Nuevos Destinos, LLC v. Peck

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
NUEVOS DESTINOS, LLC, et al., )
)
Plaintiffs, )
)
v. ) Case No. 15-cv-1846 (EGS)
)
SAMUEL PECK, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
I. Introduction
This action arises out of an alleged racketeering scheme
spanning about eight years whereby defendants—twenty-two
companies and individuals—purportedly used otherwise legitimate
business entities to defraud plaintiffs by making false promises
to sell agricultural goods. Plaintiffs sue defendants for: (1)
violation of 18 U.S.C. § 1962(c)(“RICO”); (2) violation of 18
U.S.C. § 1962(d) (conspiracy to violate RICO); (3) conspiracy to
commit fraud; (4) fraud; and (5) breach of contracts. Pending
before the Court are several motions: (1) nine defendants’ eight
motions to dismiss; (2) one defendant’s motion to strike certain
declarations; (3) plaintiffs’ two motions to allow alternate
service for seven defendants; (4) plaintiffs’ motion for
jurisdictional discovery.
1
The Court has carefully considered the pending motions, the
opposition memoranda, the replies thereto, the entire record
herein, and the applicable law. The Court concludes that it
lacks personal jurisdiction over the nine defendants and
therefore GRANTS the eight pending motions to dismiss. The Court
also concludes that jurisdictional discovery is not warranted
and DENIES plaintiffs’ motion for jurisdictional discovery.
Because the Court lacks jurisdiction over the relevant
defendants, it DENIES AS MOOT plaintiffs’ motions for service
and the motion to strike plaintiffs’ declarations.
II. Background
The Court credits the complaint, which it must at this
stage of the proceedings. This matter arises out of an alleged
racketeering scheme, largely organized by two defendants, to
defraud plaintiffs by making false promises to provide
agricultural goods sold to and bought by plaintiffs. See
generally Compl., ECF No. 1. The Court first describes the
parties and then elaborates on the purported scheme. Because
most of the defendants have not entered an appearance in the
case, the Court focuses its discussion on the nine defendants
with pending motions to dismiss.
A. The Parties
Plaintiffs are two corporate entities and one individual.
First, Nuevos Destinos, LLC (“NDL”) is a company registered in
2
Florida with its principal place of business in the District of
Columbia (at the time of the injury) and Virginia (presently).
Id. ¶ 9. It purchases agricultural products from Peru “for
export from Peru and delivery to the United States and other
countries.” Id. Plaintiff Nuevos Destinos Peru, S.A.C. (“NDP”)
is a company organized in Peru with its principal place of
business in the District of Columbia (at the time of the injury)
and Virginia (presently). Id. ¶ 10. It is the Peruvian
“affiliate” of NDL and “serves as the purchasing agent” for NDL
in Peru. Id. Finally, plaintiff William P. Cook (“Mr. Cook”) is
a United States citizen who lives in the Commonwealth of
Virginia. Id. ¶ 11. He and his wife are the principals of NDL,
id. ¶ 9, and he “personally financed all of the agricultural
transactions by which plaintiffs were defrauded,” id. ¶ 11.
Defendants include one United States citizen, one United
States corporation, and seven Peruvian citizens and
corporations. The “central mastermind” of the scheme is Ignacio
Harten Rodriguez Larrain (“Ignacio”). Id. ¶ 13. He is a Peruvian
citizen who, “upon information and belief,” presently lives in
the United States. He was the General Manager of Agricola
Peruana Del Sol, S.R.L. (“APS”), a Peruvian company that
processed and exported agricultural products from Peru to other
countries, including the United States. Id. ¶¶ 13, 15. Neither
Ignacio, nor APS has entered an appearance in the case. The
3
other central figure, according to plaintiffs, is defendant
Samuel Peck (“Mr. Peck”), who was a founder and majority
shareholder of APS. Id. ¶ 12. Mr. Peck is a United States
citizen residing in Colorado. Id. During the relevant time, Mr.
Peck was also the Vice President and chief buyer for defendant
SKE Midwestern (“SKE”), a United States corporation registered
and located in North Dakota. Id. ¶¶ 12, 17. SKE is a “beans
broker, supplier, importer, processor and shipper” with over
twenty years’ experience in international markets, including
Peru. Id. ¶ 17. Defendant Emilio Farah (“Mr. Farah”) is a
citizen of Peru and an alleged principal of two other defendant
Peruvian corporations, Convalor, S.A.C. (“Convalor”) and
Confactor, S.A.C. (“Confactor”). Id. ¶ 16. Mr. Farah sought to
buy, process, and sell agricultural products with NDL and
introduced plaintiffs to Ignacio. Id.Defendant Jorge Harten Costa, Sr. (“Jorge, Sr.”) is
Ignacio’s father and is also a Peruvian citizen. Id. ¶ 20. He
was a designated agent of APS. Id. Defendant Jorge Emilio Harten
Rodriguez Larrain, Jr. (“Jorge, Jr.”) is also a Peruvian citizen
and Ignacio’s brother (and Jorge, Sr.’s son). Id. ¶ 21. He was
also a designated agent of APS. Id. Defendant Ofelia Maria
Rodriguez Larrain Salinas de Harten (“Ofelia”) is also a
Peruvian citizen. Id. ¶ 22. She is Jorge, Sr.’s wife and
Ignacio’s mother. Id. Ofelia also became the “nominal public
4
head of” Peruvian Organic International Trading, S.A.C.
(“POIT”), another defendant Peruvian company that became the
“successor in interest” to APS. Id. POIT has been “continu[ing]
the fraudulent schemes of APS and [Ignacio].” Id. ¶ 23. POIT has
not entered an appearance in the case. Finally, defendant Javier
Rodriguez Larrain Salinas (“Javier”) is a Peruvian citizen and
Ignacio’s uncle (Ofelia’s brother). Id. ¶ 24. When discussing
these four defendants collectively, the Court will refer to
Jorge, Sr.; Jorge, Jr.; Ofelia; and Javier as the “Harten
family.” 1
B. The Scheme
According to plaintiffs, the racketeering organization
essentially functioned as a Ponzi scheme, id. ¶ 96, whereby
individual defendants—including the Harten family, Mr. Peck,
SKE, Convalor, Confactor, and Mr. Farah—would “vouch” for
Ignacio and APS, posing as uninterested parties, see id. ¶¶ 12-
30. In reality, these individual defendants had been defrauded
by Ignacio and APS and were seeking to recoup their losses by
recruiting new investors to defraud. See id. The new investors’
funds would not be used to purchase agricultural products, as
1 As mentioned, the Court omitted details about the defendants
who have not entered an appearance in the case unless such
information was necessary for context.
5
the investors intended and Ignacio and APS promised, but would
rather be used to pay off the debts. See id.In 2007, Ignacio and Mr. Peck, on behalf of SKE, created
APS, which sold agricultural products internationally. Id. ¶ 67.
At some point, SKE and Mr. Peck purchased significant amounts of
products from APS. APS began “defaulting” on its promises to
provide SKE with its agricultural products. Id. ¶ 70, see id. ¶¶
71-74. By 2011, APS owed SKE $3.6 million. Id. ¶ 74.
Accordingly, SKE’s President told Mr. Peck that “his job was on
the line” and he had to do “whatever it took to get the
Company’s money back from APS and [Ignacio].” Id. ¶ 74. At that
point, Mr. Peck and Ignacio devised a scheme “whereby [Mr.] Peck
would issue facially valid purchase orders on behalf of SKE and
then [Ignacio] would shop them around to financing sources in
Lima and abroad.” Id. ¶ 76. Mr. Peck and Ignacio then sold the
purchasing orders to investors, including the Harten family and
Mr. Farah. Id. ¶¶ 79-82. By 2012, Mr. Peck and Ignacio owed the
other defendants millions of dollars. See id. According to
plaintiffs, these defendants sought to recover their lost
investments by vouching for Ignacio and APS with the aim to
recruit new investors. See id. ¶ 96.
While this scheme was ongoing, NDL was looking to expand
its business beyond financing exporting companies in Peru. In
2012, it sought to buy products directly from Peruvian
6
agricultural producers to sell and export. Id. ¶ 31. In April
2012, Mr. Farah introduced plaintiffs to Ignacio in Peru. Id. ¶¶
32, 103 (meeting in Bujama, Peru). Mr. Farah said that Ignacio
was “one of the largest exporters of bean products in Peru” and
was “honest [and] well-connected.” Id. ¶ 31. In May 2012,
plaintiffs met Mr. Peck at a lunch organized by Ignacio in Peru.
Id. ¶ 88. In an effort to retain plaintiffs’ business, Mr. Peck
told plaintiffs that “he had worked for a long time with
[Ignacio]” and that he was “very pleased with the relationship.”
Id. He also emphasized that APS was a “top exporter” and
confirmed that the purchase order NDL was considering financing
was “for real,” and that SKE had “committed to purchase” the
products at issue. Id. ¶ 89. Mr. Peck did not disclose the debt
that APS owed SKE, nor did he mention his ownership stake in
APS. Id. ¶ 91. A month later, plaintiffs also met with Jorge,
Sr. in Peru. Id. ¶ 106. Jorge, Sr. also recommended his son’s
company and did not disclose APS’ debts. Id. In August 2012,
Ignacio and his wife traveled to the District of Columbia to
meet with plaintiffs in person. Id. ¶ 33.
On those recommendations and references, NDL began
transacting with APS in May 2012. Id. ¶¶ 36, 100-102 (stressing
the importance of the recommendations to plaintiffs’ decision to
work with Ignacio and APS). NDL entered into several contracts
with APS for various agricultural products. Ultimately, it
7
provided over $1.5 million for about 1,500 metric tons of
products. Id. ¶¶ 36, 37. Ultimately, APS only delivered about 64
of the 1,500 tons of products. Id. The amounts “disbursed by NDL
to APS for [agricultural] products . . . were solely for the
benefit of NDL or its customers; or for customers for whom
[Ignacio] led NDL to believe APS had specific purchaser orders,
including SKE (which NDL later found out to be largely false).”
Id. ¶ 37. Despite its many efforts, plaintiffs have been unable
to “get a full and complete accounting of where its money went.”
Id. ¶ 128. Plaintiffs have also been unsuccessful in recovering
the money that they allege they are owed. See, e.g., id. ¶ 145(alleging to have received $48,540 of the $1.7 million owed).
After plaintiffs uncovered the defendants’ scheme, the
Harten family created POIT, the company that succeeded APS, in
2014. Id. ¶ 144. According to plaintiffs, defendants have
continued the same racketeering activity through POIT. See id.
¶¶ 83-84, 136-141.
III. Analysis
In their eight pending motions to dismiss, the nine
defendants challenge the complaint on several grounds. See
Defs.’ Mots. to Dismiss (“Defs.’ Mots.”), ECF Nos. 35, 36, 37,
38, 45, 50, 52, 54. All nine defendants argue that the Court
lacks personal jurisdiction over them pursuant to Federal Rule
of Civil Procedure 12(b)(2). See id. Five of the defendants
8
challenge the plaintiffs’ choice of forum pursuant to Federal
Rule of Civil Procedure 12(b)(3) and the forum non conveniens
doctrine. See Defs.’ Mots., ECF Nos. 45, 50, 52, 54. Seven of
the defendants also argue that they were improperly served
pursuant to Federal Rule of Civil Procedure 12(b)(5). See Defs.’
Mots., ECF Nos. 35, 36, 37, 38, 50, 52. Finally, five of the
defendants argue that plaintiffs failed to state a RICO claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). See Defs.’
Mots., ECF Nos. 45, 50, 52, 54. Because the Court agrees that it
lacks personal jurisdiction over all nine defendants, it need
not reach their other arguments. See Galvan v. Fed. Prison
Indus., Inc., 199 F.3d 461, 463 (D.C. Cir. 1999)(“Jurisdiction
must be established before a federal court may proceed to any
other question.”)(citing Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94–95 (1998)).
A. The Court Lacks Personal Jurisdiction Over the Defendants
The nine defendants submit similar arguments in their eight
motions to dismiss. See Defs.’ Mots., ECF Nos. 35, 36, 37, 38,
45, 50, 52, 54. Essentially, the defendants argue—and the Court
agrees—that this case is a Peruvian dispute about activities
that occurred in Peru and injuries that were caused in Peru.
See, e.g., Def.’s Mot., ECF No. 54-1 at 1-2 (“The complaint . .
. describes an ordinary business dispute between two Peruvian
companies . . . . [t]he conduct described in the complaint takes
9
place almost entirely in Peru”). First, because none of the
defendants reside here, all argue that the Court lacks general
jurisdiction as they are not essentially “at home” in the
District of Columbia (American defendants) or in the United
States (Peruvian defendants). See Defs.’ Mots., ECF Nos. 35, 36,
37, 38, 45, 50, 52, 54. The Peruvian defendants, including the
Harten family, Confactor, Convalor, and Mr. Farah, also argue
that the Court cannot establish jurisdiction over them by way of
the RICO statute because it only provides for nationwide service
of process on domestic defendants. Defs.’ Mots., ECF Nos. 35,
36, 37, 38, 50, 52. The American defendants, SKE and Mr. Peck,
also argue that the Court cannot acquire jurisdiction over them
via the RICO statute because the Court does not have
jurisdiction over at least one of the defendants in the
enterprise, as it must. See Defs.’ Mots., ECF Nos. 45, 54.
Finally, all of the defendants contend that the purportedly
unlawful conduct occurred in Peru, and thus, the Court cannot
acquire specific jurisdiction over them pursuant to the District
of Columbia’s long arm statute or Federal Rule of Civil
Procedure 4(k)(2) because there is no “substantial connection”
between the defendants and the forum. See Defs.’ Mots., ECF Nos.
35, 36, 37, 38, 45, 50, 52, 54. As such, the defendants conclude
that exercising jurisdiction would violate due process. See id.10
Much of plaintiffs’ briefing regarding personal
jurisdiction focuses on each defendant’s role in the RICO scheme
and is therefore largely irrelevant to the Court’s
jurisdictional analysis. Pls.’ Opp’n, ECF No. 64 at 8-43. 2 That
said, plaintiffs respond that personal jurisdiction lies in this
Court pursuant to Federal Rule of Civil Procedure 4(k)(2), known
as the “federal long arm statute.” Id. at 9-15. Plaintiffs
contend that jurisdiction is proper because “each of the
defendants herein, had more than fair warning that the
activities of APS and POIT would subject them to the
jurisdiction of the U.S” because all the defendants had
“personal knowledge” of the purported “business plan”: to
defraud “U.S.-based customers.” Id. at 12. 3 Moreover, plaintiffs
argue that the defendants purposefully directed their activities
at the forum by soliciting plaintiffs, citizens of the forum at
the time, and encouraging investment in APS. See id. at 13-14.
“Under Federal Rule of Civil Procedure 12(b)(2), the
plaintiff bears the burden of establishing a factual basis
for personal jurisdiction.” Canuto v. Mattis, No. 16-2282, 2018
2 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
3 “The Court may consider the jurisdictional allegations raised
in [the plaintiffs’] opposition.” McIntosh v. Gilley, 753 F.
Supp. 2d 46, 58 (D.D.C. 2010)(citation omitted).
11
WL 3213318, at *4 (D.D.C. June 30, 2018)(citing Okolie v. Future
Servs. Gen. Trading & Contracting Co., W.L.L., 102 F. Supp. 3d
172, 175 (D.D.C. 2015); Crane v. N. Y. Zoological Soc'y, 894
F.2d 454, 456 (D.C. Cir. 1990)). To meet that burden, the
plaintiff “‘must allege specific acts connecting [the] defendant
with the forum.’” Okolie, 102 F. Supp. 3d at 175 (quoting Second
Amendment Found. v. U.S. Conf. of Mayors, 274 F.3d 521, 524
(D.C. Cir. 2001)). “In assessing whether this showing has been
made, facts asserted by the plaintiff . . . [are] presumed to be
true unless directly contradicted by affidavit,” AGS Int'l
Servs. S.A. v. Newmont USA Ltd., 346 F. Supp. 2d 64, 81 (D.D.C.
2004)(quotations and citations omitted), but a Court “‘may
receive and weigh affidavits and other relevant matter to assist
it in determining the jurisdictional facts,’” Okolie, 102 F.
Supp. 3d at 175 (quoting Buesgens v. Brown, 567 F. Supp. 2d 26,
31 (D.D.C. 2008)).
The Court assumes, for the purposes of resolving personal
jurisdiction only, that defendants were properly served. 4
However, “service of process does not alone establish personal
jurisdiction.” Mwani v. bin Laden, 417 F.3d 1, 8 (D.C. Cir.
4 The Peruvian defendants all argue that they have not been
properly served pursuant to Federal Rule of Civil Procedure
4(f). See Defs.’ Mots., ECF Nos. 35, 36, 37, 38, 50, 52. Because
the Court concludes that it lacks jurisdiction over the
defendants regardless of whether they were properly served, it
need not address this argument.
12
2005). “Before a court may exercise personal jurisdiction over a
defendant, there must be more than notice to the defendant.”
Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S.
97, 104 (1987). There must also be “authorization for service of
summons on the defendant,” and a “constitutionally sufficient
relationship between the defendant and the forum.” Id. Thus,
“[t]wo requirements must be met for a District of Columbia court
to exercise personal jurisdiction over a defendant.” Bradley v.
DeWine, 55 F. Supp. 3d 31, 39 (D.D.C. 2014). “First, the
defendant must qualify for either general or specific
jurisdiction under the relevant . . . statutes.” Id. “Second,
the exercise of jurisdiction over the defendant must comply with
the Due Process Clause . . . .” Id. at 39-40 (citations
omitted).
Assessing whether a court may exercise personal
jurisdiction over a defendant “typically implicates a state’s
jurisdictional statute or rule.” Alkanani v. Aegis Def. Servs.,
LLC, 976 F. Supp. 2d 13, 21 (D.D.C. 2014) (quotations and
alterations omitted). Therefore, this Court has personal
jurisdiction over the defendants if a District of Columbia court
could exercise personal jurisdiction over them. See Fed. R. Civ.
P. 4(k)(1)(A); see also Daimler AG v. Bauman, 571 U.S. 117, 125
(2014)(“Federal courts ordinarily follow state law in
determining the bounds of their jurisdiction over persons.”).
13
However, the Court may also exercise personal jurisdiction if it
is authorized by a federal statute or rule. See, e.g., Fed. R.
Civ. P. 4(k)(1)(C). Plaintiffs contend that the Court has
jurisdiction over the defendants because it is authorized by the
RICO statute, by Federal Rule of Civil Procedure 4(k)(2), and by
the District of Columbia long arm statute. See Pls.’ Opp’n, ECF
No. 64 at 8-43. The Court will assess each offered basis for
personal jurisdiction in turn.
1. Federal Rule of Civil Procedure 4(k)(2)
Plaintiffs’ central argument is that the Court has personal
jurisdiction pursuant to Federal Rule of Civil Procedure
4(k)(2). See Pls.’ Opp’n, ECF No. 64 at 9-15. Rule 4(k)(2)
provides jurisdiction for a claim under federal law when a
defendant has been served and (1) “the defendant is not subject
to jurisdiction in any state’s courts of general jurisdiction”;
and (2) “exercising jurisdiction is consistent with the United
States Constitution and laws.” Fed. R. Civ. P. 4(k)(2). Rule
4(k)(2) therefore “allows a district court to acquire
jurisdiction over a foreign defendant which has insufficient
contacts with any single state but has ‘contacts with the United
States as a whole.’” In re Vitamins Antitrust Litigation, 94 F.
Supp. 2d 26, 31 (D.D.C. 2000)(quoting Advisory Comm. Note to
1993 Amendment).
14
Because SKE and Mr. Peck are subject to jurisdiction in
other states, see Compl., ECF No. 1 ¶¶ 12 (Peck is domiciled in
Colorado), 17 (SKE is domiciled in North Dakota), the Court may
obtain jurisdiction pursuant to Rule 4(k)(2) only over the
Peruvian defendants, see Fed. R. Civ. P. 4(k)(2)(A). As to the
Peruvian defendants, plaintiffs have met the first three
requirements of Rule 4(k)(2): (1) plaintiffs’ claims include
RICO claims, which arise under federal law, see 18 U.S.C. §
1962; (2) the Court assumes, but does not decide, that the
defendants were properly served; and (3) the defendants are not
subject to the jurisdiction of any single state court, see
generally Defs.’ Replies, ECF Nos. 75, 77, 79, 80, 81, 82 (not
arguing that jurisdiction exists in another state); Mwani, 417
F.3d at 11 (“so long as a defendant does not concede to
jurisdiction in another state, a court may use 4(k)(2) to confer
jurisdiction”) (citations and quotations omitted). Thus,
jurisdiction depends on the final element of the analysis:
whether the exercise of jurisdiction is “consistent with the
Constitution.” Fed. R. Civ. P. 4(k)(2)(B). This inquiry “turns
on whether a defendant has sufficient contacts with the nation
as a whole to satisfy due process.” Mwani, 417 F.3d at 11.
The Court may exercise one of two types of personal
jurisdiction: “general or all-purpose jurisdiction, and specific
or case-linked jurisdiction.” Goodyear Dunlop Tires Operations,
15
S.A. v. Brown, 564 U.S. 915, 919 (2011). The existence of
general jurisdiction permits the Court to hear “any and all
claims” brought against the defendant, while “specific
jurisdiction is confined to adjudication of issues deriving
from, or connected with, the very controversy that establishes
jurisdiction.” Id. (quotations and citations omitted).
The Court first evaluates whether there is general
jurisdiction over each of the Peruvian defendants pursuant to
Federal Rule of Civil Procedure 4(k)(2). Concluding there is
not, the Court analyzes whether there is specific jurisdiction
over each with respect to the particular claims in this action.
a. General Jurisdiction
Plaintiffs do not explicitly argue that there is general
jurisdiction over any defendant. See generally Pls.’ Opp’n, ECF
No. 64; Pls.’ Mot. for Jurisdictional Discovery (“Mot. for
Discovery”), ECF No. 63. However, in arguing that the Court has
jurisdiction, plaintiffs point to the Peruvian defendants’
general connections to the United States. See generally id.Because most of these alleged connections are unrelated to
plaintiffs’ claims—and the specific jurisdiction analysis
focuses on the defendant’s suit-related connections to the
forum, see Walden v. Fiore, 571 U.S. 277, 284 (2014)—the Court
will assume that plaintiffs argue that the Court has general
jurisdiction over those defendants.
16
To establish general jurisdiction, plaintiffs must
demonstrate that the Peruvian defendants’ contacts with the
United States are “so constant and pervasive as to render [them]
essentially at home in” the United States. Daimler, 571 U.S. at
122 (citing Goodyear, 564 U.S. at 919). Plaintiffs have not done
so. For example, plaintiffs do not allege that any of the
Peruvian defendants are domiciled, incorporated, or have a
principal place of business in the United States. See id. at 137
(“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. With respect to a
corporation, the place of incorporation and principal place of
business are paradigm bases for general jurisdiction.”)
(citations and quotations omitted). To the contrary, the
complaint alleges that: (1) Mr. Farah is domiciled in Peru, id.
¶ 16; (2) Jorge, Sr. is domiciled in Peru, id. ¶ 20; (3) Jorge,
Jr. is domiciled in Peru, id. ¶ 21; (4) Ofeila is domiciled in
Peru, id. ¶ 22; (5) Javier is domiciled in Peru, id. ¶ 26; (6)
Convalor is a “Peruvian compan[y],” id. ¶ 16; and (7) Confactor
is also a “Peruvian company[y],” id; see also Defs.’ Affs., ECF
Nos. 35-1 (Javier), 36-1 (Jorge, Sr.), 37-1 (Jorge, Jr.), 38-1
(Ofelia), 52-1 (Farah and Convalor), 82-1 (Farah and
17
Convalor)(all swearing that they do not reside in the United
States).
While not entirely clear, plaintiffs seem to argue that the
Court may nonetheless exercise general jurisdiction over the
Peruvian defendants due to their various connections with the
United States. See Pls.’ Opp’n, ECF No. 63 at 8-43. However,
various connections to a jurisdiction that are not otherwise
continuous and systematic cannot confer general jurisdiction.
See Daimler, 571 U.S. at 137 (“only a limited set of
affiliations with a forum will render a defendant amenable to
all-purpose jurisdiction”). Indeed, a defendant’s connections to
the United States must render that defendant essentially at home
in the United States such that “all-purpose” jurisdiction is
warranted. See Livnat v. Palestinian Auth., 82 F. Supp. 3d 19,
30 (D.D.C. 2015), aff’d, 851 F.3d 45 (D.C. Cir. 2017). For
instance, in Livnat v. Palestinian Authority, Judge Kollar-
Kotelly found that the Palestinian Authority was not
“essentially at home” in the United States even though it
allegedly had “many connections” to the country, including “the
performance of fundraisers, community outreach, cultural events,
and lectures, as well as certain governmental services,
particularly consular services.” Id. So here too. Assuming the
Peruvian defendants’ alleged various connections to the United
States are true, plaintiffs cannot establish that they are
18
“essentially at home” in the United States solely on that basis.
Indeed, the fact that the Peruvian defendants must travel to the
United States and obtain visas suggests that they are not at
home in the United States. See id. (finding that the many
connections in fact suggested the defendant was not at home in
the United States).
To illustrate, plaintiffs suggest that the Court has
general jurisdiction over Jorge, Sr. because he is a partner in
a Peruvian law firm that does “extensive work and advertises in
the United States” and he has several clients located in the
United States. Pls.’ Opp’n, ECF No. 64 at 15-16. He is also
allegedly a director of an airline that flies to several cities
in the United States. Id. at 16; see also Cook Decl., ECF No.
64-1 at 15-16. Plaintiffs also suggest that the Court has
jurisdiction over Jorge, Sr. because he is a lawyer and advisor
to APS, which “did substantial business” with United States
citizens: Mr. Peck and SKE. Pls.’ Opp’n, ECF No. 64 at 17.
However, the fact that Jorge, Sr. did business with United
States citizens and is a “frequent business and personal
traveler to the U.S.” holding “multiple, re-entry B1/B2 visitor
visa[s],” id. at 16, does not render him “essentially at home”
in the United States such that the Court may exercise “all-
purpose” jurisdiction over him, Daimler, 571 U.S. at 122; see
also Livnat, 82 F. Supp. 3d at 30-31 (finding the defendants’
19
general affiliations with the United States were not so
continuous and systematic as to render it essentially at home).
Likewise, plaintiffs argue that the Court has jurisdiction
over Ofelia because she “visited the United States regularly, as
recently as September 2015, according to the Facebook page of
her daughter.” Pls.’ Opp’n, ECF No. 64 at 27; see also Cook
Decl., ECF no. 64-1 at 16. Plaintiffs similarly contend that the
Court has jurisdiction over Jorge, Jr. because “he has visited
the United States regularly,” may have made visits to the
District of Columbia, and may have conducted business in the
United States. Pls.’ Opp’n, ECF No. 64 at 29; see also Cook
Decl., ECF no. 64-1 at 15. Plaintiffs argue that the Court has
jurisdiction over Javier because he is also a partner of the
Peruvian law firm with American clients and is the director of
several companies that do business in the United States. Pls.’
Opp’n, ECF No. 64 at 30-31. Plaintiffs posit that it is likely
that Javier’s work has “taken him repeatedly to the United
States.” Id. at 31; see also Cook Decl., ECF No. 64-1 at 15.
Plaintiffs also contend that Javier has travelled “extensively”
in the United States for business, pleasure, and to “receive
medical treatments for a serious illness.” Pls.’ Opp’n, ECF No.
64 at 32. As with Jorge, Sr., assuming such allegations are
true, these limited connections and general affiliations do not
allow the Court to exercise general jurisdiction. See Livnat, 82
20
F. Supp. 3d at 30. The Court cannot find that traveling to the
United States or doing business with United States’ citizens
renders these defendants “essentially at home” in the United
States. Daimler, 571 U.S. at 122.
Plaintiffs offer similar, non-persuasive arguments for Mr.
Farah. For example, they argue that he is a “principal” in a
textile company that may advertise in the United States, Pls.’
Opp’n, ECF No. 64 at 34; that he has “quite a few direct
connections with the United States, including the fact that he
has visited the District of Columbia several times,” id. at 36;
and that he has a daughter who attends college in the United
States, id. at 36-37; see Cook Decl., ECF No. 64-1 at 3-4. These
arguments fail for the same reason: limited connections to the
United States do not render a foreign defendant essentially at
home in the forum. See Livnat, 82 F. Supp. 3d at 30. However,
plaintiffs also posit that Mr. Farah owns another home in the
United States. See Pls.’ Opp’n, ECF No. 64 at 37; Cook Decl.,
ECF No. 64-1 at 3. Ultimately, the Court need not determine
whether such alleged homeownership renders Mr. Farah “at home”
in the United States. First, if Mr. Farah did own a home in the
United States, he would not fall within the reach of Federal
Rule of Civil Procedure 4(k)(2)(A)(requiring that the defendant
not be subject to jurisdiction in any state’s court of general
jurisdiction). Moreover, Mr. Farah denies owning a home in the
21
United States in his sworn declaration. See Farah Decl., ECF No.
82-1 ¶ 2 (“I do not own any interest in any real property,
apartment, or condominium in the United States . . . . I
mentioned to Mr. Cook once that I thought about purchasing an
apartment for my daughter to live in while she attended college
in the U.S., but I never made such a purchase.”). In light of
this sworn declaration, the Court may not exercise general
jurisdiction based solely on plaintiffs’ unsubstantiated
speculation. See NBC-Housing, Inc. Twenty-Six, v. Donovan, 774
F. Supp. 2d 277, 293-94 (D.D.C. 2011)(refusing to accept
plaintiff’s speculation in light of the defendant’s sworn
declaration when determining whether to exercise personal
jurisdiction). As for Convalor and Confactor, plaintiffs do not
attempt to argue that the Peruvian companies have any
connections to the United States separate from Mr. Farah. See
id. at 33-38; Rush v. Savchuk, 444 U.S. 320, (1980)(holding that
the test for personal jurisdiction must be met “as to each
defendant”).
Because none of the Peruvian defendants are essentially at
home in the United States, the Court cannot exercise general
jurisdiction over any of the Peruvian defendants pursuant to
Federal Rule of Civil Procedure 4(k)(2).
22
b. Specific Jurisdiction
Plaintiffs also suggest, without specifically arguing, that
the Court has specific jurisdiction over the Peruvian defendants
pursuant to Federal Rule of Civil Procedure 4(k)(2). See Pls.’
Opp’n, ECF No. 64 at 8-43. In evaluating specific jurisdiction,
“[t]he question is whether the . . . defendants have sufficient
minimum contacts with the United States so as not to offend
traditional notions of fair play and substantial justice as
required under the Due Process Clause.” Oceanic Expl. Co. v.
ConocoPhillips, Inc., No. CIV 04-332, 2006 WL 2711527, at *14
(D.D.C. Sept. 21, 2006)(citing Burger King, 471 U.S. at 474). As
here, “[w]here a forum seeks to assert specific jurisdiction
over [a foreign] defendant who has not consented to suit there,
[the] fair warning requirement is satisfied if the defendant has
purposefully directed his activities at residents of the forum,”
and “the litigation results from alleged injuries that arise out
of or relate to those activities.” Burger King, 471 U.S. at 472.
The question, then, is whether the Peruvian defendants
purposefully directed their activities at the United States,
such that they could reasonably expect to be subject to
litigation here, and whether the plaintiffs’ injury arises out
of that contact. See Mwani, 417 F.3d at 13 (finding the
plaintiffs made a prima facie showing that the defendants
“purposefully directed their activities at residents of the
23
United States” and that “this litigation results from injuries
to the plaintiffs that arise out of or relate to those
activities”; as such, defendants had a “fair warning that their
activities would subject them to the jurisdiction of the United
States”)(quotations and citations omitted).
Plaintiffs contend that the defendants had “more than fair
warning that the actions of APS and POIT would submit them to
the jurisdiction of the U.S.” See Pls.’ Opp’n, ECF No. 64 at 12.
Their argument is that the defendants all knew about the APS’
“business plan” to recruit and defraud investors from the United
States. See id. at 12-15. Thus, plaintiffs argue that, because
the defendants knew about APS’ actions, the defendants
“solicit[ed] business relationships” with plaintiffs and other
American victims to generate APS funding. Id. at 12-13. In so
doing, plaintiffs claim that the defendants facilitated the RICO
scheme. Id. at 14.
The Peruvian defendants all move to dismiss on similar
grounds. They each argue that their alleged wrongdoing occurred
in Peru and, as such, they did not direct any activity toward
the United States. See, e.g., Def.’s Mot., ECF No. 35 at 14-15.
For example, the defendants point to the fact that that each are
alleged to have “vouched” for Ignacio’s honesty and APS’
legitimacy while meeting with plaintiffs in Peru. See id.Moreover, the defendants contend that plaintiffs conflate APS’
24
and Ignacio’s wrongdoing with their own, while their contact
with the United States must be assessed separately. See, e.g.,
id. at 13-14, 16. Ultimately, defendants argue that asserting
jurisdiction over them would violate due process because they
did not direct any activity toward the forum or the United
States. See, e.g., id. at 14-18. As such, it was not foreseeable
that they could be hauled into court in the United States.
In order to establish specific jurisdiction, plaintiffs
must show that each individual defendant purposefully directed
his or her activities at the United States; the plaintiffs’
injuries “must proximately result from actions by the defendant
himself that create a substantial connection with the forum
State.” Thompson Hine, LLP v. Taieb, 734 F.3d 1187, 1190 (D.C.
Cir. 2013)(quoting Burger King, 471 U.S. at 475)(emphasis in
original); see Keeton v. Hustler Magazine, Inc., 465 U.S. 770,
781 n.13 (“Each defendant’s contacts with the forum . . . must
be assessed individually.”). Plaintiffs first argue that the
defendants had “fair warning” that they could be subject to
specific jurisdiction in the United States because they knew
that: (1) APS and POIT sought to solicit American investors; (2)
APS and POIT intended to do business in the United States, and;
(3) APS and POIT shipped products to the United States. See
Pls.’ Opp’n, ECF No. 64 at 12-14. This argument is unavailing.
Plaintiffs do not allege that any of the defendants themselves
25
shipped products to the United States, solicited American
investors, or sought entry to American markets. See generally
id.; Compl., ECF No. 1. Indeed, the thrust of their argument is
that the nine defendants are subject to the jurisdiction of this
Court based on other defendants’ actions. See Pls.’ Opp’n, ECF
No. 64 at 12 (arguing that defendants had “fair warning that the
actions of APS and POIT would submit them to the jurisdiction of
the U.S”)(emphasis added); see also Compl., ECF No. 1 ¶¶ 45, 47,
65, 124 (alleging, among other injurious conduct, that APS and
Ignacio, and not the other defendants, entered into contracts
with plaintiffs). The Court cannot assert personal jurisdiction
over the nine defendants based on APS’ or Ignacio’s alleged
connection to the United States, as due process protects
individuals from being subject to binding judgments in forums
where the individual has no meaningful connection. See Burger
King, 471 U.S. at 471-72.
Plaintiffs also argue that certain defendants had
sufficient contact with the United States because they were
officers or employees of APS when it did “substantial business”
with SKE and Mr. Peck, both American citizens. See Pls.’ Opp’n,
ECF No. 64 at 17 (Jorge, Sr.), 29 (Jorge, Jr.). This argument is
similarly unavailing. Again, the Court cannot assert
jurisdiction over individual defendants based on another
defendant’s actions. See Burger King, 471 U.S. at 475. Even if
26
some of the Peruvian defendants were officers of APS or POIT,
and even if the Court indeed has jurisdiction over APS and POIT, 5
a court cannot assert jurisdiction over a corporation’s officers
or employees by mere virtue of its jurisdiction over the
corporation. See Mouzon v. Radiancy, Inc., 85 F. Supp. 3d 361,
371 (D.D.C. 2015)(stating that the defendant’s contacts with the
forum “must be assessed based on his actions—separately from the
corporation’s contacts with the forum”). Plaintiffs have not
argued that any Peruvian defendant is “more than an employee,”
warranting exception to the fiduciary shield doctrine. Id. at
371-72 (“Under the fiduciary shield doctrine, personal
jurisdiction over a corporate officer may not be asserted based
on contacts with the forum that are exclusively in relation to
the defendant's corporate responsibility.”)(citations and
quotations omitted); see generally Pls.’ Opp’n, ECF No. 64.
Thus, the Court may not exercise jurisdiction over the
individual Peruvian defendants based only on APS’ or POIT’s
actions. 6
5 APS and POIT have not entered an appearance in this case. Thus,
the Court need not address whether jurisdiction may be exercised
over them.
6 For the same reason, plaintiffs’ attempted “stream of commerce”
argument fails. Plaintiffs only allege that APS and POIT caused
agricultural products to be shipped into the United States.
Pls.’ Opp’n, ECF No. 64 at 14. They do not allege that the
Peruvian defendants themselves shipped agricultural products
into the United States. See id.27
Similarly, plaintiffs do not allege that the Peruvian
defendants themselves solicited plaintiffs or any other United
States citizens. Instead, plaintiffs allege that it was Ignacio
and APS who solicited their business. See, e.g., Compl., ECF No.
1 ¶¶ 45, 47, 65, 124. Plaintiffs claim that the Peruvian
defendants merely “vouched” for APS and Ignacio when meeting
with plaintiffs in Peru. See Pls.’ Opp’n, ECF No. 64 at 24
(Jorge, Sr.), 32 (Javier), 35 (Farah), 36 (Farah acting on
behalf of Convalor). In vouching for the company, plaintiffs
allege that the Peruvian defendants did not disclose that they
lost money investing in APS or that Ignacio was committing
fraud. See id. at 24; see also Compl., ECF No. 1 ¶¶ 88-90, 106,
158. Plaintiffs do not allege that the Peruvian defendants
themselves sought investors in the United States. See generally
id. Accordingly, plaintiffs’ reliance on Citadel Investment
Group, LLC v. Citadel Capital Co. is unavailing. Pls.’ Opp’n,
ECF No. 64 at 13 (discussing 699 F. Supp. 2d 303 (D.D.C. 2010)
for the proposition that a court may have jurisdiction over a
foreign defendant when the foreign defendant solicits business
relationships with residents of the United States). In that
case, the court found that it had jurisdiction over the
defendant because it had admittedly “actively solicit[ed]
wealthy investors in the United States” and in doing so,
“purposefully sought meaningful contacts, ties, or relations
28
with the United States by seeking investors in the United
States.” Citadel, 699 F. Supp. 2d at 315. Not so here. Unlike
the Citadel defendants, the Peruvian defendants here lacked
“fair warning that [their] activities would subject [them] to
the jurisdiction of the United States” because they did not
purposefully seek business relationships with investors in the
United States. Id. (quoting Mwani, 417 F.3d at 13)(alterations
omitted).
Nevertheless, plaintiffs suggest that “vouching” for APS
and Ignacio, or in Mr. Farah’s case, “introducing” plaintiffs to
Ignacio and APS, constitutes purposefully directing activities
at the United States. See Pls.’ Opp’n, ECF No. 64 at 8-43. As
discussed, the Peruvian defendants all allegedly vouched for
Ignacio and APS while meeting with plaintiffs in Peru. See
Compl., ECF No. 1 ¶¶ 32, 103 (Farah), 106 (Jorge, Sr.); Pls.’
Opp’n, ECF No. 64 at 24 (Jorge, Sr.), 32 (Javier), 35 (Farah),
36 (Farah acting on behalf of Convalor). Because all of the
Peruvian defendants’ allegedly injurious conduct occurred
abroad, “jurisdiction is proper only if the defendant has
‘purposefully directed’ [his or her] activities towards the
forum and if defendant's ‘conduct and connection with the forum
State are such that he should reasonably anticipate being
[hauled] into court there.’” Estate of Klieman v. Palestinian
29
Auth., 82 F. Supp. 3d 237, 246 (D.D.C. 2015) (quoting Burger
King Corp., 471 U.S. at 472, 474).
The fact that defendants “vouched” for APS and Ignacio in
Peru does not create minimum contacts with the United States.
Rather than directing their activities toward the United States,
the Peruvian defendants are alleged to have directed their
injurious activity toward plaintiffs, who happen to be United
States citizens. See, e.g., Compl., ECF No. 1 ¶¶ 32, 103
(Farah), 106 (Jorge, Sr.); Pls.’ Opp’n, ECF No. 64 at 24 (Jorge,
Sr.), 32 (Javier), 35 (Farah), 36 (Farah acting on behalf of
Convalor). Such contact is insufficient. In Walden v. Fiore, the
Supreme Court held that a defendant's actions outside the forum
did not create sufficient contacts with the forum simply because
the defendant directed his conduct at residents of the forum.
Walden v. Fiore, 571 U.S. 277, 285-86, 288-89 (2014)(“Such
reasoning improperly attributes a plaintiff's forum connections
to the defendant and makes those connections ‘decisive’ in the
jurisdictional analysis.”). The Court must “look[] to the
defendant's contacts with the forum . . . itself, not the
defendant's contacts with persons who reside there.” Id. at 285;
see also id. (“But the plaintiff cannot be the only link between
the defendant and the forum. Rather, it is the defendant’s
conduct that must form the necessary connection . . . .”).
Plaintiffs have simply not alleged that the Peruvian defendants’
30
course of conduct occurred in or was directed at the United
States and that such conduct caused plaintiffs’ injuries. See
generally Compl., ECF No. 1; Pls.’ Opp’n, ECF No. 64; see
Walden, 571 U.S. at 289 (concluding the “proper lens” for
viewing jurisdictionally relevant contacts is “whether the
defendant’s actions connect him to the forum”)(emphasis in
original). As such, the Court cannot exercise jurisdiction.
Finally, any allegations about the defendants’ general
connections to the United States, as discussed previously supra
Sec. III.A.1.a, cannot create specific jurisdiction because such
connections to the United States are unrelated to plaintiffs’
injuries. See Walden, 571 U.S. at 284 (clarifying that specific
jurisdiction “focuses on the relationship among the defendant,
the forum, and the litigation . . . . to exercise jurisdiction
consistent with due process, the defendant's suit-related
conduct must create a substantial connection with the forum”)
(emphasis added). Indeed, none of the defendant’s alleged
connections to the United States is suit-related. See Pls.’
Opp’n, ECF No. 64 at 8-43 (discussing the defendants’ unrelated
business ventures that involve American clients, leisure or
health visits, and irrelevant family connections to the United
States); Cook Decl., ECF No. 64-1 (same).
31
In sum, the Court cannot exercise personal jurisdiction
over the Peruvian defendants pursuant to Federal Rule of Civil
Procedure 4(k)(2).
2. District of Columbia Long Arm Statutes
Plaintiffs’ complaint does not allege that the Court has
jurisdiction under the District of Columbia long arm statute.
Instead it alleges that personal jurisdiction is proper under
RICO, 18 U.S.C. § 1965. Compl., ECF No. 1 ¶ 3. Nevertheless,
plaintiffs suggest in their omnibus opposition memorandum that
personal jurisdiction may exist pursuant to the District of
Columbia long arm statute, D.C. Code § 13-423. See generally
Pls.’ Opp’n, ECF No. 64 at 8-43. Plaintiffs do not identify
which provision(s) of the long arm statute are applicable. See
generally id. (citing “D.C. Code § 13-423” without identifying a
subsection); Pls.’ Mot. for Discovery, ECF No. 63 (same). The
Court is left to guess.
D.C. Code § 13-423 authorizes the exercise of specific
jurisdiction under certain enumerated circumstances, including
when an entity or individual (1) transacts any business in the
District; (2) contracts to supply services in the District; (3)
causes tortious injury in the District by an act or omission in
the District; (4) causes tortious injury by an act outside the
District if the entity or individual regularly does business in
the District, engages in a persistent course of conduct in the
32
District, or derives substantial revenue from goods or services
used, consumed, or rendered in the District; or (5) has an
interest in, uses, or possesses real property in the
District. D.C. Code § 13-423(a)(1)-(5)(omitting other plainly
irrelevant subsections). If jurisdiction over a person or entity
is based solely on the statute, only a claim for relief arising
from acts enumerated in the statute may be asserted against the
person or entity. Id. § 13-423(b). “While the long arm statute
is interpreted broadly and factual disputes are to be resolved
in favor of the plaintiff, plaintiff must allege some specific
facts evidencing purposeful activity by the defendant in the
District of Columbia by which it invoked the benefits and
protections of the District's laws.” FC Inv. Grp. LC v. IFX
Markets, Ltd., 479 F. Supp. 2d 30, 39 (D.D.C. 2007), aff'd, 529
F.3d 1087 (D.C. Cir. 2008)(quotations and citations omitted).
Subsections (a)(2),(3), and (5) are obviously inapplicable
here, as plaintiffs have not alleged that any of the nine
defendants supplied services in the District of Columbia,
committed an act or omission in the District of Columbia, or has
an interest in or possesses real property in the District of
Columbia. 7 See generally Pls.’ Opp’n, ECF No. 64; Cook Decl., ECF
No. 64-1; Compl., ECF No. 1.
7 While plaintiffs speculate that Mr. Farah owns property the
United States, they do not state that he owns property in the
33
Subsection (a)(1) is also inapplicable because plaintiffs
do not allege that the defendants transacted business in the
District of Columbia. See generally id. Accepting plaintiffs’
allegations as true, the Peruvian defendants’ injurious conduct
included “vouching” for APS and Ignacio in Peru, causing
plaintiffs to invest in the company. See Compl., ECF No. 1 ¶¶
32, 103, 106; Cook Decl., ECF No. 64-1 ¶¶ 41-43 (describing
meetings in Peru). This activity occurred in Peru. See id.Because none of the operative events occurred in the District of
Columbia, the Court cannot find that the Peruvian defendants
were “transacting business in the District of Columbia.” See FC
Inv. Grp. LC, 479 F. Supp. 2d at 40-41 (finding that the
defendants were not transacting business in the District of
Columbia because London was the “locus” of the “overwhelming
number of operative events”).
As for SKE and Mr. Peck, plaintiffs seems to allege that
they transacted business in the District of Columbia because
they “entic[ed] buyers such as plaintiffs to enter into the
fraudulent transactions with APS and SKE” by “providing APS
numerous phony purchase orders for products that SKE had no
District of Columbia. See Pls.’ Opp’n, ECF No. 64 at 37. More
importantly, Mr. Farah’s sworn declaration establishes that he
does not. See Farah Decl., ECF No. 82-1 ¶ 2 (“I do not own any
interest in any real property, apartment, or condominium in the
United States”).
34
intention of purchasing, but which Ignacio and APS would then
use to induce victims . . . .” Pls.’ Opp’n, ECF No. 64 at 41.
This activity also occurred in Peru. See Compl., ECF No. 1 ¶¶
94, 99; see id. ¶ 76 (“Peck soon thereafter cooked up a scheme
with Harten whereby Peck would issue facially valid purchase
orders . . . and then [Ignacio] would shop them around to
financing sources in Lima and abroad. At one point, [Ignacio]
and Peck had 6 purported SKE purchase orders hanging on a board
in the APS office in Lima, visible on entry to the office by . .
. plaintiffs.”); see also Cook Decl., ECF No. 64-1 ¶¶ 49-53, 57.
Moreover, to the extent plaintiffs argue that the Court has
jurisdiction over SKE and Mr. Peck because they too “vouched”
for APS and Ignacio, such conduct also occurred in Peru. See id.
¶¶ 88-91 (“NDL first met Peck at a lunch organized by [Ignacio]
in Lima, Peru [at which he vouched for APS and Ignacio]”); see
also Cook Decl., ECF No. 64-1 ¶ 49 (describing meeting with Peck
in Peru). The fact that the defendants’ actions in Peru induced
plaintiffs, who happened to be District of Columbia citizens,
cannot confer jurisdiction, as the defendants did not direct any
conduct at the forum. See Walden, 571 U.S. at 285 (“But the
plaintiffs cannot be the only link between the defendant and the
forum. Rather, it is the defendant’s conduct that must form the
necessary connection . . . .”); see also Novak–Canzeri v. Al
Saud, 864 F. Supp. 203, 206 (D.D.C. 1994)(“The claim itself must
35
have arisen from the business transacted in the District of
Columbia or there is no jurisdiction.”).
D.C. Code § 13-423 subsection (a)(4) is also inapplicable.
Pursuant to that subsection, the Court may exercise personal
jurisdiction even if the injurious conduct occurred outside the
District of Columbia. However, to invoke the subsection, the
defendant must regularly do business in the District, engage in
a persistent course of conduct in the District, or derive
substantial revenue from goods consumed or services rendered in
the District. D.C. Code § 13-423(a)(4). Plaintiffs have not
alleged any facts to suggest that any of the defendants meet
these requirements. See generally Compl., ECF No. 1; Pls.’
Opp’n, ECF No. 64; Cook Decl., ECF No. 64-1. Despite reading the
lengthy briefing and complaint closely, the Court is unable to
identify any activity or conduct that occurred in the District
involving the nine defendants, 8 beyond receiving a few emails or
phone calls, such that the Court could assume the defendants
regularly do business or engage in a persistent course of
8 Plaintiffs allege that there was a single meeting that occurred
in the District of Columbia between Ignacio, his wife, and
plaintiffs. See Compl., ECF No. 1 ¶ 33. As previously discussed,
the Court cannot exercise personal jurisdiction over the nine
defendants based on another defendant’s meeting. See Walden, 571
U.S. at 284 (“[T]he relationship [between the forum and the
defendant] must arise out of the contacts that the defendant
himself creates with the forum State.”)(quotations and citations
omitted).
36
conduct in the District. See Compl., ECF No. ¶¶ 60 (receiving a
telephone call from Mr. Peck), 178-181 (receiving emails from
APS and Ignacio); Cook Decl., ECF No. 64-1 ¶¶ 45(receiving an
email on which Jorge, Sr. was copied), 57 (receiving a telephone
call from Mr. Peck). Sending emails or making phone calls to
District residents does not constitute conducting “regular
business” or engaging in a “persistent course of conduct” in the
District of Columbia. See Naegele v. Albers, 110 F. Supp. 3d
126, 153 (D.D.C. 2015)(finding that making calls and sending
emails to plaintiffs located in the District of Columbia “do
not, standing alone, constitute a persistent course of conduct”
pursuant to the long arm statute)(citing FC Inv. Grp., 529 F.3d
at 1095 n. 9 (finding that even regular calls from the London
defendant to the District were insufficient to establish long
arm jurisdiction under sections (a)(1) and (a)(4)); Houlahan v.
Brown, 979 F. Supp. 2d 86, 89-90 (D.D.C. 2013)(concluding that
an email sent to a resident in the District of Columbia does not
constitute a persistent course of conduct in the District of
Columbia)); see also Tavoulareas v. Comnas, 720 F.2d 192, 194
(D.C. Cir. 1983) (finding making calls to the District does not
constitute acts “in the District” as pursuant to subsection
(a)(4)). Moreover, plaintiffs do not allege that any of the nine
defendants derived substantial revenue from goods consumed or
37
services rendered in the District. See generally Compl., ECF No.
1; Pls.’ Opp’n, ECF No. 64; Cook Decl., ECF No. 64-1.
Finally, while not invoking a particular statute,
plaintiffs seem to argue that the Court has general jurisdiction
over SKE based on its potential “continuous and systemic”
contact with the District of Columbia market. Pls.’ Opp’n, ECF
No. 64 at 39. Plaintiffs contend that SKE advertises to District
of Columbia residents via its website. They argue that its
agricultural products “quite likely end up, after travelling
through the flow of commerce, in the District of Columbia.” Id.“D.C. Code § 13–334(a) permits courts to exercise general
jurisdiction over a foreign corporation as to claims not arising
from the corporation's conduct in the District if the
corporation is doing business in the District.” FC Inv. Grp.,
529 F.3d at 1901 (quotations and alterations omitted). “Under
the Due Process Clause, such general jurisdiction over a foreign
corporation is only permissible if the defendant's business
contacts with the forum are ‘continuous and systematic.’” Id. at
1091-92 (quoting Gorman v. Ameritrade Holding Corp., 293 F.3d
506, 510 (D.C. Cir. 2002)).
Plaintiffs seem to suggest that SKE’s contact with the
District of Columbia is continuous and systematic because it
maintains a website that District of Columbia residents are able
to access and its products may likely end up in the District of
38
Columbia. Pls.’ Opp’n, ECF No. 64 at 39-43. “Under certain
circumstances, a foreign corporation's maintenance of a website
that is accessible in the District can satisfy general
jurisdiction requirements.” FC Inv. Grp., 529 F.3d at 1092(citations omitted). However, the “mere accessibility” of a
website cannot establish general jurisdiction. Id. Instead, the
website must be (1) “interactive” and (2) District of Columbia
residents “must use the website in a continuous and systematic
way.” Id. (quotations and citations omitted); see also
Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 52
(D.D.C. 2003) (“[T]he question is not whether District of
Columbia residents ‘can’ transact business in the District with
the non-resident defendant through the defendant's website, but
if they actually ‘do’ engage in sustained business activities in
a continuous and systematic way.”)(citing Gorman, 293 F.3d at
512-13). Plaintiffs have not alleged any facts to suggest that
District of Columbia residents use SKE’s website in a continuous
and systematic way. See generally Pls.’ Opp’n, ECF No. 64 at 39-
43. Indeed, plaintiffs essentially allege that SKE has a website
that is generally accessible to District of Columbia residents,
and nothing more. See GTE New Media Services Inc. v. BellSouth
Corp., 199 F.3d 1343, 1349 (D.C. Cir. 2000) (“[P]ersonal
jurisdiction surely cannot be based solely on the ability of
District residents to access defendants' websites, for this does
39
not by itself show any persistent course of conduct by the
defendants in the District.”).
Moreover, the fact that SKE products could eventually end
up in the District of Columbia does not confer general
jurisdiction. Assuming plaintiffs are invoking a “stream of
commerce” argument, “the Supreme Court has made clear that ‘the
placement of a product into the stream of commerce ... do[es]
not warrant a determination that, based on those ties, the forum
has general jurisdiction over a defendant.’” Pinkett v. Dr.
Leonard's Healthcare Corp., No. 18-cv-1656 (JEB), 2018 WL
5464793, at *3 (D.D.C. Oct. 29, 2018)(quoting Daimler, 571 U.S.
at 132)(emphasis in original). Moreover, plaintiffs cannot rely
on this steam of commerce argument to suggest that the Court has
specific jurisdiction over SKE because plaintiffs’ injuries do
not arise from SKE’s placement of agricultural products in the
District of Columbia. See Goodyear, 564 U.S. at 919 (“specific
jurisdiction is confined to adjudication of issues deriving
from, or connected with, the very controversy that establishes
jurisdiction.")(quotations and citations omitted).
As such, plaintiffs cannot exercise jurisdiction over any
of the nine defendants pursuant to the District of Columbia long
arm statutes.
40
3. RICO
Plaintiffs also argue that the Court has personal
jurisdiction over the defendants pursuant to RICO. Compl., ECF
No. 1 ¶ 3 (citing 18 U.S.C. § 1965(a) and (b)). The RICO statute
“provides for nationwide personal jurisdiction over all domestic
defendants to ensure that all co-conspirators can be brought
before one judge in a single forum, regardless of the
defendants' contact with the forum state.” Oceanic Expl. Co,
2006 WL 2711527, at *12 (citing 18 U.S.C. § 1965). Indeed, “as
long as one defendant is subject to service in [the forum],
additional parties residing in other districts may be brought
before the forum court” when the “ends of justice require.” Id.(citing 18 U.S.C. § 1965(b)).
The RICO statute, however, cannot be used to obtain
personal jurisdiction over the Peruvian defendants because it
only provides for nationwide service of process. See AGS Int'l
Servs. S.A. v. Newmont USA Ltd., 346 F. Supp. 2d 64, 86 (D.D.C.
2004)(“Sodexho Alliance and Sodexho Peru also are not subject to
personal jurisdiction here because they were served abroad and
therefore were not served properly under the RICO statute.”).
Plaintiffs have not alleged that the Peruvian defendants were
served in the United States. See, e.g., Compl., ECF No. 1; Pls.’
Opp’n, ECF No. 64; Cook Decl., ECF No. 64-1.
41
Additionally, the Court cannot exercise personal
jurisdiction over the United States’ defendants, SKE and Mr.
Peck, because it does not have jurisdiction over any other
defendant. “[F]or nationwide service to be imposed under section
1965(b), the court must have personal jurisdiction over at least
one of the participants in the alleged multidistrict conspiracy
and the plaintiff must show that there is no other district in
which a court will have personal jurisdiction over all of the
alleged co-conspirators.” FC Inv. Grp, 529 F.3d at 1099-1100(quotations and citations omitted). Plaintiffs have not
established that the Court has personal jurisdiction over any
other defendant and thus, it cannot exercise RICO jurisdiction
over SKE and Mr. Peck.
In sum, the Court agrees that this case is essentially a
dispute about activities that took place almost entirely in
Peru. As such, plaintiffs have not established a basis for this
Court to exercise personal jurisdiction over any of the nine
defendants.
B. Jurisdictional Discovery
Finally, plaintiffs seek jurisdictional discovery “in order
to contest and test the allegations made by defendants that
there is [sic] insufficient jurisdictional ties.” Pls.’ Mot. for
Discovery, ECF No. 63 at 2. Plaintiffs contend that
jurisdictional discovery is warranted because the record is
42
inadequate as to the defendants’ contacts with the District of
Columbia. Id. at 5. In support, plaintiffs reiterate verbatim
the same arguments already rejected regarding the defendants’
contacts with the United States and the District of Columbia.
See id. at 5-27. Plaintiffs seek “focused jurisdictional
discovery in the form of interrogatories, requests for
production, requests for admissions, and possibly []
deposition[s]” to establish “sufficient contacts with the United
States, and possibly with the District of Columbia.” See id. at
9 (Jorge, Sr.), 11-12 (Ofelia), 14 (Jorge, Jr.), 17 (Javier), 21
(Mr. Farah and Convalor), 22 (Confactor). Plaintiffs seek the
same information to establish the American defendants’
connections to the District of Columbia. See id. at 27 (SKE and
Mr. Peck).
The defendants all submit similar arguments in response.
Defs.’ Discovery Opp’ns, ECF Nos. 68, 69, 70, 71, 85 (Harten
family). The defendants argue that plaintiffs have not
demonstrated that discovery can supplement their jurisdictional
allegations because their request is based on mere conjecture.
See, e.g., ECF No. 68 at 4. As such, defendants contend that it
is inappropriate to subject them to the burden and expense that
accompanies jurisdictional discovery, especially the broad
discovery requested. See, e.g., id. at 4-5. Defendants also
argue that plaintiffs have not identified the specific
43
information they hope to discover and how they propose to
discover it. See, e.g., ECF No. 69 at 1-3.
“It is well established that the ‘district court has broad
discretion in its resolution of discovery problems.’” FC Inv.
Grp., 529 F.3d at 1093 (quoting Naartex Consulting Corp. v.
Watt, 722 F.2d 779, 788 (D.C. Cir. 1983)). As such, “[w]hether
to permit jurisdictional discovery rests in the discretion of
the district court.” In re Papst Licensing GMBH & Co. KG Litig.,
590 F. Supp. 2d 94, 101 (D.D.C. 2008)(citations omitted). “In
order to engage in jurisdictional discovery, the plaintiff must
have at least a good faith belief that such discovery will
enable it to show that the court has personal jurisdiction over
the defendant.” FC Inv. Grp., 529 F.3d at 1093-94 (quotations
and citations omitted). Although discovery should be “granted
freely, it can be denied when the plaintiff has failed to
present facts that could establish jurisdiction.” Williams v.
ROMARM, 187 F. Supp. 3d 63, 72 (D.D.C. 2013), aff'd sub nom.,
756 F.3d 777 (D.C. Cir. 2014)(citing Caribbean Broad. Sys. Ltd.
v. Cable & Wireless, PLC, 148 F.3d 1080, 1089–90 (D.C. Cir.
1998)(affirming district court's denial of discovery motion
because plaintiffs did not present sufficient evidence of
jurisdiction); Savage v. Bioport, Inc., 460 F. Supp. 2d 55, 62–
63 (D.D.C. 2006)(denying jurisdictional discovery motion because
the plaintiff did not allege contacts sufficient to establish
44
general or specific jurisdiction)). Moreover, “a request for
jurisdictional discovery cannot be based on mere conjecture or
speculation.” FC Inv. Grp., 529 F.3d at 1094 (citing Bastin v.
Fed. Nat'l Mortgage Ass'n, 104 F.3d 1392, 1396 (D.C. Cir.
1997)). A plaintiff may not use jurisdictional discovery to
“conduct a fishing expedition in the hopes of discovering some
basis of jurisdiction.” In re Papst, 590 F. Supp. 2d at 101(quotations and citations omitted). To that end, “a plaintiff
must make a detailed showing of what discovery it wishes to
conduct or what results it thinks such discovery would produce.”
Williams, 187 F. Supp. 3d at 72 (quotations and citations
omitted).
Here, plaintiffs have not demonstrated that they can
“supplement [their] jurisdictional allegations through
discovery,” Shaheen v. Smith, 994 F. Supp. 2d 77, 89 (D.D.C.
2013), because they offer “no specifics of any facts that could
establish jurisdiction,” App Dynamic ehf v. Vignisson, 87 F.
Supp. 3d 322, 330 (D.D.C. 2015). For example, plaintiffs’ motion
for discovery merely repeats the arguments they raised in
opposition to the motions to dismiss; those arguments have been
rejected. See generally Pls.’ Mot. for Discovery, ECF No. 63.
Plaintiffs cannot and do not point to any additional facts
that could be discovered and would establish personal
jurisdiction over any of the nine defendants. See App Dynamic
45
ehf, 87 F. Supp. 3d at 330 (denying request for jurisdictional
discovery because plaintiff “offers no specifics of any facts
that could establish jurisdiction”); Gorman, 293 F.3d at 513(noting jurisdictional discovery should have been granted
because plaintiff demonstrated it could “supplement its
jurisdictional allegations through discovery”).
First, plaintiffs do not establish that there are any
additional facts that could establish general jurisdiction over
any defendant. See generally Pls.’ Mot. for Discovery, ECF No.
63. Any further information about the Peruvian defendants’
alleged general connections to the United States—such as
personal and business travel to the United States, work for
companies that do business in the United States, or family
members located in the United States—would not warrant
exercising general jurisdiction pursuant to Federal Rule of
Civil Procedure 4(k)(2) as the Peruvian defendants are not
essentially “at home” in the United States. See Livnat v.
Palestinian Auth., 82 F. Supp. 3d 19, 30 (D.D.C. 2015), aff’d,
851 F.3d 45 (D.C. Cir. 2017). For the American defendants, Mr.
Peck is domiciled in Colorado and SKE is headquartered and
incorporated in North Dakota. Compl., ECF No. 1 ¶¶ 12 (Peck), 17
(SKE). They are not at home in this forum.
Second, plaintiffs have not established that discovery
could lead to specific jurisdiction over the defendants.
46
Plaintiffs contend that discovery will reveal the extent to
which the defendants had connections to either the forum
(American defendants) or the United States (Peruvian
defendants). However, as with their opposition memorandum, most
of the facts alleged in plaintiffs’ motion for jurisdictional
discovery attempts to establish the defendants’ connections to
the alleged RICO scheme, not the defendants’ connections to the
forum or to the United States. See generally Pls.’ Mot. for
Discovery, ECF No. 63. Moreover, as extensively discussed,
practically all of the allegedly injurious conduct occurred in
Peru. See supra Secs. III.A.1,2. Plaintiffs have not identified
any basis to believe that there are additional facts that could
reveal that the nine defendants purposefully directed their
activities to either the United States (Peruvian defendants) or
the District of Columbia (SKE and Mr. Peck). See generally Pls.’
Mot. for Discovery, ECF No. 63; see App Dynamic ehf, 87 F. Supp.
3d at 330 (denying request for jurisdictional discovery because
plaintiff “offers no specifics of any facts that could establish
jurisdiction”).
Moreover, plaintiffs do not assert how they can supplement
their allegations through discovery or what information they
seek to uncover. They assert only that discovery will “likely
establish sufficient contacts with the United States, and
possibly with the District of Columbia, to justify personal
47
jurisdiction” over each defendant. See Pls.’ Mot. for Discovery,
ECF No. 63 at 9, 11-12, 14, 17, 22; see also id. at 27 (arguing
that discovery will “conclusively establish sufficient contacts
with the District of Columbia, to justify personal jurisdiction
over SKE and Peck”). Plaintiffs do not make a “detailed showing
of what discovery it wishes to conduct,” as they must.
Atlantigas Corp., 290 F. Supp. 2d at 53 (quotations and
citations omitted). Instead, they offer a vague and general list
of the type of discovery sought. Plaintiffs summarily request
“focused jurisdictional discovery in the form of
interrogatories, requests for production, requests for
admissions, and possibly a deposition.” See, e.g., Pls.’ Mot.
for Discovery, ECF No. 63 at 9. Plaintiffs repeat this broad and
vague request verbatim for all nine defendants. See id. at 9,
11-12, 14, 17, 22, 27. Such “generalized” requests and
“predictions are not enough to justify jurisdictional
discovery.” Atlantigas Corp., 290 F. Supp. 2d at 53. Because
plaintiffs have not specified the targeted information sought or
established that jurisdictional discovery will help them
“discover anything new, it is inappropriate to subject
defendants to the burden and expense of discovery.” Id.(quotations, citations, and alterations omitted); compare with
GTE New Media, 199 F.3d at 1349-51 (allowing jurisdictional
discovery, even though the record was “plainly inadequate” and
48
there was “absolutely no merit” to plaintiff’s claim of
jurisdiction because the plaintiffs cited the specific
information and facts they would target to establish
jurisdiction).
IV. Conclusion
For the foregoing reasons, the Court concludes that it
lacks personal jurisdiction over the nine defendants who moved
to dismiss. The Court therefore GRANTS the nine defendants’
eight motions to dismiss. See ECF Nos. 35, 36, 37, 38, 45, 50,
52, 54. Defendants Mr. Peck; SKE; Mr. Farah; Convalor;
Confactor; Jorge, Sr.; Jorge, Jr.; Ofelia; and Javier are
DISMISSED from this action. The Court further DENIES plaintiffs’
motion for jurisdictional discovery. See ECF No. 63. Because the
Court finds that it lacks personal jurisdiction over the
defendants, it need not resolve plaintiffs’ motions for orders
allowing alternative service, see ECF Nos. 62 and 89, and SKE’s
motion to strike certain declarations and exhibits, see ECF No.
76. Those motions are therefore DENIED AS MOOT. An appropriate
Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
January 2, 2019
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