FC Investment Group LC v. IFX Markets, Ltd.

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 8, 2007                Decided June 20, 2008

                        No. 07-7037

              FC INVESTMENT GROUP LC AND
               LAWRENCE JAY EISENBERG,
                      APPELLANTS

                              v.

                    IFX MARKETS, LTD.,
                        APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                      (No. 04cv01939)


   Alan B. Sternstein argued the cause for the appellant.
Courtney R. Sydnor and Gregory D. Grant entered appearances.
    Kevin J. Clancy argued the cause for the appellee. Joan M.
Kubalanza was on brief. Kenneth S. Nankin entered an
appearance.
   Before: HENDERSON and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
    Opinion for the court filed by Circuit Judge HENDERSON.
    KAREN LECRAFT HENDERSON, Circuit Judge: FC
Investment Group LC (FCIG) and Lawrence Jay Eisenberg
(Eisenberg) sued IFX Markets, Ltd. (IFX), a London-based
                                  2

currency broker, alleging that IFX conspired with Titan Global
Strategies, Ltd. (Titan), a now-defunct investment company, to
defraud them of millions of dollars through a currency
investment scheme.1 The district court denied their motion for
jurisdictional discovery and ultimately dismissed their four-
count complaint for lack of personal jurisdiction. FC Inv. Group
LC v. IFX Markets, Ltd., 479 F. Supp. 2d 30, 44 (D.D.C. 2007).
For the reasons set forth below, we affirm the district court.
                                  I.
     FCIG, a Maryland limited liability company owned and
managed by Eisenberg and with its principal place of business
in the District of Columbia (District), and Eisenberg, a Maryland
resident, allege that they lost several million dollars2 in a
fraudulent investment scheme brokered by IFX and run by
Titan. Am. Compl. ¶¶ 1–2, 6. The plaintiffs’ involvement with
IFX and Titan began in September 1998 when “Titan and its
officials,” via unspecified means, “contacted Eisenberg at his
offices in the District of Columbia about making an investment
in a foreign currency trading account to be managed by Titan.”
Id. ¶ 7. Titan informed Eisenberg that its currency trades were
made by IG Group, PLC (IG), a currency trader. Id. Eisenberg
was also told that his investment was “completely liquid” and
could be withdrawn at any time with notice to Titan. Id. ¶ 8.
Eisenberg subsequently received by mail an informational


    1
     Although Titan is not a defendant in this lawsuit, FCIG has
obtained a $6.5 million judgment against Titan and its owner, Milan
Martinic, in separate litigation. See FC Inv. Group LC v. Titan Global
Strategies, LTD, No. 2004cv0312 (Wis. Cir. Ct. July 20, 2004).
    2
     The precise amount the plaintiffs allege they lost due to Titan’s
and IFX’s fraud is unclear. Compare Am. Comp. ¶ 6 (alleging $ 9.5
million in losses) with Am. Comp. ¶¶ 9, 12 (alleging total investment
of approximately $1 million by Eisenberg and $5 million by FCIG).
                                3

brochure describing Titan’s relationship with IG. Id. Eisenberg
made an initial investment of $10,000. Id. Between October
1998 and October 2003, Eisenberg continued to invest with
Titan, eventually investing approximately $1 million. Id. ¶ 9.
Eisenberg’s wife invested an additional $400,000. Id. In April
2001, Eisenberg formed FCIG to “introduc[e] certain friends
and family-member investors to Titan.” Id. ¶ 1. By October
2003, FCIG had invested approximately $5 million with Titan.
Id. ¶ 12. Through at least 2003, Titan continued to send
“account statements” to both Eisenberg and FCIG in the District
indicating “large earnings on FCIG’s investments.” Id. ¶ 13.
     Also in early 2001, Charles Knott, a Titan employee,
became Titan’s “investment advisor and point-of-contact” for
FCIG. Id. ¶ 14. Knott met with Eisenberg “several times” in the
District between 2001 and 2002 to update Eisenberg on Titan’s
operations. Id. Sometime in 2002 Knott advised the plaintiffs
that IFX was replacing IG as Titan’s currency broker. Id. ¶ 15.
The plaintiffs allege that IFX knew, when it replaced IG, that “it
was entering into [a] fraudulent foreign currency exchange
scheme.” Id. Thereafter, Christopher Cruden of IFX’s Managed
Investment Products Department telephoned Eisenberg regularly
to provide updates on IFX’s activities and to invite Eisenberg to
visit IFX’s London office. Id. ¶ 15. Eisenberg visited the
London office in November 2002. See id. ¶ 18. During his trip,
Eisenberg met with Knott (as noted, a Titan employee) as well
as with Cruden and other IFX officers. Id. ¶ 21. While there,
Eisenberg was shown an “elaborate” PowerPoint presentation,
created jointly by IFX and Titan employees, which described
Titan’s and IFX’s business relationship. Id. ¶¶ 19–21.
Following Eisenberg’s London trip, FCIG and “investors
associated with FCIG” invested an additional $2 million with
Titan. Id. ¶ 23.
    In late 2003, Eisenberg asked Titan to close his account and
refund the balance of his investment but Titan rebuffed him. Id.
                                 4

¶ 25. When FCIG demanded return of its funds, Larry
Lichtenstein and Milan Martinic, two members of Titan’s board
of directors, assured FCIG that “Titan had deposited $4.3
million in an account at US Bank” and that those funds were
available to repay FCIG. Id. ¶ 26. On January 4, 2004,
Lichtenstein sent Eisenberg a copy of a $4.3 million deposit slip
falsely showing that Titan had deposited the funds in the bank.
Id. Neither Eisenberg’s nor FCIG’s investments have been
returned.3 Id. ¶ 25.
     In November 2004, Eisenberg and FCIG filed suit against
IFX in district court. Their amended complaint contained four
counts: (1) fraud/fraud in the inducement, see id. ¶¶ 33–37; (2)
civil conspiracy, see id. ¶¶ 38–41; (3) civil aiding and abetting,
see id. ¶¶ 42–46; and (4) conspiracy to violate the Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§§ 1961 et seq., see id. ¶¶ 47–59.
     In February 2005, IFX moved to dismiss the suit for lack of
personal jurisdiction. See Appellee’s Mot. to Dismiss 2 (Feb. 7,
2005). In response, Eisenberg and FCIG asserted four bases for
personal jurisdiction: (1) the district court had general personal
jurisdiction over IFX based on its maintenance of an interactive
website accessible—and used—in the District, Appellants’
Mem. in Opp’n to Mot. to Dismiss 7–10 (Aug. 8, 2006); (2) the
court had specific personal jurisdiction over IFX based on
Cruden’s “regular” telephone calls to Eisenberg at Eisenberg’s
District office, id. at 10–11; (3) the court had personal
jurisdiction over IFX based on the actions of IFX’s co-
conspirator, Titan, in the District, id. at 11–14; and (4) the court
had personal jurisdiction over IFX pursuant to RICO’s nation-
wide service of process provisions. Id. at 16. In February 2006,


    3
    The $6.5 million judgment FCIG obtained from Titan and
Martinic, see supra note 1, remains unsatisfied. See Appellants’ Br.
13.
                                  5

the district court rejected all four bases and dismissed their
amended complaint. FC Inv. Group, 479 F. Supp. 2d at 44. It
also denied the plaintiffs’ request for jurisdictional discovery.
Order Denying Mot. 1 (July 7, 2005). Eisenberg and FCIG filed
a timely appeal.
                                  II.
     We review de novo the district court’s dismissal of the
amended complaint for lack of personal jurisdiction. See
Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 509 (D.C.
Cir. 2002) (citing Second Amendment Found. v. United States
Conference of Mayors, 274 F.3d 521, 523 (D.C. Cir. 2001)).
We review its denial of jurisdictional discovery for abuse of
discretion. See Tax Analysts v. IRS, 410 F.3d 715, 720 (D.C.
Cir. 2005) (citing Stewart v. Evans, 351 F.3d 1239, 1245 (D.C.
Cir. 2003)). The plaintiffs have the burden of establishing the
court’s personal jurisdiction over IFX. See Reuber v. United
States, 787 F.2d 599, 599 (D.C. Cir. 1986).
                     A. General Jurisdiction
1. District’s Long-Arm Statute
     Eisenberg and FCIG claim that the district court has
“general” personal jurisdiction over IFX because IFX maintains
a website that allows District residents “to engage in frequent
and large value currency, precious metal and other transactions.”
Appellants’ Br. 14.4 D.C. Code § 13-334(a) “permits courts to
exercise ‘general jurisdiction’ over a foreign corporation as to
claims not arising from the corporation’s conduct in the



    4
     They concede that “IFX apparently has no offices” in the District.
Appellants’ Mem. in Opp’n 7; see also Decl. of Steven R. Reeves ¶ 5
(IFX “does not maintain any offices, agents or employees in the
District of Columbia.”).
                                      6

District[] if the corporation is ‘doing business’ in the District.”5
Gorman, 293 F.3d at 509 (quoting D.C. Code § 13-334(a); citing
AMAF Int’l Corp. v. Ralston Purina Co., 428 A.2d 849, 850
(D.C. 1981)). “Under the Due Process Clause, such general
jurisdiction over a foreign corporation is only permissible if the
defendant’s business contacts with the forum are ‘continuous
and systematic.’” Id. at 510 (quoting Helicopteros Nacionales
de Columbia, S.A. v. Hall, 466 U.S. 408, 415 (1984)). The D.C.
Court of Appeals “has indicated that the reach of ‘doing
business’ jurisdiction under § 13-334(a) is co-extensive with the
reach of constitutional due process.” Id. (citing Hughes v. A.H.
Robins Co., Inc., 490 A.2d 1140, 1148 (D.C. 1985)).
     Under certain circumstances, a foreign corporation’s
maintenance of a website that is accessible in the District can
satisfy general jurisdiction requirements. See, e.g., id. at 513.
But “[t]he mere accessibility of [a] defendant[’s] website[] . . .
does not establish the necessary minimum contacts” required for

    5
        Section 13-334(a) provides:
    In an action against a foreign corporation doing business in
    the District, process may be served on the agent of the
    corporation or person conducting its business, or, when he is
    absent and can not be found, by leaving a copy at the
    principal place of business in the District, or where there is no
    such place of business, by leaving a copy at the place of
    business or residence of the agent in the District, and that
    service is effectual to bring the corporation before the court.
D.C. Code § 13-334(a). Although section 13-334(a) expressly
addresses service of process, the D.C. Court of Appeals has held that
section 13-334(a) also grants general personal jurisdiction over “a
foreign corporation which carries on a consistent pattern of regular
business activity” within the District. AMAF Int’l Corp. v. Ralston
Purina Co., 428 A.2d 849, 850 (D.C. 1981); see also Gorman, 293
F.3d at 510 n.1; El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 673 n.7
(D.C. Cir. 1996).
                                    7

general jurisdiction. Id. at 512 (quotations and alterations
omitted). Two additional criteria must be met. First, the
website must be “interactive.” See id. at 511. An “‘essentially
passive’ website through which customers merely access
information” is insufficient. Id. at 512 (quoting GTE New
Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1348
(D.C. Cir. 2000)). Moreover, District residents must use the
website in a “‘continuous and systematic’” way. Id. at 512
(quoting GTE, 199 F.3d at 1350); see id. at 513 (“[D]etermining
whether Ameritrade is actually ‘doing business’ in the District
requires an examination of the frequency and volume of the
firm’s transactions with District residents.”); see also Atlantigas
Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 52 (D.D.C. 2003)
(“[T]he question is not whether District of Columbia residents
‘can’ transact business in the District with the non-resident
defendant through the defendant’s website, but if they actually
‘do’ engage in sustained business activities in a continuous and
systematic way.” (citing Gorman, 293 F.3d at 512–13)).
    Although the district court found that IFX’s website failed
to meet both requirements, we focus only on the second
requirement.6 The district court noted that the plaintiffs alleged


    6
      Regarding the first requirement—an interactive website—the
district court held that IFX’s website was not sufficiently “active” to
support its general jurisdiction over IFX. See FC Inv. Group, 479 F.
Supp. 2d at 37. It contrasted IFX’s website with the website in
Gorman, 293 F.3d at 512. There we held that a website maintained by
Ameritrade, a Nebraska-based securities broker, was sufficiently
“interactive” to support general jurisdiction in the District because the
website allowed District residents to “[1] open Ameritrade brokerage
accounts online; [2] transmit funds to their accounts electronically; . . .
[3] use those accounts to buy and sell securities, borrow from
Ameritrade on margin, and [] pay Ameritrade brokerage commissions
and interest.” Id. at 512. Although both IFX’s and Ameritrade’s
websites allowed users to conduct financial transactions online, the
                                   8

“only one District of Columbia resident has ever opened an
online account with [IFX], and it was open for just six months
in 2003.” FC Inv. Group, 479 F. Supp. 2d at 37 (citing Mem. in
Opp’n 8). Eisenberg and FCIG disagree. They claim it was IFX



district court found one critical difference between the two: unlike
Ameritrade’s website, the IFX website did not allow for online
account registration. FC Inv. Group, 479 F. Supp. 2d at 37. To
become an IFX customer, one was required to download an
application form, sign it and return it “along with required
identification documents . . . certified by an attorney, . . . an embassy
authority, consulate or high commission of the country of issue.” Id.
(quotation omitted). Because of this deficiency, the district court
determined that the IFX website was not sufficiently active for general
jurisdiction. But a foreign defendant that is “doing business” with
“continuous and systematic contacts” in the District, via internet, mail
or some combination of the two, suffices for general jurisdiction. Cf.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 467 (1985) (“[I]t is an
inescapable fact of modern commercial life that a substantial amount
of business is transacted solely by mail and wire communications
across state lines, thus obviating the need for physical presence within
a State in which the business is conducted.” (emphasis added));
Blumenthal v. Drudge, 992 F. Supp. 44, 56 (D.D.C. 1998) (finding
general jurisdiction over foreign defendant based on combination of
website and email list). Because IFX made its mail-in registration
form readily available for download on its website, the district court’s
focus on IFX’s lack of an online registration feature may be
misplaced. See, e.g., Citigroup Inc., v. Citi Holding Co., 97 F. Supp.
2d 549, 565 (S.D.N.Y. 2000) (finding jurisdiction based on website’s
allowing potential customers to, inter alia, “print out an application
for submission by facsimile”); Obabueki v. Int’l Bus. Machs. Corp.,
99cv11262, 2001 WL 921172, at *3 (S.D.N.Y. Aug. 14, 2001)
(finding jurisdiction based on website’s allowing “prospective
customers [to] download an application form which can be faxed to
[defendant]”). We do not reach the merits of the district court’s
holding on this issue, however, because of our holding as to the
second requirement.
                                  9

that asserted that there had been only one District user. See
Appellants’ Brief 18. In their Memorandum in Opposition to
Defendant’s Motion to Dismiss, Eisenberg and FCIG alleged
that IFX had “at least one” user in the District. Appellants’
Mem. in Opp’n 8 (emphasis added). The district court’s error is
nonetheless harmless. According to an IFX compliance officer,
her search of IFX’s records for customers residing in the District
with “account[s] opened for use with the IFX online trading
system” revealed only one such customer. See Walsh Decl.
¶¶ 2, 3, 5. That account was open for approximately six months
during the latter half of 2003. Id. ¶ 5. The record thus supports
the court’s conclusion that IFX had only one customer resident
in the District.
     This limited contact with a single District
customer—unrelated to the plaintiffs or their claims—does not
support the district court’s exercise of general jurisdiction. See
El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 675 (D.C. Cir.
1996) (“isolated and sporadic contacts unrelated to the claims in
the instant case” insufficient to establish general jurisdiction); cf.
Pacas v. Showell Farms, Inc., No. 95-1011, 1996 WL 192058,
at *2 (4th Cir. Apr. 22, 1996) (unpublished) (“sales to a single
customer . . . does not constitute the requisite minimum contacts
necessary to satisfy ‘fair play and substantial justice’ and to
establish general jurisdiction for a suit not related to the sale of
that product”); Atlantigas, 290 F. Supp. 2d at 53 (exercising
general jurisdiction over foreign corporation with only three
District customers would “stretch the concept of general
jurisdiction beyond what either the [long-arm] statute or due
process permits”).
2. Jurisdictional Discovery
     Eisenberg and FCIG argue that even if only one District
resident has opened an online account with IFX, the district
court should have allowed discovery to determine (1) “how
many transactions this one resident conducted, their dollar
                                10

volume [and] their currency,” Appellants’ Br. 19, and (2)
whether IFX has any customers who reside in Virginia or
Maryland and access the IFX website while at work in the
District. See id.; Appellants’ Reply Br. 6. The district court
denied their discovery request. See Order Denying Mot. 1 (July
7, 2005).
     It is well established that the “‘district court has broad
discretion in its resolution of discovery problems.’” See Naartex
Consulting Corp. v. Watt, 722 F.2d 779, 788 (D.C. Cir. 1983)
(quoting In re Multi-Piece Rim Prods. Liab. Litig., 653 F.2d
671, 679 (D.C. Cir. 1981)), cert. denied, 467 U.S. 1210 (1984).
In order to engage in jurisdictional discovery, the plaintiff “must
have at least a good faith belief that such discovery will enable
it to show that the court has personal jurisdiction over the
defendant.” Caribbean Broad. Sys., Ltd. v. Cable & Wireless
PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998). Such a request for
jurisdictional discovery cannot be based on mere conjecture or
speculation. See Bastin v. Fed. Nat’l Mortgage Ass’n, 104 F.3d
1392, 1396 (D.C. Cir. 1997).
    With respect to the plaintiffs’ first claim—that the district
court should have allowed discovery to determine the number of
the transactions (and their dollar amount) of IFX’s single
District user—the district court did not abuse its discretion in
denying jurisdictional discovery. As discussed earlier, a
business contact with one online customer in the District is
insufficient to establish general jurisdiction over a foreign
corporation. Therefore, no amount of discovery regarding that
one customer’s transactions would support general jurisdiction
over IFX.
     Regarding their second claim—that the district court should
have allowed discovery to determine the number of Maryland
and Virginia residents, if any, who may be IFX users at their
District job sites—we cannot say that the district court abused
its discretion in denying the plaintiffs discovery to pursue their
                                11

theory of “commuter jurisdiction.” See Bastin, 104 F.3d at 1396
(“The district court does not abuse its discretion when it denies
a discovery request that would amount to nothing more than a
fishing expedition.”).
     Eisenberg and FCIG also argue, in a footnote, that they are
entitled to discovery to determine whether IFX had any District
customers who did not log onto its website. See Appellants’ Br.
19 n.16. They describe the Walsh Declaration, discussed supra
p. 9, as “oblique[]” and “evasive” because it states that IFX had
“‘no customers residing in the District of Columbia with an
account opened for use with the IFX online trading system.’” Id.
(quoting Decl. of Katie Walsh 2) (emphasis in Appellants’ Br.).
They assert that, by discussing only the lack of IFX online
customers, the Declaration “leaves open whether there are
District of Columbia residents that transact business with IFX,
as large a broker as it is, on a regular and systematic basis but do
not avail themselves of IFX’s online trading capabilities.” Id.
Even assuming a “footnote” claim suffices, we reject it.
Throughout the district court proceedings the plaintiffs
consistently argued that IFX is within the court’s general
jurisdiction based on its maintenance of an interactive website.
See, e.g., Appellants’ Mot. for Disc. 6 (Jan. 13, 2005) (“It is
beyond cavil that the existence of a website business in the
District of Columbia would subject IFX to general jurisdiction
in the District of Columbia.”); Appellant’s Mem. in Opp’n 7
(“[IFX’s] interactive website business, which IFX admits is used
in the District of Columbia, subjects IFX to jurisdiction here.”);
Appellants’ Br. 17 (“IFX has maintained a website that permits
persons with accounts opened with it to do through it, in terms
of number and value of transactions, large volumes of foreign
exchange and precious metals trading. Such activity is sufficient
for the assertion of general jurisdiction.” (citations omitted)).
The fact that the Walsh Declaration discussed only the number
of IFX’s online customers in the District should have come as
                                    12

no surprise to Eisenberg and FCIG given how they framed their
general jurisdiction argument.
                       B. Specific Jurisdiction
     Eisenberg and FCIG next argue that the district court has
specific jurisdiction over IFX based on Cruden’s “‘regular’
phone calls to Eisenberg in the District to solicit business and
lure him to London.” Appellants’ Br. 21. A plaintiff seeking to
establish specific jurisdiction over a non-resident defendant
must establish that specific jurisdiction comports with the
forum’s long-arm statute, D.C. Code § 13-423(a), and does not
violate due process. See GTE, 199 F.3d at 1347 (citing United
States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 2000)). In the
district court, however, the plaintiffs failed to invoke the long-
arm statute or any other statutory basis supporting specific
jurisdiction. Instead, they relied on precedent from other
jurisdictions. See Appellants’ Mem. in Opp’n 10 (citing Neal v.
Jansen, 270 F.3d 328, 333 (6th Cir. 2001); Wein Air Alaska v.
Brandt, 195 F.3d 208, 215 (5th Cir. 1999); Daldav Assocs., LP
v. Lebor, 2004 WL 728367, at *3 (N.D. Tex. Mar. 25, 2004);
Bahn v. Chicago Motor Club Ins., 98 Md. App. 559, 568
(1993)). The district court generously assumed that they had
properly invoked the long-arm statute.7 It then concluded that

   7
       D.C. Code § 13-423(a), in relevant part, authorizes the court to:
   exercise personal jurisdiction over a person, who acts directly
   or by an agent, as to a claim for relief arising from the
   person’s—
          (1) transacting any business in the District of
          Columbia;
          (2) contracting to supply services in the District of
          Columbia;
          (3) causing tortious injury in the District of Columbia
          by an act or omission in the District of Columbia;
                                  13

“subsection (a)(1) [was] the only subsection of the D.C. long-
arm statute that [was] arguably applicable to the facts as
presented by the plaintiffs.” FC Inv. Group, 479 F. Supp. 2d at
38 n.1. After reviewing subsection (a)(1), the relevant case law
and the plaintiffs’ allegations, the district court concluded that
Cruden’s “‘regular’ phone calls into the District of Columbia
from elsewhere d[id] not constitute ‘transacting business’ in the
District of Columbia.”8 FC Inv. Group, 479 F. Supp. 2d at 39.




        (4) causing tortious injury in the District of Columbia
        by an act or omission outside the District of
        Columbia if he regularly does or solicits business,
        engages in any other persistent course of conduct, or
        derives substantial revenue from goods used or
        consumed, or services rendered, in the District of
        Columbia.
D.C. Code § 13-423(a).
    8
     The district court determined that subsection (a)(1)’s “transacting
business” requirement could not be satisfied by telephone or fax
contacts alone. FC Inv. Group, 479 F. Supp. 2d. at 39 (citing Kopff v.
Battaglia, 425 F. Supp. 2d 76, 79–82 (D.D.C. 2006) (approximately
100 faxes insufficient); Gibbons & Co. v. Roskamp Inst., 06cv0720,
2006 WL 2506646, at *3 (D.D.C. Aug. 28, 2006) (50–75 telephone
calls/emails before signing contract in Florida insufficient); Brunson
v. Kalil & Co., 404 F. Supp. 2d 221, 234 (D.D.C. 2005) (“limited”
telephone/fax contact insufficient); Jung v. Ass’n of Am. Med. Colls.,
300 F. Supp. 2d 119, 131 (D.D.C. 2004) (ten contacts per year
insufficient); COMSAT Corp. v. Finshipyards S.A.M., 900 F. Supp.
515, 523 (D.D.C. 1995) (eleven faxes/telephone calls insufficient);
Rahal v. Paris Sec. Corp., 82cv1439, 1982 U.S. Dist. LEXIS 17867,
at *2, *6 (D.D.C. Oct. 27, 1982) (30 telephone calls insufficient);
Textile Museum v. F. Eberstadt & Co., 440 F. Supp. 30, 31–33
(D.D.C. 1977) (74 mailings and one personal consultation
insufficient)).
                                  14

     In response, Eisenberg and FCIG argue that they intended
to argue for specific jurisdiction under subsection (a)(4) and that
the district court analyzed the wrong provision. See Appellants’
Br. 23 (“[T]he District Court disregarded FCIG’s argument,
choosing to assume, instead, that FCIG was basing specific
jurisdiction over IFX on IFX’s transaction of business in the
District.”). Their contention is without merit. As noted earlier,
it is the plaintiff’s burden to establish the court’s personal
jurisdiction over the defendant. Reuber, 787 F.2d at 599. If
Eisenberg and FCIG intended to rely on subsection (a)(4), it was
their responsibility to do so in a manner that gave the district
court fair notice thereof so that the court could rule on it and the
issue could be preserved for appeal. This they did not do. Cf.
Nemariam v. Fed. Democratic Republic of Ethiopia, 491 F.3d
470, 482–83 (D.C. Cir. 2007) (“[A]bsent exceptional
circumstances, the court of appeals is not a forum in which a
litigant can present legal theories that it neglected to raise in a
timely manner in proceedings below.” (quotations omitted)).9
                   C. Conspiracy Jurisdiction
     Eisenberg and FCIG argue further that specific jurisdiction
exists “because IFX was a conspirator with Titan in wrongs that
Titan perpetrated against FCIG through acts in the District.”
Appellants’ Br. 25 (capitalization altered). In the proceedings
below, they did not cite any statutory authority for this theory of
jurisdiction; however, the district court assumed that they



    9
     Even if their section 13-423(a)(4) argument were not waived, it
is unlikely that it would be successful. Subsection (a)(4) requires the
plaintiff to establish that the defendant “regularly does or solicits
business, engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed, or services
rendered, in the District.” “Regular” telephone calls from Cruden to
Eisenberg in the District do not suffice. See supra note 8.
                                  15

intended to rely on the “agent” language of subsection (a)(1).10
See FC Inv. Group, 479 F. Supp. 2d. at 38. Section 13-423(a)(1)
authorizes the court to exercise personal jurisdiction over a
defendant who, whether “directly or by an agent” (in this case,
a co-conspirator), “transact[s] any business in the District of
Columbia.” D.C. Code § 13-423(a)(1); see also Second Amend.
Found., 274 F.3d at 523 (“Persons who enter the forum and
engage in conspiratorial acts are deemed to ‘transact business’
there ‘directly’; co-conspirators who never enter the forum are
deemed to ‘transact business’ there ‘by an agent.’” (quoting
D.C. Code § 13-423(a)(1)). For “conspiracy” jurisdiction under
subsection (a)(3), the plaintiff must allege “(1) the existence of
a civil conspiracy . . . , (2) the defendant’s participation in the
conspiracy, and (3) an overt act by a co-conspirator within the
forum, subject to the long-arm statute, and in furtherance of the
conspiracy.” Kopff v. Battaglia, 425 F. Supp. 2d. 76, 81 n.4
(D.D.C. 2006) (quotation omitted); see also Edmond v. U.S.
Postal Serv. Gen. Counsel, 949 F.2d 415, 425 (D.C. Cir. 1991).




    10
      Eisenberg and FCIG now claim they intended to base their
“conspiracy jurisdiction” argument on subsection (a)(3). See
Appellants’ Br. 25. Subsection (a)(3) allows for personal jurisdiction
over any defendant who, either directly or through an agent, “caus[es]
tortious injury in the District of Columbia by an act or omission in the
District of Columbia.” D.C. Code § 13-423(a)(3). Whether their
“conspiracy” jurisdiction claim is based on subsection (a)(1), as the
district court assumed, or subsection (a)(3), as they now argue, it is
without merit. Under both subsections they are obligated to plead
with particularity facts sufficient to demonstrate the existence of a
conspiracy between Titan and IFX. See World Wide Minerals v.
Republic of Kazakhstan, 296 F.3d 1154, 1168 (D.C. Cir 2002), cert.
denied, 537 U.S. 1187 (2003). Because Eisenberg and FCIG failed to
do so, see discussion infra pp. 17-19, their assertion of conspiracy
jurisdiction fails regardless which subsection they rely upon.
                                  16

     The district court rejected this personal jurisdiction theory
as well because, based on the allegations of the amended
complaint, it did not appear that Titan had “committed . . . [any]
act in furtherance of the conspiracy within the District of
Columbia that was sufficient to subject [Titan] to jurisdiction
under the D.C. long-arm statute.” FC Inv. Group, 479 F. Supp.
2d at 42–43 (citing Jin v. Ministry of State Sec., 355 F. Supp. 2d
72, 83 (D.D.C. 2004)). The amended complaint alleged that the
conspiracy between Titan and IFX began on an unspecified date
“[i]n or about 2002,” Am. Comp. ¶ 15, and continued through
“late 2003” and into January 2004. See id. ¶¶ 25, 26. During
that time Titan sent account statements to Eisenberg in the
District, see id. ¶¶ 10, 13; Titan employee Knott contacted
Eisenberg at least twice, once to inform Eisenberg that Titan
was replacing IG with IFX as Titan’s currency broker and once
to invite Eisenberg to IFX’s London office, see id. ¶¶ 15, 18;
and Titan board member Lichtenstein sent a false deposit slip to
Eisenberg in the District after Eisenberg demanded that his
funds be returned.11 See id. ¶ 26. The district court concluded
that the “unspecified—but undoubtedly small—number of
mailings,” Knott’s meetings with Eisenberg and Lichtenstein’s
sending of the deposit slip were insufficient to assert personal
jurisdiction over Titan. FC Inv. Group, 479 F. Supp. 2d at 43.12

    11
      The amended complaint also alleged that Knott met with
Eisenberg “several times” in the District “in 2001 and 2002.” See Am.
Comp. ¶ 14. Because the plaintiffs did not specify the dates of the
meetings or the date on which IFX became Titan’s business partner
other than “[i]n or about “2002,” see Am. Compl. ¶ 15, the district
court was unable to determine if the meetings took place after Titan
and IFX allegedly entered into a conspiracy. FC Inv. Group, 479 F.
Supp. 2d at 43 n.4.
    12
      Another district judge reached a different conclusion in a related
action. In FC Inv. Group LC v. Lichtenstein, 441 F. Supp. 2d 3, 6
(D.D.C. 2006), the same plaintiffs brought suit against Lichtenstein,
                                  17

     Whether or not the district court correctly found Titan’s
District contacts insufficient, its finding of no personal
jurisdiction over IFX on a conspiracy theory can be upheld on
another ground. See Amgen, Inc. v. Smith, 357 F.3d 103, 111
(D.C. Cir. 2004) (“This court may affirm the dismissal of a
complaint on different grounds than those relied upon by the
district court.” (citing Bennett v. Spear, 520 U.S. 154, 166
(1997))). In order “to establish jurisdiction under a theory of
civil conspiracy, the plaintiff must plead with particularity overt
acts within the forum taken in furtherance of the conspiracy.”
World Wide Minerals v. Republic of Kazakhstan, 296 F.3d 1154,
1168 (D.C. Cir. 2002) (quotation omitted), cert. denied, 537
U.S. 1187 (2003). “‘[B]ald speculation’ or a ‘conclusory
statement’ that individuals are co-conspirators is insufficient to
establish personal jurisdiction under a conspiracy theory.”
Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d
1020, 1031 (D.C. Cir. 1997) (quoting Nartex Consulting Corp.
v. Watt, 722 F.2d 779, 787 (D.C. Cir. 1983)). We believe that
Eisenberg and FCIG failed to plead the conspiracy with
particularity. In support of their claim that IFX “had agreements



alleging, inter alia, fraud, civil conspiracy, civil aiding and abetting
and negligent misrepresentation. Id. at 6. The district judge in that
case concluded that it had personal jurisdiction over Lichtenstein. Id.
at 11. The court acknowledged the relatively small number of
contacts between Lichtenstein and Eisenberg that occurred in the
District; however, it explained that “[m]ore important than the number
of these contacts . . . is their significance,” id. at 9 (citing Neal v.
Janssen, 270 F.3d 328, 332 (6th Cir. 2001)), emphasizing that the
contacts between Lichtenstein and Eisenberg were made for the
purpose of “systematically communicating false information about
Titan’s corporate status, the relationship between Titan and IFX, the
earnings on FCIG’s phantom investments, and the return of FCIG’s
funds. These contacts were directed toward Mr. Eisenberg in the
District of Columbia and had foreseeable effects here.” Id.
                              18

and/or understandings with Titan and Martinic to commit
fraud,” Am. Comp. ¶ 39, they allege the following facts:
    1. Lichtenstein testified (apparently in a related case)
    that IFX was Titan’s “business partner” and that his
    points of contact at IFX were Charles Cruden and
    senior sales executive Andy Demetriades. Id. ¶ 15.
    2. Cruden sent Lichtenstein a fax inquiring when he
    would be available to meet with IFX employee Carole
    Napoliello. Id. ¶ 16
    3. “[N]umerous electronic-mail communications . . .
    between various IFX employees and Martinic,
    including a December 9, 2002 email . . . confirm[] IFX
    and Titan’s ‘close and effective working relationship.’”
    Id.
    4. Desiree Lichtman, Knott’s assistant, worked with
    Cruden and Napoliello to create a PowerPoint
    presentation that Eisenberg saw while visiting IFX’s
    London offices. See id. ¶ 19. The PowerPoint
    presentation “indicated in no uncertain terms that Titan
    and IFX had established a joint venture with respect to
    foreign currency trading.” Id. ¶ 21. The PowerPoint
    presentation “prominently displayed IFX’s logo.” Id.
    It also discussed Titan’s trading strategies and named
    several members of IFX’s “Investment Committee.”
    Id.
    5. “On December 10, 2002, Titan wired $100,000 to
    IFX from Titan’s account at US Bank.” Id. ¶ 22.
    6. “On March 10, 2003 Cruden sent a letter to
    Lichtenstein outlining further ‘potential revenue
    streams’ for Titan and IFX . . . .” Id. ¶ 24.
                                   19

     Even assuming the truth of these allegations, they fall short
of the requirement that the plaintiff “plead with particularity ‘the
conspiracy as well as the overt acts within the forum taken in
furtherance of the conspiracy.’ ” Jungquist, 115 F.3d at 1031
(quoting Dooley v. United Techs. Corp., 786 F. Supp. 65, 78
(D.D.C. 1992)). The allegations establish only the existence of
an on-going business relationship between Titan and IFX. They
do not demonstrate that IFX “had agreements and/or
understandings with Titan and Martinic to commit fraud,” Am.
Comp. ¶ 39, or that IFX “acted with knowledge that it was
[participating in a] fraudulent currency exchange scheme,” id.
¶ 15, and are therefore insufficient to establish a conspiracy
theory of personal jurisdiction. See First Chicago Int’l v. United
Exch. Co., 836 F.2d 1375, 1378–79 (D.C. Cir. 1988) (“[T]he
‘bare allegation’ of a conspiracy or agency is insufficient to
establish personal jurisdiction.” (citing McLaughlin v. McPhail,
707 F.2d 800, 806 (4th Cir. 1983); Lehigh Valley Indus. v.
Birenbaum, 527 F.2d 87, 93–94 (2d Cir. 1975)).
                       D. RICO Jurisdiction
    In Count IV of their amended complaint, Eisenberg and
FCIG allege that IFX “violated the conspiracy section of RICO,
18 U.S.C. § 1962(d).” Appellant’s Br. 29 (citing Am. Comp.
¶¶ 47-59). They argue that under RICO “the exercise of
personal jurisdiction over IFX . . . was permissible, even in the
absence of minimum contacts by IFX with the District,”
pursuant to RICO’s “nationwide service of process provision, 18
U.S.C. § 1965(d).” Id.13 But IFX counters that under RICO “at


    13
      As with their other arguments, Eisenberg and FCIG failed to cite
the correct statute for this theory of jurisdiction. See Appellants’ Mot.
in Opp’n 16 (Aug. 8, 2005) (incorrectly citing 18 U.S.C. § 1962(d) as
basis for RICO jurisdiction). The district court, however, sua sponte
corrected their error and then addressed—and rejected—their
argument on the merits. FC Inv. Group, 479 F. Supp. 2d at 43–44.
                               20

least one defendant must have minimum contacts with the
District before jurisdiction will be had over the other, non-
resident defendant in the alleged RICO conspiracy.” Appellee’s
Br. 27. 18 U.S.C. § 1965, entitled “Venue and process,”
provides in relevant part:
         (a) Any civil action or proceeding under this
    chapter against any person may be instituted in the
    district court of the United States for any district in
    which such person resides, is found, has an agent, or
    transacts his affairs.
         (b) In any action under section 1964 of this chapter
    in any district court of the United States in which it is
    shown that the ends of justice require that other parties
    residing in any other district be brought before the
    court, the court may cause such parties to be
    summoned, and process for that purpose may be served
    in any judicial district of the United States by the
    marshal thereof.
         (c) In any civil or criminal action or proceeding
    instituted by the United States under this chapter in the
    district court of the United States for any judicial
    district, subpenas issued by such court to compel the
    attendance of witnesses may be served in any other
    judicial district . . . .
         (d) All other process in any action or proceeding
    under this chapter may be served on any person in any
    judicial district in which such person resides, is found,
    has an agent, or transacts his affairs.
18 U.S.C. § 1965 (emphases added). There are differing views
among our own district judges as well as in our sister circuits
regarding the proper interpretation of this language. Compare
Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119
F.3d 935, 942–48 (11th Cir. 1997) (finding nation-wide
                                21

jurisdiction under section 1965(d)), and ESAB Group, Inc. v.
Centricut, Inc., 126 F.3d 617, 626–27 (4th Cir. 1997) (same),
with PT United Can Co. Ltd. v. Crown Cork & Seal Co., 138
F.3d 65, 70 (2d Cir. 1998) (section 1965(b) provides for nation-
wide service of process only “where personal jurisdiction based
on minimum contacts is established as to at least one
defendant”), and Butcher’s Union Local No. 498 v. SDC Inv.
Inc., 788 F.2d 535, 538 (9th Cir. 1986) (under section 1965(b)
“the court must have personal jurisdiction over at least one of
the participants in the alleged multidistrict conspiracy and the
plaintiff must show that there is no other district in which a court
will have personal jurisdiction over all of the alleged co-
conspirators”); compare also Dooley v. United Techs. Corp.,
786 F. Supp. 65, 70 (D.D.C. 1992) (under section 1965(d)
“[m]inimum contacts with the forum state, as required under the
traditional long-arm jurisdiction analysis, is not necessary”),
with World Wide Minerals Ltd. v. Republic of Kazakhstan, 116
F. Supp. 2d. 98, 108 (D.D.C. 2000) (“reject[ing] the notion that
the federal RICO statute . . . provide[s] a basis for nation wide
jurisdiction”), remanded on other grounds, 296 F.3d 1154 (D.C.
Cir. 2002), cert. denied, 537 U.S. 1187 (2003), and AGS Int’l
Servs. v. Newmont USA Ltd., 346 F. Supp. 2d 64, 87 (D.D.C.
2004) (same).
    Having considered the arguments of the parties, as well as
the reasoning of our sister circuits on this question, we are
persuaded to adopt the Second Circuit’s reasoning. In PT
United Can Co. Ltd. v. Crown Cork & Seal Co., 138 F.3d 65, 70
(2d Cir. 1998), the Second Circuit explained that section “1965
must be read to give effect to all its sections in a way that
renders a coherent whole.” It stated:
         Reading all of the subsections of § 1965 together,
    the court finds that § 1965 does not provide for
    nationwide personal jurisdiction over every defendant
    in every civil RICO case, no matter where the
                            22

defendant is found. First, § 1965(a) grants personal
jurisdiction over an initial defendant in a civil RICO
case to the district court for the district in which that
person resides, has an agent, or transacts his or her
affairs. In other words, a civil RICO action can only
be brought in a district court where personal
jurisdiction based on minimum contacts is established
as to at least one defendant.
     Second, § 1965(b) provides for nationwide service
and jurisdiction over “other parties” not residing in the
district, who may be additional defendants of any kind,
including co-defendants, third party defendants, or
additional counter-claim defendants. This jurisdiction
is not automatic but requires a showing that the “ends
of justice” so require. This is an unsurprising
limitation. There is no impediment to prosecution of
a civil RICO action in a court foreign to some
defendants if it is necessary, but the first preference, as
set forth in § 1965(a), is to bring the action where suits
are normally expected to be brought. Congress has
expressed a preference in § 1965 to avoid, where
possible, haling defendants into far flung fora.
     Next, § 1965(c) simply refers to service of
subpoenas on witnesses. Thus, § 1965(d)’s reference
to “[a]ll other process,” means process other than a
summons of a defendant or subpoena of a witness.
This interpretation, one which gives meaning to the
word “other” by reading sequentially to understand
“other” as meaning “different from that already stated
in subsections (a)–(c),” gives coherent effect to all
sections of § 1965, and effectively provides for all
eventualities without rendering any of the sections
duplicative, without impeding RICO actions and
without unnecessarily burdening parties.
                               23

Id. at 71–72 (emphases added) (footnote omitted).14 The Second
Circuit endorsed the Ninth Circuit’s holding in Butcher’s Union,
788 F.2d at 538, that “[f]or nationwide service to be imposed
under section 1965(b), the court must have personal jurisdiction
over at least one of the participants in the alleged multidistrict
conspiracy and the plaintiff must show that there is no other
district in which a court will have personal jurisdiction over all
of the alleged co-conspirators.” Id., as cited in PT United Can,
138 F.3d at 72 (adopting “the natural reading given to § 1965(b)
by the 9th Circuit in Butcher’s Union”). In addition, the Tenth
Circuit, the only circuit to have considered section 1965 since
PT United Can, has also followed its interpretation, finding its
reasoning “persuasive and consistent with congressional intent.”
Cory v. Aztec Steel Bldg., Inc., 468 F.3d 1226, 1231 (10th Cir.
2006). Because the district court is otherwise without personal
jurisdiction over IFX, the sole defendant, it is also without RICO
jurisdiction over IFX.
     For the foregoing reasons, the judgment of the district court
is affirmed.
                                                     So ordered.




   14
      We need not, and therefore do not, pass on the meaning of
section 1965(b)’s “ends of justice” language.