Ags Intern. Services S.A. v. Newmont Usa Ltd.

• Decision Date: 16 November 2004
• Docket Number: No. 1:02 CV 02543(RBW).,1:02 CV 02543(RBW).
• Parties: AGS INTERNATIONAL SERVICES S.A., Alfonso G. Andress, and Jose Florian, Individually and on Behalf of Certain Former Employees of AGS Plaintiffs v. NEWMONT USA LIMITED, Newmont Peru Limited, Minera Yanacocha S.R.L., Sodexho Alliance S.A., Sodexho Peru S.A.C., Defendants
• Court: U.S. District Court — District of Columbia

Page 64

346 F.Supp.2d 64

AGS INTERNATIONAL SERVICES S.A., Alfonso G. Andress, and Jose Florian, Individually and on Behalf of Certain Former Employees of AGS Plaintiffs v. NEWMONT USA LIMITED, Newmont Peru Limited, Minera Yanacocha S.R.L., Sodexho Alliance S.A., Sodexho Peru S.A.C., Defendants

No. 1:02 CV 02543(RBW).

United States District Court, District of Columbia.

November 16, 2004.

Lawrence Harbin, McIntyre Harbin & King, LLP, Washington, DC, for Plaintiffs.

William D. Iverson, Covington & Burling, Sara D. Schotland, Cleary, Gottlieb Steen & Hamilton, Washington, DC, for Defendants.

MEMORANDUM OPINION

WALTON, District Judge.

Currently before the Court is the Motion to Dismiss by Minera Yanacocha and the Newmont Defendants [D.E. # 8] ("Newmont's Mot.") and the Motion by Sodexho Alliance and Sodexho Peru to Dismiss the Complaint [D.E. # 9] ("Sodexho's Mot."). The plaintiffs have filed an opposition to the defendants' motions, Plaintiffs' Memorandum in Opposition to Newmont's and Sodexho's Motions to Dismiss ("Pls.' Opp."), Plaintiffs' Supplemental Memorandum Setting Forth Jurisdictional Facts in Opposition to Newmont's and Sodexho's Motion to Dismiss ("Pls.' Supp."), and the defendants have filed replies to the opposition, Reply Memorandum in Support of Motion to Dismiss by Minera Yanacocha and the Newmont Defendants ("Newmont's Reply"); Reply Brief of Sodexho Alliance and Sodexho Peru in Support of Motion to Dismiss ("Sodexho's Reply"). Upon careful consideration of the parties' pleadings and the entire record in this case, the Court concludes that both motions should be granted because this Court cannot exercise general or personal jurisdiction over any of the defendants.

I. The Parties and the Factual Background

A. The Parties

The plaintiffs, AGS International Services, S.A. ("AGS"), Alfonso G. Andress ("Andress") and Jose Florian ("Florian"), individually and on behalf of certain former employees of AGS, have brought this action against Newmont USA Limited ("Newmont USA"), Newmont Peru Limited ("Newmont Peru") and Minera Yanacocha S.R.L. ("Minera Yanacocha") (collectively "Newmont defendants") as well as Sodexho Alliance, S.A. ("Sodexho Alliance") and Sodexho Peru S.A.C. ("Sodexho Peru") (collectively "Sodexho defendants").

AGS was established in 1990 in Lima, Peru, where it provides vending and food processing services as well as "industrial catering and hospitality services" to companies which operate remote mining and oil refining sites. Am. Compl. ¶ 14.¹ In order to serve American food products to American consumers in Peru, AGS imports food items from the United States to Peru. Id. Andress, a European citizen living in Peru, is the Chairman of AGS. Id. ¶ 15. Florian, a Peruvian citizen and a former AGS employee who worked at the Yanacocha mines in Peru, is a member of a proposed class of former AGS employees. Id. ¶ 16.

Newmont USA is a publicly traded corporation, incorporated in Delaware and with its principal place of business in Denver, Colorado. Id. ¶ 6. Newmont USA also maintains a two room office at 1800 Massachusetts Avenue, N.W. in the District of Columbia, which is leased from the law firm of Shea & Gardner and staffed by Mary Beth Donnelly. Id.; Memorandum in Support of Motion to Dismiss by Minera Yanacocha and the Newmont Defendants ("Newmont's Mem.") at 8. Ms. Donnelly is Newmont USA's Group Executive for Government Relations and her employment duties are to "serve as a liaison between Newmont USA and the legislative and executive branches of the United States government [,] to regularly lobby members of the federal government on Newmont's behalf... [, and to] act as a liaison between Newmont USA and the embassies of the various countries in which Newmont USA does business." Id., Exhibit ("Ex.") C (Declaration of Mary Beth Donnelly taken on February 25, 2003) ("Donnelly Decl.") ¶ 10.² Ms. Donnelly has also served as Treasurer of The American-Uzbekistan Chamber of Commerce ("AUCC"), which is located in the District of Columbia, as of June 2002, and as Vice Chairperson of the North American-Kyrgz Business Council ("NAKBC"), which is located in Falls Church, Virginia. Pls.' Opp., Ex. 8 (list of AUCC Board of Directors as of June 2002); Ex. 9 (Information pertaining to AUCC); Ex. 12 (Information pertaining to the NAKBC).³

Newmont Peru is a Delaware corporation with its principal place of business in Lima, Peru. It is registered to do business in Peru and operates as the manager of Minera Yanacocha. Newmont's Mem., Ex. B (Declaration of Carlos Santa Cruz taken on February 24, 2003) ("Cruz Decl.") ¶ 3. Minera Yanacocha is a limited liability partnership organized under the laws of Peru with its principal place of business in Lima, Peru. Newmont's Mem., Ex. A (Declaration of Federico Schwalb Helguero dated February 24, 2003) ("Helguero Decl.") ¶ 3. Minera Yanacocha is a joint venture, which is 51.35% owned by Newmont USA, 43.65% owned by Compania de Minas Buenaventura, S.A., a mining company in Peru, and 5% owned by the International Finance Corporation ("IFC").⁴ Am. Compl. ¶ 7. According to the Securities and Exchange Commission ("SEC"), "Newmont Peru is responsible for managing, conducting and controlling the day to day operations of Minera Yanacocha...." Pls.' Opp., Ex. 14 at 51 (Buenaventura Mining Company's submission to the SEC for the fiscal year ending December 31, 2000).⁵ Minera Yanacocha began its mining operations in 1993 and is a leading gold producer globally, with its mine located "47 km north of the city of Cajamarca at an altitude of 4,000 meters above sea level." Pls.' Opp., Ex. 4 (IFC Summary of Minera Yanacocha Project Information dated May 3, 1999). Minera Yanacocha received IFC funding in 1993, 1994, and 1999. Pls.' Opp., Ex. 5 (IFC Project Brief of Minera Yanacocha). In 1999 the IFC approved a $100 million loan to Minera Yanacocha. Id.

Sodexho Alliance is a "societe anonyme, a French limited liability company, organized under the laws of France with its principal place of business in France." Memorandum in Support of Motion to Dismiss by Sodexho Alliance and Sodexho Peru ("Sodexho's Mem.") at 4. Sodexho Alliance owns stock in more than 200 subsidiaries in 74 countries, with operations in four primary business areas: Food and Management Services, Remote Sites, Service Vouchers and Cards, and River and Harbor Cruises. Pls.' Supp., Ex. 1 (Affidavit of Sian Herbert-Jones dated February 21, 2003) ("Herbert-Jones Aff.") ¶ 2. One of its subsidiaries is Sodexho Peru, a "sociedad anonima cerrada organized under the laws of Peru with its principal place of business in Lima, Peru", which was created to generate business in Peru. Sodexho's Mem. at 4.⁶ Another subsidiary of Sodexho Alliance is Sodexho, Inc., which is incorporated in Delaware and provides food services at the Federal Bureau of Investigations headquarters in the District of Columbia at 935 Pennsylvania Avenue, N.W. Am. Compl. ¶ 17.

Sodexho Marriott Services, Inc. ("SMS") is also a subsidiary of Sodexho Alliance which was formed on March 27, 1998. Pls.' Supp., Ex. 2 (Assistance Agreement between Sodexho Alliance and Marriott International, Inc. dated March 27, 1998). SMS is in the food service and facilities management business. Id. SMS's headquarters is located at 2900 Van Ness Street, N.W., in the District of Columbia. Pls.' Supp. at 2 n. 2. Pursuant to a Royalty Agreement between Sodexho Alliance and Marriott International, Sodexho Alliance authorized SMS to use its trade name in promotional material, advertisements and its logo. Pls.' Supp., Ex. 3 at 2, 4 (Royalty Agreement between Sodexho Alliance and Marriott International, Inc. dated March 27, 1998).

Universal Sodexho, another subsidiary of Sodexho Alliance, was acquired in 1997 and is located in Harahan, Louisiana. Pls.' Opp., Ex. 1E (computer website printout pertaining to Universal Sodexho) and 1G (Dun & Bradstreet report concerning Universal Sodexho dated July 10, 2000). AGS conducted business directly with Universal Sodexho through April of 2000. Pls.' Opp., Ex. 1A (facsimile from Christophe Parent,⁷ former Vice President of Remote Site Management for Sodexho Alliance, to defendant Andress dated April 26, 1999); Ex. 1B (facsimile from Christophe Parent to defendant Andress dated April 1, 2000); Ex. 1C (letter from defendant Andress to Barry Blackwell, President of Universal Sodexho, dated April 24, 2000); Ex. 1D (letter from defendant Andress to Barry Blackwell dated May 29, 2000); and Ex. 1E.

According to Hoovers Online Business Network, another Sodexho Alliance subsidiary, Sodexho Pass, "operated river and harbor dinner cruises on a fleet of more than 40 boats in cities such as ... Washington D.C." Pls.' Opp., Ex. 1H at 1 (Hoovers Online's company profile of Sodexho Alliance dated July 11, 2000).⁸ Sodexho Alliance also entered into an International Joint Venture Agreement with the Corrections Corporation of America ("CCA") in 1994 to enhance the "prison management business in a geographic territory that specifically excluded the United States." Sodexho's Reply, Ex. C (Supplemental Affidavit of Sian Herbert-Jones dated September 17, 2003) ("Herbert-Jones Supp. Aff.") ¶ 3.⁹

B. Factual Background

The following are the facts alleged in the plaintiffs' amended complaint that gave rise to the filing of this cause of action: On January 24, 2000, Sodexho Peru and AGS entered into a three year confidentiality agreement pursuant to a November 3, 1999 joint venture agreement negotiated by Barry Blackwell, wherein AGS agreed to lease its Lima factory to Sodexho Peru to supply catering service to 3500 workers at the Antamina Mines ("Antamina") in Peru, which was operated by the Bechtel Corporation ("Bechtel"). Am. Compl. ¶¶ 69-70.¹⁰ AGS granted more than 30 Sodexho Peru employees access to its facilities in Peru in order for Sodexho Peru to fulfill the terms of the parties' agreement. Id. ¶ 101. On January 12, 2000, Sodexho Peru issued numerous...