Holocaust Victims of v. OTP Bank

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2353

E RNO K ALMAN A BELESZ et al.,Œ

Plaintiffs-Appellees,

v.

OTP B ANK,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.

No. 11-2386

E RNO K ALMAN A BELESZ et al.,

Plaintiffs-Appellees,

v.

MKB B ANK Z RT., sued as

MKB B AYERISCHE L ANDESBANK,

Defendant-Appellant.

Œ

These appeals had been captioned “Holocaust Victims of Bank

Theft v. OTP Bank” and “Holocaust Victims of Bank Theft v. MKB

Bank Zrt.” We have reformed the captions to name the first

named plaintiff. Federal Rule of Civil Procedure 10(a)

requires pleadings to name parties, not to presume the merits

of the plaintiffs’ claims, no matter how compelling they may be.

2 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.

No. 11-2875

E RNO K ALMAN A BELESZ et al.,

Plaintiffs-Appellees,

v.

MKB B ANK Z RT., sued as

MKB B AYERISCHE L ANDESBANK,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.

No. 11-3247

IN RE:

MKB B ANK Z RT., sued as

MKB B AYERISCHE L ANDESBANK,

Petitioner.

Petition for Writ of Mandamus to

the Northern District of Illinois, Eastern Division.

No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 3

No. 11-3249

IN RE:

OTP B ANK,

Petitioner.

Petition for Writ of Mandamus to

the Northern District of Illinois, Eastern Division.

No. 1:10-cv-01884—Samuel Der-Yeghiayan, Judge.

A RGUED JANUARY 11, 2012—D ECIDED A UGUST 22, 2012

Before K ANNE, W ILLIAMS, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. A group of Holocaust

survivors and heirs of other Holocaust victims filed suit

against several banks alleging that the banks par-

ticipated in expropriating property from Hungarian

Jews during the Holocaust. This case and a parallel

case against the Hungarian national railway have pro-

duced nine separate pending appeals and mandamus

petitions. In this opinion, we address the plaintiffs’

claims against two privately owned Hungarian banks,

defendants MKB Bank Zrt. (“MKB”) and OTP Bank

(“OTP”). In separate opinions released today, we

address plaintiffs’ claims against another private bank,

the Hungarian national bank, and the Hungarian

4 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

national railway.1

Plaintiffs’ complaint describes a part of the tragic,

historic crimes that were the Holocaust, focusing on

the role of Hungarian banks in expropriating money

from Jews and financing part of the Holocaust. Since

defendants seek review of denials of their motions to

dismiss, our account of the facts treats all factual allega-

tions in the complaint as true. As post-World War I

treaties took their economic toll on Hungary, the non-

Jewish population became increasingly hostile toward

Hungarian Jews who, as a group, enjoyed relatively great

economic influence. The widespread murders of the

Holocaust came relatively late to Hungary, in April 1944,

but long before then, Hungarian Jews were subjected

to a series of anti-Semitic decrees that sought to limit

Jewish economic influence and property ownership.

Jews were ordered to turn over their personal

property and valuables to officials who collected the

property and gave receipts to the owners — ostensibly so

the owners could reclaim the property at a future date.

A special account was created to centralize and

coordinate the funds from frozen and looted Jewish

bank accounts. “Aladar” (“straw men”) were designated

by the government to administer Jewish property.

Plaintiffs allege that Hungarian banks, including de-

fendants MKB and OTP, played critical roles in the ex-

1

See Abelesz v. Erste Group Bank AG, ___ F.3d ___ (7th Cir. 2012);

Abelesz v. Magyar Nemzeti Bank, ___ F.3d ___ (7th Cir. 2012).

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 5

propriation scheme, which was essential to finance the

genocide of the Holocaust in Hungary. The scheme relied

on Hungarian banks to freeze the assets of their Jewish

customers, preventing them from withdrawing funds

to finance escape from the ever-increasing Hungarian

repression. Plaintiffs allege that expropriation of Jews’

wealth was also a critical component of the genocide,

both to fund the government’s murderous activities and

to impoverish survivors so that it would be impossible

for them to return to their homes in Hungary. Beginning

in April 1944, Hungarian Jews were deported to

Auschwitz and other death camps. After the end of

World War II, some Jewish survivors or heirs of murdered

victims attempted to return to their family homes and

to retrieve valuables in safe deposit boxes. Those who

were able to return found empty safe deposit boxes and

homes occupied by strangers.

Invoking subject-matter jurisdiction under the

Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.

§ 1330(a), the Alien Tort Statute, 28 U.S.C. § 1350, and

federal question jurisdiction, 28 U.S.C. § 1331, plaintiffs

allege six causes of action: genocide, aiding and abetting

genocide, bailment, conversion, constructive trust, and

accounting. Plaintiffs seek to have their case certified as

a class action and ask that each defendant bank be

held jointly and severally responsible for damages of

approximately $75 billion. The defendant banks moved

to dismiss on many grounds, including lack of subject-

matter jurisdiction and lack of personal jurisdiction.

The district court denied all motions to dismiss, motions

to reconsider, and motions for certification of inter-

6 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

locutory appeal under 28 U.S.C. § 1292(b). Holocaust

Victims of Bank Theft v. Magyar Nemzeti Bank, 807 F. Supp.

2d 689 (N.D. Ill. 2011) (denying motions to dismiss); 807

F. Supp. 2d 699 (N.D. Ill. 2011) (denying motions for

reconsideration, clarification, and certification of inter-

locutory appeal).

Those denials pose some challenging problems of

appellate jurisdiction, as we explain below. The appellate

jurisdiction story in this case begins with defendant

Magyar Nemzeti Bank (“MNB”), the Hungarian national

bank, which moved to dismiss based on a defense of

sovereign immunity under the FSIA, 28 U.S.C. § 1604.

The district court denied MNB’s motion. MNB has ap-

pealed the district court’s denial of its motion to dismiss

on sovereign immunity. As we explain in Abelesz v.

Magyar Nemzeti Bank, it is well established that an order

denying sovereign immunity under the FSIA is a collateral

order subject to interlocutory appeal. ___ F.3d at ___.

From that one sound basis for appellate jurisdiction,

MNB has asked us to exercise pendent appellate juris-

diction over the other arguments it made for dismissal.

And, in turn, appellants MKB and OTP, like Erste

Group Bank, seek here to stretch the narrow doctrine of

pendent appellate jurisdiction to include their appeals

and the separate issues they seek to raise. MKB and OTP,

like Erste, also filed petitions for writs of mandamus,

which they ask us to consider in the event that appellate

jurisdiction is lacking.

We dismiss MKB’s and OTP’s appeals for lack of appel-

late jurisdiction. Their petitions for writs of mandamus

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 7

are granted, however, based on an unusual combination

of the extraordinary nature of this litigation and the

complete absence of any arguable basis for exercising

general personal jurisdiction over MKB and OTP in a

U.S. court.

The losses alleged by plaintiffs were part of the crimes

of the Holocaust in central Europe in the 1940s. This case

demonstrates some of the limits in trying to use civil

courts on another continent to obtain legal relief for

those crimes, now more than 60 years old. Our order

that the claims against MKB and OTP be dismissed is

not based on a determination that the conduct alleged

here was beyond the reach of the law. When faced with

similar claims, Judge Kram wrote eloquently:

It goes without saying that the events which form

the backdrop of this case make up one of the darkest

periods of man’s modern history. Those persecuted

by the Nazis were the victims of unspeakable acts of

inhumanity. At the same time, however, it must be

understood that the law is a tool of limited capacity.

Not every wrong, even the worst, is cognizable as

a legal claim.

In re Austrian & German Bank Holocaust Litigation, 80

F. Supp. 2d 164, 177 (S.D.N.Y. 2000), aff’d on other grounds

sub nom. D’Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir.

2001). We agree. We are a court of law that must itself

comply with the law. We must confront a basic jurisdic-

tional question — whether plaintiffs are entitled to

require these defendants to defend themselves in a

U.S. federal court. The district court lacks the constitu-

8 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

tional power to exercise personal jurisdiction over these

defendants, so the answer to that question is no. We

order the district court to dismiss the claims against

MKB and OTP for lack of personal jurisdiction.2

I. Appellate Jurisdiction

At the outset, we must consider our own jurisdic-

tion over these appeals. MKB and OTP seek review of

the district court’s denial of their motions to dismiss. As

a general rule, the district court must issue a final order

before an appellate court has jurisdiction to entertain

an appeal. See 28 U.S.C. § 1291. MKB and OTP both

argue that this court has pendent appellate jurisdiction

2

Because we lack appellate jurisdiction and grant mandamus

for both MKB and OTP based on the district court’s clear lack of

personal jurisdiction, we do not address a number of other

arguments made by MKB and OTP, including the act of state

doctrine, the political question doctrine, treaty-based argu-

ments, statutes of limitations, and subject-matter jurisdiction.

We note for completeness, however, that the Supreme Court is

currently considering two aspects of the scope of the Alien

Tort Statute that may be relevant to plaintiffs’ claims here:

(1) whether corporations are subject to tort liability for viola-

tions of the law of nations, and (2) whether and under what

circumstances the ATS allows U.S. courts to hear claims for

violations of the law of nations occurring within the territory

of a sovereign other than the United States. See Kiobel v.

Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), cert.

granted, 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011) (No. 10-1491),

calendared for reargument, 80 U.S.L.W. 3506 (Mar. 5, 2012).

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 9

over their appeals on the theory that the issues they

present are “inextricably intertwined” with MNB’s

appeal of the district court’s denial of foreign sovereign

immunity. MKB further argues that the “adverse foreign

policy consequences” of maintaining the suit against

it render the district court’s refusal to dismiss the case a

collateral order subject to immediate appeal. Neither

argument provides us with jurisdiction over MKB’s

and OTP’s appeals.

A. Pendent Appellate Jurisdiction

As noted, defendant MNB, the Hungarian national

bank, has appealed the district court’s denial of its sover-

eign immunity defense under the FSIA. In its own

appeal, MNB raises other issues that it argues are

pendent to the FSIA immunity defense. We clearly have

jurisdiction over MNB’s appeal of the denial of sovereign

immunity and address the merits of that defense in a

separate opinion in Abelesz v. Magyar Nemzeti Bank. ___

F.3d ___. From this one solid foothold on appellate juris-

diction, MKB and OTP argue that this court should exer-

cise pendent appellate jurisdiction over their appeals

because they are “inextricably intertwined” with MNB’s

appeal. We disagree.

Pendent appellate jurisdiction is a narrow doctrine

that allows an appellate court “to review an otherwise

unappealable interlocutory order if it is ‘inextricably

intertwined with an appealable one.’ ” Research Automation,

Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 977

(7th Cir. 2010), quoting Montano v. City of Chicago, 375 F.3d

10 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

593, 599 (7th Cir. 2004). The Supreme Court sharply

restricted the use of pendent appellate jurisdiction in

Swint v. Chambers County Comm’n, 514 U.S. 35, 43-51 (1995),

but left a narrow path that the Court later followed in

Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997), where an

appealable collateral order denying presidential

immunity was “inextricably intertwined” with an order

staying discovery and postponing trial. This “vestige of

the doctrine survives,” though we have said that

pendent appellate jurisdiction “has not flourished” since

Swint. Caldwell-Baker Co. v. Parsons, 392 F.3d 886, 887

(7th Cir. 2004); see also McCarter v. Retirement Plan for

Dist. Managers of American Family Ins. Grp., 540 F.3d 649,

653 (7th Cir. 2008) (“[E]ven when circumstances are

exceptional the availability of pendent appellate juris-

diction is doubtful.”). At best, pendent appellate juris-

diction may be invoked only if there are “compelling

reasons” for not deferring the appeal of the otherwise

unappealable interlocutory order to the end of the

lawsuit. People of State of Ill. ex rel. Hartigan v. Peters, 861

F.2d 164, 166 (7th Cir. 1988); see also McCarter, 540 F.3d

at 653 (“only the most extraordinary circumstances

could justify the use of whatever power the courts of

appeals possess” to exercise pendent jurisdiction).

This room for the “inextricably intertwined” use of

pendent appellate jurisdiction should not be stretched

to appeal normally unappealable interlocutory orders

that happen to be related — even closely related — to the

appealable order. Hartigan, 861 F.2d at 166; see also U.S.

for Use of Valders Stone & Marble, Inc. v. C-Way Const. Co.,

909 F.2d 259, 262 (7th Cir. 1990) (“A close relationship

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 11

between the unappealable order and the appealable

order will not suffice: it must be practically indispensable

that we address the merits of the unappealable order

in order to resolve the properly-taken appeal.”). This is

because resolving appeals from non-final decisions is

generally incompatible with the final-judgment rule

embodied in 28 U.S.C. § 1291. McCarter, 540 F.2d at 653.

Given the narrow scope of the doctrine, neither MKB

nor OTP makes a compelling case for exercising

pendent appellate jurisdiction. As we decide in Abelesz v.

Magyar Nemzeti Bank, we have appellate jurisdiction

over MNB’s appeal of the district court’s denial of sover-

eign immunity, but we decline to exercise pendent ap-

pellate jurisdiction over the other issues that MNB

itself seeks to raise. ___ F.3d at ___. MKB’s and OTP’s

appeals are further attenuated, arguing that some

issues they raise on appeal are pendent directly to

MNB’s sovereign immunity defense and some issues

are pendent to MNB’s other issues over which we do

not have jurisdiction.3 From the one solid foothold on

3

To support pendent party appellate jurisdiction, defendants

cite our decision in Greenwell v. Aztar Indiana Gaming Corp., 268

F.3d 486, 491 (7th Cir. 2001), where we exercised pendent

jurisdiction over a malpractice claim “entwined” with an

indemnity claim properly before the court because doing so

“served [the] broader purposes of efficiency and consistent

resolution of the case.” Jones v. InfoCure Corp., 310 F.3d 529, 536

(7th Cir. 2002). As plaintiffs point out, however, we have since

noted that in Swint, the Supreme Court rejected “judicial

(continued...)

12 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

appellate jurisdiction — denial of sovereign immunity

for MNB — these other defendants ask this court to review

nearly every issue they raised in the district court, and

to do so after the litigation has progressed no further

than the denial of their respective motions to dismiss.

The pendent party appellate jurisdiction that MKB

and OTP rely upon has not survived Swint. See 514 U.S.

at 51.

The varied issues raised by the defendants do not

concern “the same single issue.” Research Automation, Inc.,

626 F.3d at 977 (“Both the denial of the injunction and

the district court’s transfer order concern the same single

issue: whether this case should be litigated in Illinois or

in Virginia.”). Nor are they “the head and tail of the

same coin.” Hartigan, 861 F.2d at 166. While the issues

that MKB and OTP seek to argue are no doubt closely

related to the issues that MNB appeals, they are not

so “inextricably intertwined” with MNB’s sovereign

immunity defense as to make it “practically indispensable”

that we address their merits now. See Swint, 514 U.S. at

51; Valders Stone & Marble, 909 F.2d at 262. Exercising

pendent appellate jurisdiction over MKB’s and OTP’s

appeals would not be consistent with the statutes and

case law establishing the final-judgment rule.

3

(...continued)

economy” as an appropriate basis for pendent appellate

jurisdiction. McCarter, 540 F.2d at 653.

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 13

B. Collateral Order Doctrine

MKB also argues that the “adverse foreign policy conse-

quences” of maintaining the suit against it render the

district court’s refusal to dismiss the case an im-

mediately appealable collateral order. MKB claims that,

without this appeal, there are no further steps it can take

to preserve the relevant interest at stake, which it

identifies as “that there not be legal proceedings that

undercut U.S. foreign relations.”

This argument is based on the U.S. government’s efforts

to “provide some measure of justice to the victims of the

Holocaust, and to do so in their remaining lifetimes.” U.S.

Statement of Interest, Stipulated J.A. 49. The United

States has been party to two international settlements

that have provided approximately $8 billion for the

benefit of victims of the Holocaust. One of these settle-

ments, the German Foundation, was capitalized by the

Federal Republic of Germany and German companies

and was “to be the exclusive remedy and forum for the

resolution of, all claims that have been or may be

asserted against German companies arising from the

National Socialist era and World War II.” Id. at 50. To

facilitate the creation and funding of the German Founda-

tion, the United States pledged to help achieve “legal

peace” for German companies with respect to Nazi-era

claims in U.S. courts.4 The United States, based on its

4

While MKB is a Hungarian bank, the United States has

determined that it qualifies as a “Germany company” within the

(continued...)

14 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

participation in the German Foundation, submitted a

Statement of Interest pursuant to 28 U.S.C. § 517 urging

dismissal of the claims against MKB “on any valid legal

ground(s)” but did not argue for any specific theory for

dismissal. Stipulated J.A. 48.

This court has jurisdiction to hear appeals from all

final decisions of the district court, except where direct

review by the Supreme Court is available. 28 U.S.C.

§ 1291. The Supreme Court has given the final-judgment

rule of § 1291 a practical construction by permit-

ting appeals from “a small category of decisions that,

although they do not end the litigation, must nonetheless

be considered ‘final.’ ” Swint, 514 U.S. at 41-42. An im-

mediately appealable collateral order is one that (1)

conclusively determines the disputed question; (2) resolves

important issues separate from the merits; and (3) is

effectively unreviewable on appeal from a final judgment.

Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599,

605 (2009).

MKB argues that the requirements of the collateral

order doctrine are met in this case. The district court’s

denial of its motion to dismiss on political question

grounds “conclusively determines that the lawsuit will

proceed to the detriment of U.S. foreign relations.” Second,

U.S. foreign policy interests are a consideration separate

4

(...continued)

German Foundation’s definition of that term. During World War

II and now, MKB has been more than 25% owned by a German

parent company, Bayerische Landesbank. Stipulated J.A. 63.

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 15

from the merits of the suit, and vindication of that

interest, argues MKB, benefits the United States and

Germany, not MKB. 5 Third, MKB argues that the

foreign policy interest at stake cannot be protected

through an appeal from final judgment because the

“legal peace” offered by the German Foundation would

be rendered hollow. Thus, MKB contends, where the

district court denies a motion to dismiss after the U.S.

government has submitted a Statement of Interest

seeking dismissal of the suit to advance the United

States’ foreign policy interests, immediate appeal should

be available under the collateral order doctrine.

The collateral order doctrine is a narrow exception

that must remain narrow so that it does not supercede

the general rule “that a party is entitled to a single appeal,

to be deferred until final judgment has been entered.”

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,

868 (1994); see also Will v. Hallock, 546 U.S. 345, 350 (2006)

(“we have not mentioned applying the collateral order

doctrine recently without emphasizing its modest

scope”). The doctrine’s modest scope reflects a “healthy

respect” for the virtues of the final-judgment rule.

Mohawk Industries, Inc., 130 S. Ct. at 605. “Permitting

piecemeal, prejudgment appeals . . . undermines

5

We do not credit MKB’s claim that “vindication of that interest

[in avoiding interference with U.S. foreign policy] will benefit

the United States and Germany, not MKB.” Obviously, dismissal

of the suit against MKB would greatly benefit MKB, separate

and apart from any potential benefit to the foreign policy

interests of the United States or Germany.

16 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

‘efficient judicial administration’ and encroaches upon the

prerogatives of district court judges, who play a ‘special

role’ in managing ongoing litigation.” Id., quoting Firestone

Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981). Thus,

the justification for immediate appeal must be suf-

ficiently strong to outweigh the usual benefits of

deferring appeal until the conclusion of the litigation. Id.

The justification for immediate appeal, moreover, must

be based on the entire category of similar cases rather

than the potential benefits in the particular case. “As

long as the class of claims, taken as a whole, can be ade-

quately vindicated by other means, the chance that the

litigation at hand might be speeded, or a particular injus-

tice averted, does not provide a basis for jurisdiction

under § 1291.” Id. (internal quotations omitted). The

Supreme Court has applied the collateral order rule

categorically, treating different sorts of defenses or issues

as either covered or not covered. For example, orders

denying various types of immunity may be immediately

appealed under the collateral order doctrine. Rubin v.

Islamic Republic of Iran, 637 F.3d 783, 789 (7th Cir. 2011)

(FSIA sovereign immunity), citing Mitchell v. Forsyth,

472 U.S. 511, 530 (1985) (qualified immunity), and

Nixon v. Fitzgerald, 457 U.S. 731, 742-43 (1982) (absolute

presidential immunity). On the other hand, denial of a

motion to dismiss for lack of personal jurisdiction or

forum non conveniens is not appealable as a collateral

order. Van Cauwenberghe v. Biard, 486 U.S. 517, 526-28

(1988) (affirming dismissal of appeal from denial of

motion to dismiss based on claimed immunity from

civil process); Catlin v. United States, 324 U.S. 229, 236

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 17

(1945) (“denial of a motion to dismiss, even when the

motion is based upon jurisdictional grounds, is not imme-

diately reviewable”); Cassirer v. Kingdom of Spain, 616

F.3d 1019, 1024-25 (9th Cir. 2010) (en banc) (holding that

court had jurisdiction over denial of immunity under

FSIA but not denial of motion to dismiss for lack of per-

sonal jurisdiction); Rux v. Republic of Sudan, 461 F.3d

461, 474-76 (4th Cir. 2006) (same). Nor is a sanctions

order for discovery violations under Rule 37(a) of the

Federal Rules of Civil Procedure, Cunningham v. Hamilton

County, 527 U.S. 198, 205 (1999), or a disclosure order

rejecting a claim of attorney-client privilege, Mohawk

Industries, Inc., 130 S. Ct. at 606-07. The line between

those orders that are and are not appealable as

collateral orders probably owes more to history than to

precise logical consistency, but the line has been drawn

in precedents that we must respect and follow as best

we can.

In applying these teachings, the D.C. Circuit has deter-

mined that the denial of a motion to dismiss on political

question grounds is not immediately appealable as a

collateral order, Doe v. Exxon Mobil Corp., 473 F.3d 345,

349 (D.C. Cir. 2007), although the first two requirements

of the collateral order doctrine were satisfied. The D.C.

Circuit took to heart the Supreme Court’s admonition

that “we have meant what we have said; although the

Court has been asked many times to expand the ‘small

class’ of collaterally appealable orders, we have instead

kept it narrow and selective in its membership.” Will, 546

U.S. at 350, quoted in Doe, 473 F.3d at 349. MKB has not

directed us to, and we have not found, any case in

18 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

which a federal appeals court held that denial of a

motion to dismiss on political question grounds was

immediately appealable as a collateral order. Permitting

an appeal from the denial of a motion to dismiss based

on political question grounds would substantially

expand the scope of the collateral order doctrine. We

follow the D.C. Circuit in Doe on this question, 473 F.3d

at 353, and hold that the collateral order doctrine

does not provide appellate jurisdiction over MKB’s politi-

cal question defense.6

II. Mandamus Jurisdiction

So we do not have appellate jurisdiction over

the issues that MKB and OTP seek to raise in Nos. 11-2353,

11-2386, and 11-2875, and those appeals must be dis-

missed. After plaintiffs challenged appellate jurisdiction,

6

Our determination that we lack appellate jurisdiction is not

based on the fact that MKB might have another chance to

present its political question argument in a summary judg-

ment motion or at trial, as urged by plaintiffs. That argument

by plaintiffs misunderstands the collateral order doctrine.

For example, a defendant whose motion to dismiss a claim

under 42 U.S.C. § 1983 on grounds of qualified immunity is

denied often can appeal under the collateral order doctrine

even though the same issue could be raised again later in the

district court. We hold only that a denial of a motion to

dismiss on political question grounds is not among the “small

class ” of orders that are collaterally appealable. See Will, 546

U.S. at 350 (holding that refusal to apply Federal Tort Claims

Act’s judgment bar was not appealable as collateral order).

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 19

MKB and OTP also filed petitions for writs of mandamus

to compel the district court to dismiss the claims against

them. As a general rule, appellate courts are not in the

business of reviewing routine denials of motions to

dismiss — not by using pendent appellate jurisdiction,

not by using the collateral order doctrine, and certainly

not by issuing a writ of mandamus. The final-judgment

rule exists to reduce piecemeal litigation and encroach-

ment on the special role district judges play in managing

litigation. See Mohawk Industries, Inc., 130 S. Ct. at 605.

Furthermore, until a case is over, litigants do not

know whether an individual claim of error actually

matters, and appellate courts usually benefit from

having an entire record in front of them.

The extraordinary nature of this litigation, however,

makes the district court’s denial of MKB’s and OTP’s

motions to dismiss for lack of personal jurisdiction any-

thing but routine. Plaintiffs seek compensation for

events that occurred on another continent more than

65 years ago. The case has appreciable foreign policy

consequences, and the financial stakes are astronomical.

Plaintiffs seek to impose joint and several liability on

each defendant bank for $75 billion in damages — an

amount that is nearly 40 percent of Hungary’s annual

gross domestic product. The consequences for the

plaintiffs themselves are also very substantial. If the

claims against these defendants do not belong in U.S.

courts, no matter how compelling the claims might be

on the merits, we would do the plaintiffs no favors by

allowing them to spend more time and money to

proceed further toward an inevitable dismissal. It is

20 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

the confluence of these specific factors, together with the

crystal clarity of the personal jurisdiction issue, that

removes this case from the category of “ordinary” denials

of motions to dismiss. See Cheney v. U.S. Dist. Court for

Dist. of Columbia, 542 U.S. 367, 381 (2004) (court of

appeals erred in finding it lacked authority to issue writ

of mandamus to provide immediate review of district

court discovery order that could affect the privacy of

President’s policymaking processes; executive privacy

concerns removed district court order from the category

of “ordinary” discovery orders). Plaintiffs’ claims do not

arise out of any business contacts these defendants

have with the United States, so specific personal juris-

diction does not apply here. Plaintiffs assert instead

that U.S. courts have general personal jurisdiction

over these Hungarian banks. General jurisdiction over

a defendant, which means that the defendant can be

required to answer any claim that arose anywhere in

the world, requires that the defendant be “essentially at

home” in the forum. See Goodyear Dunlop Tires

Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). The

allegations against MKB and OTP do not come close

to meeting that standard, and neither the plaintiffs

nor the district court have offered even a colorable argu-

ment for satisfying that standard.

This court is authorized to issue a writ of mandamus

pursuant to the All Writs Act, 28 U.S.C. § 1651(a). Manda-

mus is a “drastic remedy traditionally used to confine

a lower court to the lawful exercise of its jurisdiction

or to compel it to exercise its authority when it has a

duty to do so.” United States v. Lapi, 458 F.3d 555, 560-61

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 21

(7th Cir. 2006); see also Allied Chemical Corp. v. Daiflon, Inc.,

449 U.S. 33, 34-35 (1980) (per curiam) (“Only exceptional

circumstances, amounting to a judicial usurpation of

power, will justify the invocation of this extraordinary

remedy.”). Three conditions must be satisfied for a

writ to issue. First, the party seeking the writ must demon-

strate that the challenged order is not effectively

reviewable at the end of the case, that is, without the

writ the party will suffer irreparable harm. Second, the

party seeking the writ must demonstrate a clear right to

the writ. Last, the issuing court must be satisfied that

issuing the writ is otherwise appropriate. See Cheney, 542

U.S. at 380-81; In re Sandahl, 980 F.2d 1118, 1119 (7th Cir.

1992) (“[T]he petitioner must show irreparable harm

(or, what amounts to the same thing, the lack of an ade-

quate remedy by way of direct appeal or otherwise) and

a clear right to the relief sought.”). The Supreme Court

has said that “[t]hese hurdles, however demanding, are

not insuperable.” Cheney, 542 U.S. at 381 (granting

writ). We conclude that this exacting standard is

satisfied here with respect to the district court’s denial

of MKB’s and OTP’s motions to dismiss for lack of

personal jurisdiction.7

7

Because writs of mandamus should issue on the basis of the

district court’s clear lack of general jurisdiction over these

defendants, we do not reach the merits of MKB’s alternative

argument that a writ should issue based on its political question

argument.

22 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

A. Irreparable Harm

Defendants argue that they have no other adequate

means to obtain the desired relief — full dismissal of the

suits against them. The district court denied MKB’s and

OTP’s motions to dismiss on personal jurisdiction

grounds. 807 F. Supp. 2d at 695. MKB and OTP then

filed motions for reconsideration, for clarification, and

for certification of an interlocutory appeal. Without

meaningful explanation or engagement, the court denied

these motions as well, rejecting binding Supreme Court

authorities as “not on point as far as personal jurisdic-

tion is concerned in this case.” 807 F. Supp. 2d at 704.

The defendants thus face the prospect of protracted

litigation of events that occurred 65 years ago on

another continent, and joint and several liability of

$75 billion, which may place intense pressure on the

defendants to settle. See, e.g., In re Rhone-Poulenc Rorer,

Inc., 51 F.3d 1293, 1297-98 (7th Cir. 1995). Settlement

would mean that the district court order creating the

pressure to settle, the denial of MKB’s and OTP’s

motions to dismiss on personal jurisdiction grounds,

may never be reviewed. By itself, of course, such

pressure is not enough to justify an encroachment on

the final-judgment rule by use of mandamus. Our

judicial system entrusts great power to U.S. district

judges, and appellate review of their decisions must

follow a complex set of legal rules and procedures. But

the extraordinary nature of this litigation cannot be

ignored as a factor in the overall decision.

Plaintiffs argue that potential class action liability

should not figure into the “irreparable harm” analysis

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 23

because a future order certifying a plaintiff class could

be the subject of an interlocutory appeal under

Federal Rule of Civil Procedure 23(f). The prospect

that defendants might be able to appeal a future class

certification does not provide an adequate alternative

means to have the district court’s extraordinary decision

on personal jurisdiction reviewed by a writ of mandamus.

See, e.g., Poulos v. Caesars World, Inc., 379 F.3d 654, 671-

72 (9th Cir. 2004) (in appeal of certification of class

action, refusing to exercise pendent appellate jurisdic-

tion over challenge to district court’s exercise of

personal jurisdiction); id. at 672 (“[T]he district court’s

personal jurisdiction and class certification decision

are only tangentially related, such that we lack

jurisdiction to evaluate the district court’s personal juris-

diction decision in the context of this Rule 23(f) appeal.”);

cf. Jamie S. v. Milwaukee Public Schools, 668 F.3d 481, 492-

93 (7th Cir. 2012) (exercising pendent appellate jurisdic-

tion to review class-certification and liability decisions

in tandem with order imposing remedial scheme only

because review was “practically indispensable” to

resolve proper appeal). As we have recognized before,

the sheer magnitude of risk defendants are exposed to in

a class action can provide intense pressure to settle.

In re Rhone-Poulenc Rorer, Inc., 51 F.3d at 1297-98. MKB

and OTP have established that the district court’s

refusal to dismiss them from the case on personal juris-

diction grounds is not effectively reviewable at the end

of the case.

24 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

B. Clear Right

As we explain in detail in Part III of this opinion, MKB’s

and OTP’s contacts with the United States simply do not

come close to meeting the “essentially at home” standard

needed to exercise general jurisdiction over a foreign

defendant. The defendants gave the district court every

opportunity to address the controlling authorities and

legal standard, but the district court simply refused to

engage with relevant case law. It failed to appreciate

the stringent “essentially at home” standard that

applies to exercises of general jurisdiction. If there were a

colorable argument supporting the district court’s

exercise of jurisdiction, we would view this case differ-

ently. The overwhelming clarity of this issue, however,

calls for use of the extraordinary writ of mandamus to

confine the district court to the proper exercise of its

jurisdiction. See Sandahl, 980 F.2d at 1120-21 (granting

writ where petitioner showed that order disqualifying

law firm was “patently erroneous”).

C. “Otherwise Appropriate”

OTP argues that issuance of a writ is appropriate in

this case because it raises serious questions about the

reach of a U.S. court’s personal jurisdiction over a

foreign entity. Plaintiffs counter that “ ‘Serious questions’

do not rise to the level of ‘really extraordinary,’ simply

because Petitioners [MKB and OTP] do not like the

district court’s reasoned answers to those questions.”

MKB and OTP are large foreign banks with the types of

contacts with the United States that one would expect

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 25

any large foreign bank to have. Under the district court’s

reasoning, virtually any large bank located anywhere

in the world could be sued in any U.S. court on any

claim arising anywhere in the world. That would be an

extraordinary and unwarranted expansion of the U.S.

courts’ general jurisdiction that would raise serious

international law questions about the reach of U.S. law.

See In re Hijazi, 589 F.3d 401, 411 (7th Cir. 2009)

(granting writ and ordering district court to rule on

foreign defendant’s motion to dismiss indictment even

though he was a fugitive, particularly where case

raised “delicate foreign relations issues”). Issuance of a

writ in this case does what the writ was intended to do —

confine the district court to a lawful exercise of its pre-

scribed jurisdiction. See Cheney, 542 U.S. at 380. The

issuance of a writ is appropriate under these extra-

ordinary circumstances.

III. Personal Jurisdiction

The claims underlying this case are that defendants

MKB and OTP, two foreign banks, participated in the

wholesale plunder of the assets of Jews in Hungary

during the Holocaust, more than 65 years ago. As

powerful and troubling as those allegations are, the

United States constitutional guarantee of due process

of law requires that defendants not present in the

forum have “certain minimum contacts” with the forum

such that “the maintenance of the suit does not offend

‘traditional notions of fair play and substantial jus-

tice.’ ” International Shoe Co. v. Washington, 326 U.S. 310,

26 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

316 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463

(1940). The basic inquiry is whether the defendant’s

contacts with the forum are such that it should rea-

sonably anticipate being haled into court there. Interna-

tional Medical Group, Inc. v. American Arbitration Ass’n,

312 F.3d 833, 846 (7th Cir. 2002), citing Burger King Corp.

v. Rudzewicz, 471 U.S. 462, 474 (1985), and Central States,

Se. and Sw. Areas Pension Fund v. Reimer Express World

Corp., 230 F.3d 934, 943 (7th Cir. 2000). MKB and OTP

have the type of business contacts that many large

foreign banks have with the United States. Those

contacts are not the type of “continuous and systematic”

contacts that would render MKB and OTP “essentially

at home” in the United States, see Goodyear Dunlop

Tires Operations, S.A., 131 S. Ct. at 2851, such that they

should reasonably anticipate being haled into a U.S. court

to answer for events, no matter how heinous, that

occurred half a world away.

A. Requirements for General Personal Jurisdiction

In the realm of personal jurisdiction, federal constitu-

tional law draws a sharp and vital distinction between

two types of personal jurisdiction: specific or case-linked

jurisdiction, and general or all-purpose jurisdiction.

Goodyear Dunlop Tires Operations, S.A., 131 S. Ct. at 2851.

Specific jurisdiction is jurisdiction over a specific claim

based on the defendant’s contacts with the forum that

gave rise to or are closely connected to the claim itself.

Id. General jurisdiction, in contrast, does not depend

on any connection between the underlying claim and

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 27

the forum. “A court may assert general jurisdiction

over foreign (sister-state or foreign-country) corporations

to hear any and all claims against them when their af-

filiations with the State are so ‘continuous and system-

atic’ as to render them essentially at home in the forum

State.” Id. (emphasis added). This is a demanding standard,

for the consequences for the defendant can be severe.

Where a court has general jurisdiction over a

defendant, that defendant may be called into that court

“to answer for any alleged wrong, committed in any

place, no matter how unrelated to the defendant’s

contacts with the forum.” uBid, Inc. v. GoDaddy Grp., Inc.,

623 F.3d 421, 426 (7th Cir. 2010). The constitutional re-

quirement for general jurisdiction therefore is “consider-

ably more stringent” than that required for specific juris-

diction. Purdue Research Foundation v. Sanofi-Synthelabo,

S.A., 338 F.3d 773, 787 (7th Cir. 2003), quoting United

States v. Swiss American Bank, Ltd., 274 F.3d 610, 619 (1st

Cir. 2001). Courts look for “continuous and systematic

general business contacts,” Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984), and

inquire whether the business was “sufficiently sub-

stantial and of such a nature” as to permit the exercise

of personal jurisdiction, Perkins v. Benguet Consol.

Mining Co., 342 U.S. 437, 447 (1952).

A corporation is “essentially at home” both where it

is incorporated and where its principal place of business

is located. Goodyear, 131 S. Ct. at 2853-54. Beyond those

easy cases, the best example of the “essentially at home”

standard is found in Perkins, where the president and

28 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

general manager of a Philippine mining corporation

returned to his home in Ohio during the Japanese oc-

cupation of the Philippine Islands during World War II.

While in Ohio, he maintained an office from which

he conducted activities for the company. He kept

company files and held directors’ meetings in the

office, carried on correspondence related to the business,

distributed salary checks drawn on two active Ohio

bank accounts, engaged an Ohio bank to act as a

transfer agent, and supervised policies dealing with

the rehabilitation of the corporation’s properties in the

Philippines. 342 U.S. at 447-49. Based on these contacts,

the Supreme Court determined: “The corporation had

been carrying on in Ohio a continuous and systematic,

but limited, part of its general business.” Id. at 438.

The “continuous and systematic” activity of the

relocated company headquarters in Perkins stands in

sharp contrast to the limited activity at issue in

Helicopteros Nacionales de Colombia, S.A. Survivors of a U.S.

citizen who died in a helicopter crash in Peru brought

a wrongful-death action in a Texas state court against

the Colombian corporation that owned and operated

the helicopter. The Court noted that the Colombian

corporation, Helicol, did not have a place of business

in Texas and had never been licensed to do business

in the state. Helicol’s CEO had gone to Houston for

a meeting to negotiate the contract for transporta-

tion services with the plaintiffs’ employers. Helicol also

deposited checks drawn on a Houston bank, made signifi-

cant purchases from Bell Helicopter in Texas, and sent

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 29

its personnel to Texas for training at Bell’s facilities

there. The Supreme Court held that Helicol’s contacts

with Texas were insufficient to satisfy due process re-

quirements for general personal jurisdiction. The Court

discounted the lone business trip as not “continuous

and systematic,” noted that “[c]ommon sense and every-

day experience” suggest that the bank on which a check

is drawn is generally left to the discretion of the

drawer, and held that even regular purchases were not

enough to support an exercise of general jurisdiction. 466

U.S. at 417-18.

More recently, the Supreme Court addressed the stan-

dard for general jurisdiction in Goodyear Dunlop Tires

Operations, S.A. In Goodyear, two North Carolina

teenagers died in a bus accident in France. Attributing

the accident to a failed tire, the teenagers’ parents filed

a wrongful death suit in North Carolina against

Goodyear USA and three foreign subsidiaries incorpo-

rated in Luxembourg, Turkey, and France. The Supreme

Court reversed the state court’s finding that it could

exercise general personal jurisdiction over the foreign

subsidiaries in the United States. The foreign subsidiaries

had no places of business, employees, or bank accounts

in North Carolina. Nor did they design, manufacture, or

advertise their products in North Carolina, although a

small percentage of their tires was distributed in

North Carolina by other Goodyear USA affiliates. 131

S. Ct. at 2851-52. After comparing those facts to Perkins

and Helicopteros, the Supreme Court found that the

foreign subsidiaries’ “attenuated connections” to North

30 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

Carolina fell “far short of ‘the continuous and systematic

general business contacts’ ” necessary for general juris-

diction. Id. at 2857, quoting Helicopteros, 466 U.S. at 416.

B. Defendants’ Contacts with the United States

Plaintiffs have attempted to support general personal

jurisdiction over MKB and OTP by examining all of

their contacts with the United States as a whole, as

distinct from contacts with the forum state of Illinois.

Under Rule 4(k)(2) of the Federal Rules of Civil

Procedure, plaintiffs may do so, at least regarding their

claims arising under federal or international law. If a

foreign defendant is not subject to jurisdiction in any

one state’s court of general jurisdiction, the rule allows

jurisdiction over, and service of process for, federal

claims based on all of a defendant’s contacts with the

entire United States.8

Plaintiffs rely on a number of U.S. contacts on the part

of defendants. Each bank has account holders who

reside in the U.S. OTP has 4,884 accounts worth over

$93 million for account holders with U.S. mailing ad-

8

Rule 4(k)(2) was added in 1993 to correct an anomaly in

federal law. Without the provision, a foreign defendant who

lacked minimum contacts with any one forum state, but who

had minimum due process contacts with the United States as a

whole, could not be sued in a federal court without its consent.

See ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 551

(7th Cir. 2001).

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 31

dresses. MKB has approximately 1,500 accounts worth

around $147 million for people with U.S. mailing ad-

dresses, though for both banks, the accounts themselves

are in Hungary. OTP and MKB both have cor-

respondent banking and contractual relationships with

U.S. banks and other companies. Some of those contracts

contain forum-selection clauses providing for U.S.

forums to resolve disputes under the contracts. OTP

and MKB personnel have traveled to the United States

on business trips. Plaintiffs also argue that the contacts

of MKB’s parent company, Bayerische Landesbank,

which appear to be sufficient to support general juris-

diction, should be imputed to MKB itself. Finally,

plaintiffs note that OTP advertises in U.S. publications

and in media that target parts of the U.S. audience.

C. Analysis

The proper inquiry is not, as plaintiff’s suggest, whether

a defendant’s contacts “in the aggregate are extensive.”

The issue under the Due Process Clauses of the Fifth

and Fourteenth Amendments is whether the contacts

“are so ‘continuous and systematic’ as to render [defen-

dants] essentially at home in the forum.” Goodyear, 131

S. Ct. at 2851. MKB’s and OTP’s contacts with the United

States are much more like those in Helicopteros and Good-

year than they are like the “continuous and systematic”

general business in Perkins. Even taking plaintiffs’ al-

legations as true, the alleged contacts are not sufficient

to render either OTP or MKB “essentially at home” in

the United States such that a U.S. court could exercise

general jurisdiction over them.

32 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

These contacts do not provide a reason for OTP or

MKB to expect that they might be sued in any U.S. court

for any claim arising anywhere in the world. The OTP

accounts owned by U.S. citizens and/or persons with

U.S. mailing addresses account for 0.17 percent of

OTP’s total accounts. The MKB accounts owned by U.S.

citizens and/or persons with U.S. mailing addresses

account for 0.4 percent of MKB’s total accounts. Plaintiffs

assert that the number and aggregate value of these

accounts establish a prima facie case for sufficient mini-

mum contacts. Plaintiffs are mistaken. In uBid, GoDaddy’s

“hundreds of thousands” of Illinois customers were not

sufficient to support general jurisdiction in Illinois.

uBid, 623 F.3d at 424; see also Tamburo v. Dworkin, 601

F.3d 693, 701-02 (7th Cir. 2010) (sales to customers in

forum insufficient for general jurisdiction). Likewise, the

First Circuit found the fact that a Polish bank, with all

of its branches in Poland, had customers with Massa-

chusetts addresses was not sufficient to support Massa-

chusetts’ exercise of general jurisdiction, at least where

the plaintiff failed to produce any evidence that the

Polish bank sought out these customers or purposefully

made contact with the forum. Lechoslaw v. Bank of

America, N.A., 618 F.3d 49, 54 (1st Cir. 2010); see also

Harris v. Lloyds TSB Bank, PLC, 281 F. App’x 489, 493 (6th

Cir. 2008) (“any bank statements sent to Tennessee [the

forum state] would have been sent there because the

customers listed the account address as Tennessee, not

because Lloyds chose to create continuous and sub-

stantial consequences in Tennessee”); E.I.C., Inc. v. Bank of

Virginia, 166 Cal. Rptr. 317, 320 (Cal. App. 1980) (“Un-

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 33

doubtedly a bank the size of Bank of Virginia has deposi-

tors who reside throughout the country and overseas,

and it would be an absurdity to conclude from this that

the bank was doing business in each of the home juris-

dictions of its depositors.”).

Nor are defendants’ contracts with U.S. companies,

even those containing U.S. forum-selection clauses, suf-

ficient to establish general jurisdiction. For example,

we have held that collaborative efforts with an Indiana-

based corporation, including several confidentiality

agreements and trips to Indiana in furtherance of

those agreements, were not continuous and systematic

contacts that would subject a defendant to general juris-

diction in Indiana. Purdue Research Foundation, 338 F.3d

at 788; see also Helicopteros, 466 U.S. at 411 (defendant

who purchased 80 percent of fleet of helicopters from

a Texas company over a seven-year period, negotiated

and executed the contracts in Texas, received payment

from a Texas bank, and sent employees to Texas for

training and technical consulting was not subject to

general jurisdiction in Texas); uBid, Inc., 623 F.3d at 426

(defendant who marketed and sold registration for

Internet domain names, contracted with Illinois cus-

tomers, and hosted web sites accessible from Illinois

was not subject to general jurisdiction in Illinois);

Johnston v. Multidata Systems Int’l Corp., 523 F.3d 602,

614 (5th Cir. 2008) (services received from vendors in

the forum were not a significant contact for general

jurisdiction purposes); Vangura Kitchen Tops, Inc. v.

C&C North Am., Inc., 2008 WL 4540186, at *9 (W.D.

Pa. Oct. 7, 2008) (mere existence of forum-selection

34 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

clause is not sufficient to give general jurisdiction in

the forum).

Plaintiffs assign great weight to OTP’s agreement to

submit to U.S. jurisdiction in resolving disputes arising

out of its agreement with American Express. But that

information cuts the other way. While it is true that

“choice of law provisions may be some indication that

a defendant purposefully has availed itself of the pro-

tection of the laws of a particular jurisdiction,” Purdue

Research Foundation, 338 F.2d at 786 (discussing choice

of law provisions in the context of specific jurisdiction),

the “particular jurisdiction” in OTP’s case is New York.

Even more important, the agreement is limited to

disputes arising from one particular contract. If U.S.

courts had a sound basis for exercising general jurisdic-

tion over OTP, American Express would not have

needed a forum-selection clause in its contract to

ensure personal jurisdiction over OTP.

Likewise, defendants’ correspondent banking rela-

tionships show that they are not “essentially at home” in

the United States. That is precisely why correspondent

banking relationships are needed and used. “Inter-

bank accounts, also known as correspondent accounts,

are used by foreign banks to offer services to their custom-

ers in jurisdictions where the banks have no physical

presence . . . .” United States v. Union Bank for Sav. & Inv.

(Jordan), 487 F.3d 8, 15 (1st Cir. 2007) (emphasis added).

Accordingly, many courts have soundly rejected the

suggestion that a correspondent banking relationship

with a bank in the forum is sufficient to support

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 35

general jurisdiction over a foreign defendant. See Oriental

Imports & Exports, Inc. v. Maduro & Curiel’s Bank, N.V., 701

F.2d 889, 891-92 (11th Cir. 1983) (holding correspondent

banking relationships not enough to support general

jurisdiction over nonresident defendant under Florida

long-arm statute); Tamam v. Fransabank Sal, 677 F. Supp. 2d

720, 731-33 (S.D.N.Y. 2010) (maintenance of cor-

respondent accounts in New York insufficient to

support exercise of general jurisdiction in the U.S.

pursuant to Rule 4(k)(2)); E.I.C., Inc., 166 Cal. Rptr. at 320

(“[M]ost banks of any size maintain correspondents in

all major regions of the country and in selected areas

overseas. It would be a distortion of due process to

hold that a state acquires general personal jurisdiction

over an out-of-state bank . . . merely because the bank

has a correspondent relationship with a bank within

the state and a balance on deposit with its cor-

respondent bank.”). Plaintiffs have not identified, and

we have not found, any contrary authority regarding

general jurisdiction.

Over the last four years, various OTP personnel took

53 business trips to the United States, 42 of which were

for conferences or seminars. These trips are much

more closely akin to the training trips to Texas taken by

Helicol employees in Helicopteros than they are to the

facts in Perkins, where the president of the company

worked out of an office in Ohio for several years during

the Japanese occupation of the Philippine Islands.

These “sporadic contacts” are not so “continuous and

systematic” as to support general jurisdiction. See Tamburo,

601 F.3d at 701 (rejecting general jurisdiction where

36 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

one defendant visited the forum twice in ten years and

another had visited the forum five times).

Plaintiffs ask that the contacts of MKB’s parent

company, Bayerische Landesbank, be imputed to MKB.

(We assume for purposes of argument that Bayerische

Landesbank has sufficient contacts to support general

jurisdiction in the United States.) We confronted a

similar issue in Purdue Research Foundation, where

plaintiffs argued that a foreign defendant was subject

to general jurisdiction in Indiana based on the contacts

of a wholly-owned subsidiary. 338 F.3d at 787-88. There,

we applied the “general rule” that “the jurisdictional

contacts of a subsidiary corporation are not imputed to

the parent.” Id. at 778 n.17; Central States, Se. and Sw.

Areas Pension Fund v. Reimer Express World Corp., 230 F.3d

934, 943 (7th Cir. 2000) (“[C]onstitutional due process

requires that personal jurisdiction cannot be premised

on corporate affiliation or stock ownership alone where

corporate formalities are substantially observed and the

parent does not exercise an unusually high degree of

control over the subsidiary.”); see also Keeton v. Hustler

Magazine, Inc., 465 U.S. 770, 781 n.13 (1984) (“But juris-

diction over an employee does not automatically follow

from jurisdiction over the corporation which employs

him; nor does jurisdiction over a parent corporation

automatically establish jurisdiction over a wholly

owned subsidiary.”).

As in Purdue Research Foundation, plaintiffs here argue

against the general rule based on the fact that Bayerische

Landesbank executives hold four out of nine seats on

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 37

MKB’s Board of Supervisors. Imputation, however, re-

quires “an unusually high degree of control” or that

the subsidiary’s “corporate existence is simply a formal-

ity.” Purdue Research Foundation, 338 F.3d at 788 n.17

(rejecting effort to base jurisdiction on corporate

affiliate’s contacts). There is no suggestion of either in

this case. The interaction alleged between MKB and

Bayerische Landesbank is not sufficient to establish that

Bayerische Landesbank controls and dominates MKB

to such an extent that its jurisdictional contacts should

be imputed to MKB. Cf. IDS Life Ins. Co. v. SunAmerica Life

Ins. Co., 136 F.3d 537, 540 (7th Cir. 1998) (“Parents of

wholly owned subsidiaries necessarily control, direct,

and supervise the subsidiaries to some extent, but unless

there is a basis for piercing the corporate veil and

thus attributing the subsidiaries’ torts to the parent, the

parent is not liable for those torts, and cannot be served

under the tort provision of the long-arm statute.”) (internal

citations omitted); Volkswagenwerk Aktiengesellschaft v.

Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984) (“The

officers of any corporation that owns the stock of

another necessarily exercise a considerable degree of

control over the subsidiary corporation and the

discharge of that supervision alone is not enough to

subject the parent to New York jurisdiction.”). Plaintiffs

have offered no basis for piercing the separate corporate

identities in this case.

Finally, the minor amount of advertising that reaches

the United States is not sufficient to support general

jurisdiction over OTP. In uBid, Inc., GoDaddy’s contacts

with the forum state included the marketing and sale

38 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

of registrations for Internet domain names, as well as

contracts with many Illinois customers and the hosting

of web sites accessible from Illinois. 623 F.3d at 426.

These “extensive and deliberate” contacts were part of

the set of contacts that supported specific jurisdiction,

but not the general jurisdiction that plaintiffs rely upon

in this case.

Plaintiffs correctly point out that general personal

jurisdiction must be evaluated based on the totality of

the defendant’s contacts with the forum, and we have

considered the contacts both individually and in their

totality. The contacts identified here fall well short of

any case cited by plaintiffs finding general jurisdiction,

or any case we have found. Binding Supreme Court

precedents, including Perkins, Helicopteros, and Goodyear,

and binding Seventh Circuit precedents, such as uBid,

and Purdue Research Foundation, establish that the

district court cannot possibly exercise general personal

jurisdiction over MKB or OTP. Neither defendant

meets the stringent “essentially at home” standard.9

9

When we pressed plaintiffs for their best authority sup-

porting the exercise of general jurisdiction here, they cited ISI

International, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548

(7th Cir. 2001). That case explained how Rule 4(k)(2) works,

but it applied only to specific jurisdiction, holding that a

federal district court had jurisdiction over a foreign defendant

on claims arising from that defendant’s contacts with the

United States in the disputed transaction itself. ISI International

adds no support for the attempt to exercise general jurisdic-

tion over these foreign defendants.

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 39

D. The Supreme Court Precedents and the Scope of

Rule 4(k)(2)

To avoid these controlling precedents that require

dismissal on personal jurisdiction grounds, plaintiffs

advance several legal arguments challenging their rele-

vance. The district court dismissed Goodyear and J.

McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011),

as “not on point as far as personal jurisdiction is con-

cerned in this case.” 807 F. Supp. 2d at 704. In that

same vein, plaintiffs argue that Goodyear and J. McIntyre

are “limited to analyzing whether the ‘stream-of-com-

merce’ doctrine that can bolster a state court’s exercise

of specific jurisdiction over a foreign corporation would

be enough by itself to also establish general jurisdic-

tion.” These efforts to avoid the Supreme Court’s authorita-

tive teachings are not at all persuasive. Goodyear and

J. McIntyre state clearly the requirements for exercising

general personal jurisdiction and the differences

between general and specific personal jurisdiction. See

Goodyear, 131 S. Ct. at 2850-51 (explaining the difference

between general and specific jurisdiction); id. at 2853-54

(“For an individual, the paradigm forum for the exercise

of general jurisdiction is the individual’s domicile; for

a corporation, it is an equivalent place, one in which

the corporation is fairly regarded as at home.”); id. at

2854 (noting the Court had considered the general juris-

diction standard only twice since International Shoe,

in Perkins and Helicopteros); J. McIntyre Mach., Ltd., 131

S. Ct. at 2786-87 (plurality opinion) (discussing the

due process considerations that underlie the personal

jurisdiction inquiry); id. at 2791 (“Due process protects

40 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

petitioner’s right to be subject only to lawful authority.”).

As Goodyear and J. McIntyre reaffirm, due process con-

siderations are present in all personal jurisdiction

inquiries — regardless of whether it is a state or federal

court or whether the inquiry involves specific or general

personal jurisdiction.

Rule 4(k)(2) does not help plaintiffs with the due

process issue. Rule 4(k)(2) permits the aggregation of

contacts nationwide for the unusual situation where a

defendant’s contacts with any given state are not

extensive enough to support that state’s exercise of per-

sonal jurisdiction, but there are sufficient minimum

contacts with the nation as a whole. An example is

ISI International, where the Canadian defendant had a

little contact with Illinois, a little with California, a

little with the District of Columbia, and a little more

with Michigan. 256 F.3d at 551. Although the minimal

contacts with each state were not sufficient to support

jurisdiction in any one state’s courts, the aggregate

contacts with the United States as a whole were

sufficient to authorize specific jurisdiction in the United

States, so Rule 4(k)(2) applied. Id.

Plaintiffs’ argument loses sight of the fundamental

due process requirements that apply in both state and

federal courts. Plaintiffs, in asserting that Rule 4(k)(2)

relaxes the minimum-contacts inquiry, seem to argue

that the constitutional standards for the exercise of per-

sonal jurisdiction vary depending on whether the action

is in a state court or a federal court. We find no merit

in this position and no support within Goodyear,

Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249 41

J. McIntyre, or any other case. As the rule itself acknowl-

edges, all exercises of jurisdiction by a federal court

must be “consistent with the United States Constitution

and laws.” While Rule 4(k)(2) applies a broader

geographic standard for which contacts are relevant, the

minimum in the “minimum contacts” that are constitu-

tionally sufficient to support general or specific jurisdic-

tion is the same. The rule does not and could not relax

the requirement that a defendant be “essentially at

home” in the forum state or nation for a court to

exercise general jurisdiction over it. The difference

between litigating under state law in state court and

under federal law in federal court is that the federal

Constitution and federal law allow a plaintiff to

aggregate a defendant’s contacts with the entire

nation rather than with the forum state. The underlying

constitutional requirements for minimum contacts

under either a general jurisdiction or specific jurisdic-

tion analysis remain the same. Plaintiffs have not

shown even an arguable basis for general personal juris-

diction over MKB or OTP.

Conclusion

A district court’s erroneous denial of a motion to

dismiss for lack of personal jurisdiction is ordinarily not

reviewable in this court without either a final judgment

or a § 1292(b) certification for interlocutory appeal.

Appeal Nos. 11-2353, 11-2386, and 11-2875 are there-

fore D ISMISSED. This is the rare case, however, in which

it is appropriate for this court to exercise its discretion

42 Nos. 11-2353, 11-2386, 11-2875, 11-3247, and 11-3249

to issue a writ of mandamus to confine the district court

to the exercise of its lawful jurisdiction. What makes

this the rare case is the combination of the extraordinary

scale of the litigation, the inherent involvement with

U.S. foreign policy, and the crystal clarity of the lack of

any foundation for exercising general personal jurisdic-

tion over MKB or OTP in the courts of the United States.

MKB and OTP have established that they have a

clear right to writs of mandamus. They have no other

adequate means to achieve their desired relief, and we

are persuaded that issuance of a writ is otherwise ap-

propriate. Accordingly, the petitions for writs of manda-

mus in Nos. 11-3247 and 11-3249 are hereby G RANTED ,

and the district court shall dismiss plaintiffs’ claims

against MKB and OTP for lack of personal jurisdiction.

This decision should not, of course, block plaintiffs

from pursuing their claims in another forum, but they

cannot proceed against these defendants in U.S.

federal courts.

8-22-12