to give rise to jurisdiction here over UNEXCO.
C. Plaintiff's Conspiracy Theory
As noted earlier, plaintiff seeks to tie its claims to the District by alleging that the parties were involved in a check-kiting "conspiracy" and that, therefore, the actions of any conspirator within the District can be imputed to each of the other co-conspirators, thus subjecting them to jurisdiction here. As authority for that proposition, plaintiff relies heavily upon Mandelkorn v. Patrick, 359 F. Supp. 692 (D.D.C. 1973). In Mandelkorn, however, the court premised its exercise of jurisdiction over the non-resident conspirators at least in part upon the commission of an overt act in furtherance of the conspiracy in the District that resulted in injury in the District. See also Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 151 (D.D.C. 1976). The Mandelkorn court also stressed that its decision might well have been different if the facts underlying the conspiracy were controverted. 359 F. Supp. at 697.
Plaintiff First Chicago could be said to have been injured in the District only if the dishonor of the checks by Petra International was wrongful and done in furtherance of the conspiracy. Yet while plaintiff has asserted in oral argument that it is willing to rest on the present record in demonstrating Petra International's complicity in the check-kiting scheme, that record contains nothing that implicates the bank in any wrongdoing. Indeed, the only references to Petra International that occur for the most part exonerate that defendant from the charges leveled at it. A former employee of First Chicago, Rafael Kamar, stated that one of the individual defendants with whom he met in Amman, subsequent to the discovery of the overdraft, acknowledged that UNEXCO was in the business of "floating checks." Deposition (July 1, 1986) at 50-51, 61-62. Kamar, when asked, stated however that he was told that Petra and Petra International were not involved in this business. Id. at 75, 194. If that is the case, then the only inference that can be drawn from Petra International's dishonor of the checks is that the bank was simply taking what measures it could to avoid financial loss to it. Such action, standing alone, is not wrongful, see Mid-Cal National Bank v. Federal Reserve Bank, 590 F.2d 761, 762 (9th Cir. 1979), and thus cannot be said to have caused any injury within the District upon which a "conspiracy" theory of jurisdiction may be based.
It might be argued that, regardless of whether Petra International was itself implicated in the alleged check-kiting scheme, the remaining defendants may have been engaged in a conspiracy that utilized the services of the bank an unwitting intermediary. In answer, two points must be made. First, while it is true that a plaintiff need only make a prima facie showing as to the pertinent jurisdictional facts in order to survive a motion to dismiss, Chase, 617 F. Supp. at 1415 n.1; 4 Wright & Miller, Federal Practice and Procedure: Civil § 1068 at 250 (1969), it appears from the present record that plaintiff has not even done that. Although Mr. Kamar was deposed as stating that one of the individual defendants admitted that they were in the check-floating business, Deposition at 50-51, 61-62, those admissions or statements appear to concern activity ongoing only within Jordan. Moreover, Kamar stated that five or six times during 1985, but prior to the kiting activity complained of, First Chicago was on notice that UNEXCO's account was overdrawn, sometimes by more than $15 million. Id. at 81-82. Moreover, defendants contend, and plaintiffs apparently concede, that First Chicago's records reveal UNEXCO overdrafts of some $8 - 14 million throughout December 1985. Not only would the existence of such overdrafts render the kind of scheme that plaintiff alleges unnecessary, but by definition it would make the scheme unworkable. As plaintiff's Mr. Gilgan points out, the success of a kite depends upon the kiter's ability to inflate the balances in each of the accounts involved. Gilgan Aff. para. 6. Obviously, if one of the accounts shows a substantial overdraft, such a scheme will not be effective.
Even if plaintiff could demonstrate conclusively that defendants, other than Petra or Petra International, were engaged in a check-kiting conspiracy, the existence of such a scheme alone would not form the basis for jurisdiction in the District as to a claim arising therefrom. To the extent that Petra International is not implicated in the alleged conspiracy, the most that could be said is that checks involved in the scheme passed through and were negotiated in the District. Yet that occurrence was entirely fortuitous and thus cannot establish jurisdiction over a non-resident defendant. See Burger King, 471 U.S. at 474-75. The checks could just as easily have passed through Chicago, or San Francisco, or even Zurich or Bonn. Indeed, the checks did move through the Baltimore branch of the Federal Reserve Bank of Richmond. Yet no one suggests, and indeed it would be improper to hold, that jurisdiction over these defendants lies in the District of Maryland.
In short, with Petra International removed from the picture, there is absolutely no basis on which to exercise jurisdiction over the non-resident defendants.
II. Motion to Dismiss of Petra and Petra International
Based upon the apparent lack of record support for plaintiff's "conspiracy" theory of jurisdiction, Petra and Petra International have moved to dismiss the complaint as to them for failure to state a claim upon which relief can be granted. In view of the foregoing, that motion appears well taken. As stated previously, plaintiff has indicated that it is willing to rest on the present record in its attempt to link those defendants with the alleged check-kiting scheme. Yet the present record shows that neither defendant had any connection with any such conspiracy and that it may be doubtful that such a conspiracy even existed. While ordinarily the facts alleged in a complaint will be accepted as true for purposes of resolving a motion to dismiss, see Gregg v. Barrett, 248 U.S. App. D.C. 347, 771 F.2d 539, 547 (D.C. Cir. 1985); Doe v. United States Department of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1102 (D.C.Cir. 1985), in the absence of any facts of record supporting a claim for relief, the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). And although Petra and Petra International have not moved for summary judgment, their motion to dismiss may be treated as such under Fed. R. Civ. P. 12(b), if the court considers matters outside the pleadings. Having done so, the court cannot discover any evidence that overcomes the implausibility of plaintiff's assertions, rendering summary judgment appropriate. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356-57, 1360-62, 89 L. Ed. 2d 538 (1986).
In an effort to keep its cause of action against Petra and Petra International alive, plaintiff claims that the existence of the following factual disputes renders entry of summary judgment for those defendants inappropriate:
(1) that Petra and Petra International were in fact engaged with the other defendants in a check-kiting conspiracy;
(2) that First Chicago relied on the telexes sent by Petra in response to First Chicago's inquiries about UNEXCO's creditworthiness;