Mattie Lolavar, t/a Triumph Communications International Group, Incorporated v. Fernando De Santibañes

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MATTIE LOLAVAR, t/a Triumph
Communications International
Group, Incorporated; TRIUMPH
COMMUNICATIONS INTERNATIONAL
GROUP, INCORPORATED,
Plaintiffs-Appellants,
v.
FERNANDO DE SANTIBAÑES,
Defendant-Appellee, No. 04-1901 
and
IKON HOLDINGS, INCORPORATED, t/a
Ikon Public Affairs, t/a Ikon Public
Affairs, LLC, t/a Ikon Public
Affairs, Incorporated; DICK MORRIS;
ROGER STONE; EILEEN MCGANN;
JOHN DOES, #1-10,
Defendants. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-04-238-A)
Argued: September 20, 2005
Decided: December 1, 2005
Before WIDENER and TRAXLER, Circuit Judges,
and R. Bryan HARWELL, United States District Judge
for the District of South Carolina,
sitting by designation.

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Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Traxler and Judge Harwell concurred.
COUNSEL
ARGUED: Bruce Elliott Fein, Washington, D.C., for Appellants.
William M. Brodsky, FOX, HORAN & CAMERINI, New York, New
York, for Appellee. ON BRIEF: Gary Sheehan, Fairfax, Virginia, for
Appellants. Jonathan Mazer, FOX, HORAN & CAMERINI, New
York, New York, for Appellee.
OPINION
WIDENER, Circuit Judge:
This case arises from a state suit alleging several common law
causes of action, including breach of contract, defamation and con-
spiracy. One of the defendants, Fernando de Santibañes, removed the
action to the district court and moved to dismiss himself from the case
for lack of personal jurisdiction. Plaintiffs challenged the removal as
untimely under 28 U.S.C. § 1446(b) and as not against a foreign state
under 28 U.S.C. § 1441(d). The district court granted de Santibañes’
motion to dismiss himself, holding there was no in personam jurisdic-
tion, without first considering its subject-matter jurisdiction under the
removal statutes. It then remanded the case to the state court. We
affirm.
I.
A.
Triumph Communications International Group, Incorporated is a
corporation that provides political consulting and public relations ser-
vices and is owned and operated solely by Mattie Lolavar.1
1Miss Lolavar married her attorney in this case, Bruce Fein, on May
15, 2004, and her name was changed to Mattie Fein. For consistency
with the record and the briefs, we refer to her by her maiden name.
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In early 2000, Miss Lolavar began discussions with defendant Dick
Morris about the possibility of her working with Craig Snyder and
defendant Roger Stone, who are partners in defendant IKON Hold-
ings, Inc., another political consulting firm. Miss Lolavar had addi-
tional discussions with defendant Eileen McGann, Morris’ wife, about
the possibility of Triumph Communications’ assistance with work
that IKON was doing for the government of Argentina.
These discussions lead to two contracts concerning Triumph and
IKON. The first, between IKON and de Santibañes, which was signed
on May 31, 2000, had a one-month term and was connected with
Argentine President Fernando de la Rua’s June 2000 visit to the
United States. Triumph was there listed as sub-agent of IKON. The
second, between IKON and Triumph, signed on July 21, 2000, was
to last for a year, and provided that Triumph would act as a public
relations consultant to "the Secretary of Intelligence of Argentina" as
well as arrange various media events that promoted Argentina in the
American media. Fernando de Santibañes was Secretary of Intelli-
gence of Argentina at the time the contract was signed.
Pursuant to this second contract, Miss Lolavar went to Argentina
in August 2000 to assist de Santibañes with preparations for his testi-
mony in Argentine congressional hearings inquiring into allegations
that he and the Argentine intelligence agency, known as SIDE, were
responsible for bribing various Argentine senators in exchange for
political support.
Morris and Stone assigned other tasks to Miss Lolavar while she
was in Argentina. Among other acts, they instructed her to contact
SIDE and obtain a list of journalists who accepted bribes from that
organization in order to harm the credibility of those same journalists
in reporting on a bribery scandal surrounding de Santibañes and Presi-
dent de la Rua, as well as requiring her to spread false information
to the press concerning de la Rua’s political opponent, Dr. Carlos
Menem.
The charges and counter-charges related here are from the papers in
the court file, as are the other facts.
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A request that occasioned controversy between Miss Lolavar and
the defendants was Morris and Stone’s request that she serve as an
intermediary in an anonymous wire transfer of funds to an official in
Israel. These funds were to be paid to secure intelligence files from
the Israeli government to assist de la Rua’s political domestic disputes
with Menem, and to imply a corrupt relationship between Menem and
George W. Bush, who was then running against Albert Gore for the
United States presidency. These files were to be altered by Miss Lola-
var to appear to be SIDE documents.
When the defendants became concerned that this plot would be dis-
covered and traced back to them, they ordered Miss Lolavar to
orchestrate a press response to blame Vice President Gore for the dis-
semination of the documents, since it was known to them that the
Gore campaign had been attempting to connect Menem with the Bush
campaign.
When Miss Lolavar refused to cooperate with these demands, the
defendants undertook a series of reprisals. First, they refused to pay
her fees under the contract until she executed the wire transfers. Addi-
tionally, they made a number of false defamatory statements concern-
ing her, including that she was anti-Semitic, that her efforts to
disclose these transactions were the result of a political bribe by
Menem’s Peronist Party, and that she forged the correspondence that
was evidence of the defendants’ wrongdoing.
B.
In response to the defendants’ actions, Miss Lolavar filed the com-
plaint in this case in the Circuit Court of Fairfax County, Virginia. De
Santibañes made a special appearance in the Fairfax Circuit Court to
prosecute a motion to quash service of process. This motion was
denied on February 14, 2004. De Santibañes subsequently removed
the case to the U. S. District Court for the Eastern District of Virginia
on March 5, 2004. In the district court, de Santibañes once again
made a special appearance to challenge the court’s jurisdiction over
him, arguing that he lacked sufficient minimum contacts to constitu-
tionally subject him to suit in Virginia.
The plaintiffs filed a motion to depose de Santibañes. Neither side
appeared before the magistrate judge when the motion was scheduled
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to be heard. The plaintiffs claim without documentation that this was
the result of erroneous directions by the clerk’s office that the hearing
would take place before the district court, rather than a magistrate.
The defendants have not addressed that fact, and the record throws no
definitive light on the question. The district court subsequently dis-
missed the suit against de Santibañes for lack of personal jurisdiction
and denied the plaintiffs’ Rule 59(e) motion to alter or amend the
judgment. In the same order, the district court granted a motion by
plaintiffs to remand this case to the Circuit Court of Fairfax County.
The plaintiffs appealed.
II.
We review de novo a district court’s dismissal for lack of personal
jurisdiction. Christian Science Bd. of Dirs. of the First Church of
Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001). How-
ever, we review underlying factual findings for clear error, ALS Scan,
Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 710 (4th Cir.
2002), and the decision to address personal jurisdiction prior to
subject-matter jurisdiction for abuse of discretion. Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 588 (1999) (holding that the district
court did not abuse its discretion in first deciding personal jurisdic-
tion).
As a preliminary matter, de Santibañes now argues that the plain-
tiffs’ notice of appeal stated only that it was appealing the district
court’s ruling on their Rule 59(e) motion to alter or amend the judg-
ment dismissing for lack of personal jurisdiction. That argument is
questionable, but even if not, because the case has been briefed and
argued upon the merits of the underlying orders of the district court,
we do not ground this decision upon any such argument and will con-
sider the appeal as being from the underlying judgment as well as the
motion to alter or amend the judgment. See Foman v. Davis, 371 U.S.
178 (1962); Town of Norwood v. New England Power Co., 202 F.3d
408, 415 (1st Cir. 2000); 11 Wright, Miller & Kane, Federal Practice
and Procedure § 2818, at 192-93 & n.11 (2d ed. 1995).
III.
The plaintiffs’ brief presents a single issue on appeal, which is:
"[w]hether the district court committed legal error in deciding the
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merits of Appellee’s personal jurisdiction defense without deciding
whether subject matter jurisdiction attached . . . where the subject
matter jurisdiction question was neither difficult nor novel." Br. p.1.
An initial difficulty with the issue, as just stated in plaintiffs’ brief,
is that the record in this court does not demonstrate that the question
of subject matter jurisdiction is "neither difficult nor novel."
The first uncertainty is the plaintiffs’ contention that de Santibañes’
removal was untimely. The statute governing removal allows defen-
dants to remove "within thirty days after the receipt by the defendant,
through service or otherwise, of a copy of the initial pleading setting
forth the claim for relief upon which such action or proceeding is
based." 28 U.S.C. § 1446(b). However, according to the state court
docket sheet,2 the record does not contain the initial motion for judg-
ment3 that was filed in the state court on September 12, 2002. Neither
does it contain the first and second amended motions for judgment
filed February 14 and March 7, 2003. There is no indication when or
even if de Santibañes received copies of these versions of the com-
plaint, by way of service or otherwise. Process was issued September
16, 2002. Whether or when that process was executed, the record does
not show.
Instead, the earliest motion for judgment in the record is the third
amended motion for judgment, which was not filed in the state court
until May 30, 2003. The record does not indicate exactly when de
Santibañes received, or became aware of, this version of the com-
plaint. It may well have been when the state court’s order of February
13, 2004 held service of process effective. The February 13, 2004
order gave plaintiffs 21 days to serve a fourth amended motion for
judgment, a copy of which is in the appendix but which apparently
was never filed. In de Santibañes’ opposition to the plaintiffs’ remand
motion, he asserts that the complaint was not served on him, rather
2That docket sheet does not indicate any addition or deletion of parties,
neither does it preclude such addition or deletion. We take judicial notice
of the records of a court of record. It was not included in the record on
appeal.
3A motion for judgment is the Virginia counterpart of a federal com-
plaint. Cf. Fed. R. Civ. P. 3 with Va. Sup. Ct. R. 3:3.
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it was mailed to someone at the "Midwest Training Center" in Elk
River, Minnesota. The record does not indicate what, if any, ties de
Santibañes has to the Midwest Training Center, or whether any accep-
tance of the document there served fulfills the removal statute’s
requirement that the defendant receive the document.
The third amended motion for judgment raised a new difficulty as
well. At least in that motion for judgment, the plaintiffs alleged that
"during all times relevant herein . . . [de Santibañes was] employed
as the Secretary of Intelligence for the Government of Argentina, also
known as SIDE," (JA 17); "de Santibañes was the foreign principal
under the contracts who then served as the Secretary of Intelligence
in Argentina for the agency known as SIDE," (JA 19); "de Santibañes
and his agency conducted business with the plaintiff," (JA 19); and
"de Santibañes traveled as Secretary of Intelligence for purposes
related to the causes of action herein." (JA 19). These statements pro-
vide support for de Santibañes’ allegations that his acts in the suit
were done in his capacity as an official of a foreign sovereign, which
could entitle him to immunity from "jurisdiction of the courts of the
United States and of the States" under 28 U.S.C. § 1603. See 28
U.S.C. §§ 1603-1607.
However, determining whether de Santibañes was actually acting
as an agent of a sovereign state is not as uncomplicated as plaintiffs
would have it. Despite these statements in the third amended motion
for judgment, the plaintiffs have since insisted that their suit is pro-
ceeding against him in his individual, rather than his official, capac-
ity. For example, in their motion for remand, filed March 24, 2004,
they assert that de Santibañes was being sued "in his individual capac-
ity as a citizen of Argentina . . . not an instrumentality of a foreign
state" for actions "outside the scope of his official responsibilities as
chief of the Argentine intelligence agency, SIDE." (JA 164)
The shifting positions of the plaintiffs are compounded by the exis-
tence of what we are told is a "Fourth Amended Motion for Judg-
ment," which has deleted some of the just referenced statements
concerning de Santibañes, and instead includes more vague allega-
tions with respect to de Santibañes’ resignation from his Argentina
government post and his status, apparently when the complaint was
filed, rather than his status at the time the alleged events took place.
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(JA 85) This fourth amended motion for judgment does not appear on
the state court’s docket sheet, although de Santibañes states in his
motion to dismiss for lack of personal jurisdiction that "[h]e was then
formally served with the Forth (sic) Amended Motion For Judgment
several days [after losing his motion to quash summons in the state
court]." (JA 169) As such, it is unclear at best which allegations the
court should look to in determining the then present status of the case
and its status in the relevant past.
Ultimately, the district court would have been required to conduct
an extensive hearing that also might have addressed many of the same
facts relating to jurisdiction as would be litigated in the actual trial,
in order to determine what de Santibañes’ status actually was during
his alleged activities.
Compounding the difficulties attendant to de Santibañes’ potential
status as an official of a foreign government is the effect that it has
on the already confused removal procedure. 28 U.S.C. § 1441(d),
which governs the removal of civil actions against foreign nations,
allows the thirty day time limits found in 1446(b) to be enlarged "at
any time for cause shown." This provision would add another layer
of complexity to the already difficult question of whether the removal
was timely, and require the district court to ascertain by hearing, if
required, to determine if the facts of this case demonstrate sufficient
cause to excuse any delay.
The district court was presented this incomplete and perhaps con-
tradictory record. The plaintiffs immediately filed a motion for
remand and challenged the existence of subject matter jurisdiction on
a number of grounds that included the timing of the removal and de
Santibañes’ status as an official of the Argentine government. Ruling
on that motion would have required the district court to examine and
make findings on at least the difficulties discussed above. Our catalog
of these problems demonstrates that, contrary to the plaintiffs’ argu-
ment, the question of subject matter jurisdiction in this case was not
"neither difficult nor novel."
However, the district court was not required to preside over a
debate on subject matter jurisdiction. At the same time the plaintiffs’
motion for remand was under consideration, de Santibañes filed his
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motion to dismiss for lack of personal jurisdiction. This motion was
supported by an uncontested affidavit detailing that de Santibañes had
essentially no contacts with Virginia or with the plaintiffs, including
that he had never resided in Virginia, did not own any property in the
State, does not receive income from any business with operations in
the State, and has never sent nor received correspondence from the
State.4 The plaintiffs did not contest the information in the affidavit
4The essential terms of the affidavit follow:
FERNANDO de SANTIBAÑES declares pursuant to 28 U.S.C.
§ 1746 and under penalty of perjury under the laws of the United
States of America that the following is true and correct:
1. I am named as a defendant in the above captioned matter. I
make this declaration in support of my motion to dismiss this
action for lack of personal jurisdiction in that I did not have any
contacts with the Commonwealth of Virginia which would jus-
tify this court or the courts of the Commonwealth of Virginia
from exercising jurisdiction over me. The facts set forth below
refer to all times material to the Motion for Judgment in this
action right up until the present.
2. I am a citizen and resident of Argentina.
3. I have never lived, worked or maintained an office in Vir-
ginia.
4. I never subscribed to a telephone in Virginia.
5. I have never held any license, including a driver’s license,
issued by Virginia.
6. I was not a party to any contract with either of the plaintiffs.
7. I have never owned any real or personal property in Vir-
ginia.
8. I have never held any bank accounts or other assets in Vir-
ginia.
9. I have never conducted or operated any business in Virginia.
10. I have never had any employees in Virginia.
11. I have never sued anyone or been sued in Virginia.
12. I have never met with the plaintiff Mattie Lolovar in Vir-
ginia. The only time I met her was on a social occasion at a
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by way of affidavit or testimony. Although they did request a deposi-
tion of de Santibañes, they failed to appear at the hearing before the
magistrate judge, leading the magistrate judge to enter an order deny-
ing the deposition request. The district court affirmed that decision.
The Supreme Court’s decision in Ruhrgas was crafted to allow
courts that find themselves in situations such as that currently before
us to avoid the large and difficult issues when a more straightforward
solution is present. There, the Court reasoned that "[w]here . . . a dis-
trict court has before it a straightforward personal jurisdiction issue
presenting no complex question of state law, and the alleged defect
in subject-matter jurisdiction raises a difficult and novel question, the
court does not abuse its discretion by turning directly to personal
jurisdiction." Ruhrgas AG, 526 U.S. at 588. In such circumstances, "a
federal court may decide a straightforward question concerning per-
sonal jurisdiction without first determining that it has subject-matter
jurisdiction over the case." Constantine v. Rectors and Visitors of
George Mason Univ., 411 F.3d 474, 480 (4th Cir. 2005), citing Ruhr-
gas AG, 526 U.S. at 588. This is because "there is no unyielding juris-
dictional hierarchy," Ruhrgas AG, 526 U.S. at 578, and because "[t]he
validity of an order of a federal court depends upon that court’s hav-
ing jurisdiction over both the subject matter and the parties." Con-
stantine, 411 F.3d at 480 (quoting Ins. Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982))
(emphasis in original).
Here, the facts and circumstances of the litigation demonstrate that
the issues of subject matter jurisdiction raised in this case would be
friend’s home in New York or Connecticut. I have never had any
direct relationship with either of the plaintiffs. I have never
directed either of the plaintiffs to perform any work in Virginia
or elsewhere.
13. Except on the one social occasion mentioned above, I have
never communicated with the plaintiffs or transmitted any
money to either of the plaintiffs.
14. I have never communicated in Virginia by telephone, e-
mail, fax, letter or otherwise with the plaintiffs or any other
defendant.
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substantial and perhaps difficult to resolve. In such a situation, the
district court properly elected to address the straightforward and sim-
ple personal jurisdiction question without first addressing subject-
matter jurisdiction.
In arriving at our conclusion, we emphasize that by addressing the
assignment of error which we have quoted above from the plaintiffs’
brief, we do not indicate that that assignment of error states the cor-
rect standard. The standard of review of the orders of the district
court, which had chosen between questions of personal and subject
matter jurisdiction, is abuse of discretion. Ruhrgas AG, 526 U.S. at
588. In considering which jurisdictional question to address, the dis-
trict court is entitled to consider whether each of the jurisdictional
issues, personal or subject matter, are simple and straightforward or
are complex and perhaps difficult. Upon making its choice of which
avenue to follow, the district court should be affirmed unless it has
abused its discretion. And it is not an abuse of such discretion to
choose the simple and straightforward, as here, as opposed to a com-
plex and perhaps difficult route.
We hold that the district court did not abuse its discretion in decid-
ing first the question of personal jurisdiction.
IV.
Certain other matters should be mentioned.
A.
Bell v. Hood, 327 U.S. 678 (1946) is the principal reliance of plain-
tiffs for the proposition that a district court must consider subject mat-
ter jurisdiction before considering personal jurisdiction. While in
somewhat different context, Bell v. Hood, so far as it applies to this
case, would lead to the opposite conclusion. In that case, the plaintiffs
sued FBI agents, claiming an unlawful search and unlawful imprison-
ment were violations of the Fourth and Fifth Amendments to the Con-
stitution, and actionable as a case of federal question jurisdiction
under the then arising under statute, 28 U.S.C. § 41(1). The district
court dismissed the case for want of federal question jurisdiction and
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was affirmed by the court of appeals. The Supreme Court, however,
reversed. It held that since there was a question as to whether or not
the allegations of the complaint stated a cause of action on which the
Court could grant relief, and since the claim of such a cause of action
for unlawful search and imprisonment was not wholly insubstantial or
frivolous, or immaterial and made for the sole purpose of obtaining
jurisdiction, the district court should have "assume[d] jurisdiction to
decide whether the allegations state[d] a cause of action on which the
Court [could] grant relief . . ." 327 U.S. at 682.
Bell v. Hood has been followed in many cases in the courts of
appeals, including our own. For example, in Donohoe Const. Co., Inc.
v. Montgomery Cty. Council, 567 F.2d 603 (4th Cir. 1977), a case
similar to Bell v. Hood in which the claim was a de facto taking of
property, we held that the district court "acted properly in assuming
jurisdiction under 28 U.S.C. § 1331" to decide the merits of the con-
troversy so long as the questions raised were not frivolous on their
face. Donohoe, 457 F.2d at 607. And in Sunrise Corp., Myrtle Beach
v. Myrtle Beach, 420 F.3d 322 (4th Cir. 2005), a district court was
reversed for dismissing for lack of prudential standing when the con-
tested basis for jurisdiction was also an element of plaintiffs’ federal
claim. We held it should have addressed the objection to jurisdiction
as an attack on the merits. Sunrise Corp., 420 F.3d at 325, n.1.
Thus, Bell v. Hood and its applications in this circuit demonstrate
that there is no invariable rule, as plaintiffs claim, that in each
instance a district court must find its subject matter jurisdiction before
addressing other questions in the controversy. We hold that plaintiffs’
reliance on Bell v. Hood and the cases following that decision is mis-
placed.
B.
On appeal, the plaintiffs do not directly attack the holding of the
district court, based on de Santibañes’ uncontradicted affidavit, that
it lacked personal jurisdiction. Their argument goes, however, that
personal jurisdiction is obtained upon " . . . a theory of co-conspirator
personal jurisdiction, where the actions of one co-conspirator in the
forum [S]tate can be attributed to the other co-conspirators for pur-
pose of personal jurisdiction." Br. at 9, n.1.
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The district court held a hearing on de Santibañes’ motion to dis-
miss himself from the case for want of personal jurisdiction over him.
Essentially, the district court’s decision is expressed in this quotation
from its opinion:
Nothing which is before the Court provides any basis for a
finding of personal jurisdiction under a conspiracy theory
over de Santibañes, beyond the mere allegation of a conspir-
acy. J.A. 193.
The case was removed to the federal district court from the Circuit
Court of Fairfax County on March 5, 2004. On March 18, 2004, de
Santibañes gave notice that he would bring on a motion to be heard
that the case be dismissed against him "for lack of personal jurisdic-
tion" on April 2, 2004, or as soon thereafter as the court might hear
the matter. On March 24, 2004, plaintiffs moved to remand the case
to the Circuit Court of Fairfax County. Also, on March 24, 2004,
plaintiffs moved the court to require de Santibañes to submit to depo-
sition at the offices of plaintiffs’ attorney in Fairfax, Virginia. The
motion to take the deposition was denied by order of the magistrate
judge, entered April 23, 2004, and on April 23, 2004, the court heard
argument on de Santibañes’ motion to dismiss himself from the case
for want of personal jurisdiction, and, as well, as an appeal from the
order of the magistrate judge denying the motion to take de Santi-
bañes’ deposition, which order was entered on account of the failure
of plaintiffs to appear to prosecute their motion.
During this period of time, between March 5, 2004 and April 23,
2004, on April 8, 2004, an affidavit was filed by de Santibañes with
respect to his absence of contacts with Virginia, which affidavit is
copied into this opinion in Part III, note 4. Up until the time of that
hearing, on April 23, 2004, plaintiffs had filed no opposition to de
Santibañes’ motion to dismiss.5 Neither had any affidavit been filed
by the plaintiffs to contradict the affidavit of de Santibañes. So de
Santibañes’ affidavit stands uncontradicted.
The theory of obtaining personal jurisdiction by the showing of a
5Any transcript of that hearing is not a part of the record.
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conspiracy so that a conspirator not present in the forum State will,
nevertheless, be adjudged to have had a personal presence in the
forum State by means of adequate minimum contacts of the other
conspirators therein, has been addressed to some extent by the cir-
cuits. And, an article in the Fordham Law Review has considered the
question. See Althouse, The Use of Conspiracy Theory to Establish in
Personam Jurisdiction: a Due Process Analysis, 52 Fordham Law
Review, 254 (1983).
In this circuit the case of McLaughlin v. McPhail, 707 F.2d 800
(4th Cir. 1983), is so nearly on point as to be controlling. In
McLaughlin, the plaintiff had sued three defendants, charging they
were engaged in a fraudulent conspiracy. The defendants moved to
dismiss the case "for lack of in personam jurisdiction." The court
accepted the conspiracy theory as a means of showing sufficient con-
tacts with the State of Maryland to authorize in personam jurisdiction.
But the plaintiff offered "nothing but his bare allegations" that the
defendants had had sufficient contacts with the State of Maryland.
The court adopted the rule that the plaintiff in such a case is required
to make a threshold showing that a conspiracy existed and that the
defendants participated therein. McLaughlin, 707 F.2d at 807.
Because there was no evidence of a conspiracy, the court affirmed the
decision of the district court which had dismissed the case for lack of
in personam jurisdiction. And because there had been no facts intro-
duced to support a prima facie case showing a conspiracy by the
defendants, the court also affirmed the decision of the district court
as it denied the defendant’s motion to compel the testimony of one
of the defendants.
In the case of First Chicago Int’l. v. United Exchange Co., Ltd.,
836 F.2d 1375 (D.C. Cir. 1988), that court upheld the decision of the
district court that "due process precludes the exercise of personal
jurisdiction of [some of] the . . . defendants." 836 F.2d at 1377. The
claim of the plaintiff was that the court had jurisdiction over a first
foreign defendant through the agency of a second foreign defendant
and a domestic defendant, the three of whom had conspired to injure
the plaintiff bank. The conspiracy charged was of a check kiting
scheme engaged in between three conspirators to the detriment of the
plaintiff bank. The plaintiff, however, had fallen short of making a
prima facie case of the check kiting conspiracy. The opinion recited,
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"[t]here is no concrete evidence in the record indicating that there was
a common plan . . ." 836 F.2d at 1378. The court reasoned that such
a plaintiff must allege specific facts connecting the defendant with the
forum and that "the bare allegation of conspiracy or agency is insuffi-
cient to establish personal jurisdiction," citing McLaughlin, 707 F.2d
at 806 (4th Cir. 1983). 836 F.2d at 1378-79. The holding of the court
was that the District did "not have personal jurisdiction over the
UNEXCO defendants." So our decision in McLaughlin was followed
by the D.C. Circuit. First Chicago also depended for support in its
reasoning upon Lehigh Valley Indus. v. Birnbaum, 527 F.2d 87 (2d
Cir. 1975), for the statement that "New York law seems to be clear
that the bland assertion of conspiracy or agency is insufficient to
establish jurisdiction for the purposes of § 302(a)(2)." 527 F.2d at 93-
94.6
In our case, as the district court recognized, there are no facts in
the record as to Virginia contacts which serve to contradict the affida-
vit of de Santibañes. We are aware that in the various cases on this
subject, some of them may have turned on the failure or success in
complying with a long-arm or like statute. But however phrased, the
McLaughlin case and the First Chicago case are both decided on the
lack of personal jurisdiction, which is the issue here, not whether or
not service of process was sufficient. We follow those cases.
The judgment of the district court is accordingly
AFFIRMED.
6Section 302(a)(2) refers to a section of the New York Civil Practice
Law and Rules that specifically provides that personal jurisdiction
attaches where "a non-domiciliary . . . who in person or through an agent
. . . commits tortious act within the state." N.Y.C.P.L.R. § 302.
15 LOLAVAR v. DE SANTIBAÑES

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