Holocaust Victims of v. OTP Bank

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2353
E RNO K ALMAN A BELESZ et al.,Œ
Plaintiffs-Appellees,
v.
OTP B ANK,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.
No. 11-2386
E RNO K ALMAN A BELESZ et al.,
Plaintiffs-Appellees,
v.
MKB B ANK Z RT., sued as
MKB B AYERISCHE L ANDESBANK,
Defendant-Appellant.
Œ
These appeals had been captioned “Holocaust Victims of Bank
Theft v. OTP Bank” and “Holocaust Victims of Bank Theft v. MKB
Bank Zrt.” We have reformed the captions to name the first
named plaintiff. Federal Rule of Civil Procedure 10(a)
requires pleadings to name parties, not to presume the merits
of the plaintiffs’ claims, no matter how compelling they may be.
2 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.
No. 11-2875
E RNO K ALMAN A BELESZ et al.,
Plaintiffs-Appellees,
v.
MKB B ANK Z RT., sued as
MKB B AYERISCHE L ANDESBANK,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.
No. 11-3247
IN RE:
MKB B ANK Z RT., sued as
MKB B AYERISCHE L ANDESBANK,
Petitioner.
Petition for Writ of Mandamus to
the Northern District of Illinois, Eastern Division.
No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 3
No. 11-3249
IN RE:
OTP B ANK,
Petitioner.
Petition for Writ of Mandamus to
the Northern District of Illinois, Eastern Division.
No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.
A RGUED JANUARY 11, 2012—D ECIDED A UGUST 22, 2012
Before K ANNE, W ILLIAMS, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. A group of Holocaust
survivors and heirs of other Holocaust victims filed suit
against several banks alleging that the banks par-
ticipated in expropriating property from Hungarian
Jews during the Holocaust. This case and a parallel
case against the Hungarian national railway have pro-
duced nine separate pending appeals and mandamus
petitions. In this opinion, we address the plaintiffs’
claims against two privately owned Hungarian banks,
defendants MKB Bank Zrt. (“MKB”) and OTP Bank
(“OTP”). In separate opinions released today, we
address plaintiffs’ claims against another private bank,
the Hungarian national bank, and the Hungarian
4 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
national railway.1
Plaintiffs’ complaint describes a part of the tragic,
historic crimes that were the Holocaust, focusing on
the role of Hungarian banks in expropriating money
from Jews and financing part of the Holocaust. Since
defendants seek review of denials of their motions to
dismiss, our account of the facts treats all factual allega-
tions in the complaint as true. As post-World War I
treaties took their economic toll on Hungary, the non-
Jewish population became increasingly hostile toward
Hungarian Jews who, as a group, enjoyed relatively great
economic influence. The widespread murders of the
Holocaust came relatively late to Hungary, in April 1944,
but long before then, Hungarian Jews were subjected
to a series of anti-Semitic decrees that sought to limit
Jewish economic influence and property ownership.
Jews were ordered to turn over their personal
property and valuables to officials who collected the
property and gave receipts to the owners — ostensibly so
the owners could reclaim the property at a future date.
A special account was created to centralize and
coordinate the funds from frozen and looted Jewish
bank accounts. “Aladar” (“straw men”) were designated
by the government to administer Jewish property.
Plaintiffs allege that Hungarian banks, including de-
fendants MKB and OTP, played critical roles in the ex-
1
See Abelesz v. Erste Group Bank AG, ___ F.3d ___ (7th Cir. 2012);
Abelesz v. Magyar Nemzeti Bank, ___ F.3d ___ (7th Cir. 2012).
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 5
propriation scheme, which was essential to finance the
genocide of the Holocaust in Hungary. The scheme relied
on Hungarian banks to freeze the assets of their Jewish
customers, preventing them from withdrawing funds
to finance escape from the ever-increasing Hungarian
repression. Plaintiffs allege that expropriation of Jews’
wealth was also a critical component of the genocide,
both to fund the government’s murderous activities and
to impoverish survivors so that it would be impossible
for them to return to their homes in Hungary. Beginning
in April 1944, Hungarian Jews were deported to
Auschwitz and other death camps. After the end of
World War II, some Jewish survivors or heirs of murdered
victims attempted to return to their family homes and
to retrieve valuables in safe deposit boxes. Those who
were able to return found empty safe deposit boxes and
homes occupied by strangers.
Invoking subject-matter jurisdiction under the
Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.
§ 1330(a), the Alien Tort Statute, 28 U.S.C. § 1350, and
federal question jurisdiction, 28 U.S.C. § 1331, plaintiffs
allege six causes of action: genocide, aiding and abetting
genocide, bailment, conversion, constructive trust, and
accounting. Plaintiffs seek to have their case certified as
a class action and ask that each defendant bank be
held jointly and severally responsible for damages of
approximately $75 billion. The defendant banks moved
to dismiss on many grounds, including lack of subject-
matter jurisdiction and lack of personal jurisdiction.
The district court denied all motions to dismiss, motions
to reconsider, and motions for certification of inter-
6 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
locutory appeal under 28 U.S.C. § 1292(b). Holocaust
Victims of Bank Theft v. Magyar Nemzeti Bank, 807 F. Supp.
2d 689 (N.D. Ill. 2011) (denying motions to dismiss); 807
F. Supp. 2d 699 (N.D. Ill. 2011) (denying motions for
reconsideration, clarification, and certification of inter-
locutory appeal).
Those denials pose some challenging problems of
appellate jurisdiction, as we explain below. The appellate
jurisdiction story in this case begins with defendant
Magyar Nemzeti Bank (“MNB”), the Hungarian national
bank, which moved to dismiss based on a defense of
sovereign immunity under the FSIA, 28 U.S.C. § 1604.
The district court denied MNB’s motion. MNB has ap-
pealed the district court’s denial of its motion to dismiss
on sovereign immunity. As we explain in Abelesz v.
Magyar Nemzeti Bank, it is well established that an order
denying sovereign immunity under the FSIA is a collateral
order subject to interlocutory appeal. ___ F.3d at ___.
From that one sound basis for appellate jurisdiction,
MNB has asked us to exercise pendent appellate juris-
diction over the other arguments it made for dismissal.
And, in turn, appellants MKB and OTP, like Erste
Group Bank, seek here to stretch the narrow doctrine of
pendent appellate jurisdiction to include their appeals
and the separate issues they seek to raise. MKB and OTP,
like Erste, also filed petitions for writs of mandamus,
which they ask us to consider in the event that appellate
jurisdiction is lacking.
We dismiss MKB’s and OTP’s appeals for lack of appel-
late jurisdiction. Their petitions for writs of mandamus
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 7
are granted, however, based on an unusual combination
of the extraordinary nature of this litigation and the
complete absence of any arguable basis for exercising
general personal jurisdiction over MKB and OTP in a
U.S. court.
The losses alleged by plaintiffs were part of the crimes
of the Holocaust in central Europe in the 1940s. This case
demonstrates some of the limits in trying to use civil
courts on another continent to obtain legal relief for
those crimes, now more than 60 years old. Our order
that the claims against MKB and OTP be dismissed is
not based on a determination that the conduct alleged
here was beyond the reach of the law. When faced with
similar claims, Judge Kram wrote eloquently:
It goes without saying that the events which form
the backdrop of this case make up one of the darkest
periods of man’s modern history. Those persecuted
by the Nazis were the victims of unspeakable acts of
inhumanity. At the same time, however, it must be
understood that the law is a tool of limited capacity.
Not every wrong, even the worst, is cognizable as
a legal claim.
In re Austrian & German Bank Holocaust Litigation, 80
F. Supp. 2d 164, 177 (S.D.N.Y. 2000), aff’d on other grounds
sub nom. D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir.
2001). We agree. We are a court of law that must itself
comply with the law. We must confront a basic jurisdic-
tional question — whether plaintiffs are entitled to
require these defendants to defend themselves in a
U.S. federal court. The district court lacks the constitu-
8 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
tional power to exercise personal jurisdiction over these
defendants, so the answer to that question is no. We
order the district court to dismiss the claims against
MKB and OTP for lack of personal jurisdiction.2
I. Appellate Jurisdiction
At the outset, we must consider our own jurisdic-
tion over these appeals. MKB and OTP seek review of
the district court’s denial of their motions to dismiss. As
a general rule, the district court must issue a final order
before an appellate court has jurisdiction to entertain
an appeal. See 28 U.S.C. § 1291. MKB and OTP both
argue that this court has pendent appellate jurisdiction
2
Because we lack appellate jurisdiction and grant mandamus
for both MKB and OTP based on the district court’s clear lack of
personal jurisdiction, we do not address a number of other
arguments made by MKB and OTP, including the act of state
doctrine, the political question doctrine, treaty-based argu-
ments, statutes of limitations, and subject-matter jurisdiction.
We note for completeness, however, that the Supreme Court is
currently considering two aspects of the scope of the Alien
Tort Statute that may be relevant to plaintiffs’ claims here:
(1) whether corporations are subject to tort liability for viola-
tions of the law of nations, and (2) whether and under what
circumstances the ATS allows U.S. courts to hear claims for
violations of the law of nations occurring within the territory
of a sovereign other than the United States. See Kiobel v.
Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), cert.
granted, 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011) (No. 10-1491),
calendared for reargument, 80 U.S.L.W. 3506 (Mar. 5, 2012).
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 9
over their appeals on the theory that the issues they
present are “inextricably intertwined” with MNB’s
appeal of the district court’s denial of foreign sovereign
immunity. MKB further argues that the “adverse foreign
policy consequences” of maintaining the suit against
it render the district court’s refusal to dismiss the case a
collateral order subject to immediate appeal. Neither
argument provides us with jurisdiction over MKB’s
and OTP’s appeals.
A. Pendent Appellate Jurisdiction
As noted, defendant MNB, the Hungarian national
bank, has appealed the district court’s denial of its sover-
eign immunity defense under the FSIA. In its own
appeal, MNB raises other issues that it argues are
pendent to the FSIA immunity defense. We clearly have
jurisdiction over MNB’s appeal of the denial of sovereign
immunity and address the merits of that defense in a
separate opinion in Abelesz v. Magyar Nemzeti Bank. ___
F.3d ___. From this one solid foothold on appellate juris-
diction, MKB and OTP argue that this court should exer-
cise pendent appellate jurisdiction over their appeals
because they are “inextricably intertwined” with MNB’s
appeal. We disagree.
Pendent appellate jurisdiction is a narrow doctrine
that allows an appellate court “to review an otherwise
unappealable interlocutory order if it is ‘inextricably
intertwined with an appealable one.’ ” Research Automation,
Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 977
(7th Cir. 2010), quoting Montano v. City of Chicago, 375 F.3d
10 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
593, 599 (7th Cir. 2004). The Supreme Court sharply
restricted the use of pendent appellate jurisdiction in
Swint v. Chambers County Comm’n, 514 U.S. 35, 43-51 (1995),
but left a narrow path that the Court later followed in
Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997), where an
appealable collateral order denying presidential
immunity was “inextricably intertwined” with an order
staying discovery and postponing trial. This “vestige of
the doctrine survives,” though we have said that
pendent appellate jurisdiction “has not flourished” since
Swint. Caldwell-Baker Co. v. Parsons, 392 F.3d 886, 887
(7th Cir. 2004); see also McCarter v. Retirement Plan for
Dist. Managers of American Family Ins. Grp., 540 F.3d 649,
653 (7th Cir. 2008) (“[E]ven when circumstances are
exceptional the availability of pendent appellate juris-
diction is doubtful.”). At best, pendent appellate juris-
diction may be invoked only if there are “compelling
reasons” for not deferring the appeal of the otherwise
unappealable interlocutory order to the end of the
lawsuit. People of State of Ill. ex rel. Hartigan v. Peters, 861
F.2d 164, 166 (7th Cir. 1988); see also McCarter, 540 F.3d
at 653 (“only the most extraordinary circumstances
could justify the use of whatever power the courts of
appeals possess” to exercise pendent jurisdiction).
This room for the “inextricably intertwined” use of
pendent appellate jurisdiction should not be stretched
to appeal normally unappealable interlocutory orders
that happen to be related — even closely related — to the
appealable order. Hartigan, 861 F.2d at 166; see also U.S.
for Use of Valders Stone & Marble, Inc. v. C-Way Const. Co.,
909 F.2d 259, 262 (7th Cir. 1990) (“A close relationship
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 11
between the unappealable order and the appealable
order will not suffice: it must be practically indispensable
that we address the merits of the unappealable order
in order to resolve the properly-taken appeal.”). This is
because resolving appeals from non-final decisions is
generally incompatible with the final-judgment rule
embodied in 28 U.S.C. § 1291. McCarter, 540 F.2d at 653.
Given the narrow scope of the doctrine, neither MKB
nor OTP makes a compelling case for exercising
pendent appellate jurisdiction. As we decide in Abelesz v.
Magyar Nemzeti Bank, we have appellate jurisdiction
over MNB’s appeal of the district court’s denial of sover-
eign immunity, but we decline to exercise pendent ap-
pellate jurisdiction over the other issues that MNB
itself seeks to raise. ___ F.3d at ___. MKB’s and OTP’s
appeals are further attenuated, arguing that some
issues they raise on appeal are pendent directly to
MNB’s sovereign immunity defense and some issues
are pendent to MNB’s other issues over which we do
not have jurisdiction.3 From the one solid foothold on
3
To support pendent party appellate jurisdiction, defendants
cite our decision in Greenwell v. Aztar Indiana Gaming Corp., 268
F.3d 486, 491 (7th Cir. 2001), where we exercised pendent
jurisdiction over a malpractice claim “entwined” with an
indemnity claim properly before the court because doing so
“served [the] broader purposes of efficiency and consistent
resolution of the case.” Jones v. InfoCure Corp., 310 F.3d 529, 536
(7th Cir. 2002). As plaintiffs point out, however, we have since
noted that in Swint, the Supreme Court rejected “judicial
(continued...)
12 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
appellate jurisdiction — denial of sovereign immunity
for MNB — these other defendants ask this court to review
nearly every issue they raised in the district court, and
to do so after the litigation has progressed no further
than the denial of their respective motions to dismiss.
The pendent party appellate jurisdiction that MKB
and OTP rely upon has not survived Swint. See 514 U.S.
at 51.
The varied issues raised by the defendants do not
concern “the same single issue.” Research Automation, Inc.,
626 F.3d at 977 (“Both the denial of the injunction and
the district court’s transfer order concern the same single
issue: whether this case should be litigated in Illinois or
in Virginia.”). Nor are they “the head and tail of the
same coin.” Hartigan, 861 F.2d at 166. While the issues
that MKB and OTP seek to argue are no doubt closely
related to the issues that MNB appeals, they are not
so “inextricably intertwined” with MNB’s sovereign
immunity defense as to make it “practically indispensable”
that we address their merits now. See Swint, 514 U.S. at
51; Valders Stone & Marble, 909 F.2d at 262. Exercising
pendent appellate jurisdiction over MKB’s and OTP’s
appeals would not be consistent with the statutes and
case law establishing the final-judgment rule.
3
(...continued)
economy” as an appropriate basis for pendent appellate
jurisdiction. McCarter, 540 F.2d at 653.
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 13
B. Collateral Order Doctrine
MKB also argues that the “adverse foreign policy conse-
quences” of maintaining the suit against it render the
district court’s refusal to dismiss the case an im-
mediately appealable collateral order. MKB claims that,
without this appeal, there are no further steps it can take
to preserve the relevant interest at stake, which it
identifies as “that there not be legal proceedings that
undercut U.S. foreign relations.”
This argument is based on the U.S. government’s efforts
to “provide some measure of justice to the victims of the
Holocaust, and to do so in their remaining lifetimes.” U.S.
Statement of Interest, Stipulated J.A. 49. The United
States has been party to two international settlements
that have provided approximately $8 billion for the
benefit of victims of the Holocaust. One of these settle-
ments, the German Foundation, was capitalized by the
Federal Republic of Germany and German companies
and was “to be the exclusive remedy and forum for the
resolution of, all claims that have been or may be
asserted against German companies arising from the
National Socialist era and World War II.” Id. at 50. To
facilitate the creation and funding of the German Founda-
tion, the United States pledged to help achieve “legal
peace” for German companies with respect to Nazi-era
claims in U.S. courts.4 The United States, based on its
4
While MKB is a Hungarian bank, the United States has
determined that it qualifies as a “Germany company” within the
(continued...)
14 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
participation in the German Foundation, submitted a
Statement of Interest pursuant to 28 U.S.C. § 517 urging
dismissal of the claims against MKB “on any valid legal
ground(s)” but did not argue for any specific theory for
dismissal. Stipulated J.A. 48.
This court has jurisdiction to hear appeals from all
final decisions of the district court, except where direct
review by the Supreme Court is available. 28 U.S.C.
§ 1291. The Supreme Court has given the final-judgment
rule of § 1291 a practical construction by permit-
ting appeals from “a small category of decisions that,
although they do not end the litigation, must nonetheless
be considered ‘final.’ ” Swint, 514 U.S. at 41-42. An im-
mediately appealable collateral order is one that (1)
conclusively determines the disputed question; (2) resolves
important issues separate from the merits; and (3) is
effectively unreviewable on appeal from a final judgment.
Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599,
605 (2009).
MKB argues that the requirements of the collateral
order doctrine are met in this case. The district court’s
denial of its motion to dismiss on political question
grounds “conclusively determines that the lawsuit will
proceed to the detriment of U.S. foreign relations.” Second,
U.S. foreign policy interests are a consideration separate
4
(...continued)
German Foundation’s definition of that term. During World War
II and now, MKB has been more than 25% owned by a German
parent company, Bayerische Landesbank. Stipulated J.A. 63.
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 15
from the merits of the suit, and vindication of that
interest, argues MKB, benefits the United States and
Germany, not MKB. 5 Third, MKB argues that the
foreign policy interest at stake cannot be protected
through an appeal from final judgment because the
“legal peace” offered by the German Foundation would
be rendered hollow. Thus, MKB contends, where the
district court denies a motion to dismiss after the U.S.
government has submitted a Statement of Interest
seeking dismissal of the suit to advance the United
States’ foreign policy interests, immediate appeal should
be available under the collateral order doctrine.
The collateral order doctrine is a narrow exception
that must remain narrow so that it does not supercede
the general rule “that a party is entitled to a single appeal,
to be deferred until final judgment has been entered.”
Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,
868 (1994); see also Will v. Hallock, 546 U.S. 345, 350 (2006)
(“we have not mentioned applying the collateral order
doctrine recently without emphasizing its modest
scope”). The doctrine’s modest scope reflects a “healthy
respect” for the virtues of the final-judgment rule.
Mohawk Industries, Inc., 130 S. Ct. at 605. “Permitting
piecemeal, prejudgment appeals . . . undermines
5
We do not credit MKB’s claim that “vindication of that interest
[in avoiding interference with U.S. foreign policy] will benefit
the United States and Germany, not MKB.” Obviously, dismissal
of the suit against MKB would greatly benefit MKB, separate
and apart from any potential benefit to the foreign policy
interests of the United States or Germany.
16 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
‘efficient judicial administration’ and encroaches upon the
prerogatives of district court judges, who play a ‘special
role’ in managing ongoing litigation.” Id., quoting Firestone
Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981). Thus,
the justification for immediate appeal must be suf-
ficiently strong to outweigh the usual benefits of
deferring appeal until the conclusion of the litigation. Id.
The justification for immediate appeal, moreover, must
be based on the entire category of similar cases rather
than the potential benefits in the particular case. “As
long as the class of claims, taken as a whole, can be ade-
quately vindicated by other means, the chance that the
litigation at hand might be speeded, or a particular injus-
tice averted, does not provide a basis for jurisdiction
under § 1291.” Id. (internal quotations omitted). The
Supreme Court has applied the collateral order rule
categorically, treating different sorts of defenses or issues
as either covered or not covered. For example, orders
denying various types of immunity may be immediately
appealed under the collateral order doctrine. Rubin v.
Islamic Republic of Iran, 637 F.3d 783, 789 (7th Cir. 2011)
(FSIA sovereign immunity), citing Mitchell v. Forsyth,
472 U.S. 511, 530 (1985) (qualified immunity), and
Nixon v. Fitzgerald, 457 U.S. 731, 742-43 (1982) (absolute
presidential immunity). On the other hand, denial of a
motion to dismiss for lack of personal jurisdiction or
forum non conveniens is not appealable as a collateral
order. Van Cauwenberghe v. Biard, 486 U.S. 517, 526-28
(1988) (affirming dismissal of appeal from denial of
motion to dismiss based on claimed immunity from
civil process); Catlin v. United States, 324 U.S. 229, 236
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 17
(1945) (“denial of a motion to dismiss, even when the
motion is based upon jurisdictional grounds, is not imme-
diately reviewable”); Cassirer v. Kingdom of Spain, 616
F.3d 1019, 1024-25 (9th Cir. 2010) (en banc) (holding that
court had jurisdiction over denial of immunity under
FSIA but not denial of motion to dismiss for lack of per-
sonal jurisdiction); Rux v. Republic of Sudan, 461 F.3d
461, 474-76 (4th Cir. 2006) (same). Nor is a sanctions
order for discovery violations under Rule 37(a) of the
Federal Rules of Civil Procedure, Cunningham v. Hamilton
County, 527 U.S. 198, 205 (1999), or a disclosure order
rejecting a claim of attorney-client privilege, Mohawk
Industries, Inc., 130 S. Ct. at 606-07. The line between
those orders that are and are not appealable as
collateral orders probably owes more to history than to
precise logical consistency, but the line has been drawn
in precedents that we must respect and follow as best
we can.
In applying these teachings, the D.C. Circuit has deter-
mined that the denial of a motion to dismiss on political
question grounds is not immediately appealable as a
collateral order, Doe v. Exxon Mobil Corp., 473 F.3d 345,
349 (D.C. Cir. 2007), although the first two requirements
of the collateral order doctrine were satisfied. The D.C.
Circuit took to heart the Supreme Court’s admonition
that “we have meant what we have said; although the
Court has been asked many times to expand the ‘small
class’ of collaterally appealable orders, we have instead
kept it narrow and selective in its membership.” Will, 546
U.S. at 350, quoted in Doe, 473 F.3d at 349. MKB has not
directed us to, and we have not found, any case in
18 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
which a federal appeals court held that denial of a
motion to dismiss on political question grounds was
immediately appealable as a collateral order. Permitting
an appeal from the denial of a motion to dismiss based
on political question grounds would substantially
expand the scope of the collateral order doctrine. We
follow the D.C. Circuit in Doe on this question, 473 F.3d
at 353, and hold that the collateral order doctrine
does not provide appellate jurisdiction over MKB’s politi-
cal question defense.6
II. Mandamus Jurisdiction
So we do not have appellate jurisdiction over
the issues that MKB and OTP seek to raise in Nos. 11-2353,
11-2386, and 11-2875, and those appeals must be dis-
missed. After plaintiffs challenged appellate jurisdiction,
6
Our determination that we lack appellate jurisdiction is not
based on the fact that MKB might have another chance to
present its political question argument in a summary judg-
ment motion or at trial, as urged by plaintiffs. That argument
by plaintiffs misunderstands the collateral order doctrine.
For example, a defendant whose motion to dismiss a claim
under 42 U.S.C. § 1983 on grounds of qualified immunity is
denied often can appeal under the collateral order doctrine
even though the same issue could be raised again later in the
district court. We hold only that a denial of a motion to
dismiss on political question grounds is not among the “small
class ” of orders that are collaterally appealable. See Will, 546
U.S. at 350 (holding that refusal to apply Federal Tort Claims
Act’s judgment bar was not appealable as collateral order).
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 19
MKB and OTP also filed petitions for writs of mandamus
to compel the district court to dismiss the claims against
them. As a general rule, appellate courts are not in the
business of reviewing routine denials of motions to
dismiss — not by using pendent appellate jurisdiction,
not by using the collateral order doctrine, and certainly
not by issuing a writ of mandamus. The final-judgment
rule exists to reduce piecemeal litigation and encroach-
ment on the special role district judges play in managing
litigation. See Mohawk Industries, Inc., 130 S. Ct. at 605.
Furthermore, until a case is over, litigants do not
know whether an individual claim of error actually
matters, and appellate courts usually benefit from
having an entire record in front of them.
The extraordinary nature of this litigation, however,
makes the district court’s denial of MKB’s and OTP’s
motions to dismiss for lack of personal jurisdiction any-
thing but routine. Plaintiffs seek compensation for
events that occurred on another continent more than
65 years ago. The case has appreciable foreign policy
consequences, and the financial stakes are astronomical.
Plaintiffs seek to impose joint and several liability on
each defendant bank for $75 billion in damages — an
amount that is nearly 40 percent of Hungary’s annual
gross domestic product. The consequences for the
plaintiffs themselves are also very substantial. If the
claims against these defendants do not belong in U.S.
courts, no matter how compelling the claims might be
on the merits, we would do the plaintiffs no favors by
allowing them to spend more time and money to
proceed further toward an inevitable dismissal. It is
20 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
the confluence of these specific factors, together with the
crystal clarity of the personal jurisdiction issue, that
removes this case from the category of “ordinary” denials
of motions to dismiss. See Cheney v. U.S. Dist. Court for
Dist. of Columbia, 542 U.S. 367, 381 (2004) (court of
appeals erred in finding it lacked authority to issue writ
of mandamus to provide immediate review of district
court discovery order that could affect the privacy of
President’s policymaking processes; executive privacy
concerns removed district court order from the category
of “ordinary” discovery orders). Plaintiffs’ claims do not
arise out of any business contacts these defendants
have with the United States, so specific personal juris-
diction does not apply here. Plaintiffs assert instead
that U.S. courts have general personal jurisdiction
over these Hungarian banks. General jurisdiction over
a defendant, which means that the defendant can be
required to answer any claim that arose anywhere in
the world, requires that the defendant be “essentially at
home” in the forum. See Goodyear Dunlop Tires
Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). The
allegations against MKB and OTP do not come close
to meeting that standard, and neither the plaintiffs
nor the district court have offered even a colorable argu-
ment for satisfying that standard.
This court is authorized to issue a writ of mandamus
pursuant to the All Writs Act, 28 U.S.C. § 1651(a). Manda-
mus is a “drastic remedy traditionally used to confine
a lower court to the lawful exercise of its jurisdiction
or to compel it to exercise its authority when it has a
duty to do so.” United States v. Lapi, 458 F.3d 555, 560-61
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 21
(7th Cir. 2006); see also Allied Chemical Corp. v. Daiflon, Inc.,
449 U.S. 33, 34-35 (1980) (per curiam) (“Only exceptional
circumstances, amounting to a judicial usurpation of
power, will justify the invocation of this extraordinary
remedy.”). Three conditions must be satisfied for a
writ to issue. First, the party seeking the writ must demon-
strate that the challenged order is not effectively
reviewable at the end of the case, that is, without the
writ the party will suffer irreparable harm. Second, the
party seeking the writ must demonstrate a clear right to
the writ. Last, the issuing court must be satisfied that
issuing the writ is otherwise appropriate. See Cheney, 542
U.S. at 380-81; In re Sandahl, 980 F.2d 1118, 1119 (7th Cir.
1992) (“[T]he petitioner must show irreparable harm
(or, what amounts to the same thing, the lack of an ade-
quate remedy by way of direct appeal or otherwise) and
a clear right to the relief sought.”). The Supreme Court
has said that “[t]hese hurdles, however demanding, are
not insuperable.” Cheney, 542 U.S. at 381 (granting
writ). We conclude that this exacting standard is
satisfied here with respect to the district court’s denial
of MKB’s and OTP’s motions to dismiss for lack of
personal jurisdiction.7
7
Because writs of mandamus should issue on the basis of the
district court’s clear lack of general jurisdiction over these
defendants, we do not reach the merits of MKB’s alternative
argument that a writ should issue based on its political question
argument.
22 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
A. Irreparable Harm
Defendants argue that they have no other adequate
means to obtain the desired relief — full dismissal of the
suits against them. The district court denied MKB’s and
OTP’s motions to dismiss on personal jurisdiction
grounds. 807 F. Supp. 2d at 695. MKB and OTP then
filed motions for reconsideration, for clarification, and
for certification of an interlocutory appeal. Without
meaningful explanation or engagement, the court denied
these motions as well, rejecting binding Supreme Court
authorities as “not on point as far as personal jurisdic-
tion is concerned in this case.” 807 F. Supp. 2d at 704.
The defendants thus face the prospect of protracted
litigation of events that occurred 65 years ago on
another continent, and joint and several liability of
$75 billion, which may place intense pressure on the
defendants to settle. See, e.g., In re Rhone-Poulenc Rorer,
Inc., 51 F.3d 1293, 1297-98 (7th Cir. 1995). Settlement
would mean that the district court order creating the
pressure to settle, the denial of MKB’s and OTP’s
motions to dismiss on personal jurisdiction grounds,
may never be reviewed. By itself, of course, such
pressure is not enough to justify an encroachment on
the final-judgment rule by use of mandamus. Our
judicial system entrusts great power to U.S. district
judges, and appellate review of their decisions must
follow a complex set of legal rules and procedures. But
the extraordinary nature of this litigation cannot be
ignored as a factor in the overall decision.
Plaintiffs argue that potential class action liability
should not figure into the “irreparable harm” analysis
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 23
because a future order certifying a plaintiff class could
be the subject of an interlocutory appeal under
Federal Rule of Civil Procedure 23(f). The prospect
that defendants might be able to appeal a future class
certification does not provide an adequate alternative
means to have the district court’s extraordinary decision
on personal jurisdiction reviewed by a writ of mandamus.
See, e.g., Poulos v. Caesars World, Inc., 379 F.3d 654, 671-
72 (9th Cir. 2004) (in appeal of certification of class
action, refusing to exercise pendent appellate jurisdic-
tion over challenge to district court’s exercise of
personal jurisdiction); id. at 672 (“[T]he district court’s
personal jurisdiction and class certification decision
are only tangentially related, such that we lack
jurisdiction to evaluate the district court’s personal juris-
diction decision in the context of this Rule 23(f) appeal.”);
cf. Jamie S. v. Milwaukee Public Schools, 668 F.3d 481, 492-
93 (7th Cir. 2012) (exercising pendent appellate jurisdic-
tion to review class-certification and liability decisions
in tandem with order imposing remedial scheme only
because review was “practically indispensable” to
resolve proper appeal). As we have recognized before,
the sheer magnitude of risk defendants are exposed to in
a class action can provide intense pressure to settle.
In re Rhone-Poulenc Rorer, Inc., 51 F.3d at 1297-98. MKB
and OTP have established that the district court’s
refusal to dismiss them from the case on personal juris-
diction grounds is not effectively reviewable at the end
of the case.
24 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
B. Clear Right
As we explain in detail in Part III of this opinion, MKB’s
and OTP’s contacts with the United States simply do not
come close to meeting the “essentially at home” standard
needed to exercise general jurisdiction over a foreign
defendant. The defendants gave the district court every
opportunity to address the controlling authorities and
legal standard, but the district court simply refused to
engage with relevant case law. It failed to appreciate
the stringent “essentially at home” standard that
applies to exercises of general jurisdiction. If there were a
colorable argument supporting the district court’s
exercise of jurisdiction, we would view this case differ-
ently. The overwhelming clarity of this issue, however,
calls for use of the extraordinary writ of mandamus to
confine the district court to the proper exercise of its
jurisdiction. See Sandahl, 980 F.2d at 1120-21 (granting
writ where petitioner showed that order disqualifying
law firm was “patently erroneous”).
C. “Otherwise Appropriate”
OTP argues that issuance of a writ is appropriate in
this case because it raises serious questions about the
reach of a U.S. court’s personal jurisdiction over a
foreign entity. Plaintiffs counter that “ ‘Serious questions’
do not rise to the level of ‘really extraordinary,’ simply
because Petitioners [MKB and OTP] do not like the
district court’s reasoned answers to those questions.”
MKB and OTP are large foreign banks with the types of
contacts with the United States that one would expect
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 25
any large foreign bank to have. Under the district court’s
reasoning, virtually any large bank located anywhere
in the world could be sued in any U.S. court on any
claim arising anywhere in the world. That would be an
extraordinary and unwarranted expansion of the U.S.
courts’ general jurisdiction that would raise serious
international law questions about the reach of U.S. law.
See In re Hijazi, 589 F.3d 401, 411 (7th Cir. 2009)
(granting writ and ordering district court to rule on
foreign defendant’s motion to dismiss indictment even
though he was a fugitive, particularly where case
raised “delicate foreign relations issues”). Issuance of a
writ in this case does what the writ was intended to do —
confine the district court to a lawful exercise of its pre-
scribed jurisdiction. See Cheney, 542 U.S. at 380. The
issuance of a writ is appropriate under these extra-
ordinary circumstances.
III. Personal Jurisdiction
The claims underlying this case are that defendants
MKB and OTP, two foreign banks, participated in the
wholesale plunder of the assets of Jews in Hungary
during the Holocaust, more than 65 years ago. As
powerful and troubling as those allegations are, the
United States constitutional guarantee of due process
of law requires that defendants not present in the
forum have “certain minimum contacts” with the forum
such that “the maintenance of the suit does not offend
‘traditional notions of fair play and substantial jus-
tice.’ ” International Shoe Co. v. Washington, 326 U.S. 310,
26 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
316 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940). The basic inquiry is whether the defendant’s
contacts with the forum are such that it should rea-
sonably anticipate being haled into court there. Interna-
tional Medical Group, Inc. v. American Arbitration Ass’n,
312 F.3d 833, 846 (7th Cir. 2002), citing Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 474 (1985), and Central States,
Se. and Sw. Areas Pension Fund v. Reimer Express World
Corp., 230 F.3d 934, 943 (7th Cir. 2000). MKB and OTP
have the type of business contacts that many large
foreign banks have with the United States. Those
contacts are not the type of “continuous and systematic”
contacts that would render MKB and OTP “essentially
at home” in the United States, see Goodyear Dunlop
Tires Operations, S.A., 131 S. Ct. at 2851, such that they
should reasonably anticipate being haled into a U.S. court
to answer for events, no matter how heinous, that
occurred half a world away.
A. Requirements for General Personal Jurisdiction
In the realm of personal jurisdiction, federal constitu-
tional law draws a sharp and vital distinction between
two types of personal jurisdiction: specific or case-linked
jurisdiction, and general or all-purpose jurisdiction.
Goodyear Dunlop Tires Operations, S.A., 131 S. Ct. at 2851.
Specific jurisdiction is jurisdiction over a specific claim
based on the defendant’s contacts with the forum that
gave rise to or are closely connected to the claim itself.
Id. General jurisdiction, in contrast, does not depend
on any connection between the underlying claim and
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 27
the forum. “A court may assert general jurisdiction
over foreign (sister-state or foreign-country) corporations
to hear any and all claims against them when their af-
filiations with the State are so ‘continuous and system-
atic’ as to render them essentially at home in the forum
State.” Id. (emphasis added). This is a demanding standard,
for the consequences for the defendant can be severe.
Where a court has general jurisdiction over a
defendant, that defendant may be called into that court
“to answer for any alleged wrong, committed in any
place, no matter how unrelated to the defendant’s
contacts with the forum.” uBid, Inc. v. GoDaddy Grp., Inc.,
623 F.3d 421, 426 (7th Cir. 2010). The constitutional re-
quirement for general jurisdiction therefore is “consider-
ably more stringent” than that required for specific juris-
diction. Purdue Research Foundation v. Sanofi-Synthelabo,
S.A., 338 F.3d 773, 787 (7th Cir. 2003), quoting United
States v. Swiss American Bank, Ltd., 274 F.3d 610, 619 (1st
Cir. 2001). Courts look for “continuous and systematic
general business contacts,” Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984), and
inquire whether the business was “sufficiently sub-
stantial and of such a nature” as to permit the exercise
of personal jurisdiction, Perkins v. Benguet Consol.
Mining Co., 342 U.S. 437, 447 (1952).
A corporation is “essentially at home” both where it
is incorporated and where its principal place of business
is located. Goodyear, 131 S. Ct. at 2853-54. Beyond those
easy cases, the best example of the “essentially at home”
standard is found in Perkins, where the president and
28 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
general manager of a Philippine mining corporation
returned to his home in Ohio during the Japanese oc-
cupation of the Philippine Islands during World War II.
While in Ohio, he maintained an office from which
he conducted activities for the company. He kept
company files and held directors’ meetings in the
office, carried on correspondence related to the business,
distributed salary checks drawn on two active Ohio
bank accounts, engaged an Ohio bank to act as a
transfer agent, and supervised policies dealing with
the rehabilitation of the corporation’s properties in the
Philippines. 342 U.S. at 447-49. Based on these contacts,
the Supreme Court determined: “The corporation had
been carrying on in Ohio a continuous and systematic,
but limited, part of its general business.” Id. at 438.
The “continuous and systematic” activity of the
relocated company headquarters in Perkins stands in
sharp contrast to the limited activity at issue in
Helicopteros Nacionales de Colombia, S.A. Survivors of a U.S.
citizen who died in a helicopter crash in Peru brought
a wrongful-death action in a Texas state court against
the Colombian corporation that owned and operated
the helicopter. The Court noted that the Colombian
corporation, Helicol, did not have a place of business
in Texas and had never been licensed to do business
in the state. Helicol’s CEO had gone to Houston for
a meeting to negotiate the contract for transporta-
tion services with the plaintiffs’ employers. Helicol also
deposited checks drawn on a Houston bank, made signifi-
cant purchases from Bell Helicopter in Texas, and sent
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 29
its personnel to Texas for training at Bell’s facilities
there. The Supreme Court held that Helicol’s contacts
with Texas were insufficient to satisfy due process re-
quirements for general personal jurisdiction. The Court
discounted the lone business trip as not “continuous
and systematic,” noted that “[c]ommon sense and every-
day experience” suggest that the bank on which a check
is drawn is generally left to the discretion of the
drawer, and held that even regular purchases were not
enough to support an exercise of general jurisdiction. 466
U.S. at 417-18.
More recently, the Supreme Court addressed the stan-
dard for general jurisdiction in Goodyear Dunlop Tires
Operations, S.A. In Goodyear, two North Carolina
teenagers died in a bus accident in France. Attributing
the accident to a failed tire, the teenagers’ parents filed
a wrongful death suit in North Carolina against
Goodyear USA and three foreign subsidiaries incorpo-
rated in Luxembourg, Turkey, and France. The Supreme
Court reversed the state court’s finding that it could
exercise general personal jurisdiction over the foreign
subsidiaries in the United States. The foreign subsidiaries
had no places of business, employees, or bank accounts
in North Carolina. Nor did they design, manufacture, or
advertise their products in North Carolina, although a
small percentage of their tires was distributed in
North Carolina by other Goodyear USA affiliates. 131
S. Ct. at 2851-52. After comparing those facts to Perkins
and Helicopteros, the Supreme Court found that the
foreign subsidiaries’ “attenuated connections” to North
30 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
Carolina fell “far short of ‘the continuous and systematic
general business contacts’ ” necessary for general juris-
diction. Id. at 2857, quoting Helicopteros, 466 U.S. at 416.
B. Defendants’ Contacts with the United States
Plaintiffs have attempted to support general personal
jurisdiction over MKB and OTP by examining all of
their contacts with the United States as a whole, as
distinct from contacts with the forum state of Illinois.
Under Rule 4(k)(2) of the Federal Rules of Civil
Procedure, plaintiffs may do so, at least regarding their
claims arising under federal or international law. If a
foreign defendant is not subject to jurisdiction in any
one state’s court of general jurisdiction, the rule allows
jurisdiction over, and service of process for, federal
claims based on all of a defendant’s contacts with the
entire United States.8
Plaintiffs rely on a number of U.S. contacts on the part
of defendants. Each bank has account holders who
reside in the U.S. OTP has 4,884 accounts worth over
$93 million for account holders with U.S. mailing ad-
8
Rule 4(k)(2) was added in 1993 to correct an anomaly in
federal law. Without the provision, a foreign defendant who
lacked minimum contacts with any one forum state, but who
had minimum due process contacts with the United States as a
whole, could not be sued in a federal court without its consent.
See ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 551
(7th Cir. 2001).
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 31
dresses. MKB has approximately 1,500 accounts worth
around $147 million for people with U.S. mailing ad-
dresses, though for both banks, the accounts themselves
are in Hungary. OTP and MKB both have cor-
respondent banking and contractual relationships with
U.S. banks and other companies. Some of those contracts
contain forum-selection clauses providing for U.S.
forums to resolve disputes under the contracts. OTP
and MKB personnel have traveled to the United States
on business trips. Plaintiffs also argue that the contacts
of MKB’s parent company, Bayerische Landesbank,
which appear to be sufficient to support general juris-
diction, should be imputed to MKB itself. Finally,
plaintiffs note that OTP advertises in U.S. publications
and in media that target parts of the U.S. audience.
C. Analysis
The proper inquiry is not, as plaintiff’s suggest, whether
a defendant’s contacts “in the aggregate are extensive.”
The issue under the Due Process Clauses of the Fifth
and Fourteenth Amendments is whether the contacts
“are so ‘continuous and systematic’ as to render [defen-
dants] essentially at home in the forum.” Goodyear, 131
S. Ct. at 2851. MKB’s and OTP’s contacts with the United
States are much more like those in Helicopteros and Good-
year than they are like the “continuous and systematic”
general business in Perkins. Even taking plaintiffs’ al-
legations as true, the alleged contacts are not sufficient
to render either OTP or MKB “essentially at home” in
the United States such that a U.S. court could exercise
general jurisdiction over them.
32 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
These contacts do not provide a reason for OTP or
MKB to expect that they might be sued in any U.S. court
for any claim arising anywhere in the world. The OTP
accounts owned by U.S. citizens and/or persons with
U.S. mailing addresses account for 0.17 percent of
OTP’s total accounts. The MKB accounts owned by U.S.
citizens and/or persons with U.S. mailing addresses
account for 0.4 percent of MKB’s total accounts. Plaintiffs
assert that the number and aggregate value of these
accounts establish a prima facie case for sufficient mini-
mum contacts. Plaintiffs are mistaken. In uBid, GoDaddy’s
“hundreds of thousands” of Illinois customers were not
sufficient to support general jurisdiction in Illinois.
uBid, 623 F.3d at 424; see also Tamburo v. Dworkin, 601
F.3d 693, 701-02 (7th Cir. 2010) (sales to customers in
forum insufficient for general jurisdiction). Likewise, the
First Circuit found the fact that a Polish bank, with all
of its branches in Poland, had customers with Massa-
chusetts addresses was not sufficient to support Massa-
chusetts’ exercise of general jurisdiction, at least where
the plaintiff failed to produce any evidence that the
Polish bank sought out these customers or purposefully
made contact with the forum. Lechoslaw v. Bank of
America, N.A., 618 F.3d 49, 54 (1st Cir. 2010); see also
Harris v. Lloyds TSB Bank, PLC, 281 F. App’x 489, 493 (6th
Cir. 2008) (“any bank statements sent to Tennessee [the
forum state] would have been sent there because the
customers listed the account address as Tennessee, not
because Lloyds chose to create continuous and sub-
stantial consequences in Tennessee”); E.I.C., Inc. v. Bank of
Virginia, 166 Cal. Rptr. 317, 320 (Cal. App. 1980) (“Un-
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 33
doubtedly a bank the size of Bank of Virginia has deposi-
tors who reside throughout the country and overseas,
and it would be an absurdity to conclude from this that
the bank was doing business in each of the home juris-
dictions of its depositors.”).
Nor are defendants’ contracts with U.S. companies,
even those containing U.S. forum-selection clauses, suf-
ficient to establish general jurisdiction. For example,
we have held that collaborative efforts with an Indiana-
based corporation, including several confidentiality
agreements and trips to Indiana in furtherance of
those agreements, were not continuous and systematic
contacts that would subject a defendant to general juris-
diction in Indiana. Purdue Research Foundation, 338 F.3d
at 788; see also Helicopteros, 466 U.S. at 411 (defendant
who purchased 80 percent of fleet of helicopters from
a Texas company over a seven-year period, negotiated
and executed the contracts in Texas, received payment
from a Texas bank, and sent employees to Texas for
training and technical consulting was not subject to
general jurisdiction in Texas); uBid, Inc., 623 F.3d at 426
(defendant who marketed and sold registration for
Internet domain names, contracted with Illinois cus-
tomers, and hosted web sites accessible from Illinois
was not subject to general jurisdiction in Illinois);
Johnston v. Multidata Systems Int’l Corp., 523 F.3d 602,
614 (5th Cir. 2008) (services received from vendors in
the forum were not a significant contact for general
jurisdiction purposes); Vangura Kitchen Tops, Inc. v.
C&C North Am., Inc., 2008 WL 4540186, at *9 (W.D.
Pa. Oct. 7, 2008) (mere existence of forum-selection
34 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
clause is not sufficient to give general jurisdiction in
the forum).
Plaintiffs assign great weight to OTP’s agreement to
submit to U.S. jurisdiction in resolving disputes arising
out of its agreement with American Express. But that
information cuts the other way. While it is true that
“choice of law provisions may be some indication that
a defendant purposefully has availed itself of the pro-
tection of the laws of a particular jurisdiction,” Purdue
Research Foundation, 338 F.2d at 786 (discussing choice
of law provisions in the context of specific jurisdiction),
the “particular jurisdiction” in OTP’s case is New York.
Even more important, the agreement is limited to
disputes arising from one particular contract. If U.S.
courts had a sound basis for exercising general jurisdic-
tion over OTP, American Express would not have
needed a forum-selection clause in its contract to
ensure personal jurisdiction over OTP.
Likewise, defendants’ correspondent banking rela-
tionships show that they are not “essentially at home” in
the United States. That is precisely why correspondent
banking relationships are needed and used. “Inter-
bank accounts, also known as correspondent accounts,
are used by foreign banks to offer services to their custom-
ers in jurisdictions where the banks have no physical
presence . . . .” United States v. Union Bank for Sav. & Inv.
(Jordan), 487 F.3d 8, 15 (1st Cir. 2007) (emphasis added).
Accordingly, many courts have soundly rejected the
suggestion that a correspondent banking relationship
with a bank in the forum is sufficient to support
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 35
general jurisdiction over a foreign defendant. See Oriental
Imports & Exports, Inc. v. Maduro & Curiel’s Bank, N.V., 701
F.2d 889, 891-92 (11th Cir. 1983) (holding correspondent
banking relationships not enough to support general
jurisdiction over nonresident defendant under Florida
long-arm statute); Tamam v. Fransabank Sal, 677 F. Supp. 2d
720, 731-33 (S.D.N.Y. 2010) (maintenance of cor-
respondent accounts in New York insufficient to
support exercise of general jurisdiction in the U.S.
pursuant to Rule 4(k)(2)); E.I.C., Inc., 166 Cal. Rptr. at 320
(“[M]ost banks of any size maintain correspondents in
all major regions of the country and in selected areas
overseas. It would be a distortion of due process to
hold that a state acquires general personal jurisdiction
over an out-of-state bank . . . merely because the bank
has a correspondent relationship with a bank within
the state and a balance on deposit with its cor-
respondent bank.”). Plaintiffs have not identified, and
we have not found, any contrary authority regarding
general jurisdiction.
Over the last four years, various OTP personnel took
53 business trips to the United States, 42 of which were
for conferences or seminars. These trips are much
more closely akin to the training trips to Texas taken by
Helicol employees in Helicopteros than they are to the
facts in Perkins, where the president of the company
worked out of an office in Ohio for several years during
the Japanese occupation of the Philippine Islands.
These “sporadic contacts” are not so “continuous and
systematic” as to support general jurisdiction. See Tamburo,
601 F.3d at 701 (rejecting general jurisdiction where
36 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
one defendant visited the forum twice in ten years and
another had visited the forum five times).
Plaintiffs ask that the contacts of MKB’s parent
company, Bayerische Landesbank, be imputed to MKB.
(We assume for purposes of argument that Bayerische
Landesbank has sufficient contacts to support general
jurisdiction in the United States.) We confronted a
similar issue in Purdue Research Foundation, where
plaintiffs argued that a foreign defendant was subject
to general jurisdiction in Indiana based on the contacts
of a wholly-owned subsidiary. 338 F.3d at 787-88. There,
we applied the “general rule” that “the jurisdictional
contacts of a subsidiary corporation are not imputed to
the parent.” Id. at 778 n.17; Central States, Se. and Sw.
Areas Pension Fund v. Reimer Express World Corp., 230 F.3d
934, 943 (7th Cir. 2000) (“[C]onstitutional due process
requires that personal jurisdiction cannot be premised
on corporate affiliation or stock ownership alone where
corporate formalities are substantially observed and the
parent does not exercise an unusually high degree of
control over the subsidiary.”); see also Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 781 n.13 (1984) (“But juris-
diction over an employee does not automatically follow
from jurisdiction over the corporation which employs
him; nor does jurisdiction over a parent corporation
automatically establish jurisdiction over a wholly
owned subsidiary.”).
As in Purdue Research Foundation, plaintiffs here argue
against the general rule based on the fact that Bayerische
Landesbank executives hold four out of nine seats on
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 37
MKB’s Board of Supervisors. Imputation, however, re-
quires “an unusually high degree of control” or that
the subsidiary’s “corporate existence is simply a formal-
ity.” Purdue Research Foundation, 338 F.3d at 788 n.17
(rejecting effort to base jurisdiction on corporate
affiliate’s contacts). There is no suggestion of either in
this case. The interaction alleged between MKB and
Bayerische Landesbank is not sufficient to establish that
Bayerische Landesbank controls and dominates MKB
to such an extent that its jurisdictional contacts should
be imputed to MKB. Cf. IDS Life Ins. Co. v. SunAmerica Life
Ins. Co., 136 F.3d 537, 540 (7th Cir. 1998) (“Parents of
wholly owned subsidiaries necessarily control, direct,
and supervise the subsidiaries to some extent, but unless
there is a basis for piercing the corporate veil and
thus attributing the subsidiaries’ torts to the parent, the
parent is not liable for those torts, and cannot be served
under the tort provision of the long-arm statute.”) (internal
citations omitted); Volkswagenwerk Aktiengesellschaft v.
Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984) (“The
officers of any corporation that owns the stock of
another necessarily exercise a considerable degree of
control over the subsidiary corporation and the
discharge of that supervision alone is not enough to
subject the parent to New York jurisdiction.”). Plaintiffs
have offered no basis for piercing the separate corporate
identities in this case.
Finally, the minor amount of advertising that reaches
the United States is not sufficient to support general
jurisdiction over OTP. In uBid, Inc., GoDaddy’s contacts
with the forum state included the marketing and sale
38 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
of registrations for Internet domain names, as well as
contracts with many Illinois customers and the hosting
of web sites accessible from Illinois. 623 F.3d at 426.
These “extensive and deliberate” contacts were part of
the set of contacts that supported specific jurisdiction,
but not the general jurisdiction that plaintiffs rely upon
in this case.
Plaintiffs correctly point out that general personal
jurisdiction must be evaluated based on the totality of
the defendant’s contacts with the forum, and we have
considered the contacts both individually and in their
totality. The contacts identified here fall well short of
any case cited by plaintiffs finding general jurisdiction,
or any case we have found. Binding Supreme Court
precedents, including Perkins, Helicopteros, and Goodyear,
and binding Seventh Circuit precedents, such as uBid,
and Purdue Research Foundation, establish that the
district court cannot possibly exercise general personal
jurisdiction over MKB or OTP. Neither defendant
meets the stringent “essentially at home” standard.9
9
When we pressed plaintiffs for their best authority sup-
porting the exercise of general jurisdiction here, they cited ISI
International, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548
(7th Cir. 2001). That case explained how Rule 4(k)(2) works,
but it applied only to specific jurisdiction, holding that a
federal district court had jurisdiction over a foreign defendant
on claims arising from that defendant’s contacts with the
United States in the disputed transaction itself. ISI International
adds no support for the attempt to exercise general jurisdic-
tion over these foreign defendants.
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 39
D. The Supreme Court Precedents and the Scope of
Rule 4(k)(2)
To avoid these controlling precedents that require
dismissal on personal jurisdiction grounds, plaintiffs
advance several legal arguments challenging their rele-
vance. The district court dismissed Goodyear and J.
McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011),
as “not on point as far as personal jurisdiction is con-
cerned in this case.” 807 F. Supp. 2d at 704. In that
same vein, plaintiffs argue that Goodyear and J. McIntyre
are “limited to analyzing whether the ‘stream-of-com-
merce’ doctrine that can bolster a state court’s exercise
of specific jurisdiction over a foreign corporation would
be enough by itself to also establish general jurisdic-
tion.” These efforts to avoid the Supreme Court’s authorita-
tive teachings are not at all persuasive. Goodyear and
J. McIntyre state clearly the requirements for exercising
general personal jurisdiction and the differences
between general and specific personal jurisdiction. See
Goodyear, 131 S. Ct. at 2850-51 (explaining the difference
between general and specific jurisdiction); id. at 2853-54
(“For an individual, the paradigm forum for the exercise
of general jurisdiction is the individual’s domicile; for
a corporation, it is an equivalent place, one in which
the corporation is fairly regarded as at home.”); id. at
2854 (noting the Court had considered the general juris-
diction standard only twice since International Shoe,
in Perkins and Helicopteros); J. McIntyre Mach., Ltd., 131
S. Ct. at 2786-87 (plurality opinion) (discussing the
due process considerations that underlie the personal
jurisdiction inquiry); id. at 2791 (“Due process protects
40 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
petitioner’s right to be subject only to lawful authority.”).
As Goodyear and J. McIntyre reaffirm, due process con-
siderations are present in all personal jurisdiction
inquiries — regardless of whether it is a state or federal
court or whether the inquiry involves specific or general
personal jurisdiction.
Rule 4(k)(2) does not help plaintiffs with the due
process issue. Rule 4(k)(2) permits the aggregation of
contacts nationwide for the unusual situation where a
defendant’s contacts with any given state are not
extensive enough to support that state’s exercise of per-
sonal jurisdiction, but there are sufficient minimum
contacts with the nation as a whole. An example is
ISI International, where the Canadian defendant had a
little contact with Illinois, a little with California, a
little with the District of Columbia, and a little more
with Michigan. 256 F.3d at 551. Although the minimal
contacts with each state were not sufficient to support
jurisdiction in any one state’s courts, the aggregate
contacts with the United States as a whole were
sufficient to authorize specific jurisdiction in the United
States, so Rule 4(k)(2) applied. Id.
Plaintiffs’ argument loses sight of the fundamental
due process requirements that apply in both state and
federal courts. Plaintiffs, in asserting that Rule 4(k)(2)
relaxes the minimum-contacts inquiry, seem to argue
that the constitutional standards for the exercise of per-
sonal jurisdiction vary depending on whether the action
is in a state court or a federal court. We find no merit
in this position and no support within Goodyear,
Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 41
J. McIntyre, or any other case. As the rule itself acknowl-
edges, all exercises of jurisdiction by a federal court
must be “consistent with the United States Constitution
and laws.” While Rule 4(k)(2) applies a broader
geographic standard for which contacts are relevant, the
minimum in the “minimum contacts” that are constitu-
tionally sufficient to support general or specific jurisdic-
tion is the same. The rule does not and could not relax
the requirement that a defendant be “essentially at
home” in the forum state or nation for a court to
exercise general jurisdiction over it. The difference
between litigating under state law in state court and
under federal law in federal court is that the federal
Constitution and federal law allow a plaintiff to
aggregate a defendant’s contacts with the entire
nation rather than with the forum state. The underlying
constitutional requirements for minimum contacts
under either a general jurisdiction or specific jurisdic-
tion analysis remain the same. Plaintiffs have not
shown even an arguable basis for general personal juris-
diction over MKB or OTP.
Conclusion
A district court’s erroneous denial of a motion to
dismiss for lack of personal jurisdiction is ordinarily not
reviewable in this court without either a final judgment
or a § 1292(b) certification for interlocutory appeal.
Appeal Nos. 11-2353, 11-2386, and 11-2875 are there-
fore D ISMISSED. This is the rare case, however, in which
it is appropriate for this court to exercise its discretion
42 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249
to issue a writ of mandamus to confine the district court
to the exercise of its lawful jurisdiction. What makes
this the rare case is the combination of the extraordinary
scale of the litigation, the inherent involvement with
U.S. foreign policy, and the crystal clarity of the lack of
any foundation for exercising general personal jurisdic-
tion over MKB or OTP in the courts of the United States.
MKB and OTP have established that they have a
clear right to writs of mandamus. They have no other
adequate means to achieve their desired relief, and we
are persuaded that issuance of a writ is otherwise ap-
propriate. Accordingly, the petitions for writs of manda-
mus in Nos. 11-3247 and 11-3249 are hereby G RANTED ,
and the district court shall dismiss plaintiffs’ claims
against MKB and OTP for lack of personal jurisdiction.
This decision should not, of course, block plaintiffs
from pursuing their claims in another forum, but they
cannot proceed against these defendants in U.S.
federal courts.
8-22-12