ROYCE C. LAMBERTH, Chief Judge.
Fourteen million dollars can make people do crazy things. According to plaintiff Tonya Kay Day, $14 million motivated a Swiss bank and its Bahamian subsidiary to bury any evidence of a bank account opened by a Kansas woman and her oil-baron lover in the 1970s, triggered a vitriolic assault against Ms. Day by the banks' manager in response to her attempts to uncover the truth, led the largest law firm in the Bahamas to engage in a duplicitous scheme to dupe Ms. Day into revealing personal confidences, and launched a public smear campaign in the Bahamian media. Or $14 million might drive someone to invent such a story. Ms. Day may be a helpless victim tilting against powerful and shadowy international banking forces, or, as a Las Vegas resident, may be simply drawing blind, hoping to come up Aces. It's sometimes difficult to say. But in either case, a federal district court located in the District of Columbia has no role to play in a dispute pitting a Nevada citizen against a Swiss bank and its Bahamas-based subsidiary, manager and law firm, where the prize is $14 million that once purportedly belonged to a Kansas woman. For this simple reason, the Court will dismiss this case.
The lengthy and somewhat-complicated factual and procedural history of this case is set forth more completely in this Court's prior opinion. See generally Day v. Cornèr Bank (Overseas) Ltd., 789 F.Supp.2d 136, 138-44, 2011 WL 2292236, at *1-5, No. 10 Civ. 1339, 2011 U.S. Dist. LEXIS 62386, at *3-*15 (D.D.C. June 10, 2011). The short version follows.
Plaintiff alleges that her mother Lavera Jean Foelgner and her mother's former lover, Dominick Joseph Iannitti, opened a bank account in Ms. Foelgner's name at Cornèr Bank (Overseas) Limited ("CBL") in the 1970s, placing approximately $14 million in that account. Amended Complaint ¶¶ 14-23, June 17, 2011[65] ("AC").
Based on these allegations, plaintiff filed suit against CBL, CB, Mr. Roberts and GTC in this Court last August. Over the next several months, the parties populated the Court's docket with numerous motions concerning the adequacy of service of process, the propriety of plaintiff's allegations, and the necessity of receiving certain testimony, among other matters. The Court previously addressed these matters, concluding that (1) plaintiff properly served each defendant in this action, (2) plaintiff followed incorrect procedures for amending her complaint, and therefore such amendments should be stricken, and (3) plaintiff's attempt to alter her allegations, while faulty, constituted invocation of Rule 11's safe harbor rule. Day, 789 F.Supp.2d at 143-49, 2011 WL 2292236, at *5-9, 2011 U.S. Dist. LEXIS 62386 at *16-*34. The Court then directed plaintiff to amend her complaint consistent with Federal Rule of Civil Procedure 15, and set a schedule for briefing on defendants' remaining grounds for dismissal. Order, June 10, 2011[63]. Plaintiff complied, filing an amended complaint that reasserted numerous claims against defendants,
Defendants subsequently moved to dismiss the Amended Complaint, arguing that the Court lacks personal jurisdiction over any of the defendants, that the District of Columbia is an improper forum under the doctrine of forum non conveniens, and that plaintiff fails to state any claim for relief under Rule 12(b)(6). Motion to Dismiss Amended Complaint, June 27, 2011[66] ("GTC Mtn."); Motion to Dismiss Amended Complaint, June 28, 2011[68] ("Bank Mtn.").
On a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(2), a plaintiff bears the burden of establishing the court's personal jurisdiction over a defendant. FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1092 (D.C.Cir.2008). To meet this burden, a plaintiff must allege "specific facts on which personal jurisdiction can be based; it cannot rely on conclusory allegations." Moore v. Motz, 437 F.Supp.2d 88, 90-91 (D.D.C.2006). And unlike a motion to dismiss for failure to state a claim, the Court need not confine itself to only the allegations in the complaint, but "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005). Nor must a court treat as true all of plaintiff's allegations when determining whether personal jurisdiction exists. Fuentes-Fernandez & Co. v. Caballero & Castellanos, PL, 770 F.Supp.2d 277, 279 (D.D.C.2011). At the same time, any factual discrepancies with regard to the evidence itself must be resolved in favor of the plaintiff, Dean v. Walker, 756 F.Supp.2d 100, 102 (D.D.C.2010), and in the absence of an evidentiary hearing, the plaintiff need only make a prima facie showing that the Court has personal jurisdiction. Mwani v. bin Laden, 417 F.3d 1, 6 (D.C.Cir.2005).
This case involves a Nevada resident, AC ¶ 1, who hired a Utah-based law firm, id. at ¶ 43, to track down information about an account in the Bahamas allegedly opened by her mother, id. at ¶ 20, a Kansas resident. Id. at ¶ 2. She is suing a Bahamian bank, id. at ¶ 3 — at which the account is purportedly located, id. at ¶ 20 — the bank's Swiss parent, id. at ¶ 3, its Bahamian manager, id. at ¶ 5, and a law firm that previously represented her and is also located in the Bahamas. Id. at ¶ 6. The question for the Court is whether these defendants can be hauled into the District in a manner consistent with DC law and due process. For the reasons set forth below, the Court finds that they can not.
Under D.C. law, courts may exercise personal jurisdiction over a foreign corporation for any purposes where that corporation is "doing business" in the District. D.C.Code. § 13-334(a). This statutory
None of the defendants have any connection to the District in a manner that establishes the "continuing corporate presence" required by due process. Nikbin v. Islamic Republic of Iran, 471 F.Supp.2d 53, 72 (D.D.C.2007) (citing Helicopteros, 466 U.S. at 418, 104 S.Ct. 1868). Neither CB, CBL nor GTC have any offices or employees in the District, none of the defendants are registered to do business in the District or elsewhere in the United States, and they do not have any assets or other property in the District,
As to GTC, plaintiff alleges that the firm has "admitted to hav[ing] U.S. clients," AC ¶ 6, and argues that "as long as GTC has clients in the U.S., this would suffice." Opp. to Motion to Dismiss the Amended Complaint, July 7, 2011[71]. In response, GTC submits evidence that (1) it "has never been authorized to do business in the District," (2) none of the firm's attorneys are admitted to the DC Bar, (3) GTC does not recruit employees or solicit customers in the District, and (4) that, for any DC-based clients it may have had, the firm only did work related to legal issues in the Bahamas. Declaration of Judith A. Whitehead ¶¶ 5-9, Ex. 1 to GTC Mtn., June 27, 2011 [66-2] ("Whitehead Decl."). Plaintiff does not challenge these assertions, and the Court therefore finds that the limited interaction, if any, between GTC and DC-based clients is insufficient to subject the firm to general jurisdiction in the District. See FC Inv. Grp., 529 F.3d at 1093 ("[L]imited contact with a District customer — unrelated to the plaintiffs or their claims — does not support the district court's exercise of general jurisdiction.").
With respect to the banks, plaintiff argues that the existence of U.S.-based correspondent accounts in the banks' names subjects them to jurisdiction in this forum. Opposition to Motion to Dismiss Amended Complaint 5-6, July 7, 2011[70] ("P's Opp. to Bank Mtn."). Because foreign banks generally cannot maintain branch offices in the United States, they maintain accounts as U.S. banks — known as correspondent accounts — to effect dollar transactions and facilitate fund transfers. Plaintiff does not specify any location for the banks' correspondent accounts, but does indicate that they are "presumably in New York." AC ¶ 10. And the little evidence available is consistent with plaintiff's guess. Certification Regarding Correspondent Accounts 2, Ex. A to P's Opp. to Bank Mtn., July 7, 2011 [70-4] (designating agent for service of process in New York State). The Court, however, is at a loss as to how the existence of bank accounts in New York can possibly establish the banks' presence in the District of Columbia. Nor does the maintenance of an
Finally, plaintiff alleges that CB "has engaged in substantial business in the U.S., including being the first Swiss banking group that introduced VISA and subsequently MasterCard credit cards' services to its clients," AC ¶ 9, and argues that CB "must have entered in franchise and processing agreements in the U.S." P's Opp. to Bank Mtn. at 7. As an initial matter, the contracts permit CB to distribute credit cards for VISA and MasterCard in Switzerland, id., and it is difficult to understand how an agreement to distribute products in a foreign country could render CB present in this forum. Moreover, the contracts in the record show that the relevant agreements are between CB and Visa Europe Limited — a London-based entity — on the one hand, and CB and MasterCard Europe, sprl — a Belgian limited liability company — on the other. Exs. A & B to Reply in Support of Motion to Dismiss Complaint, Dec. 20, 2010 [52-1]. This Court cannot assert jurisdiction over a Swiss bank in reliance on contracts entered into between the bank and other foreign companies.
Turning to specific jurisdiction, a plaintiff seeking to haul a non-resident defendant into a forum must demonstrate that the court's exercise of jurisdiction comports with both the forum's long-arm statute and due process. FC Inv. Grp., 529 F.3d at 1094-95. Because this case is before the Court based on diversity jurisdiction, AC ¶ 7, the Court looks to DC's long-arm statute. Dean, 756 F.Supp.2d at 103. That statute permits the exercise of jurisdiction over a foreign corporation for tortious injury where the claims for relief
D.C.Code § 13-423(a)(1) has been given an "expansive interpretation" that renders it "co-extensive with the due process clause"; accordingly, the Court must insure "whether the defendant `has purposefully availed itself of the benefits and protections of the District in engaging a business actually in the forum jurisdiction,' and protections of the District in engaging in a business actively in the forum jurisdiction," and whether "it is fair and reasonable to expect it to anticipate being sued in that jurisdiction." I Mark Mktg. Servs., LLC v. Geoplast S.p.A., 753 F.Supp.2d 141, 154 (D.D.C.2010) (citing Shoppers Food Warehouse v. Moreno, 746 A.2d 320, 329 (D.C.2000) (en banc)). As to CB, CBL and Mr. Roberts, plaintiff alleges only that CBL opened an account for her mother — a Kansas citizen — and that she — a Nevada citizen — now possesses the rights to that account, and says nothing establishing that the banks are "transacting business" in the District. And to the extent plaintiff's brief reference to "trust arrangements" in the District attempts to tie the alleged account at CBL to some legal instrument in this forum, the conclusory allegations in the Amended Complaint — and any intimation that might be drawn from them — are insufficient to make a prima facie showing of jurisdiction. GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1349 (D.C.Cir.2000).
Finally, "[u]nder the `minimum contacts' standard [of due process], courts must insure that `the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.'" GTE New Media, 199 F.3d at 1347 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). This "fair warning" requirement is satisfied if the defendant has purposefully directed his activities at the forum and the resulting injuries arise out of, or relate to, those activities. Buesgens v. Brown, 567 F.Supp.2d 26, 35 (D.D.C.2008) (citations omitted). Even taking the Amended Complaint as the truth in this matter, plaintiff has alleged only that (1) GTC fraudulently agreed to represent a Nevada resident at the request of a Utah-based attorney, (2) the banks stole $14 million from a Kansas resident and her daughter, and (3) Mr. Roberts assaulted a Nevada resident. Plaintiff provides no reasoning as to how these acts constitute conduct purposefully directed at the District, and the Court finds none elsewhere.
Rather than to allege facts establishing any connection between the defendants and the District of Columbia, plaintiff places heavy emphasis on the federal venue statute, which in relevant part declares that "[a]n alien may be sued in any district." 28 U.S.C. § 1391(d). Plaintiff's reliance is misplaced. Section 1391 is a venue statute and "has nothing whatever to do with acquiring personal jurisdiction by service of process." James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451,
None of the law cited by plaintiff requires a different result. At least one of the cases relied on by plaintiff — Holt v. Rederi — opines that while under § 1391(d) an alien may be sued in any district, "[n]onetheless, an alien is entitled to the same due process protection as any other person" — including, of course, due process limitations on the exercise of personal jurisdiction. 355 F.Supp. 354, 358 n. 4 (W.D.Mich.1973). Similarly, in another the court declares that "questions to be decided" before evaluating venue under § 1391(d) include "whether the defendants can be constitutionally subjected to the jurisdiction of the Court." Seilon, Inc. v. Dardanio Manuli S.p.A., 12 Ohio Misc. 176, 271 F.Supp. 516, 517 (N.D.Ohio 1967). And in yet another opinion cited by plaintiff, the court expressly recognizes that the "concepts of personal jurisdiction and of venue are closely related, but nonetheless distinct," Japan Gas Lighter Ass'n v. Ronson Corp., 257 F.Supp. 219, 224 (D.N.J. 1966), and proceeds to analyze § 1391(d) and personal jurisdiction separately. See generally id. at 225-231. Indeed, this practice of discussing questions of personal jurisdiction and venue under § 1391(d) separately is consistent across the remaining cases cited by plaintiff.
For the reasons set forth above, the Court holds that the allegations in the Amended Complaint and other evidence in record provides no basis for the exercise of personal jurisdiction over these defendants, as none are present in the forum, no injury was suffered in the District, and no reason to believe that defendants aimed their conduct at this jurisdiction exists.
A separate Order and Judgment consistent with these findings shall issue this date.