United States District Court, E.D. Michigan, Southern Division
ORDER CONVERTING MOTION HEARING TO STATUS CONFERENCE
AND DIRECTING PARTIES TO CONFER
H. CLELAND UNITED STATES DISTRICT JUDGE
before the court is Defendants' Motion to Dismiss the
First Amended Complaint. (Dkt. #11.) Plaintiff filed a
response (Dkt. #17), and Defendants submitted a reply (Dkt.
argue that this court lacks jurisdiction to hear the dispute
because Johor Corporation (“JCorp”) is owned by
the Malasian government and thus falls under the Foreign
Sovereign Immunity Act, 28 U.S.C. § 1602 et seq
(“FSIA”). In any case, they insist, the
constitutional requirements of due process do not permit the
assertion of jurisdiction over JCorp or its President and
CEO, Defendant Dato' Kamaruzzaman Bin Abu Kassim, because
they have not purposely availed themselves of the forum,
since Plaintiff's actual employer, WLC SA, is only
tangentially related to their business activities. Defendants
also move for dismissal on substantive grounds under Federal
Rule of Civil Procedure 12(b)(6).
STANDARD A. Subject Matter Jurisdiction, Federal Rule of
Civil Procedure 12(b)(1)
Rule of Civil Procedure 12(b)(1) allows for dismissal for
“lack of jurisdiction over the subject matter.”
Fed.R.Civ.P. 12(b)(1). When a defendant challenges subject
matter jurisdiction pursuant to this Rule, the plaintiff has
the burden of proving jurisdiction in order to survive the
motion. Mich. S. R. R. Co. v. Branch & St. Joseph
Ctys. Rail Users Ass'n Inc., 287 F.3d 568, 573 (6th
Cir. 2002). “The FSIA provides the ‘sole
basis' for the exercise of jurisdiction over a foreign
state, including its instrumentalities.” Rote v.
Zel Custom Mfg. LLC, 816 F.3d 383, 387-88 (6th Cir.
2016) (citing Republic of Argentina v. Weltover, 504
U.S. 607, 611, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992)).
“Under the Act, a foreign state is ‘immune from
the jurisdiction of the courts of the United States and of
the States' unless one of the statutory exceptions
applies.” Id. (quoting 28 U.S.C.
Personal Jurisdiction, Federal Rule of Civil Procedure
district court lacks jurisdiction over the defendants,
dismissal is appropriate under Federal Rule of Civil
Procedure 12(b)(2). “The burden of establishing
jurisdiction is on the plaintiff.” Tobin v. Astra
Pharm. Prod., Inc., 993 F.2d 528, 543 (6th Cir. 1993).
“A district court, in its discretion ‘may decide
the motion upon the affidavits alone; it may permit discovery
in aid of deciding the motion; or it may conduct an
evidentiary hearing to resolve any apparent factual
questions.'” Carrier Corp. v. Outokumpu
Oyj, 673 F.3d 430, 449 (6th Cir. 2012) (quoting
Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir.
1991)). However, when the court has elected to proceed
without discovery or a hearing, the evidence is considered in
the light most favorable to the plaintiff: the plaintiff must
only make a prima facie case, and the court does not consider
the “controverting assertions of the party seeking
dismissal.” Dean v. Motel 6 Operating L.P.,
134 F.3d 1269, 1272 (6th Cir. 1998). In addition, the
plaintiff must follow the general guidelines for pleading
standards-the plaintiff must allege specific facts to show
the standard has been met for personal jurisdiction.
Palnik v. Westlake Entm't, Inc., 344 Fed.
App'x. 249, 251 (6th Cir. 2009) (stating that complaints
must follow federal pleading standards for personal
jurisdiction issues as well).
federal court's exercise of jurisdiction over litigants
in a diversity of citizenship case must be both “(1)
authorized by the law of the state in which it sits, and (2)
in accordance with the Due Process Clause of the Fourteenth
Amendment.” Neogen Corp. v. Neo Gen Screening,
Inc., 282 F.3d 883, 888 (6th Cir. 2002). For Michigan,
the courts have determined Michigan's long-arm statute
gives the “maximum scope of personal jurisdiction
permitted by the due process clause of the Fourteenth
Amendment.” Chrysler Corp. v. Fedders Corp.,
643 F.2d 1229, 1236 (6th Cir. 1981). Due process is satisfied
if the defendant has “sufficient minimum
contacts” with the forum state “such that the
maintenance of the suit does not offend traditional notions
of fair play and substantial justice.” Int'l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(citation omitted). The test to satisfy the requirements of
due process “has three elements, all of which must be
met for personal jurisdiction to be found: (1) ‘The
defendant must purposefully avail himself of the privilege of
acting in the forum state or causing a consequence in the
forum state[;]' (2) ‘[t]he cause of action must
arise from the defendant's activities in the forum
state[; and]' (3) ‘[t]he acts of the defendant or
consequences caused by the defendant must have a substantial
enough connection with the forum state to make the exercise
of personal jurisdiction reasonable.'” One
Media IP Ltd. v. S.A.A.R. SrL, 122 F.Supp.3d 705, 716
(M.D. Tenn. 2015) (quoting S. Mach. Co. v. Mohasco
Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968)).
“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 with the
forum State that is the basis for its jurisdiction over
him.” Walden v. Fiore, 134 S.Ct. 1115, 1122
(2014) (citing Burger King Corp. v. Rudzewicz, 471
U.S. 462, 478 (1985)).
assert personal jurisdiction over a defendant outside of the
United States on a federal claim for which nationwide service
of process is authorized, Federal Rule of Civil Procedure 4
requires both that “the defendant [be] not subject to
jurisdiction in any state's courts of general
jurisdiction; and exercising jurisdiction is consistent with
the United States Constitution and laws.” Fed.R.Civ.P.
4(k)(2). The constitutional question “will require an
analysis under the Due Process Clause of the Fifth Amendment,
rather than the Fourteenth Amendment.” 4 Charles Alan
Wright, et al., 4 Fed. Prac. & Proc. Civ. § 1068.1
(4th ed. 2017). The Fifth Amendment Due Process analysis
mirrors that outlined in International Shoe but
looks to the contacts that Defendant had with the United
States as a whole rather than just the forum state. See,
e.g., See, Inc. v. Imago Eyewear Pty, Ltd., 167 Fed.
App'x. 518, 522-524 (6th Cir. 2006) (affirming district
court's determination that “Defendants' website
was passive with respect to the United States, . . . the
Defendants' overall contacts with the United States,
including the Defendants' website, did not provide
sufficient contacts with the United States to satisfy due
Subject Matter Jurisdiction Over JCorp
party claiming FSIA immunity bears the initial burden of
proof of establishing a prima facie case that it satisfies
the FSIA's definition of a foreign state; once this prima
facie case is established, the burden of production shifts to
the non-movant to show that an exception applies.”
O'Bryan v. Holy See, 556 F.3d 361, 376 (6th Cir.
2009) (quoting Keller v. Cent. Bank of Nig., 277
F.3d 811, 815 (6th Cir. 2002)). “The party claiming
immunity under FSIA retains the burden of persuasion
throughout this process.” Id.
argues that JCorp fails at the first point of inquiry---that
it is an “agency or instrumentality of a foreign
state” and thus entitled to immunity under
FSIA---because it has not shown that a majority stake of its
ownership interest is held by Malaysia. See 28
U.S.C. § 1603(b)(2). Defendants' reply contends in a
footnote that Plaintiff's arguments are inconsistent with
the assertion in her complaint that jurisdiction exists under
the FSIA, and that “Defendants' ...