Opinion for the Court filed by Circuit Judge WILKEY.
WILKEY, Circuit Judge:
Plaintiff James K. Gilson brought suit against four defendants — the Republic of Ireland and three Irish corporations — for a variety of alleged commercial misdeeds. This action was brought pursuant to, and plaintiff argues that jurisdiction is proper under, the Foreign Sovereign Immunities Act of 1976.
We affirm the district court's dismissal with respect to four of the six counts brought by plaintiff, but in doing so rely on the statute of limitations, not FSIA.
Plaintiff James K. Gilson is a mechanical engineer, an American citizen, and a resident of Massachusetts. He alleges that defendants Gaeltarra Eireann ("GE") and Industrial Development Authority of Ireland ("IDA") — both instrumentalities of the government of the Republic of Ireland, organized under Irish law — induced him to enter into a commercial venture for the development of quartz crystals in Ireland, to move himself, his family, equipment, and technology to Ireland, and to reveal to defendants certain proprietary information. The complaint further contends that subsequent to the plaintiff's move to Ireland, defendant GE breached its contract with plaintiff, turned over to defendant Leictron Teoranta ("Leictron" or "LT") — a third Irish corporation now wholly owned by defendant GE — his patent rights and proprietary information, and along with LT converted his equipment to its own use. Plaintiff also alleges interference by GE and LT in his ongoing contractual relations with another Irish corporation. Finally, the complaint alleges that "Defendant IDA, acting alone and then jointly with Defendant GE, were agents of the Defendant Republic [of Ireland] at all times pertinent to this complaint," and that the acts by GE, IDA, and LT of which plaintiff complains were performed "within the scope of [their] employment by Defendant Republic."
Plaintiff lists six causes of action in his amended complaint.
A. Effect of the Statute of Limitations
In our case the relevant statute of limitations would bar an action on matters arising more than three years before the complaint was filed.
Plaintiff argues that because prior to FSIA — which became effective on 19 January 1977
We reject this argument. While FSIA was by all accounts an important piece of legislation, it is a great exaggeration to say that plaintiff was without remedy before it became effective. Plaintiff asserts that "prior to January 19, 1977, the restrictive principle of sovereign immunity [allowing foreign state entities to be sued for actions undertaken by them in a commercial capacity] ... was not yet the law of our land."
We therefore conclude that the statute of limitations bars all but counts 3 and 4 of plaintiff's complaint.
B. FSIA Jurisdiction
Count 3 is labelled "Accounting by Defendant GE for Use of Patent Rights and Proprietary Information," and count 4 is "Accounting by Defendant Leictron for Unlawful Use of Patent Rights and Proprietary Information."
In a word, plaintiff accuses GE and Leictron of stealing his expertise and equipment and making money from them.
In determining whether under these alleged circumstances a federal court may properly exercise jurisdiction under FSIA, we must undertake a bifurcated analysis, asking first whether a United States court has subject matter jurisdiction, and second whether it can exercise personal jurisdiction over the defendants.
Before we ask these questions, however, we should make clear the effect of our answers. We are not making a final factual determination of whether jurisdiction exists, on either count, for any defendant. Only the factual determinations which the district court may undertake later can determine this, one way or another. Our conclusion that the district court's dismissal for lack of jurisdiction was improper is based on our finding that the facts as alleged — and generously interpreted — make a dismissal at least premature in light of the dearth of fact-finding done by the district court thus far. Further fact-finding by the district court, which it should make explicit, may yet render dismissal proper.
1. Subject matter jurisdiction
The existence vel non of subject matter jurisdiction will be determined by sections 1604 and 1605 of the Act.
Recall that in counts 3 and 4 plaintiff accuses GE and Leictron of stealing his expertise, patent rights, and equipment and making money from them, and that at the time this happened all parties were in Ireland. But the complaint alleges an unbroken chain of events beginning when plaintiff contracted with defendant GE in the United States, with the participation of defendant IDA's New York office, and involving the active collusion of all defendants to entice plaintiff to leave the United States for Ireland. Does this sequence of events yield an action within the exceptions enumerated in section 1605 to section 1604's general rule of immunity?
We believe that, if all this happened in the way plaintiff alleges, it does. In particular, we think the case would fall within clause 2 of section 1605(a) (2), that we would have before us an action based "upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere...."
The legislative history of the clause confirms our belief that it would apply. The House Report stated that the clause "looks to conduct of the foreign state in the United States which relates either to a regular course of commercial conduct elsewhere or to a particular commercial transaction concluded or carried out in part elsewhere."
While it is unclear whether the district court failed to find subject matter jurisdiction for these counts,
Therefore, we find it improper to dismiss for lack of subject matter jurisdiction under the facts alleged in counts 3 and 4. Also, we vacate the district court's application and exposition of FSIA.
2. Personal jurisdiction
There remains a final problem: "Subsequent to the determination of subject matter jurisdiction [under FSIA] is the issue of personal jurisdiction."
However, a statute cannot grant personal jurisdiction where the Constitution forbids it, and the Supreme Court has held repeatedly that certain "minimum contacts" must exist between the person and the jurisdiction to be consistent with the Due Process Clause of the Fifth Amendment. We must determine whether sufficient minimum contacts are alleged here.
We believe they are.
III. DISMISSAL WITH RESPECT TO CERTAIN DEFENDANTS
The question arises which, if any, of the defendants should have plaintiff's action dismissed with respect to them, since only GE and Leictron are named in counts 3 and 4. (We note, too, that in the remedies requested for counts 3 and 4 only GE and Leictron, respectively, are asked to make an accounting.)
The arguments for dismissal are not without force, but we think it best to leave any dismissing to the district court on remand. We do so simply because the determinations of who is and is not an agent of whom will be in great part factual, which we can resolve only at great risk. It is unclear to us what the Republic's role was, for instance, and the district court made no factual determinations in its dismissal of the Republic.
If, however, the further development of the facts or clarification and expansion of the remaining counts — which the district court may call for after today's opinion — reveals that one or more defendants were insufficiently involved, the district court should not hesitate to dismiss plaintiff's action against them. Furthermore, insufficient involvement on the part of one or more defendants may make subject matter or personal jurisdiction improper as to others. An agent's actions may provide the basis for jurisdiction over the principal,
Except for counts 3 and 4, plaintiff's claims are barred by the statute of limitations. As for them, we think subject matter and personal jurisdiction may exist under the facts alleged, and accordingly we remand to the district court for further proceedings.
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12 D.C.Code Ann. § 12-301 (1981) (emphasis added). The applicable statute of limitations is determined by the local law of the forum. See Kaplan v. Manhattan Life Ins. Co. of N. Y., 109 F.2d 463, 465-66 (D.C.Cir.1939) (citing Townsend v. Jemison, 50 U.S. (9 How.) 407, 13 L.Ed. 194 (1850); McElmoyle v. Cohen, 38 U.S. (13 Pet.) 312, 10 L.Ed. 177 (1839); Wells v. Alropa Corp., 82 F.2d 887, 888 (D.C.Cir.1936)). See also Hodge v. Southern Railway Co., 415 A.2d 543 (D.C.App.1980); May Dep't Stores Co. v. Devercelli, 314 A.2d 767, 773 (D.C.App.1973).
We note here that "the activities of an agent may be attributed to the principal for jurisdictional purposes...." East Europe Domestic Int'l Sales Corp. v. Terra, 467 F.Supp. 383, 390 (S.D.N.Y.), aff'd mem., 610 F.2d 806 (2d Cir. 1979). See Bigelow-Sanford, Inc. v. Gunny Corp., 649 F.2d 1060, 1063-64 (5th Cir. 1981); Gold Kist Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375, 380 (5th Cir. 1980); Biltmoor Moving & Storage Co. v. Shell Oil Co., 606 F.2d 202, 208 (7th Cir. 1979). See also Restatement (Revised) of Foreign Relations Law of the United States § 452 (Tent. Draft No. 2, 1981). Thus, the district court's ultimate determination of whether jurisdiction is proper may hinge on whether the required agency existed, and for whom, with respect to counts 3 and 4. The uncertainty of the relationships among the various defendants is one reason for our decision that dismissal is at this time premature. See part III, "Dismissal With Respect to Certain Defendants," pp. 1029-1030 infra.
It might be objected that, in a narrow sense, plaintiff's suit is "based upon" only the conversion of his equipment, the use of his expertise, and so forth — not the enticement. But the examples given in the legislative history in the next paragraph in the text belie this interpretation, and we conclude — as the Second Circuit did in rejecting a similarly narrow construction of "based upon" in a clause 1 context — that "the drafters of the FSIA intended no such niggardly construction." Gemini Shipping, Inc. v. Foreign Trade Org. for Chem. & Footstuffs, 647 F.2d 317, 319 (2d Cir. 1981).