DECISION AND ORDER

RUDOLPH T. RANDA, District Judge.

After the Court denied Dynamic Intl of Wisconsin's motion to enjoin Kuraki America Corporation from terminating the parties' supply agreement, Dynamic brought additional causes of action, including various third-party claims against a Texas company called Japan Machine Tools. Dynamic generally alleges that Japan Machine conspired with Kuraki to obtain Dynamic's sales territory, thus terminating Dynamic's ability to sell new Kuraki horizontal boring mills in Wisconsin.1

Japan Machine moves to dismiss for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). When a defendant challenges the Court's personal jurisdiction, the plaintiff bears the burden of demonstrating that the Court may exercise such jurisdiction. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir.2003). In the absence of an evidentiary hearing, the Court resolves all relevant factual disputes in favor of the plaintiff, and the plaintiff need only make a "prima facie" showing that the Court may exercise personal jurisdiction. Id.

A federal court sitting in diversity has personal jurisdiction "only if a court of the state in which it sits would have such jurisdiction." RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir.1997). In Wisconsin, this is a two-step inquiry. First, the Court determines if the defendants fall within the grasp of Wisconsin's long-arm statute. Wis. Stat. § 801.05. Then, "because Wisconsin presumes its long-arm statute merely codifies the federal due process requirements, the burden switches to [the defendants] to show that jurisdiction would nonetheless violate due process." Logan Prods., Inc. v. Optibase, Inc., 103 F.3d 49, 52 (7th Cir.1996).

Dynamic cites the "local injury, foreign act" provision of the long-arm statute. Wis. Stat. § 801.05(4). Aside from citing it, Dynamic fails to establish that the requirements of § 801.05(4) are satisfied in the instant case. See, e.g., Jefferson Electric, Inc. v. Torres, No. 09-C-465, 2009 WL 4884379, at *3 (E.D. Wis. Dec. 10, 2009) (under § 801.05(4), the Court must find that there was an "act or omission outside the state by the defendant," an "injury to person or property within the state which is claimed to arise out of the foreign act or omission," and "some additional contact, not necessarily related to the injury sued on, which links the defendant to the state"). Dynamic skips ahead to the due process analysis, but it is Dynamic's burden to demonstrate that the long-arm statute applies in the first instance.

Even if the requirements of § 801.05(4) were satisfied, exercising jurisdiction over Japan Machine would violate due process. Due process requires that a defendant have "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945). It is unconstitutional to force a defendant to appear in a distant court unless it does something that would make the defendant "reasonably anticipate being haled into court there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (7th Cir.1985). Dynamic argues that the Court can exercise specific jurisdiction, which is appropriate when the defendant purposefully directs its activities at the forum state and the alleged injury arises out of those activities. Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Houston Metroplex, P.A., 623 F.3d 440, 444 (7th Cir.2010). In this context, the "relevant contacts are those that center on the relations among the defendant, the forum, and the litigation." Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 801 (7th Cir.2014).2

Dynamic relies on the "effects test" set forth in Calder v. Jones, 465 U.S. 783 (1984). In Calder, the Supreme Court held that Florida citizens were subject to personal jurisdiction in California because they published an allegedly libelous story about a California resident where the sources were all in California and the "brunt of the harm" was suffered by the plaintiff in California. Id. at 789-90. The Court emphasized that the defendants' actions were not "mere untargeted negligence," but were "expressly aimed at California." Id. at 789. Thus, the phrase "express aiming test" is "more faithful to Calder" than "effects test" because it "properly focuses attention on whether the defendant intentionally aimed its conduct at the forum state, rather than on the possibly incidental and constitutionally irrelevant effects of that conduct on the plaintiff." Mobile Anesthesiologists, 623 F.3d at 445 n.1.

In Mobile Anesthesiologists, the Seventh Circuit surveyed its post-Calder case law and confirmed that express aiming "remains the crucial requirement when a plaintiff seeks to establish personal jurisdiction under Calder." Id. at 445-46. An intentional tort "creates the requisite minimum contacts with a state only when the defendant expressly aims its actions at the state with the knowledge that they would cause harm to the plaintiff there." Id. at 445 (citing Tamburo v. Dworkin, 601 F.3d 693, 703 (7th Cir. 2010)). Subsequently, the Supreme Court emphasized that the relevant relationship among the defendant, the forum, and the litigation "must arise out of contacts that the `defendant himself' creates with the forum State," and moreover, that the minimum contacts analysis "looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there." Walden v. Fiore, 134 S.Ct. 1115, 1122 (2014). Therefore, after Walden, "there can be no doubt that `the plaintiff cannot be the only link between the defendant and the forum.'" Advanced Tactical Ordnance Sys., 751 F.3d at 802 (quoting Walden at 1122); see also Mobile Anesthesiologists at 446 ("The cases that have found express aiming have all relied on evidence beyond the plaintiff's mere residence in the forum state"). Here, the only link between Japan Machine and Wisconsin that is relevant to the instant litigation is Dynamic. Therefore, Japan Machine cannot be forced to litigate in Wisconsin.

Dynamic also argues that the Court can exercise jurisdiction pursuant to what is known as the conspiracy theory of personal jurisdiction. As Judge Crabb wrote, "there is no explicit textual support in Wis. Stat. § 801.05 for jurisdiction founded on allegations of conspiracy," making it "dubious whether Wisconsin's long-arm statute would support the exercise of jurisdiction" on the basis of a conspiracy theory. Insolia v. Philip Morris Inc., 31 F.Supp.2d 660, 672 (W.D. Wis. 1998). In any event, this theory cannot be used to "bypass due process analysis." Youming Jin v. Ministry State Sec., 335 F.Supp.2d 72, 79 (D.D.C. 2004) (quoting Ann Althouse, The Use of Conspiracy Theory to Establish In Personam Jurisdiction: A Due Process Analysis, 52 Fordham L. Rev. 234, 254 (1984)). Asserting jurisdiction over Japan Machine does not comport with due process, as the Court has already explained.

Finally, Dynamic argues that it is entitled to jurisdictional discovery. In the absence of a prima facie showing that exercising jurisdiction over Japan Machine would be proper, the Court will not sanction a jurisdictional fishing expedition. See Cent. States, Se. & Sw. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 946 (7th Cir.2000); Schoultz v. Swenson Spreader LLC, No. 12-C-1281, 2013 WL 4456926, at *4 (E.D. Wis. Aug. 16, 2013) (plaintiff "must establish a prima facie case before [it] has access to discovery, not the other way around").

Also before the Court is Kuraki's motion to dismiss two of Dynamic's counterclaims. To survive a motion to dismiss, a cause of action must contain "sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When the allegations do not "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level," the claim should be dismissed. EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007); see also Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir.2010) ("when the complaint contains well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief").

First, Kuraki moves to dismiss Dynamic's claim for conspiracy in violation of Wis. Stat. § 134.01. The key element in a § 134.01 claim is malice. "For conduct to be malicious under conspiracy law it must be conduct intended to cause harm for harm's sake." Maleki v. Fine-Lando Clinic Chartered, S.C., 469 N.W.2d 629, 634 (Wis. 1991). Dynamic does not plausibly allege that Kuraki acted with malice. To the contrary, Dynamic's own allegations are sufficient to demonstrate that Kuraki replaced Dynamic with Japan Machine because it was not satisfied with recent sales. Dynamic alleges that this justification was a lie, but the Court finds it implausible to suggest that Kuraki was acting maliciously to harm Dynamic, as opposed to merely protecting its own business interests. See, e.g., Vinrich v. Vorwald, 664 F.3d 206, 213 (7th Cir.2011) ("an irrational desire to cause harm for the sake of harm is actionable under section 134.01. A rational desire to cause harm for the sake of competitive advantage is not") (emphasis in original).

Second, Kuraki moves to dismiss Dynamic's claim for breach of the covenant of good faith and fair dealing. "Under Wisconsin law, to state a claim for breach of the duty of good faith, a plaintiff must allege facts `that can support a conclusion that the party accused of bad faith has actually denied the benefit of the bargain originally intended by the parties.'" Uebelacker v. Paula Allen Holdings, Inc., 464 F.Supp.2d 791, 803 (W.D. Wis. 2006). Dynamic alleges that Kuraki breached this duty by not renewing the sales agreement, but "there can be no breach of good faith and fair dealing `where the contracting party complains of acts of the other party that are specifically authorized in their agreement.'" Wis. Compressed Air Corp. v. Gardner Denver, Inc., 571 F.Supp.2d 992, 999 (W.D. Wis. 2008). However, Dynamic further alleges that Kuraki stopped providing availability and pricing information while the Sales Agreement was still in effect. This allegation is enough to plausibly allege that Kuraki denied Dynamic the benefit of the parties' bargain — i.e., the ability to sell Kuraki machine tools on commission, if only for a limited period of time.

Finally, Kuraki moves to strike Dynamic's affirmative defense that Kuraki's complaint fails to state a claim upon which relief can be granted. Lower courts in this circuit disagree as to whether a party can properly assert "failure to state a claim" as an affirmative defense, or whether that defense must be raised in a separate motion under Rule 12(b)(6). See Jackson v. Methodist Med. Ctr. of Ill., No. 06-1235, 2007 WL 128001, at *2 (C.D. Ill. Jan. 11, 2007) (collecting cases). Even if allowable, Dynamic must do more than it has done here: recite the standard "without a short and plain statement of the basis for the defense, as required by Rule 8(a)." Id. Therefore, the defense will be stricken.

NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:

1. Kuraki's motion to dismiss and to strike [ECF No. 11] is GRANTED-IN-PART and DENIED-IN-PART;

2. Japan Machine's motion to dismiss for lack of jurisdiction [ECF No. 13] is GRANTED;

3. Dynamic's motion for leave to take discovery [ECF No. 27] is DENIED;

4. Japan Machine's motion for leave to file a sur-reply brief [ECF No. 32] is GRANTED;

5. Pursuant to Federal Rule of Civil Procedure 16(b), a telephonic scheduling conference is scheduled for January 27, 2015 at 9:30 a.m. (Central Time). Please be available at that time. The Court will initiate the call;

6. The purpose of the conference call is to establish a scheduling order which will limit the time: (a) to join other parties and to amend the pleadings; (b) to file motions; (c) to complete discovery;

7. The scheduling order may also: (a) modify the timing for disclosure under Rules 26(a) and 26(e)(1) and of the extent of discovery to be permitted; (b) provide for the disclosure or discovery of electronically stored information; (c) include any agreements the parties reach for asserting claims of privilege or protection as trial preparation material after information is produced; (d) the date or dates for conferences before trial, a final pretrial conference, and trial; and (e) any other matters appropriate in the circumstances of the case;

8. The time limitations set forth in the scheduling order may only be modified for good cause and with the Court's consent. Fed. R. Civ. P. 16(b)(4);

9. The parties should be prepared to discuss the matters listed in Civil Local Rule 16(a)(1). Please refer to Attachment A. Special attention should also be given to Rule 26(f)(1), which requires the parties to conduct a settlement/discovery conference at least twenty-one (21) days prior to the initial scheduling conference described above. The Rule 26(f) conference may be conducted by telephone. Rules 26(f)(2) and (3) mandate that the parties, within fourteen (14) days of their conference: (a) file a written report outlining the proposed discovery plan they have developed at their Rule 26(f) conference; and (b) make the required initial disclosures under Rule 26(a) regarding witnesses and documents. In addition to the matters specified in Rules 26(f)(2) and (3), the Court requests that the proposed discovery plan submitted by the parties include one or two sentences stating the nature of the case;

10. The written report must include the telephone numbers where the parties can be reached for this call;

11. In addition, Judge Randa is participating in the Seventh Circuit Electronic Discovery Pilot Program and has adopted the Principles Relating to the Discovery of Electronically Stored Information. Counsel should be fully prepared to discuss methods and techniques to accomplish cooperative fact-finding in their case at the initial status conference. Before the initial status conference, counsel must also meet and discuss the Principles Relating to the Discovery of Electronically Stored Information. At the initial status conference, counsel must be prepared to discuss what agreements they have reached regarding discovery of Electronically Stored Information ("ESI") and what area of disagreement they have with regard to discovery of ESI. After discussing the matter with counsel, the Court will determine whether to enter the Standing Order Relating to the Discovery of Electronically Stored Information in their particular case. (Please refer to Attachments B & C).

Civil L. R. 16. Pretrial Conferences; Scheduling; Management; Alternative Dispute Resolution.

(a) Preliminary Pretrial Conferences.

Attachment A

CONSIDERATION OF ISSUES CONCERNING ELECTRONICALLY STORED INFORMATION ("ESI")

Experience teaches that unless conducted with careful planning and a spirit of cooperation, discovery of ESI can result in an unnecessarily high level of conflict, expense and delay in resolving cases on the merits. That is why the Court has endorsed The Sedona Conference® Cooperation Proclamation dated July 2008.

To further advance the goal of having parties conduct discovery of ESI in a cooperative and cost-effective manner, this Court has adopted the Standing Order Relating to the Discovery of Electronically Stored Information. At the Rule 26(f) planning conference, the parties shall address the issues discussed in the Standing Order, including but not limited to those set forth in Section 2.01(a)(1)-(5). In the report of the planning conference, the parties shall set forth:

(a) Whether they anticipate discovery of ESI in the case;

(b) What agreements they have reached regarding discovery of ESI; and

(c) What areas of disagreement they have with regard to discovery of ESI.

After reviewing the report of the planning conference and discussing the matter with the parties, the Court will determine whether the Standing Order should apply in this case.

Attachment B

This Court is participating in the Pilot Program initiated by the Seventh Circuit Electronic Discovery Committee. Parties and counsel in the Pilot Program with civil cases pending in this Court shall familiarize themselves with, and comport themselves consistent with, that committee's Principles Relating to the Discovery of Electronically Stored Information. For more information about the Pilot Program please see the web site of The Seventh Circuit Bar Association, www.7thcircuitbar.org. If any party believes that there is good cause why a particular case should be exempted, in whole or in part, from the Principles Relating to the Discovery of Electronically Stored Information, then that party may raise such reason with the Court.

General Principles

Principle 1.01 (Purpose)

The purpose of these Principles is to assist courts in the administration of Federal Rule of Civil Procedure 1, to secure the just, speedy, and inexpensive determination of every civil case, and to promote, whenever possible, the early resolution of disputes regarding the discovery of electronically stored information ("ESI") without Court intervention. Understanding of the feasibility, reasonableness, costs, and benefits of various aspects of electronic discovery will inevitably evolve as judges, attorneys and parties to litigation gain more experience with ESI and as technology advances.

Attachment C

Principle 1.02 (Cooperation)

An attorney's zealous representation of a client is not compromised by conducting discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions.

Principle 1.03 (Discovery Proportionality)

The proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) should be applied in each case when formulating a discovery plan. To further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable.

Early Case Assessment Principles

Principle 2.01 (Duty to Meet and Confer on Discovery and to Identify Disputes for Early Resolution)

(a) Prior to the initial status conference with the Court, counsel shall meet and discuss the application of the discovery process set forth in the Federal Rules of Civil Procedure and these Principles to their specific case. Among the issues to be discussed are:

(b) Disputes regarding ESI that counsel for the parties are unable to resolve shall be presented to the Court at the initial status conference, Fed. R. Civ. P. Rule 16(b) Scheduling Conference, or as soon as possible thereafter.

(c) The attorneys for each party shall review and understand how their client's data is stored and retrieved before the meet and confer discussions in order to determine what issues must be addressed during the meet and confer discussions.

(d) If the Court determines that any counsel or party in a case has failed to cooperate and participate in good faith in the meet and confer process or is impeding the purpose of these Principles, the Court may require additional discussions prior to the commencement of discovery, and may impose sanctions, if appropriate.

Principle 2.02 (E-Discovery Liaison(s))

In most cases, the meet and confer process will be aided by participation of an e-discovery liaison(s) as defined in this Principle. In the event of a dispute concerning the preservation or production of ESI, each party shall designate an individual(s) to act as e-discovery liaison(s) for purposes of meeting, conferring, and attending court hearings on the subject. Regardless of whether the e-discovery liaison(s) is an attorney (in-house or outside counsel), a third party consultant, or an employee of the party, the e-discovery liaison(s) must:

(a) be prepared to participate in e-discovery dispute resolution;

(b) be knowledgeable about the party's e-discovery efforts;

(c) be, or have reasonable access to those who are, familiar with the party's electronic systems and capabilities in order to explain those systems and answer relevant questions; and

(d) be, or have reasonable access to those who are, knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues, and relevant information retrieval technology, including search methodology.

Principle 2.03 (Preservation Requests and Orders)

(a) Appropriate preservation requests and preservation orders further the goals of these Principles. Vague and overly broad preservation requests do not further the goals of these Principles and are therefore disfavored. Vague and overly broad preservation orders should not be sought or entered. The information sought to be preserved through the use of a preservation letter request or order should be reasonable in scope and mindful of the factors set forth in Rule 26(b)(2)(C).

(b) To the extent counsel or a party requests preservation of ESI through the use of a preservation letter, such requests should attempt to ensure the preservation of relevant and discoverable information and to facilitate cooperation between requesting and receiving counsel and parties by transmitting specific and useful information. Examples of such specific and useful information include, but are not limited to:

(c) If the recipient of a preservation request chooses to respond, that response should provide the requesting counsel or party with useful information regarding the preservation efforts undertaken by the responding party. Examples of such useful and specific information include, but are not limited to, information that:

(d) Nothing in these Principles shall be construed as requiring the sending of a preservation request or requiring the sending of a response to such a request.

Principle 2.04 (Scope of Preservation)

(a) Every party to litigation and its counsel are responsible for taking reasonable and proportionate steps to preserve relevant and discoverable ESI within its possession, custody or control. Determining which steps are reasonable and proportionate in particular litigation is a fact specific inquiry that will vary from case to case. The parties and counsel should address preservation issues at the outset of a case, and should continue to address them as the case progresses and their understanding of the issues and the facts improves.

(b) Discovery concerning the preservation and collection efforts of another party may be appropriate but, if used unadvisedly, can also contribute to the unnecessary expense and delay and may inappropriately implicate work product and attorney-client privileged matter. Accordingly, prior to initiating such discovery a party shall confer with the party from whom the information is sought concerning: (I) the specific need for such discovery, including its relevance to issues likely to arise in the litigation; and (ii) the suitability of alternative means for obtaining the information. Nothing herein exempts deponents on merits issues from answering questions concerning the preservation and collection of their documents, ESI, and tangible things.

(c) The parties and counsel should come to the meet and confer conference prepared to discuss the claims and defenses in the case including specific issues, time frame, potential damages, and targeted discovery that each anticipates requesting. In addition, the parties and counsel should be prepared to discuss reasonably foreseeable preservation issues that relate directly to the information that the other party is seeking. The parties and counsel need not raise every conceivable issue that may arise concerning their preservation efforts; however, the identification of any such preservation issues should be specific.

(d) The following categories of ESI generally are not discoverable in most cases, and if any party intends to request the preservation or production of these categories, then that intention should be discussed at the meet and confer or as soon thereafter as practicable:

(e) If there is a dispute concerning the scope of a party's preservation efforts, the parties or their counsel must meet and confer and fully explain their reasons for believing that additional efforts are, or are not, reasonable and proportionate, pursuant to Rule 26(b)(2)(C). If the parties are unable to resolve a preservation issue, then the issue should be raised promptly with the Court.

Principle 2.05 (Identification of Electronically Stored Information)

(a) At the Rule 26(f) conference or as soon thereafter as possible, counsel or the parties shall discuss potential methodologies for identifying ESI for production.

(b) Topics for discussion may include, but are not limited to, any plans to:

Principle 2.06 (Production Format)

(a) At the Rule 26(f) conference, counsel and the parties should make a good faith effort to agree on the format(s) for production of ESI (whether native or some other reasonably usable form). If counsel or the parties are unable to resolve a production format issue, then the issue should be raised promptly with the Court.

(b) The parties should confer on whether ESI stored in a database or a database management system can be produced by querying the database for discoverable information, resulting in a report or a reasonably usable and exportable electronic file for review by the requesting counsel or party.

(c) ESI and other tangible or hard copy documents that are not text-searchable need not be made text-searchable.

(d) Generally, the requesting party is responsible for the incremental cost of creating its copy of requested information. Counsel or the parties are encouraged to discuss cost sharing for optical character recognition (OCR) or other upgrades of paper documents or non-text-searchable electronic images that may be contemplated by each party.

Education Provisions

Principle 3.01 (Judicial Expectations of Counsel)

Because discovery of ESI is being sought more frequently in civil litigation and the production and review of ESI can involve greater expense than discovery of paper documents, it is in the interest of justice that all judges, counsel and parties to litigation become familiar with the fundamentals of discovery of ESI. It is expected by the judges adopting these Principles that all counsel will have done the following in connection with each litigation matter in which they file an appearance:

Principle 3.02 (Duty of Continuing Education)

Judges, attorneys and parties to litigation should continue to educate themselves on electronic discovery by consulting applicable case law, pertinent statutes, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, The Sedona Conference® publications relating to electronic discovery1, additional materials available on web sites of the courts2, and of other organizations3 providing educational information regarding the discovery of ESI.4