Base Metal Trading, Ltd. v. OJSC "Novokuznetsky Aluminum Factory"

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BASE METAL TRADING, LIMITED, 
Plaintiff-Appellant,
v.
OJSC "NOVOKUZNETSKY ALUMINUM
FACTORY,"
Defendant-Appellee,
 No. 01-1916

MG METAL AND COMMODITY
CORPORATION; MG METAL AND
COMMODITY COMPANY, LIMITED,
Movants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-00-1973-MJG)

Argued: January 23, 2002

Decided: March 6, 2002

Before WILKINSON, Chief Judge, and WILKINS and GREGORY,
Circuit Judges.

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Wilkins and Judge Gregory joined.

COUNSEL

ARGUED: Dennis L. Scanlon, MARKS, L.L.C., Philadelphia, Penn-
sylvania, for Appellant. Mark D. Gately, HOGAN & HARTSON,
2 BASE METAL TRADING v. OJSC
L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF: Bruce S.
Marks, MARKS, L.L.C., Philadelphia, Pennsylvania, for Appellant.
Steven F. Barley, Douglas R.M. Nazarian, HOGAN & HARTSON,
L.L.P., Baltimore, Maryland, for Appellee.

OPINION

WILKINSON, Chief Judge:

Plaintiff Base Metal Trading, Inc. ("Base Metal"), a Guernsey,
Channel Island corporation brought the present action to confirm a
foreign arbitration award against Defendant OJSC "Novokuznetsky
Aluminum Factory" ("NKAZ"), a Russian corporation. The district
court dismissed the case for lack of personal jurisdiction over NKAZ.
Because the mere presence of seized property in Maryland provides
no basis for asserting jurisdiction when there is no relationship
between the property and the action, we affirm.

I.

From 1995 to 1999, plaintiff Base Metal, a Guernsey, Channel
Islands corporation engaged in trading in raw materials associated
with the aluminum industry, had various business dealings with
defendant NKAZ, a Russian corporation engaged in the manufacture
and sale of aluminum. A dispute arose between the two parties and
in 1999, they agreed to arbitrate the dispute in the private Commercial
Arbitration Court of the Moscow Chamber of Commerce and Indus-
try. On December 10, 1999, the Commercial Arbitration Court issued
an arbitration award in favor of Base Metal in the amount of approxi-
mately $12,000,000. However, Base Metal was unable to collect the
award at that time.

On June 29, 2000, Base Metal filed a Verified Complaint to Con-
firm a Foreign Arbitration Award in Maryland district court, pursuant
to the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (the "Convention"), implemented by 9 U.S.C. §§ 201
et seq. On that same day, Base Metal filed a motion seeking seizure
or attachment of an aluminum shipment alleged to belong to NKAZ
 BASE METAL TRADING v. OJSC 3
that had arrived in Baltimore Harbor on June 28. See Fed. R. Civ. P.
64. The attachment motion was granted by the district court and the
property was taken into custody by the U.S. Marshal. Shortly thereaf-
ter, MG Metal & Commodity Corp. and MG Metal & Commodity
Co., Ltd. (collectively "MG") claimed ownership of the seized alumi-
num and moved to vacate the attachment. On July 7, 2000, the district
court issued an order vacating the attachment, giving custody and
control over the aluminum to MG, and providing for the placement
into an escrow account of any funds derived from the sale of the alumi-
num.1
On September 7, 2000, Base Metal filed an affidavit stating that on
August 15, 2000, a copy of the summons and complaint was sent to
NKAZ. However, NKAZ did not respond.2 On January 18, 2001,
Base Metal moved for a default judgment against NKAZ. The district
court granted the motion and entered a default judgment against
NKAZ in the amount of $13,767,541.51. Upon learning of the default
judgment, NKAZ moved to vacate it and to have the case dismissed
for, inter alia, lack of personal jurisdiction.
On April 3, 2001, the district court dismissed the case for lack of
jurisdiction. The court noted that NKAZ’s contacts with Maryland
related exclusively to the fact that aluminum manufactured by NKAZ
in Russia was unloaded in Baltimore Harbor. And the court held that,
"By no stretch could the single shipment, or even several such ship-
ments, constitute continuous and systematic contacts with Maryland
so as to justify general jurisdiction over NKAZ."
Base Metal filed a motion for reconsideration seeking to have the
court exercise jurisdiction pursuant to Rule 4(k)(2) of the Federal
Rules of Civil Procedure which provides that a district court may
exercise jurisdiction over a defendant if: (1)the plaintiff’s claim "ar-
ise[s] under federal law;" (2) the defendant "is not subject to the juris-
diction of the courts of general jurisdiction of any state;" and (3) the
court’s exercise of jurisdiction "is consistent with the Constitution and
1
Ultimately, Base Metal declined to pursue any claim against MG in
the district court, so the present action involves only Base Metal and
NKAZ.
2
NKAZ also alleged that service was not proper. The district court,
however, determined that the validity of the service was not necessary to
its ruling.
4 BASE METAL TRADING v. OJSC
laws of the United States." Fed. R. Civ. P. 4(k)(2). The court deter-
mined that in order to exercise jurisdiction under Rule 4(k)(2) it had
to find that no other state court had jurisdiction over NKAZ. And in
light of cases pending in other courts in which Base Metal was argu-
ing strenuously that NKAZ had sufficient contacts to warrant the
exercise of personal jurisdiction, such a finding would be difficult and
would usurp "the opportunity for sister federal courts to exercise
jurisdiction which they may decide they have." Therefore, the court
declined to apply Rule 4(k)(2). Base Metal appeals.
II.
Base Metal argues that the presence of NKAZ’s property in Mary-
land confers jurisdiction over NKAZ for the purpose of confirming
and enforcing the foreign arbitration award.
A.
As a preliminary matter, the Convention and its implementing leg-
islation, 9 U.S.C. §§ 201 et seq., give federal district courts original
jurisdiction over actions to compel or confirm foreign arbitration
awards. See 9 U.S.C. §§ 203, 207. However, while the Convention
confers subject matter jurisdiction over actions brought pursuant to
the Convention, it does not confer personal jurisdiction when it would
not otherwise exist. In other words, a plaintiff still must demonstrate
that personal jurisdiction is proper under the Constitution. See Trans-
atl. Bulk Shipping, Ltd. v. Saudi Chartering S.A., 622 F. Supp. 25, 27
(S.D.N.Y. 1985).
The personal jurisdiction inquiry is a well-established one. Deter-
mining whether jurisdiction is proper is normally a two step process:
(1) determining if the state’s long-arm statute confers jurisdiction and
(2) whether the exercise of jurisdiction, if authorized, is consistent
with the Due Process requirements of the Fourteenth Amendment.
Since Maryland’s long-arm statute expands the exercise of personal
jurisdiction to the limits allowed by the Due Process Clause, the two-
step analysis merges in this case and the question is simply whether
the exercise of personal jurisdiction would be consistent with due pro-
cess. See Ellicot Mach. Corp. v. John Holland Party Ltd., 995 F.2d
474, 477 (4th Cir. 1993); Yangming Marine Transp. Co. v. Revon
Prods. U.S.A, Inc., 536 A.2d 633, 636 (Md. 1988). Due process
requires only that a defendant "have certain minimum contacts with
 BASE METAL TRADING v. OJSC 5
[the forum] such that the maintenance of the suit does not offend ‘tra-
ditional notions of fair play and substantial justice.’" Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyers,
311 U.S. 457, 463 (1940)). For these minimum contacts to exist, there
must "be some act by which the defendant purposefully avails itself
of the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws." Hanson v. Denckla,
357 U.S. 235, 253 (1958); see also Burger King Corp. v. Rudzewicz,
471 U.S. 462, 474-76 (1985).
In examining whether the exercise of jurisdiction is reasonable, a
distinction is made between specific and general jurisdiction. When
the cause of action arises out of the defendant’s contacts with the
forum, a court may seek to exercise specific jurisdiction. See Helicop-
teros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984).
However, when the cause of action does not arise out of the defen-
dant’s contacts with the forum, general jurisdiction may be exercised
upon a showing that the defendant’s contacts are of a "continuous and
systematic" nature. Id. at 416; see also Goodyear Tire & Rubber Co.
v. Ruby, 540 A.2d 482, 486-87 (Md. 1988).
This basic analysis is not altered when the defendant’s property is
found in the forum state. The Supreme Court’s decision in Shaffer v.
Heitner, 433 U.S. 186 (1977), eliminated all doubt that the minimum
contacts standard in International Shoe governs in rem and quasi in
rem actions as well as in personam actions. Shaffer, 433 U.S. at 207-
12. The Court held that "in order to justify an exercise of jurisdiction
in rem, the basis for jurisdiction must be sufficient to justify exercis-
ing jurisdiction over the interests of persons in a thing." Id. at 207
(internal quotations omitted). And "[t]he standard for determining
whether an exercise of jurisdiction over the interests of persons is
consistent with the Due Process Clause is the minimum-contacts stan-
dard elucidated in International Shoe." Id.
Of course, the presence of property in a state may have an impact
on the personal jurisdiction inquiry. Indeed, "when claims to the prop-
erty itself are the source of the underlying controversy between the
plaintiff and the defendant, it would be unusual for the State where
the property is located not to have jurisdiction." Id. Yet, when the
property which serves as the basis for jurisdiction is completely unre-
lated to the plaintiff’s cause of action, the presence of property alone
6 BASE METAL TRADING v. OJSC
will not support jurisdiction. Id. at 209. While, "the presence of the
defendant’s property in a State might suggest the existence of other
ties among the defendant, the State, and the litigation," when those
"other ties" do not exist, jurisdiction is not reasonable. Id.

Overall, courts "must consider the burden on the defendant, the
interests of the forum State, and the plaintiff’s interest in obtaining
relief" when determining whether the exercise of jurisdiction is rea-
sonable in any given case. Asahi Metal Indus. Co. v. Superior Court,
480 U.S. 102, 113 (1987). And "[t]he unique burdens placed upon one
who must defend oneself in a foreign legal system should have signif-
icant weight in assessing the reasonableness of stretching the long
arm of personal jurisdiction over national borders." Id. at 114. But,
"[w]hen minimum contacts have been established, often the interests
of the plaintiff and the forum in the exercise of jurisdiction will justify
even the serious burdens placed on the alien defendant." Id. We must,
therefore, examine whether Base Metal has alleged significant mini-
mum contacts between NKAZ and Maryland to justify the exercise of
jurisdiction on the Russian corporation in this case.

B.

Base Metal contends that Maryland has jurisdiction to confirm the
foreign arbitration award in large part because 2,563 tons of alumi-
num, alleged to be the property of NKAZ, arrived in Baltimore Har-
bor. Because Base Metal does not contend that this action arises out
of NKAZ’s alleged contacts with Maryland, there is no assertion of
specific jurisdiction. Base Metal only alleges that the district court has
general jurisdiction over NKAZ. Therefore, due process requires Base
Metal to establish that NKAZ’s contacts with Maryland are "continu-
ous and systematic." See Helicopteros, 466 U.S. at 416. Yet, suffi-
cient minimum contacts are simply not present in this case.

Base Metal focuses on one shipment of aluminum to Maryland as
a basis for jurisdiction, but it is not clear that the aluminum in ques-
tion belonged to NKAZ. Even assuming, however, that the aluminum
did belong to NKAZ, this single shipment does not amount to "con-
tinuous and systematic" contacts. There is no dispute that the alumi-
num bears no relationship to the arbitration award Base Metal seeks
to confirm. And Base Metal has failed to show that NKAZ has "pur-
 BASE METAL TRADING v. OJSC 7
posefully avail[ed] itself of the privilege of conducting activities
within the forum State, thus invoking the benefits and protections of
its laws." Hanson, 357 U.S. at 253.

Indeed, the evidence fails to demonstrate NKAZ even attempted to
do business in Maryland at all. NKAZ is a Russian corporation with
its principal place of business in Novokuznetsk, Kemerevo Oblast,
Russia. The evidence shows that NKAZ’s business consists entirely
of manufacturing aluminum in its Russian plant and it does not main-
tain an office of any kind outside of Russia. NKAZ does not contract
directly with American companies or purchasers. It has no sales force
or other agents in the United States. NKAZ has no subsidiaries, affili-
ates or shareholders in Maryland. Nor has it ever been authorized to
do business in Maryland, transacted or solicited business in Maryland,
or designated an agent to accept service of process in Maryland.
NKAZ also neither owns nor rents any property in Maryland, has
never conducted a financial transaction in Maryland, and has no
assets of any kind in Maryland.

The mere fact that metal NKAZ manufactured in Russia was
shipped to the United States does not amount to significant contacts
with Maryland. Nor do vague references to possible contacts with
New Jersey, "negotiations" with Kaiser Aluminum Company, "nego-
tiations" in 1997 and 1998 in Pittsburgh concerning a possible joint
venture with Alcoa, purchases of secondary aluminum from the
United States in 1994 and 1995, other vague allegations of "negotia-
tions" in the United States in 1998, and the attendance of NKAZ rep-
resentatives at trade conferences in the United States amount to
systematic contacts with the United States, much less Maryland. Base
Metal simply cannot support jurisdiction in Maryland by making
vague, unsubstantiated claims based on the affidavit of a former
NKAZ employee. Without establishing the minimum contacts
required by International Shoe and Shaffer, the burdens the exercise
of jurisdiction would place on NKAZ simply cannot be justified.

Furthermore, Base Metal has failed to demonstrate what, if any,
interest Maryland has in the resolution of this dispute. NKAZ is not
a Maryland corporation and does no business in Maryland. The dis-
pute that led to the arbitration award has nothing to do with the
United States or Maryland. And even more telling, Base Metal itself
8 BASE METAL TRADING v. OJSC
is not a Maryland corporation, nor is its principal place of business
in Maryland or even in the United States. The fact that the plaintiff
in this case is not a Maryland corporation or resident "considerably
diminish[es]" Maryland’s interest in the dispute. Asahi Metal Industry
Co., 480 U.S. at 114. While it is true that there is a general public pol-
icy interest in encouraging and enforcing arbitration agreements, that
interest is not paramount to the interests protected by the Due Process
Clause.

III.

As a final attempt to assert jurisdiction, Base Metal argues that
jurisdiction is proper under Rule 4(k)(2) of the Federal Rules of Civil
Procedure. Rule 4(k)(2) allows a federal court to assert jurisdiction in
cases "arising under federal law" when the defendant is not subject to
personal jurisdiction in any state court, but has contacts with the
United States as a whole. A plaintiff who seeks to invoke Rule 4(k)(2)
as a basis for jurisdiction must show that (1) the claim "arise[s] under
federal law;" (2) the defendant is "not subject to the jurisdiction of the
courts of general jurisdiction of any state;" and (3) the court’s exer-
cise of jurisdiction would be "consistent with the Constitution and
laws of the United States." Fed. R. Civ. P. 4(k)(2).

Thus, for jurisdiction over NKAZ to be proper under Rule 4(k)(2),
Base Metal must demonstrate that NKAZ is not subject to personal
jurisdiction in any state and that NKAZ’s contacts with the United
States as a whole support the exercise of jurisdiction consistent with
the Constitution and laws of the United States. See United States v.
Swiss Am. Bank, Ltd., 191 F.3d 30, 41, 45 (1st Cir. 1999); Fed. R.
Civ. P. 4(k)(2) advisory committee note. This Base Metal has failed
to do. Base Metal has never attempted to argue that NKAZ is not sub-
ject to personal jurisdiction in any state. In fact, Base Metal continues
to assert that personal jurisdiction over NKAZ is proper in Maryland
as well as in other states. While, as the district court noted, "it is gen-
erally permissible for a litigant to present inconsistent alternate posi-
tions in a case," the problem here is that to determine that another
state lacks jurisdiction would require us to decide a question currently
pending before at least one of our sister circuits.
 BASE METAL TRADING v. OJSC 9
Even assuming that Base Metal could successfully argue that
NKAZ is not subject to personal jurisdiction in any state, Base Metal
has failed to proffer any evidence to demonstrate that NKAZ has suf-
ficient contacts with the United States as a whole to justify general
personal jurisdiction. Even when the allegations and declarations
before the district court are credited, the contacts relied upon by Base
Metal are insufficient. Base Metal’s declarations and allegations are
simply unsubstantiated statements asserting that NKAZ is a major
aluminum producer in Russia and has "extensive business contacts
inside Russia as well as around the world including in the United
States." Base Metal offers no concrete evidence of what these busi-
ness transactions are. As we have explained, NKAZ’s alleged con-
tacts with the United States appear sparse and limited to a few
shipments of aluminum arriving in American ports. It is not clear why
the limited resources of the federal courts should be spent resolving
disputes between two foreign corporations with little or no connection
to our country. And the burdens of subjecting a foreign company to
suit in this country in this case are not justified. Therefore, a finding
of jurisdiction in this case would turn the notion of "fair play and sub-
stantial justice" on its head.3

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

3
Base Metal also contends that the district court abused its discretion
by failing to permit jurisdictional discovery. However, the decision of
whether or not to permit jurisdictional discovery is a matter committed
to the sound discretion of the district court. See, e.g., Cent. States, South-
east & Southwest Areas Pension Fund v. Reimer Express World Corp.,
230 F.3d 934, 946 (7th Cir. 2000); Erdmann v. Preferred Research, Inc.,
852 F.2d 788, 792 (4th Cir. 1988). And where, as here, the plaintiff sim-
ply wants to conduct a fishing expedition in the hopes of discovering
some basis of jurisdiction, we see no reason to overturn the district
court’s exercise of discretion.