     15-3294
     Ritchie Capital Management, L.L.C. et al. v. Costco Wholesale Corporation

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of July, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                REENA RAGGI,
 8                DENNY CHIN,
 9                              Circuit Judges.
10
11       - - - -    - - - -    - - - - - - - - - - - -X
12       RITCHIE    CAPITAL    MANAGEMENT, L.L.C.,
13       RITCHIE    CAPITAL    MANAGEMENT, LTD., &
14       RITCHIE    SPECIAL    CREDIT INVESTMENTS,
15       LTD.,
16                    Plaintiffs-Appellants,
17
18                    -v.-                                               15-3294
19
20       COSTCO WHOLESALE CORPORATION,
21                Defendant-Appellee.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANTS:                       ALEXANDRA A.E. SHAPIRO (with
25                                             Cynthia S. Arato & Fabien
26                                             Thayamballi on the brief),
27                                             SHAPIRO ARATO LLP, New York, New
28                                             York; also on the brief: Leo V.

                                                  1
 1                              Leyva & James T. Kim, Cole
 2                              Schotz P.C., New York, New York.
 3
 4   FOR APPELLEE:              GREGG L. WEINER (with Adam M.
 5                              Harris on the brief), ROPES &
 6                              GRAY LLP, New York, New York;
 7                              also on the brief: Douglas
 8                              Hallward-Driemeier, Ropes & Gray
 9                              LLP, Washington, D.C.
10
11   FOR AMICUS CURIAE THE       Andrew J. Pincus, Archis A.
12   CHAMBER OF COMMERCE OF      Parasharami & Matthew A. Waring,
13   THE UNITED STATES OF        Mayer Brown LLP, Washington,
14   AMERICA:                    D.C.; Kate Comerford Todd, U.S.
15                              Chamber Litigation Center,
16                              Washington, D.C.
17
18        Appeal from a judgment of the United States District
19   Court for the Southern District of New York (Broderick, J.).
20
21        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
22   AND DECREED that the judgment of the district court be
23   AFFIRMED.
24
25        Appellants Ritchie Capital Management, L.L.C., Ritchie
26   Capital Management, Ltd. and Ritchie Special Credit
27   Investments, Ltd. (“Ritchie”) appeal from the judgment of
28   the United States District Court for the Southern District
29   of New York (Broderick, J.), granting defendant-appellee
30   Costco Wholesale Corporation’s (“Costco”) motion to dismiss
31   for lack of personal jurisdiction. We assume the parties’
32   familiarity with the underlying facts, the procedural
33   history, and the issues presented for review.
34
35        Ritchie’s sole argument on appeal is that Costco is
36   subject to general personal jurisdiction because it
37   registered to do business in New York. It is undisputed
38   that Ritchie did not raise this argument below; it is
39   forfeited. See Spiegel v. Schulmann, 604 F.3d 72, 77 n.1
40   (2d Cir. 2010) (“On appeal, the [p]laintiffs argue that [the
41   company] was subject to the district court’s personal
42   jurisdiction because the company had registered to do
43   business in New York State. Although such registration
44   would have been sufficient to establish personal




                                  2
 1   jurisdiction,1 the [p]laintiffs did not raise this argument
 2   before the district court and thus, it is waived.” (internal
 3   citation omitted)).
 4
 5        Seeking to avoid this result, Ritchie relies on the
 6   Supreme Court’s decision in Yee v. City of Escondido, 503
 7   U.S. 519, 534 (1992). Such reliance is misplaced. In
 8   Eastman Kodak Co. v. STWB, Inc., 452 F.3d 215 (2d Cir.
 9   2006), this Court interpreted Yee as supporting the
10   unremarkable proposition that “this court ordinarily will
11   not hear arguments not made to the district court. But
12   appeals courts may entertain additional support that a party
13   provides for a proposition presented below.” Id. at 221
14   (emphasis added) (internal citation omitted). We decline to
15   entertain Ritchie’s belated argument; Ritchie has presented
16   no explanation for why it did not make this argument before
17   the district court, or why it would be a “manifest
18   injustice” if Ritchie is prevented from blindsiding Costco
19   on appeal. Sniado v. Bank Austria AG, 378 F.3d 210, 213 (2d
20   Cir. 2004).
21
22        For the foregoing reasons, as we are not reaching
23   Ritchie’s other arguments, we hereby AFFIRM the judgment of
24   the district court.
25
26                              FOR THE COURT:
27                              CATHERINE O’HAGAN WOLFE, CLERK
28
29
30
31
32




         1
           This conclusion may no longer be sound in light of
     the Supreme Court’s decision in Daimler AG v. Bauman, 134 S.
     Ct. 746, 751 (2014); we express no view one way or the other
     on the underlying merits of Ritchie’s argument.
                                  3
