                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS               March 27, 2008
                                                                Elisabeth A. Shumaker
                                    TENTH CIRCUIT
                                                                    Clerk of Court


 ANDREA GOOD,

                Plaintiff-Appellant,
          v.
                                                      No. 07-2068
 FUJI FIRE & MARINE INS. CO.,                          No. 07-2175
 LTD.; NORIO SUGAWARA;                           District of New Mexico
 TAKAYA HANATA; THE                          (D.C. No. CIV-06-962-BB/ACT)
 JAPANESE MINISTRY OF
 JUSTICE; THE JAPANESE
 MINISTRY OF FINANCE; THE
 JAPANESE MINISTRY OF
 TRANSPORTATION; THE
 JAPANESE ASSOCIATION FOR
 ASSESSING INSURED
 AUTOMOBILE INJURIES
 (SONGAIHOKEN RYOURITSU
 SANCHUTSU KIKOU SAPPORO
 BRANCH),


          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Andrea Good, a plaintiff proceeding pro se, appeals two district court

orders dismissing her complaint for lack of jurisdiction over the defendants and

denying her motions to transfer and reopen the complaint. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we conclude that the court lacked jurisdiction and

did not abuse its discretion when it declined to transfer the case. We therefore

affirm the district court’s orders.

                                 I. BACKGROUND

      Ms. Good is a United States citizen who resides in both New Mexico and

Japan. She asserts that she was injured in an automobile accident near Sapporo,

Japan on January 10, 2004. Ms. Good alleges that she was subsequently

defrauded and threatened by various parties in Japan. On October 6, 2006, Ms.

Good filed suit in the District of New Mexico against seven Japanese defendants

asserting claims arising out of the automobile accident. Defendants included two

Japanese corporations, two Japanese individuals, and three ministries of the

Japanese government.

      Before any of the defendants was properly served, the two corporations,

Fuji Fire and Marine Insurance Company (“Japanese Fuji”) and Songaihoken

Ryouritsu Sanshutsu Kikou Sapporo Branch (the “Branch”), made a special

appearance before the district court and moved to dismiss for lack of personal

jurisdiction. On February 22, 2007, the district court granted the motion to

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dismiss. Because none of the other five defendants had yet been served, the order

became final with respect to the two corporations. See Raiser v. Utah County,

409 F.3d 1243, 1245 n.2 (10th Cir. 2005). Ms. Good timely appealed this order in

No. 07-2068.

      Subsequently, Ms. Good properly served all defendants pursuant to the

Hague Convention. On April 30, 2007, she filed motions to reopen the district

court proceedings, to set aside the dismissal as to the two corporations, and to

transfer venue to the District of Columbia. 1 Ms. Good later moved to transfer

venue instead to Illinois or California. The five remaining defendants entered a

special appearance to contest personal jurisdiction. The two individual

defendants moved for dismissal for lack of personal jurisdiction, and the three

Japanese ministries moved for dismissal based on the Foreign Sovereign

Immunities Act (FSIA). 28 U.S.C. §§ 1602–1611.

      The district court denied all of Ms. Good’s motions and granted the

defendants’ motions for dismissal. Ms. Good appeals this order in No. 07-2175.

Because the original appeal is still pending, we consolidated the appeals and are

able to resolve them at once. See Stone v. I.N.S., 514 U.S. 386, 401 (1995).




      1
       Because these Rule 60(b) motions were filed more than ten days after the
previous final order, they did not divest this Court of jurisdiction over Ms. Good’s
pending appeal No. 07-2068. See Stone v. I.N.S., 514 U.S. 386, 403 (1995).

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                                 II. DISCUSSION

      Because Ms. Good appears pro se, we construe her submissions liberally.

Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991). In that light, Ms. Good

presents two claims on appeal: (1) the district court erred when it held that it

lacked jurisdiction over the defendants, and (2) the district court abused its

discretion in dismissing the case rather than transferring it pursuant to 28 U.S.C.

§ 1631. Neither argument has merit.



      A. The District Court Lacked Subject Matter Jurisdiction Over the
      Japanese Ministries.
      Subject matter jurisdiction over the Japanese Ministries of Justice, Finance,

and Transportation is barred by FSIA. 28 U.S.C. §§ 1330, 1602–1611. A foreign

state is immune from jurisdiction of United States courts unless immunity is

waived by a specific statutory exception. Id. § 1604. To litigate against a foreign

state in the courts of the United States, a plaintiff carries “‘the burden of showing

that an exception applies.’” Southway v. Cent. Bank of Nig., 328 F.3d 1267, 1271

(10th Cir. 2003) (quoting Gen. Elec. Capital Corp. v. Grossman, 991 F.2d 1276,

1382 (8th Cir. 1993).

      It is undisputed that the Ministries are foreign states within the meaning of

FSIA. Ms. Good, however, argues that the Ministries waived immunity under §

1605(a)(1) because Japan elected to serve process on its own Ministries. The


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Japanese government, however, was required by the Hague Convention to serve

the complaint. 2 Hague Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters art. 5, Nov. 15, 1965, 20

U.S.T. 361; see 28 U.S.C. § 1608(a)(2). Japan did not waive immunity for its

Ministries by acting in accordance with international law.

      Ms. Good also contends that immunity was waived under 28 U.S.C. §

1605(a)(2), which denies immunity where a claim “is based upon an act outside

the territory of the United States in connection with a commercial activity of the

foreign state . . . [that] cause[d] a direct effect in the United States.” Ms. Good

alleges that the Ministries’ “failure to prevent the actions” of private parties has

caused “serious loss to all investors in America who hold stock in Japanese

Insurance Companies.” R., Doc. 52, at 5. This “failure to prevent” allegation

refers to Japan’s sovereign regulatory activity rather than commercial activity;

therefore, § 1605(a)(2) is not applicable.

      B. The District Court Lacked Personal Jurisdiction over the
      Remaining Defendants.

      We review the district court’s determination as to personal jurisdiction de

novo. Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th

Cir. 2008). The plaintiff bears the burden of pleading facts that support the

exercise of personal jurisdiction. Id. at 1069. Only the well-pled facts of the

      2
       The Japanese central authority charged with serving foreign process is the
ministry of Foreign Affairs.

                                          -5-
complaint, affidavits, or other writings, as distinguished from conclusory

allegations, can establish jurisdiction. Id. at 1070. Two requirements are

necessary for a federal district court to assert personal jurisdiction over a

defendant. First, the defendant must be “one ‘who could be subjected to the

jurisdiction of a court of general jurisdiction in the state in which the district

court is located.’” United States v. Botefuhr, 309 F.3d 1263, 1271 (10th Cir.

2002) (quoting Fed. R. Civ. P. 4(k)(1)(A)). Second, “the exercise of personal

jurisdiction must not offend the due process clause of the Fourteenth

Amendment.” Id. (internal quotations omitted). Because New Mexico’s long-arm

statute has been interpreted to extend “as far as constitutionally permissible,” our

personal jurisdiction inquiry largely collapses into an analysis of Due Process.

Tercero v. Roman Catholic Diocese, 48 P.3d 50, 54 (N.M. 2002).

      Under the Due Process clause, a defendant must have sufficient “minimum

contacts” with the forum state that subjecting him to its jurisdiction will not

“offend traditional conceptions of fair play and substantial justice.” Int’l Shoe

Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted).

Indeed, “the defendant’s conduct and connection with the forum State [must be]

such that he should reasonably anticipate being haled into court there.” World-

Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The “minimum

contacts” standard may be satisfied in two ways. First, a court may exercise

general jurisdiction when the defendant’s contacts with the forum state are

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“continuous and systematic.” Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408, 415 (1984). Second, a court may exercise specific jurisdiction if a

defendant “has purposefully directed his activities at residents of the forum . . .

and the litigation results from alleged injuries that arise out of or relate to those

activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal

quotation marks omitted).

      In this case, the corporate and individual defendants lack the requisite

minimum contacts with New Mexico to establish either general or specific

jurisdiction. After reviewing the record and briefs, we conclude that all of these

defendants reside in Japan, and all of the actions complained of occurred in Japan.

There is nothing in the record to indicate that any of the defendants has ties to the

State of New Mexico, with the exception of this lawsuit. Nonetheless, Ms. Good

makes several contentions that the defendants are subject to personal jurisdiction

in New Mexico.

      First, she argues that Japanese Fuji is subject to personal jurisdiction

because it has a subsidiary incorporated in Illinois, the American Fuji Fire and

Marine Insurance Company (“American Fuji”). Ms. Good similarly argues that

Japanese Fuji has contacts with New Mexico through American International

Group (“AIG”), an insurance company that owns 20.04 percent of Japanese Fuji

Stock. Both claims are unavailing. For purposes of personal jurisdiction, “a

holding or parent company has a separate corporate existence and is treated

                                           -7-
separately from the subsidiary in the absence of circumstances justifying

disregard of the corporate entity.” Quarles v. Fuqua Indus., Inc., 504 F.2d 1358,

1362 (10th Cir. 1974); accord Benton v. Camero Corp., 375 F.3d 1070, 1081

(10th Cir. 2004). American Fuji and AIG are separately-incorporated companies.

They do not sell car insurance in Japan and were not involved in the car accident

giving rise to Ms. Good’s claim. Further, Ms. Good has not pleaded or shown

any facts that would justify disregard of American Fuji’s separate corporate

existence.

      Ms. Good also contends that Japanese Fuji is subject to personal

jurisdiction because it maintains an Internet web site that is accessible in New

Mexico. The extent to which jurisdiction can be established by an Internet

presence, however, depends on the degree to which the web site is used to

conduct or solicit business within the forum. See Soma Med. Int’l v. Std.

Chartered Bank, 196 F.3d 1292, 1296 (10th Cir. 1999). The record is clear that

Japanese Fuji does not conduct any business in New Mexico through its web site

or through any other means.

      Finally, Ms. Good claims that defendants made a general appearance and

consented to jurisdiction when they appeared before the district court and

addressed the merits of Ms. Good’s claims. However, even if the defendants did

address the merits of the case, “[n]o defense or objection is waived by being




                                         -8-
joined with one or more other defenses or objections in a responsive pleading or

in a motion.” Fed R. Civ. P. 12(b).

         C. The District Court Did Not Abuse Its Discretion When It Denied
         Ms. Good’s Motion to Transfer.

         Ms. Good argues that even if the district court lacked personal jurisdiction,

it should have transferred the case pursuant to 28 U.S.C. § 1631, rather than

dismissing the case without prejudice. Under § 1631, a district court lacking

jurisdiction to hear an action “shall, if it is in the interest of justice, transfer such

action . . . to any other such court in which the action . . . could have been

brought at the time it was filed.” We review the district court’s decision to deny

Ms. Good’s motion to transfer under a clear abuse of discretion standard.

Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1543 (10th Cir.

1996).

         Ms. Good argues that she was prejudiced by the district court’s refusal to

transfer her case to American Fuji’s supposed domicile in Illinois or California.

The district court’s decision to dismiss, however, was not an abuse of discretion.

“A court cannot transfer a suit to a court where personal jurisdiction does not

exist over the defendants originally.” Morris v. Peterson, 759 F.2d 809, 812

(10th Cir. 1985). As we have already discussed, American Fuji’s presence in a

forum state is insufficient to subject Japanese Fuji to personal jurisdiction absent

“circumstances justifying disregard for the corporate entity.” Quarles, 504 F.2d


                                           -9-
at 1362. Transfer could not have served “the interest of justice” because Ms.

Good has failed to show that personal jurisdiction over these Japanese defendants

would exist in any United States forum.

                               III. CONCLUSION

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED. Appellant’s motions for leave to proceed in forma

pauperis are DENIED.

                                                 Entered for the Court,

                                                 Michael W. McConnell
                                                 Circuit Judge




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