Aerovias de Mexico v. De Prevoisin ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41162
AEROVIAS DE MEXICO, S.A. DE C.V., d/b/a, AEROMEXICO,
Plaintiff-Appellant,
v.
GERARDO DE PREVOISIN and GP INVESTMENT, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
(4:95-CV-48)
June 29, 2000
Before GARWOOD, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant, Aerovias de Mexico, S.A. de C.V.
(“Aerovias”), appeals the district court's dismissal of its suit
for lack of subject matter jurisdiction. We agree with the
district court's analysis and affirm its decision.
Discussion
Aerovias brought suit against Gerardo de Prevoisin
(“Prevoisin”) and GP Investment, Inc. (“GP”), claiming that
Prevoisin committed a series of wrongful acts while Chairman of
the Board of Aerovias. Aerovias claimed that, through a series
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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of transactions, Prevoisin and GP committed fraud, converted and
wasted Aerovias's corporate assets, breached fiduciary duties and
violated the Racketeer Influenced and Corrupt Organizations Act
(“RICO”). See 18 U.S.C. §§ 1951-68 (1994). After successful
removal by the defendants and a series of procedural rulings, the
district court concluded that it did not have subject matter
jurisdiction and dismissed the case.
We agree with the district court that because all predicate
acts for the transactions that form the basis of Aerovias's money
laundering claim occurred outside of the United States, it lacked
subject matter jurisdiction under RICO. See 18 U.S.C. §
1956(c)(7)(B) (West Supp. 2000) (listing specified unlawful
activities necessary to establish subject matter jurisdiction
under the money laundering statute).
In addition, we agree with the district court that it also
lacked subject matter jurisdiction based on the conduct or
effects test. While some of the proceeds of the alleged
fraudulent activity may have been used to procure property in the
United States, the conduct itself occurred in Mexico. “Mere
preparatory activities, and conduct far removed from the
consummation of the fraud, will not suffice to establish
jurisdiction.” North South Fin. Corp. v. Al-Turki, 100 F.3d
1046, 1051 (2d Cir. 1996) (quoting IIT v. Vencap, Ltd., 519
F.2d 1001, 1017 (2d Cir. 1975)). We have adopted the Second
Circuit's articulation of the conduct test. See Robinson v.
TCI/US West Communications, Inc., 117 F.3d 900, 906 (5th Cir.
1997).
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Conclusion
Because we agree with the district court's analysis, we
affirm its dismissal of Aerovias's suit based on lack of subject
matter jurisdiction.
AFFIRM
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