conclusion here. Zippo’s sliding

scale was always just short-hand for determining

whether a defendant had established sufficient minimum contacts with a forum to justify exercising personal jurisdiction over him in the forum state. But we

think that the traditional due process inquiry described

earlier is not so difficult to apply to cases involving

Internet contacts that courts need some sort of easier-toapply categorical test. See Jennings v. AC Hydraulic A/S,

383 F.3d 546, 550 (7th Cir. 2004) (“[A]lthough technological advances may alter the analysis of personal

jurisdiction, those advances may not eviscerate the constitutional limits on a state’s power to exercise jurisdiction over nonresident defendants.”).
10 No. 09-1407

We have on at least one prior occasion made reference to Zippo’s sliding scale approach. In Jennings v. AC

Hydraulic A/S, we found that “[t]he exercise of personal

jurisdiction based on the maintenance of a passive website is impermissible because the defendant is not

directing its business activities toward consumers in the

forum state in particular.” 383 F.3d at 549-50. We specifically declined to determine “what level of ‘interactivity’

is sufficient to establish personal jurisdiction based on

the operation of an interactive website.” Id. at 549. We do

not read Jennings to stand for anything more than the

accepted notion that a website that provides only information does not create the minimum contacts necessary

to establish personal jurisdiction over a defendant in a

particular state. Jennings did not expressly adopt the

sliding scale approach and does not preclude our

decision today rejecting that approach.

2. Relatedness

For the court to exercise specific jurisdiction over

Hemi, Illinois’s claims must arise out of Hemi’s contacts

with Illinois. RAR, Inc., 107 F.3d at 1277-78. This requirement is satisfied here. Hemi sold and shipped cigarettes

to Illinois residents, and Hemi’s actions surrounding

those sales triggered Illinois’s claims against it. Even if

the sales technically occurred in New Mexico under

commercial law, Illinois’s claims are not based on the

contract between Hemi and its customers, but rather on

the fact that when it sold cigarettes to Illinois customers,

Hemi allegedly violated Illinois law and failed to satisfy
No. 09-1407 11

its reporting obligations. Thus, the legal location of the

sales contract is not dispositive of the personal jurisdiction question.

3. Fairness

Finally, jurisdiction over Hemi is only proper if exercising jurisdiction “does not offend traditional notions

of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation

marks omitted). We will consider:

[T]he burden on the defendant, the forum

State’s interest in adjudicating the dispute, the

plaintiff’s interest in obtaining convenient

and effective relief, the interstate judicial system’s

interest in obtaining the most efficient resolution

of [the underlying dispute], and the shared interest of the several States in furthering fundamental substantive social policies.

Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d

773, 781 (7th Cir. 2003) (internal quotation marks omitted).

Here we do apply a sliding scale test: the weaker the

defendant’s contacts with the forum state are, the less

likely it is that exercising jurisdiction over that defendant

is appropriate. Id. However, “[t]hese factors rarely will

justify a determination against personal jurisdiction”

because there are other mechanisms available to the

court—such as choice of law and transfer of venue—to

accommodate the various interests at play. Id. at 781 n.10.

We conclude that exercising jurisdiction over Hemi in

Illinois is fair. Hemi set up an expansive, sophisticated
12 No. 09-1407

commercial venture online. It held itself out to conduct

business nationwide and was apparently successful in

reaching customers across the country. It was savvy

enough to at least try to limit its exposure to lawsuits in

states in which it felt that the upside of doing business

was outweighed by the risk of litigation. Hemi wants to

have its cake and eat it, too: it wants the benefit of a

nationwide business model with none of the exposure.

There is nothing constitutionally unfair about allowing

Illinois, a state with which Hemi has had sufficient minimum contacts, to exercise personal jurisdiction over Hemi.

To be sure, defending against a lawsuit in Illinois may

prove to be a burden on Hemi, whose physical business

operations are located entirely in New Mexico. However,

Illinois courts have a strong interest in providing a

forum to resolve a dispute involving the state itself, and

it would be most convenient to the state of Illinois (and

likely New Mexico) to adjudicate a dispute based on

Illinois law in Illinois courts. None of the other relevant

factors weighs conclusively in Hemi’s favor.

This case is still at the very earliest stages of litigation,

and we conclude only that Illinois has established a

prima facie case of personal jurisdiction over Hemi in

Illinois. Moving forward, the district court will be able

to employ other mechanisms to balance the various

competing interests in this litigation.

We note the legitimate concern that “[p]remising personal jurisdiction on the maintenance of a website, without requiring some level of ‘interactivity’ between the

defendant and consumers in the forum state, would create
No. 09-1407 13

almost universal personal jurisdiction because of the

virtually unlimited accessibility of websites across the

country.” Jennings, 383 F.3d at 550. Courts should be

careful in resolving questions about personal jurisdiction involving online contacts to ensure that a defendant

is not haled into court simply because the defendant

owns or operates a website that is accessible in the

forum state, even if that site is “interactive.” Here, we

affirm the district court’s conclusion that Hemi is subject to personal jurisdiction in Illinois, not merely because it operated several “interactive” websites, but

because Hemi had sufficient voluntary contacts with the

state of Illinois. See Neogen, 282 F.3d at 890-91. We make

no comment on whether Hemi may be subject to

personal jurisdiction in any other state.

III. Conclusion

We AFFIRM the district court’s denial of Hemi’s motion

to dismiss for lack of personal jurisdiction and REMAND

for further proceedings.

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