nationwide service provision may have been adequate to this goal.
Since then, however, RICO conspiracies have become increasingly
transnational in scope. It is not uncommon to find at least one
foreign corporation or individual named as a defendant in a civil
RICO suit. See, e.g., Part IV.B, supra (citing cases).
The extranational reach of RICO has long been recognized by the
court of appeals for the Second Circuit. See, e.g., North South
Finance Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d Cir. 1996)
("Clearly, a corporate defendant that is a foreign entity is not
for that reason alone shielded from the reach of RICO. Less clear
is the character and amount of activity in the United States that
will justify RICO subject matter jurisdiction over a foreign
entity." (citations omitted)); Alfadda v. Fenn, 935 F.2d 475,
479 (2d Cir. 1991) (predicate acts occurring primarily in the
United States were basis of subject matter jurisdiction for RICO
claims based on international securities transaction), cert.
denied, 502 U.S. 1005, 112 S.Ct. 638, 116 L.Ed.2d 656 (1991);
United States v. Parness, 503 F.2d 430, 439 (2d Cir. 1974),
cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801
(1975) (rejecting argument that RICO was not intended to apply to
Yet available jurisdictional provisions do not reach all
participants in RICO conspiracies in all cases. Jurisdiction over
internationally-based RICO defendants who are served abroad is
not, as has already been pointed out, authorized by RICO's
nationwide service provision. See Part IV.B, supra. Such
defendants may be subjected to jurisdiction in personam under
either Rule 4(k)(1)(A), if they are amenable to jurisdiction in
the forum state, or under Rule 4(k)(2), if they are not amenable
to suit in any state but have sufficient contacts with the nation
as a whole to satisfy the Due Process Clause of the Fifth
Amendment. (The Fifth and Fourteenth Amendment due process
requirements should be deemed, for these purposes identical. The
only difference between the two is the geographical scope —
statewide or nationwide — by reference to which the fairness and
reasonableness of jurisdiction must be evaluated.).
There may be some foreign RICO conspirators not covered by this
scheme. For example, the long arm statute of the state where suit
has been brought might not provide a basis for jurisdiction over
a defendant who is nonetheless subject to suit in the courts of
some other state. In such a situation application of Rule 4(k)(2)
would be blocked. The plaintiff would be forced to bring a
separate suit against the defendant in another state, to forego
suing that foreign defendant, or to transfer the entire suit to
what could be a distant and inconvenient United States forum
having little relation to the events giving rise to the case or
the parties involved — a result at odds with RICO's liberal
service and venue provisions.
Consideration should be given to curing this jurisdictional
hiatus by providing for worldwide service of process in RICO, as
in other federal statutes reaching acts abroad having an impact
in the United States, such as the Clayton Act, on which civil
RICO was modeled. See Clayton Act § 12, 15 U.S.C. § 22 (1994)
(process in antitrust suits "may be served in the district of
which [the corporation] is an inhabitant, or wherever it may be
found"); see Michael Goldsmith & Vicki Rinne, Civil RICO,
Foreign Defendants, and "ET", 73 Minn. L.Rev. 1023, 1077-78
(1989) (recommending amendment of section 1965 of title 18 to
provide for service of process outside the United States).
Personal jurisdiction has been acquired over BAT. Its motion
for judgement on the pleadings is denied.
© 1992-2003 VersusLaw Inc.