Herederos De Roberto Gomez Cabrera, LLC v. Teck Resources Limited ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12834
____________________
HEREDEROS DE ROBERTO GOMEZ CABRERA, LLC,
Plaintiff-Appellant.
versus
TECK RESOURCES LIMITED,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-21630-RNS
____________________
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2 Opinion of the Court 21-12834
Before NEWSOM, MARCUS, Circuit Judges, and COVINGTON,* Dis-
trict Judge.
NEWSOM, Circuit Judge:
In 1996, in response to the Cuban government’s decades-old
program of confiscating private property, Congress enacted the
Cuban Liberty and Democratic Solidarity Act—commonly called
the Helms-Burton Act. That statute broadly imposes liability on
anyone who “traffics” in confiscated Cuban property to which a
U.S. national has a claim. The plaintiff in this case, a Florida LLC
called Herederos de Roberto Gomez Cabrera, sued a Canadian
company, Teck Resources Limited, alleging that it had illegally
trafficked in property to which Herederos says it has a claim. We
hold that the federal courts don’t have personal jurisdiction over
Teck, and we therefore affirm the dismissal of Herederos’s com-
plaint.
I
In 1960, the revolutionary Cuban government confiscated
Roberto Gomez Cabrera’s mineral mines. Cabrera’s children, who
inherited his claim to the mines, allege that Teck, a Canadian cor-
poration, managed the mines and thereby “traffic[ked]” in them in
violation of the Helms-Burton Act.
*Honorable Virginia M. Hernandez Covington, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
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21-12834 Opinion of the Court 3
Cabrera’s children assigned their claims to a Florida LLC,
Herederos de Roberto Gomez Cabrera, and Herederos sued Teck
under the Helms-Burton Act in the U.S. District Court for the
Southern District of Florida. Broadly speaking, the Act imposes li-
ability on “any person” who “traffics in property which was confis-
cated by the Cuban Government on or after January 1, 1959.” 22
U.S.C. § 6082. Teck moved to dismiss for lack of personal jurisdic-
tion. The district court granted Teck’s motion, holding that Flor-
ida’s long-arm statute didn’t provide jurisdiction over Teck and,
additionally, that Teck lacked the necessary connection to the
United States to establish personal jurisdiction under Federal Rule
of Civil Procedure 4(k)(2). For the reasons explained below, we
agree with the district court.1
1 We review the district court’s dismissal for lack of personal jurisdiction de
novo, accepting the allegations in the complaint as true. See Don’t Look Me-
dia LLC v. Fly Victor Ltd., 999 F.3d 1284, 1292 (11th Cir. 2021). “When a
defendant submits non-conclusory affidavits to controvert the allegations in
the complaint, the burden shifts back to the plaintiff to produce evidence to
support personal jurisdiction.” Id.Teck separately contends that Herederos lacks Article III standing to
sue. Because “there is no mandatory sequencing of jurisdictional issues,” and
because “in appropriate circumstances . . . [we] may dismiss for lack of per-
sonal jurisdiction without first establishing subject-matter jurisdiction,” we re-
solve this case without addressing Herederos’s standing. Sinochem Int'l Co.
v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007) (citation and quota-
tion marks omitted).
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4 Opinion of the Court 21-12834
II
As relevant here, the Federal Rules of Civil Procedure,
which govern suits brought in federal court, explain that a district
court may exercise personal jurisdiction over a defendant if
“(A) the defendant is not subject to jurisdiction in any state’s courts
of general jurisdiction; and (B) exercising jurisdiction is consistent
with the United States Constitution and laws.” Fed. R. Civ. P.
4(k)(2). The parties here agree that Rule 4(k)(2)’s first condition
applies—Teck isn’t “subject to jurisdiction in any state’s courts of
general jurisdiction.” Accordingly, we must decide whether exer-
cising personal jurisdiction here would be “consistent with the . . .
Constitution.” For purposes of this case, the relevant constitu-
tional provision—and we flag this issue because it gets to the nub
of the parties’ dispute—is the Fifth Amendment’s Due Process
Clause, which applies to the federal government and its courts, not
the Fourteenth’s, which applies to the states. 2
2 In the more usual case, we would assess whether jurisdiction would be
proper under the Fourteenth Amendment because Rule 4(k)(1) authorizes per-
sonal jurisdiction in federal court over a person who “is subject to the jurisdic-
tion of a court of general jurisdiction in the state where the district court is
located.” Fed. R. Civ. P. 4(k)(1)(A). Because state courts are limited by the
Fourteenth Amendment, federal courts look through (in a manner of speak-
ing) to that provision to determine whether a state court could exercise per-
sonal jurisdiction. See Walden v. Fiore, 571 U.S. 277, 283 (2014). Because the
parties agree that no state court would have jurisdiction over Teck here, they
ask us to assess jurisdiction under Rule 4(k)(2) instead.
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21-12834 Opinion of the Court 5
Despite their agreement that the Fifth Amendment governs
the personal-jurisdiction inquiry here, Herederos and Teck ad-
vance competing jurisdictional analyses. For its part, Teck con-
tends that we should analyze personal jurisdiction under the Fifth
Amendment the same way we would under the Fourteenth
Amendment—i.e., ask whether the defendant has sufficient “mini-
mum contacts” with the forum and whether “maintenance of the
suit [would] offend ‘traditional notions of fair play and substantial
justice.’” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945). Here-
deros, by contrast, urges us to apply a more lenient “arbitrary or
fundamentally unfair” standard that we have sometimes used in
what it calls “extraterritorial jurisdiction” cases. See Br. of Appel-
lant at 15–16; Reply Br. of Appellant at 4. Although the language
and logic of the “extraterritorial jurisdiction” cases can be a little
confusing, those decisions, as we’ll explain, aren’t really about per-
sonal jurisdiction at all. Accordingly, we hold that courts should
analyze personal jurisdiction under the Fifth Amendment using the
same basic standards and tests that apply under the Fourteenth
Amendment.
A
We conclude that the personal-jurisdiction analysis under
the Fifth Amendment is the same as that under the Fourteenth for
three principal reasons.
First, and most importantly, the operative language of the
Fifth and Fourteenth Amendments is materially identical, and it
would be incongruous for the same words to generate markedly
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6 Opinion of the Court 21-12834
different doctrinal analyses. Compare U.S. Const. amend. V (“No
person shall be . . . deprived of life, liberty, or property, without
due process of law.”), with U.S. Const. amend. XIV, § 1 (“No State
shall . . . deprive any person of life, liberty, or property, without
due process of law.”).
Second, this Court has all but held already that the Fifth
Amendment’s personal-jurisdiction analysis should track the Four-
teenth’s. See Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210,
1219 n.25 (11th Cir. 2009) (“As the language and policy considera-
tions of the Due Process Clauses of the Fifth and Fourteenth
Amendments are virtually identical, decisions interpreting the
Fourteenth Amendment’s Due Process Clause guide us in deter-
mining what due process requires in the Fifth Amendment jurisdic-
tional context.”); see also SEC v. Marin, 982 F.3d 1341, 1349 (11th
Cir. 2020) (conducting “minimum contacts” analysis in case as-
sessing personal jurisdiction under the Fifth Amendment); Fraser
v. Smith, 594 F.3d 842, 850 (11th Cir. 2010) (same).
Third, adopting Herederos’s preferred “arbitrary or funda-
mentally unfair” standard for Fifth Amendment cases—rather than
the traditional minimum-contacts test—would create unnecessary
tension with personal-jurisdiction precedents more generally.
Fourteenth Amendment decisions have repeatedly emphasized the
heavy burden faced by foreign defendants forced to litigate in U.S.
courts, and there’s no reason to think that those burdens are any
lighter in cases governed by the Fifth Amendment. See, e.g., Asahi
Metal Indus. Co. v. Superior Court, 480 U.S. 102, 116 (1987)
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(finding no jurisdiction over Japanese corporation partly because of
the “the international context [and] the heavy burden on the alien
defendant”); Oldfield, 558 F.3d at 1221 (“[I]n cases involving inter-
national defendants, courts should consider ‘[t]he unique burdens
placed upon one who must defend oneself in a foreign legal sys-
tem.’” (quoting Asahi, 480 U.S. at 114)).
For these fairly straightforward reasons, we think it makes
eminent sense to apply the same basic personal-jurisdiction stand-
ards in cases arising under the Fifth Amendment as in those arising
under the Fourteenth Amendment.
B
What, though, of the “extraterritorial jurisdiction” cases that
Herederos cites? In those decisions, Herederos notes, we have said
that “the extraterritorial application of the law must comport with
due process, meaning that the application of the law must not be
arbitrary or fundamentally unfair,” United States v. Noel, 893 F.3d
1294, 1301 (11th Cir. 2018), and that the “Due Process Clause pro-
hibits the exercise of extraterritorial jurisdiction over a defendant
when it would be ‘arbitrary or fundamentally unfair,’” United
States v. Baston, 818 F.3d 651, 669 (11th Cir. 2016). But a close
review of those cases shows that, in fact, they aren’t really about
personal jurisdiction at all; rather, at their core, they address what
is sometimes called “legislative jurisdiction”—i.e., the power of
Congress (or another lawmaking body, as the case may be) to reg-
ulate conduct extraterritorially.
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8 Opinion of the Court 21-12834
For instance, in United States v. Ibarguen-Mosquera, we
looked to international law to determine whether Congress had
constitutional authority to criminalize drug trafficking in interna-
tional waters. See 634 F.3d 1370, 1378–79 (11th Cir. 2011). We
held, in particular, that “the enactment of the [Drug Trafficking
Vessel Interdiction Act] d[id] not offend the Due Process Clause”
of the Fifth Amendment. Id. at 1379 (emphasis added). Similarly,
in Noel, we examined an international treaty to determine whether
Congress could criminalize a foreign defendant’s actions under the
federal Hostage Taking Act. See 893 F.3d at 1304. So too, in an
earlier “extraterritorial jurisdiction” case, we held that defendants
could be charged with a “general understanding of international
law” and, consequently, that it didn’t violate due process for Con-
gress to criminalize drug offenses involving stateless vessels on the
high seas. See United States v. Marino-Garcia, 679 F.2d 1373, 1384
n.19 (11th Cir. 1982).
To be sure, in some of the “extraterritorial jurisdiction”
cases, we have analogized to personal-jurisdiction precedents or
used language reminiscent of personal-jurisdiction analysis. Amer-
ican Charities for Reasonable Fundraising Regulation, Inc. v. Pinel-
las County, 221 F.3d 1211 (11th Cir. 2000) (per curiam), is illustra-
tive. The question there was whether a Florida county could apply
a charitable-solicitation regulation to individuals and entities who
claimed that they engaged in little, if any, activity in the jurisdic-
tion. We began by framing the question presented as one involv-
ing “legislative jurisdiction”: “A state’s legislative jurisdiction is
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circumscribed by the Due Process Clause.” Id. at 1216. In address-
ing that question, we noted, as relevant here, that “[t]he inquiry
into whether sufficient legislative jurisdiction exists is similar to
that explored in determining sufficient minimum contacts for the
purposes of assessing whether a court can exercise personal juris-
diction consistent with due process.” Id. (analogizing to concepts
of “minimum contacts,” “traditional notions of fair play and sub-
stantial justice,” and “purposeful[] avail[ment]”); see also, e.g., Ger-
ling Glob. Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228,
1236 (11th Cir. 2001) (applying a personal-jurisdiction-like test to
determine whether Florida could regulate a German company’s
conduct consistent with due process).
Be that as it may, the fact remains, as the Supreme Court has
emphasized, that the “type of ‘jurisdiction’ relevant to determining
the extraterritorial reach of a statute . . . is known as legislative ju-
risdiction, . . . and is quite a separate matter from jurisdiction to ad-
judicate.” Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813
(1993) (quotation marks omitted) (emphasis added). Indeed, the
Court observed in Hartford that the “extraterritorial reach of [a
statute] has nothing to do with the jurisdiction of the courts” but,
rather, “is a question of substantive law turning on whether, in en-
acting the [statute], Congress asserted regulatory power over the
challenged conduct.” Id.The bottom line, then: The “extraterritorial jurisdiction”
cases that Herederos cites are overwhelmingly (if not exclusively)
concerned with legislative jurisdiction. None are personal-
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jurisdiction cases in the traditional sense. Herederos, it seems, asks
us to decide the question of personal jurisdiction in this case by ref-
erence to the legislative-jurisdiction cases—thereby bringing to
bear what it takes to be the more permissive “arbitrary or funda-
mentally unfair” standard. But we don’t need to reason, in essence,
by analogy to another body of law. We can and should just go
straight to the source: the personal-jurisdiction cases themselves.
Accordingly, we conclude that the “arbitrary or fundamen-
tally unfair” standard does not apply here. We hold instead, to re-
iterate what we said in Marin—which, like this case, arose under
the Fifth Amendment—that “[t]he exercise of personal jurisdiction
comports with due process when (1) the nonresident defendant has
purposefully established minimum contacts with the forum and
(2) the exercise of jurisdiction will not offend traditional notions of
fair play and substantial justice.” 982 F.3d at 1349 (quotation marks
omitted). The lone difference between the Fifth and Fourteenth
Amendments’ due-process analyses is that “[w]here, as here, the
Fifth Amendment applies . . . the applicable forum for minimum
contacts purposes is the United States, not the state in which the
district court sits.” Id. at 1349–50 (quotation marks omitted); see
also Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 619
(1992) (assessing whether Argentina purposefully availed itself of
the “United States”); Fraser, 594 F.3d at 850 (assessing contacts with
the United States).
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III
Applying the minimum-contacts test here is relatively
straightforward. We hold that Teck doesn’t have contacts with the
United States sufficient to establish either specific or general per-
sonal jurisdiction over it.
A
We start with specific personal jurisdiction. To establish a
non-resident defendant’s minimum contacts with a forum for spe-
cific-jurisdiction purposes, (1) the plaintiff’s claim must “arise out
of or relate to” one of the defendant’s contacts in the forum, (2) the
defendant must have “purposefully availed” itself of the privilege
of conducting activities within the forum, and (3) jurisdiction must
comport with “traditional notions of fair play and substantial jus-
tice.” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355
(11th Cir. 2013).
Under the first prong, Herederos alleges that its claim arises
out of Teck’s contacts with the United States because Teck com-
mitted a tort that harmed Herederos in this country. To determine
whether a defendant’s conduct arose out of its contacts with the
forum, “we look to the affiliation between the forum and the un-
derlying controversy, focusing on any activity or occurrence that
took place in the forum.” Waite v. All Acquisition Corp., 901 F.3d
1307, 1314 (11th Cir. 2018) (cleaned up) (emphasis added); Ford
Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1025
(2021) (“[T]here must be an affiliation between the forum and the
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12 Opinion of the Court 21-12834
underlying controversy, principally, [an] activity or an occurrence
that takes place in the forum State and is therefore subject to the
State’s regulation.” (quotation marks omitted)). Herederos alleged
only that the effects of Teck’s actions were felt in the United
States—not that Teck engaged in any “activity or occurrence” in
the United States. The incidental effects of a defendant’s actions
are not by themselves sufficient to justify jurisdiction over the de-
fendant in the forum. See World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 295–96 (1980) (finding no jurisdiction
where the only contact was injury in the forum). 3
3 Consider two hypotheticals. If Brian throws a baseball from Pennsylvania
into Maryland and hits Clay in the head, some occurrence attributable to
Brian—the baseball’s movement—occurs in Maryland, and the effect—Clay’s
resulting injury—is likewise felt in Maryland. In that case, Brian would be
subject to jurisdiction in Maryland. See Ford, 141 S. Ct. at 1025, 1027–29 (in-
dicating that Ford’s attempt to serve the Montana market by aggressively ad-
vertising there constituted an “activity or an occurrence” in Montana regard-
less of the fact that Ford wasn’t itself physically present in the state); Mosseri,
736 F.3d at 1356 (holding due process satisfied where a defendant advertised,
sold, and distributed trademark-infringing goods to Floridians from New
York). By contrast, if Connor sells Sakina a faulty rock-climbing harness in
Virginia, and Sakina takes it with her to climb in the Red River Gorge in Ken-
tucky and falls while using it there, no part of Connor’s activity—selling the
harness—occurs in Kentucky, even if the effect—Sakina’s fall—occurs there.
In that case, Connor wouldn’t be subject to jurisdiction in Kentucky. See
Woodson, 444 U.S. at 295–96. This case is like the second hypo: The harm
might have been felt in the United States, but Teck didn’t take any action in
this country related to that harm.
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For these reasons, Herederos’s suit doesn’t arise out of or
relate to any of Teck’s ties with the United States. And because a
relationship between the defendant’s conduct within the forum
and the cause of action is necessary to exercise specific jurisdiction,
the lack of any such relationship here dooms Herederos’s effort to
establish specific personal jurisdiction over Teck. See Mosseri, 736
F.3d at 1356; Fraser, 594 F.3d at 850 (noting, for purposes of a Rule
4(k)(2) specific-jurisdiction analysis, that “our inquiry must focus
on the direct causal relationship among the defendant, the forum,
and the litigation” (quotation marks omitted)). Because Herederos
hasn’t shown that its claim arose out of Teck’s contacts with the
United States, we needn’t go on to address the secondary and ter-
tiary questions whether Teck “purposefully availed” itself of the
United States or whether exercising jurisdiction over it would of-
fend “traditional notions of fair play and substantial justice.”
B
As for general jurisdiction, a “court may assert general juris-
diction over foreign (sister-state or foreign-country) corporations
to hear any and all claims against them when their affiliations with
the State are so ‘continuous and systematic’ as to render them es-
sentially at home in the forum.” Daimler AG v. Bauman, 571 U.S.
117, 127 (2014) (quotation marks omitted). Traditionally, a corpo-
ration is “at home” in “its place of incorporation and principal place
of business.” Ford, 141 S. Ct. at 1024. Teck’s principal place of
business isn’t in the United States, and it isn’t incorporated here.
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14 Opinion of the Court 21-12834
Nor, we conclude, are its other contacts sufficient to render it “at
home” in the United States.
Herederos asserts that Teck is “at home” in the United States
because it has subsidiaries that are U.S. corporations. In Daimler,
the Supreme Court held that a foreign defendant’s subsidiary’s con-
tacts with the forum were insufficient to establish the defendant’s
“at home” status. Herederos contends, though, that unlike in
Daimler, where the subsidiary was not incorporated in the relevant
forum and didn’t have its principal place of business there, Teck’s
subsidiaries are incorporated in the United States and do have their
principal places of business here. See Daimler, 571 U.S. at 139.
Thus, Herederos says, Teck is “at home” in the United States.
We’ve recently held that a subsidiary’s contacts can be at-
tributed to its parent company for personal-jurisdiction purposes
when “the subsidiary is merely an agent through which the parent
company conducts business in a particular jurisdiction or its sepa-
rate corporate status is formal only and without any semblance of
individual identity.” United States ex rel. v. Mortg. Invs. Corp., 987
F.3d 1340, 1355 (11th Cir. 2021) (quotation marks and citation
omitted) (emphasis added). In other words, a subsidiary’s contacts
can justify jurisdiction over the parent when the subsidiary is a
mere “alter ego” of the parent company. See Daimler, 571 U.S. at
134; MIC, 987 F.3d at 1354; see also Meier v. Sun Int’l Hotels, Ltd.,
288 F.3d 1264, 1272 (11th Cir. 2002).
Teck’s subsidiaries can’t fairly be described as its mere alter
egos. “[T]here is no litmus test for determining whether a
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21-12834 Opinion of the Court 15
subsidiary is the alter ego of its parent. Instead, we must look to
the totality of the circumstances. Resolution of the alter ego issue
is heavily fact-specific and, as such, is peculiarly within the province
of the trial court.” United Steelworkers of Am., AFL-CIO-CLC v.
Connors Steel Co., 855 F.2d 1499, 1506 (11th Cir. 1988). Herederos
points out that “[s]ome of Teck’s corporate officers or leadership
are also officers of Teck’s U.S.- based subsidiaries,” and that Teck
“consolidates its financial statements with those of its US- subsidi-
aries.” Br. of Appellant at 4–5. To be sure, those are factors courts
use when assessing whether a subsidiary is an alter ego, see Con-
nors Steel Co., 855 F.2d at 1505, but they are not by themselves
sufficient to establish a subsidiary’s alter-ego status, see Consol.
Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1293 (11th Cir. 2000)
(“Where the ‘subsidiary’s presence in the state is primarily for the
purpose of carrying on its own business and the subsidiary has pre-
served some semblance of independence from the parent, jurisdic-
tion over the parent may not be acquired on the basis of the local
activities of the subsidiary.”). Here, the district court found that
Teck’s subsidiaries are independent of Teck, and the evidence sup-
ports that finding. Teck’s subsidiaries are legally distinct entities
and observe all corporate formalities: Each subsidiary has its own
board of directors, officers, books of account, and separate taxes.
Based on the totality of the circumstances, Teck’s subsidiaries can’t
be used to justify general jurisdiction over Teck.4
4 Herederos
also argues that the district court abused its discretion by refusing
to allow Herederos to conduct jurisdictional discovery. We disagree.
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* * *
Herederos hasn’t alleged facts sufficient to allow the United
States courts to exercise either specific or general personal jurisdic-
tion over Teck. 5 Accordingly, we AFFIRM.
“[P]arties have a qualified right to jurisdictional discovery, meaning that a dis-
trict court abuses its discretion if it completely denies a party jurisdictional dis-
covery unless that party unduly delayed in propounding discovery or seeking
leave to initiate discovery.” ACLU of Fla., Inc. v. City of Sarasota, 859 F.3d
1337, 1341 (11th Cir. 2017) (quotation marks and citations omitted). Here, as
the district court found, Herederos knew that jurisdiction over the defendant
would be challenged, and it previously considered the need for jurisdictional
discovery, yet it never moved for jurisdictional discovery. Thus, Herederos
“unduly delayed in . . . seeking leave to initiate discovery.” Furthermore, He-
rederos concedes that it “did not file a distinct and entirely independent mo-
tion to take jurisdictional discovery” as it was required to. Br. of Appellant at
36; see also Fed R. Civ. P. 7(b)(1)(A) (“A request for a court order must be
made by motion. The motion must be in writing unless made during a hearing
or trial.”).
5Teck also contends that Herederos failed to state a claim, but because we
hold that the court lacked personal jurisdiction, we don’t address the merits.
See In re Breland, 989 F.3d 919, 923 (11th Cir. 2021).