UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
August 1, 2011
TONYA KAY DAY, PLAINTIFF,
THE CORNER BANK (OVERSEAS) LIMITED, ET AL., DEFENDANTS.
The opinion of the court was delivered by: 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.
II. PROCEDURAL HISTORY
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. Corner Bank (Overseas) Ltd., --- F. Supp. 2d ----, ----, 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 Corner Bank (Overseas) Limited ("CBL") in the 1970s, placing approximately $14 million in that account. Amended Complaint ¶¶ 14--23, June 17, 2011  ("AC").*fn1 Just before her sudden death in 2006, Ms. Foelgner disclosed the existence of the account to her daughter, providing the account number and sufficient information to lead plaintiff to CBL. Id. at ¶¶ 29--40. After subsequent conversations with Colyn Roberts-CBL's manager-proved fruitless, id. at ¶¶ 41--42, Ms. Day hired an attorney in Utah, who in turn retained Graham, Thompson & Co. ("GTC"), a Bahamian law firm, to represent Ms. Day in her inquiries with CBL. Id. ¶ 43. GTC later withdrew, however, citing a conflict between its representation of Ms. Day and its representation of CBL in an unrelated matter. Id. ¶¶ 44--45. Frustrated with the lack of progress, plaintiff traveled to the Bahamas, where she claims that while attempting to enter CBL's offices, Mr. Roberts blocked her entrance and pushed her out the door. Id. ¶¶ 47--51. Plaintiff's later attempts to contact either CBL or Corner Banca S.A. ("CB"), its Swiss parent, went unanswered. Id. ¶¶ 54--55.
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, --- F. Supp. 2d at ----, 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 . Plaintiff complied, filing an amended complaint
that reasserted numerous claims against defendants,*fn2
but also goes beyond the original pleadings by adding
allegations that GTC and CBL have engaged in a smear campaign in the
Bahamian media to "reflect their positions and put DAY into a
false light." AC ¶ 59. Based on these new allegations, plaintiff adds
a claim for Invasion of Privacy (Count
XII) against both defendants. Id. at ¶¶ 110--114.
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  ("GTC Mtn."); Motion to Dismiss Amended Complaint, June 28, 2011  ("Bank Mtn.").*fn3
Because plaintiff's invasion of privacy allegations involve events occurring after this suit was initiated, defendants also moved to strike these allegations as improperly filed without leave of court, as required under Rule 15(d). GTC Mtn. at 21--22; Bank Mtn. at 23--25. In response, plaintiff cross-moved to supplement her pleadings. Cross-Motion to Supplement Pleading, July 7, 2011 . Having reviewed the record and the parties' briefs, the Court finds any connection between defendants and the District utterly lacking, and thus dismisses plaintiff's suit for want of jurisdiction.*fn4
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. IMX 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 cannot.*fn5
A. General Jurisdiction
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 language tracks the Supreme Court's articulation of general jurisdiction, which permits a court to exercise jurisdiction over a defendant who has "continuous and systematic" contacts with the forum, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984), and "[t]he D.C. Court of Appeals has indicated that the reach of doing business jurisdiction under § 13-334(a) is co-extensive with the reach of constitutional due process." FC Inv. Grp., 529 F.3d at 1092 (quotations omitted).
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). 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,*fn6 GTC Mtn. at 2--3; Bank Mtn. at 8-nor does plaintiff allege otherwise. Instead, plaintiff sets forth three alternative bases for the assertion of jurisdiction over these defendants, each of which is legally insufficient.
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 . 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  ("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 agent for service of process alleviate this concern-not only is the agent also in New York, id., but the relevant legal provision requires only that an agent be designated to receive service from either the Secretary of the Treasury or the Attorney General of the United States, 31 U.S.C. § 5318(k)(3), and does not apply to private causes of action. Hanninen v. Fedoravitch, 583 F. Supp. 2d 322, 327 (D. Conn. 2008). Finally, even if the banks did maintain correspondent accounts in the District, the mere presence of such accounts- without more-is an insufficient basis for the assertion of general jurisdiction. See Licci v. Am. Express Bank Ltd., 704 F. Supp. 2d 403, 407 (S.D.N.Y. 2010) ("The mere maintenance of correspondent bank accounts with a financial institution . . . is not, standing alone, a sufficient basis to subject a foreign defendant to personal jurisdiction.") (collecting cases).*fn7
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.*fn8 The Court therefore concludes that none of the defendants have sufficient connections to the District to permit the exercise of jurisdiction over them generally.
B. Specific Jurisdiction
1. Due Process and D.C.'s Long-Arm Statute
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 arise "from that person's (1) transacting any business in the District . . . (2) contracting to supply services in the District . . . (3) causing tortious injury in the District by an act or omission in the District . . . [or] (4) causing tortious injury in the District by an act or omission outside the District if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District." D.C. Code § 13-423(a). Because plaintiff alleges neither a contractual relationship concerning this forum nor an act in the District, only subsections (a)(1) and (a)(4) are potentially applicable in this case.
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).*fn9 Turning to GTC, the unrebutted evidence establishes that the firm does not actively conduct or solicit business in the District, Whitehead Decl. ¶ 8, and any undertakings in the United States generally are insufficient absent accompanying allegations or evidence demonstrating that such efforts are specifically aimed at the District. Lans v. Adduci Mastriani & Schaumberg LLP, No. 02 Civ. 2165, 2011 U.S. Dist. LEXIS 54463, at *84--*86 (D.D.C. May 23, 2011). It is also well-established that "an attorney-client relationship does not subject a non-resident attorney or law firm to personal jurisdiction in its client's home forum where legal services were rendered outside of the client's home forum." Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F. Supp. 2d 1, 8--9 n.5 (D.D.C. 2009) (collecting cases). In this instance, GTC was hired by plaintiff to contact a Bahamian bank and press for information on an account allegedly opened in the Bahamas. Nothing in this representation, however, could have indicated to GTC that it might be amenable to suit in the District. Accordingly, the Court finds that none of the defendants are "transacting any business" in the District as required by § 13-423(a)(1).
Moving on to § 13-423(a)(4), while she has alleged certain acts by defendants outside the forum-such as CB's and CBL's purported theft of $14 million, Mr. Roberts' alleged physical altercation with Ms. Day, and GTC's claimed malpractice-plaintiff, as a resident of Nevada, fails entirely to explain how any of these acts caused any injury in the District, as required. GTE New Media, 199 F.3d at 1349. And even if plaintiff had not fatally omitted such allegations, the record falls woefully short of establishing "any of subsection (a)(4)'s so-called 'plus factors': regularly doing or soliciting business, engaging in any other persistent course of conduct, or deriving substantial revenue" in the District. McIntosh v. Gilley, 753 F. Supp. 2d 46, 59 (D.D.C. 2010). These factors "serve to filter out cases in which the inforum impact is an isolated event and the defendant otherwise has no, or scant, affiliations with the forum." Crane v. Carr, 814 F.2d 758, 763 (D.C. Cir. 1987). In light of defendants' minimal to non-existent connection to the District, this case is undoubtedly one for which subsection (a)(4)'s filter was designed.
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 (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.*fn10 Accordingly, the Court finds that plaintiff has failed to allege facts or submit evidence sufficient for the exercise of personal jurisdiction over defendants in the District of Columbia under the DC long-arm statute or due process.
2. 28 U.S.C. § 1391(d)
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. Allahabady
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., 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.*fn11 Plaintiff's reliance on § 1391(d) thus provides no independent basis for the Court's exercise of personal jurisdiction over defendants.
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.
Signed by Royce C. Lamberth, Chief Judge, on August 1, 2011.