Tag Archives: Personal Jurisdiction

Court Denies Non-U.S. Company’s Attempt To Avoid Default, Citing Agency Relationship Between Parent and Sub Justifying Earlier Exercise of Jurisdiction Over Non-U.S. Parent

The drywall litigation, arising from the installation into U.S. homes of allegedly defective drywall from China, has included a great many noteworthy international practice issues.  Many companies have settled.  Others have continued to litigate.  In Lennar Homes, LLC, et al. v. Knauf Gips, et al.,, Case no. 09-07901 CA 42 (Cir. Ct. 11th Jud. Dist. … Continue Reading

Fourth Circuit Affirms Personal Jurisdiction Over Non-U.S. Defendants, Upholds Extraterritorial Jurisdiction under the Copyright Act, and Reverses It under the Lanham Act

Tire Engineering and Distribution, LLC et al. v. Shandong Linglong Rubber Company, Ltd. et al., No. 10-2271 (4th Cir. 2012), addresses several issues of international practice.  The plaintiff sued non-U.S. defendant, not in contract (where arguably there is a greater opportunity to dictate forum for the resolution of any dispute), but for conspiracy to steal … Continue Reading

District Courts Show Reluctance To Precluding Non-U.S. Expert or Consultant Access To Even Highly Confidential Material Subject to U.S. Court Imposed Orders of Confidentiality/Protective Orders

In complex commercial litigation generally, the questions typically arise concerning who can review or have access to the confidential documents or data of the adversary.  In international litigation, those questions also include “where” parties can have such access.  If a non-U.S. person or entity breaches a confidentiality order entered by a U.S. court, where can … Continue Reading

Federal Circuit Softly Splits with Seventh, Ruling that a Defendant Cannot Consent to a Jurisdiction To Preclude Application of Fed. R. Civ. P. 4(k)(2)

Merial Limited, BASF Agro B.V. v. CIPLA Ltd., et al., Nos. 2011-1471, 1472 (Fed. Cir. 2012), a decision from the federal Court of Appeals level court with jurisdiction over patent appeals, deserves a read by international practitioners — at least the part of the decision that involves the discussion of service of process.  (There is another … Continue Reading

Case Against IBM Japan Proceeds To Jurisdictional Discovery For Plaintiff To Attempt To Establish “Reverse” Piercing By Showing that the Absent Subsidiary Is the Agent or Instrumentality of the Present Parent; Court Also Denies Forum Non Conveniens Dismissal

Frederick W. Gundlach v. Int’l Business Machines Corp., et al., No. 11-CV-846 (S.D.N.Y. 2012), presents a pro se plaintiff’s claims against IBM and several non-U.S. affiliates for breach of contract and various employment related claims, including claims under Japan’s Labor Law.    For international practice purposes, the Court’s decision should be considered on the following issues: … Continue Reading

Court Where Judgment Is Attempted To Be Enforced May But Need Not Test Personal Jurisdiction in the Judgment Entering Court

Relying on the law in international litigation, the District Court in Massachusetts addressed the issue which court was obliged to determine whether the court entering a judgment had the requisite personal jurisdiction.  Kulik v. Bronstein, MBD No. 09-10264-PBS (D. Mass. 2011).  At issue in the case was whether a Rhode Island court or a Massachusetts … Continue Reading

Petitioner Seeking To Vacate International Arbitral Award Has Choices Concerning How To Serve Respondent

Mafidis v. Subway International, B.V., Case No. 3:10-CV-119 (PCD)(D. Conn. 2011),  involves an attempt by a Subway franchisee under an international franchise agreement to vacate an international arbitral award against Subway.  The Franchise Agreement contained a dispute resolution clause requirement arbitration and that proceedings would follow the United Nations Commission on International Trade Regulations and … Continue Reading

Non-U.S. Corporation, “Independent” But Wholly Owned By Non-U.S. Sovereign, Entitled to Avoid U.S. Jurisdiction To Enforce Non-U.S. Arbitral Award Under the New York Convention When Its Parent Could Not

GSS Group v. National Port Authority (NPA), Civil Action No. 09-1322 (PLF) (D.D.C. Mar. 2011), presents another example of how the corporate lawyer or draftsman might have avoided a conundrum that prevented a non-U.S. arbitral award from getting the significant benefits of the New York Convention’s provisions permitting enforcement in the U.S. of international arbitral … Continue Reading

Petition To Vacate Arbitral Award Untimely, But Same Defenses Can Be Raised In Opposition Confirmation

Ornela Cere v. Subway International B.V., Index No. 111998/2010 (N.Y. Sup.Ct.  Aug. 2011), is a brief and lucid discussion by a New York state court of first instance of an important issue in international litigation practice.  Cere and Subway had a dispute involving a Subway restaurant in Athens, Greece.  Their agreement called for New York City arbitration under … Continue Reading

Ninth Circuit Denies Rehearing in Bauman v. DaimlerChrysler, Finding Personal Jurisdiction by Imputation and Watering Down “Agency” Test for Finding Jurisdiction, Say Eight Circuit Judges Who Would Grant Rehearing En Banc

Bauman, et al. v. DaimlerChrysler, et al., No. 07-15386 (9th Cir. 18 May 2011), involves claims by 22 Argentinian residents against DaimlerChrysler Aktiengesellschaft (DCAG) and its Argentinian subsidiary alleging that Mercedes Benz (owned by DaimlerChrysler) collaborated with Argentine state security forces to kidnap, detain, torture, and kill plaintiffs and/or their family members during Argentina’s “Dirty … Continue Reading

Personal Jurisdiction Exists Only Where Venue Proper; Claim Against Bank of China Severed and Transfered To S.D.N.Y.

Wultz v. Islamic Republic of Iran, 08-cv-1460 (RCL) (D.D.C. Jan. 2011), is the opinion on reconsideration of an earlier decision, which we posted on because of its rulings on the pleading of causation in a claim to overcome a sovereign immunity defense. The case arises out of the suicide bombing in 2006 or a restaurant … Continue Reading

District Court Avoids Testing Common Law Sovereign Immunity Defense Remanded by the Second Circuit But Dismisses the Claims on Personal Jurisdiction Grounds Instead

Carpenter v. Republic of Chile, et al., 07-CV-5290 (JS)(ETB) (E.D.N.Y. June 2011), is the remand from a Second Circuit decision of last year (601 F.3d 776 (2d Cir. 2010)) requiring the District Court to reconsider the dismissal on sovereign immunity grounds of various individual defendants (the Court of Appeals affirming the balance of the District … Continue Reading

Second Circuit Finds Mid-Case Default Forfeits Defendants’ Right To Appeal From Rulings That Statute Creates A Cause of Action and that Personal Jurisdiction Was Present; Remands For Reconsideration of Remedy

In cases where there are solid grounds to believe personal jurisdiction is missing, the strategic decision whether to appear and contest personal jurisdiction or whether to stay out of a jurisdiction altogether is among the hard questions facing litigants in international litigation practice.  The Second Circuit’s decision in City of New York v. Mickalis Pawn … Continue Reading

U.S. Supreme Court Reaffirms Basic Personal Jurisdiction Principles; Finds No Specific or General Jurisdiction Over Non-U.S. Affiliates of Goodyear

Last year’s end-of-Term Supreme Court international practice case, Morrison v. National Australia Bank, No. 08-1191 (S. Ct. June 2010),  has ushered in a year’s worth of jurisdiction shifting cases attempting to be faithful to the Supreme Court’s dictate that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of … Continue Reading

Illinois Federal District Court Upholds ATS Claims Against Banks for Aiding and Abetting Genocide by Looting

Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank, et al., No. 10 C 1884 (N.D. Ill. May 2011), addresses motions to dismiss filed by international banking institutions that allegedly “played a role in a wealth expropriation scheme involving the theft and withholding of assets and funds from Hungarian Jews who were victims of the … Continue Reading

Ninth Circuit Find Personal Jurisdiction Over DamilerChrysler AG under the ATS; Upholds “Agency” Rather than Alter-Ego Jurisdiction

Bauman, et al. v. DaimlerChrysler, et al., No. 07-15386 (9th Cir. 18 May 2011), involves claims by 22 Argentinian residents against DaimlerChrysler Aktiengesellschaft (DCAG) and its Argentinian subsidiary alleging that Mercedes Benz (owned by DaimlerChrysler) collaborated with Argentine state security forces to kidnap, detain, torture, and kill plaintiffs and/or their family members during Argentina’s “Dirty … Continue Reading

New York’s Highest Court, Answering a Question Certified by the Second Circuit, Decides that New York’s Longarm Statute Gives Personal Jurisdiction in New York Over The Uploading of Materials to the Internet Outside of New York

New York’s Highest Court, its Court of Appeals, rendered an important decision for international practice in Penguin Group (USA) Inc. v. American Buddha (N.Y. 24 Mar. 2011).  The decision answered a question certified to it by the United States Court of Appeals for the Second Circuit, namely whether New York’s long arm statute reached conduct … Continue Reading

Claim Against Argentine Instrumentality Dismissed: The Principal-Agency Conundrum For Securing U.S. Jurisdiction (Part II)

NML Capital v Rep of Argentina, 09 Civ. 7013 (S.D.N.Y. 2/15/11), represents another effort by a creditor owed money by Argentina attempting to recover its judgment against funds in the hands of Argentine entities other than the Republic of Argentina itself. Here the entity is called Energla Argentina SA, or ENARSA. The grounds for the … Continue Reading

Why Another District Court Denied Section 1782 Discovery in Aid of International Litigation

Our recent posting (here) discussed a case where discretion was exercised to deny Section 1782 discovery in international litigation despite the applicant’s compliance with the statutory requisites.   Another route to denial can be seen in  Application of Inversionesy Gasolinera Petroleos Valenzuela, Applicants, and Exxon Mobil Corp., a Non-Party Witness, Respondent, Case No. 08-20378 (S.D. Fla. Jan. 2011). … Continue Reading

Service of Process To Invoke the New York Convention To Achieve Jurisdiction Over Non-U.S. Entity Requires Compliance with Fed. R. Civ. P. 4, not 5

Technologists-Inc-v-MIR-Ltd, Civil Action No. 09-1449 (D.D.C. 2010), reviewed an arbitral award under the Federal Arbitration Act, 9 U.S.C. §§ 1-14.  The dispute was arbitrated before the International Chamber of Commerce (ICC).  The noteworthy holding involved the issue of effecting proper service of process for the review of and/or challenge to an arbitral award against a non-U.S. … Continue Reading

Namibia Neither Able To Avoid Service of Process or To Invoke Sovereign Immunity in Suit Alleging Tortious Conduct

A decision by the District Court in USAA Casualty Ins. Co, as subrogee of Robert Adelman v. Permanent Mission of the Republic of Namibia, et al., 10 Civ. 4262 (S.D.N.Y. 17 Nov. 2010)(LTS), addresses several issues that arise in international litigation.  The case arose out of the collapse of a shared wall between the plaintiff’s … Continue Reading

How Are Appellate Tribunals in Countries Outside the U.S. Treating Enforcement or Recognition of Resolutions of International Disputes – A Second Sighting Concerning Judicial Judgments

Our recent blog discussing the role of the New York Convention in the recognition of “foreign” arbitral awards addressed the UK’s highest court’s treatment of the issues. In another recent decision, a court in the UAE addressed the issue of recognition and enforcement of “foreign” judicial judgments (rather than arbitral awards). We can’t find an English … Continue Reading

How Are Appellate Tribunals Outside the U.S. Treating Enforcement of Resolutions of International Disputes – A Sighting Concerning Arbitral Awards

As discussed in Topic 9 (International Arbitrations) of our e-book, International Practice: Topics and Trends, the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), June 10, 1958, 21 U.S.T. 2517 (enacted in the U.S. as chapter two of the Federal Arbitration Act), is a seminal multinational instrument used much the world … Continue Reading

Second Circuit Continues To Narrow the Scope of Quasi-in-Rem Jurisdiction in International Litigation

Our post on the Second Circuit’s decision in Sinoying Logistics Pte Ltd. v. The Hong Kong and Shainghai Banking Corp., No. 09-5368 (2d Cir., 31 Aug. 2010), addresses whether electronic funds transfers (EFTs) are attachable property for quasi-in-rem jurisdiction.  In another maritime decision with clear application to international litigation generally, the Second Circuit in Allied … Continue Reading