23 F.Supp.2d 130 (D.Mass. 1998), Civ. A. 97-12811, United States v. Swiss American Bank, Ltd.

Docket Nº:CIV. A. 97-12811-WGY.
Citation:23 F.Supp.2d 130
Party Name:UNITED STATES of America, Plaintiff, v. SWISS AMERICAN BANK, LTD., Swiss American National Bank, Swiss American Holding Company S.A. of Panama, and Inter-Maritime Bank, Geneva, Defendants.
Case Date:September 30, 1998
Court:United States District Courts, 1st Circuit, District of Massachusetts

Page 130

23 F.Supp.2d 130 (D.Mass. 1998)

UNITED STATES of America, Plaintiff,


SWISS AMERICAN BANK, LTD., Swiss American National Bank, Swiss American Holding Company S.A. of Panama, and Inter-Maritime Bank, Geneva, Defendants.

No. CIV. A. 97-12811-WGY.

United States District Court, D. Massachusetts.

Sept. 30, 1998

Page 131

Stefan Cassella, Mia Levine, U.S. Dept. of Justice, Wahington, DC, Richard L. Hoffman, U.S. Attorney's Office, Boston, MA, for U.S.

Michael B. Keating, Sarah E. Cooleybeck, Foley, Hoag & Eliot, Boston, MA, for Swiss American Bank, Ltd., Swiss American National Bank.

Irene C. Freidel, Wm. Shaw McDermott, Ellen Bober Moyangh, Kirkpatrick & Lockhart, Boston, MA, for Inter-Maritime Bank, Geneva.

Page 132


YOUNG, District Judge.

The government of the United States brings this action for breach of contract, unjust enrichment, and conversion against the defendant banks. The government seeks in excess of $7,000,000 in forfeited drug proceeds deposited at these banks into accounts controlled by convicted money launderer John E. Fitzgerald ("Fitzgerald"). The accounts were forfeited to the United States pursuant to the RICO forfeiture statute, 18 U.S.C. § 1963, in a Final Order of Forfeiture issued by this Court on May 4, 1994. See United States v. Fitzgerald, No. 93-CR-10149-Z (D.Mass. May 4, 1994).

The defendants Swiss American Bank, Ltd. ("Swiss American") and Swiss American National Bank ("Swiss National") (collectively "the Swiss American defendants") have moved to dismiss this action for lack of personal jurisdiction, improper venue, improper service of process, and failure to join an indispensable party. The defendant Inter-Maritime Bank, Geneva, now known as Bank of New York-Inter Maritime Bank, Geneva ("Geneva"), has moved separately to dismiss for lack of personal jurisdiction and improper venue, raising many of the same arguments as the Swiss American defendants. Geneva has also moved to dismiss, or in the alternative for summary judgment, for failure to state a claim upon which relief can be granted. The fourth defendant, Swiss American Holding Company S.A. of Panama ("Swiss Holding"), has not yet been served.

The government has requested an extension of time to take limited discovery on the issues of personal jurisdiction and the failure to join an indispensable party. The government advances three separate rationales for its discovery request. 1 First, the government asserts an "effects theory" of personal jurisdiction under which the Court may assert jurisdiction over a defendant whose "intentional, and allegedly tortious, actions were expressly aimed at" a plaintiff within the jurisdiction. Pltf.'s Mem. Supp. Mot. Extend Time at 5, (quoting Calder v. Jones 465 U.S. 783, 104 S.Ct. 1482 [1984]). The government reasons that the jurisdictional inquiry will require it to adduce proof of intentional availment of the forum and avers that it requires limited discovery to support such proof.

The government's second theory is that if the defendants are not subject to the personal jurisdiction of a single state, they are subject to personal jurisdiction based upon the strength of their contacts with the United States as a whole under the provisions of Fed.R.Civ.P. 4(k) (2). This theory rests in turn upon the proposition that the claims for breach of contract, unjust enrichment, and conversion arise out of federal common law. The government argues that it should be permitted to engage in limited discovery in order to gather proof of the defendants' nationwide contacts. Finally the United States seeks discovery to address the joinder question.

In its opposition to Geneva's second motion for summary judgment, the government contends that Geneva is a part of an "Inter Maritime empire," with common ownership and control over all of the defendants in this action. United States' Mem. Opp. Summ. Judgment at 8. Liability, as well as personal jurisdiction, for Geneva is therefore premised on an "alter-ego" theory. The government once again requests an opportunity for discovery, in this instance under Fed.R.Civ.P. 56(f), to allow it an opportunity to oppose Geneva's summary judgment motion.

This memorandum discusses the personal jurisdiction arguments advanced by the government. Because the government has advanced no theory of jurisdiction that might be supported by limited discovery, the Court rejects these arguments, and concludes that it is without personal jurisdiction over either the Swiss American defendants or Geneva. It is therefore unnecessary to consider the remainder of the issues raised by the defendants' motions, as the Complaint will be dismissed.

Page 133


For the purposes of these motions to dismiss, the Court accepts the well pleaded facts in the Complaint as true. The following facts are relevant to the personal jurisdiction issue.

A. Swiss American Defendants.

The Swiss American Defendants are both located on the Island of Antigua, a part of the Caribbean nation of Antigua and Barbuda; both are...

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