## Facts

- John E. Fitzgerald, a Massachusetts resident, pleaded guilty in federal court to racketeering-conspiracy and attempted money-laundering charges.
- A federal court ordered forfeiture of assets, including more than $7 million held in accounts at Swiss American banking entities headquartered in Antigua.
- Swiss American did not transfer the funds pursuant to the forfeiture order; it disbursed approximately $5 million to Antiguan authorities and confiscated the remaining funds.
- Antigua asserted that the funds were either lawfully payable to it or not subject to the U.S. forfeiture order, creating a dispute over control of the money.
- The United States filed a civil action in the District of Massachusetts against several foreign banking entities seeking recovery of the forfeited funds and related relief.
- The foreign defendants moved to dismiss for lack of personal jurisdiction; the district court dismissed and denied the government’s request for jurisdictional discovery.

## Issues

1. When may a federal court exercise personal jurisdiction over a foreign defendant under Federal Rule of Civil Procedure 4(k)(2) in a federal-question case based on the defendant’s aggregate contacts with the United States?
2. Under Rule 4(k)(2), must the plaintiff prove the defendant is not subject to jurisdiction in any state, or does the burden shift to the defendant to identify a state where it is amenable to suit?
3. Whether the district court abused its discretion by denying jurisdictional discovery aimed at establishing personal jurisdiction.

## Decision

- The First Circuit vacated the dismissal for lack of personal jurisdiction and vacated the denial of jurisdictional discovery.
- The court held the district court applied an incorrect approach to Rule 4(k)(2), particularly as to burden allocation on the “no state forum” requirement.
- The court held the denial of any jurisdictional discovery was an abuse of discretion on the existing record.
- The case was remanded for jurisdictional discovery and reconsideration of personal jurisdiction under the proper Rule 4(k)(2) framework.
- The court did not finally determine that personal jurisdiction existed; it required further proceedings and fact development.

## Legal Principles

- Rule 4(k)(2) permits personal jurisdiction in federal-question cases where (1) the claim arises under federal law, (2) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction, and (3) exercising jurisdiction is consistent with due process.
- When Rule 4(k)(2) is invoked, the relevant forum for minimum-contacts analysis is the United States as a whole, not the particular state in which the federal court sits.
- A plaintiff is not required to conclusively negate personal jurisdiction in every state; after a prima facie Rule 4(k)(2) showing, the defendant must identify a state where it is subject to jurisdiction to defeat Rule 4(k)(2).
- Jurisdictional discovery is warranted where the plaintiff makes a colorable showing of jurisdiction and additional facts are needed to resolve the jurisdictional dispute; a categorical denial may be an abuse of discretion.

## Conclusion

The First Circuit required reconsideration of personal jurisdiction under Rule 4(k)(2), rejecting an approach that effectively forced the government to disprove jurisdiction in all states and holding that the government was entitled to jurisdictional discovery to develop the nationwide-contacts record.


United States v. Swiss Am. Bank, Ltd., 191 F.3d 30 (1st Cir. 1999)