18-2906
Johnson v. UBS AG

                             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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
7th day of November, two thousand nineteen.

PRESENT:
                    ROBERT A. KATZMANN,
                         Chief Judge,
                    DENNY CHIN,
                    CHRISTOPHER F. DRONEY,
                         Circuit Judges.


KATHLEEN JOHNSON and JUDITH WOODARD,
individually and as Trustees of the Annabell M. Palmer Family Trust,

                         Plaintiffs-Appellants,

                    v.                                             No. 18-2906

UBS AG,

                         Defendant-Appellee,

Union Bank of Switzerland,

                         Defendant.




                                                  1
For Plaintiffs-Appellants Kathleen                   JACK S. DWECK, The Dweck Law Firm, LLP,
Johnson and Judith Woodard:                          New York, NY.

For Defendant-Appellee UBS AG:                       DAVID L. GOLDBERG, Katten              Muchin
                                                     Rosenman LLP, New York, NY.


          Appeal from a judgment of the United States District Court for the Southern District of

New York (Hellerstein, J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

          Plaintiffs-appellants Kathleen Johnson and Judith Woodard, individually and as trustees

of the Annabell M. Palmer Family Trust (“the Trustees”), brought suit against defendant-

appellee UBS AG (“UBS”) for conduct arising from decedent Ann Palmer’s 1998 transfer of $4

million from an account in the United States to UBS in Switzerland. The Trustees appeal from a

judgment of the United States District Court for the Southern District of New York (Hellerstein,

J.) dismissing their amended complaint for lack of personal jurisdiction over UBS and for failing

to meet the statutes of limitations for their various claims under New York law. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

          “We review de novo a district court’s decision to grant motions under Rule 12(b)(2) and

12(b)(6).” Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68, 81 (2d Cir. 2018).1 “[I]n

deciding a pretrial motion to dismiss for lack of personal jurisdiction a district court has

considerable procedural leeway. It may determine the motion on the basis of affidavits alone; or

it may permit discovery in aid of the motion; or it may conduct an evidentiary hearing on the



          1
        Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations,
emphases, footnotes, and citations are omitted.
                                                 2
merits of the motion.” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir.

2013) (per curiam). Courts may consider materials outside the pleadings on a motion to dismiss

for lack of personal jurisdiction without converting it into a summary judgment motion. Id. at 86.

“Where . . . the district court relies on the pleadings and affidavits, and does not conduct a full-

blown evidentiary hearing, we review the district court’s resulting legal conclusions de novo,”

construing the pleadings and affidavits in favor of the plaintiffs. Id. at 85.

       Three requirements must be met to exercise personal jurisdiction over a defendant:

service of process must have been procedurally proper, “there must be a statutory basis for

personal jurisdiction,” and “the exercise of personal jurisdiction must comport with

constitutional due process principles.” Waldman v. Palestine Liberation Org., 835 F.3d 317, 327

(2d Cir. 2016). We agree with the district court that the Trustees have not plausibly alleged facts

to meet the due process requirements for jurisdiction and that they therefore have not made “a

prima facie showing that jurisdiction exists.” Charles Schwab, 883 F.3d at 81.

       To establish that the exercise of personal jurisdiction comports with the due process

clauses of the Fifth and Fourteenth Amendments, courts must determine both “whether a

defendant has sufficient minimum contacts with the forum to justify the court’s exercise of

personal jurisdiction over the defendant” and “whether the assertion of personal jurisdiction over

the defendant comports with traditional notions of fair play and substantial justice under the

circumstances of the particular case.” Waldman, 835 F.3d at 331. In analyzing the minimum

contacts requirement, courts have distinguished between two bases for personal jurisdiction:

specific jurisdiction and general jurisdiction. Id. Neither version is present in this case.

       First, the Trustees do not allege facts to plead specific jurisdiction. To establish specific

jurisdiction, a “defendant’s suit-related conduct must create a substantial connection with the



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forum State.” Walden v. Fiore, 571 U.S. 277, 284 (2014). The Trustees attempt to meet the

minimum contacts standard through a simple equation: a case arising out of UBS’s “contacts

within the U.S.,” plus UBS’s continuing presence in New York through its branch offices, equals

specific jurisdiction. Appellants’ Br. 13. But these components do not add up. The Trustees’

method of establishing jurisdiction is similar to a “sliding scale approach,” in which “the strength

of the requisite connection between the forum and the specific claims at issue is relaxed if the

defendant has extensive forum contacts that are unrelated to those claims”—an approach the

Supreme Court has rejected as “a loose and spurious form of general jurisdiction.” Bristol-Myers

Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773, 1781 (2017). “For specific jurisdiction, a

defendant’s general connections with the forum are not enough.” Id.2 And neither the complaint

nor any of the other documents in the record suggest that UBS’s connections with New York

relate to the circumstances of this case. The complaint fails to allege which state Palmer was in

when she wired the $4 million, and it also fails to indicate where she was convinced to transfer

the funds. It states only that she transferred the funds from “her account at Citibank in the United

States.” Compl. ¶ 8. The documents the Trustees entered into the record below indicate that her

account was based in California, not New York. UBS’s New York presence cannot make up for

the utter lack of any alleged connection between that presence and the events in this case.

       The Trustees also assert that specific jurisdiction exists because “UBS has availed itself

of the Courts in New York” in other cases. Appellants’ Br. 14; see Reply Br. 3-4. This argument,

too, fails. “Courts typically require that the plaintiff show some sort of causal relationship

between a defendant’s U.S. contacts and the episode in suit, and the plaintiff’s claim must in

       2
          For similar reasons, the district court is also correct that Johnson’s New York
citizenship is irrelevant to the personal jurisdiction analysis. See Walden, 571 U.S. at 284 (“We
have consistently rejected attempts to satisfy the defendant-focused ‘minimum contacts’ inquiry
by demonstrating contacts between the plaintiff (or third parties) and the forum State.”).

                                                 4
some way arise from the defendants’ purposeful contacts with the forum.” Charles Schwab, 883

F.3d at 84 (emphases added). UBS’s involvement in other cases in New York does not create

specific jurisdiction because “a defendant’s relationship with a third party, standing alone, is an

insufficient basis for jurisdiction,” and those other cases create no “connection between the

forum and the specific claims at issue” here. Bristol-Myers Squibb, 137 S. Ct. at 1781. For a

court to have specific personal jurisdiction, there must be an “adequate link between the State

and the nonresidents’ claims.” Id. The Trustees have identified no such link.

       Nor do the Trustees make a prima facie showing of general jurisdiction. Courts “may

assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any

and all claims against them when their affiliations with the State are so continuous and

systematic as to render them essentially at home in the forum State.” Daimler AG v. Bauman,

571 U.S. 117, 127 (2014). “Aside from the truly exceptional case, a corporation is at home and

subject to general jurisdiction only in its place of incorporation or principal place of business.”

SPV Osus Ltd. v. UBS AG, 882 F.3d 333, 343 (2d Cir. 2018). As this Court has previously

noted—and as UBS’s uncontested declaration filed below attests—“UBS AG’s place of

incorporation and principal place of business is in Switzerland.” Id. While the Trustees’ reply

brief appears to indirectly contest UBS’s Swiss citizenship, their amended complaint itself

alleges that UBS AG is a citizen of Switzerland.

       The Trustees nevertheless assert that the district court could exercise general jurisdiction

over UBS because UBS “provides banking and investment services in New York” and “is

subject to the regulations of the New York State Department of Financial Services . . . and the

New York State Banking Authority.” Appellants’ Br. 13. However, this Court, “in interpreting

Daimler, noted that the case expressly cast doubt on previous Supreme Court and New York



                                                5
Court of Appeals cases that permitted general jurisdiction on the basis that a foreign corporation

was doing business through a local branch office in the forum.” SPV Osus, 882 F.3d at 343. As

this Court has held in another similar suit, UBS AG’s contacts with New York do not “render

this an exceptional case” in which general jurisdiction can be exercised in New York. Id.

       While the Trustees argue that jurisdictional discovery should have been granted, they

have not made the “prima facie showing of personal jurisdiction” required to surpass a motion to

dismiss, see Dorchester Fin. Sec., 722 F.3d at 86, and they have not identified any additional

information they would hope or expect to obtain that would change the result.3

       We have considered all of the Trustees’ contentions on appeal and have found in them no

basis for reversal. For the reasons stated herein, the judgment of the district court is

AFFIRMED.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




       3
          As we find the due process element of personal jurisdiction a sufficient basis for
affirming, we need not address the district court’s determinations that the New York long-arm
statute provides no basis for personal jurisdiction or that the Trustees’ claims are untimely.

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