that because they are domiciled in the United States and "felt" an economic loss in the United States, personal jurisdiction can be established. However, the inquiry into personal jurisdiction, as distinguished from subject matter jurisdiction, must focus on defendants' contacts with the forum and not plaintiffs' contacts. Ginter v. Swedish Match A.B., 1990 U.S. Dist. LEXIS 16579, 1990 WL 203110 at *5 (E.D.N.Y. Nov. 21, 1990) ("The injury must occur within the state; it is not enough that the economic loss accrued to a resident of the state.")
At the February 28, 1996 hearing, plaintiffs contended that in personam jurisdiction in the United States existed because ICB made a trust agreement in New York, the beneficiaries were American, and ICB owned land in Florida. The flaw in this argument is that it ignores the fact that under Swiss law, the Commissione, the Canton, the Ufficio, or the individual commissioners are not successors in interest to the bank, nor do any of these entities or individuals assume any of the liabilities of ICB. Hirsch Aff. PP 20, 21, 29. Thus, whatever contacts there may have been between the bank and the plaintiffs in the United States cannot be imputed to the Commissione's members or any entity previously mentioned herein. They are responsible only for their own acts all of which took place in Switzerland.
No connection between the Commissione members and the United States has been shown. Although physically entering the forum is not necessary, no activities in connection with the alleged misappropriation were conducted in the United States either. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985). Moreover, none of the individual members has been engaging in continuous and systematic transactions with the United States, and no such transaction has been alleged by the plaintiffs. Because proposed defendants have not availed themselves of the privileges of the United States, in personam jurisdiction would be inappropriate. Sea Lift, Inc. v. Refinadora Costarricense De Petroleo S.A., 792 F.2d 989 (11th Cir. 1986); Maryland Tuna Corp. v. Nichimen Co., Inc., 429 F.2d 307 (2d Cir. 1970).
Plaintiffs, in their reply papers, request that they be allowed to conduct discovery to determine whether in personam jurisdiction exists. However, before imposing such an expensive burden on these defendants, plaintiffs are required to make a prima facie showing of in personam jurisdiction in their complaint. See New York Marine Managers, Inc. v. Topor-1, 1989 U.S. Dist. LEXIS 389, 1989 WL 4030, *1 (S.D.N.Y. January 17, 1989) . See also Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 785 (5th Cir. 1990). Plaintiffs have not met this burden as they have not claimed any relationship between the proposed individual defendants and the Eastern District of New York.
Defendants again request Rule 11 sanctions be awarded as they found this motion to "utterly lack merit." Def Mem. at 1. Since in personam jurisdiction was not addressed in the previous opinion, sanctions will not be awarded.
Any amendment to the judgment to permit the amending of the complaint would be futile. The Canton of Ticino is immune from suit pursuant to the FSIA. The individual commissioners either acted within their official capacities, and thus are immune from suit pursuant to the FSIA as well. Alternatively, if they acted beyond their official capacities, although there may be subject matter jurisdiction, in personam jurisdiction is lacking because no contacts with the United States by these individuals have been alleged or can be found. Consequently, the plaintiff's motion to alter the judgment pursuant to Fed. R. Civ. P. 59(e) is denied.
Dated: Brooklyn, New York
June 6, 1996
David G. Trager
United States District Judge