MORGAN, Senior Circuit Judge:
This is an appeal by the Colombian defendants Granfinanciera, S.A. and Medex, Ltda. from an adverse bankruptcy decision by the district court that three money transfers from debtor Chase & Sanborn Corporation, f/k/a General Coffee Corporation ("C & S"), to defendants were fraudulent and, therefore, could be avoided by debtor's creditor/trustee, Paul C. Nordberg. We affirm.
The money transfers involved in this case consisted of: (1) a $1,500,000 wire transfer on October 21, 1982, from C & S's account in the New York Banque Worms to Granfinanciera's bank account at Banco Real in Miami; (2) a cashier's check for $100,000 dated December 15, 1982, purchased by C & S from Royal Trust Bank in Miami and deposited in Medex's account at Banco Real in Miami; and (3) another cashier's check for $80,000 dated December 16, 1982, purchased by C & S from Royal Trust Bank in Miami and deposited in Medex's account at Banco Real in Miami.
C & S filed a petition for bankruptcy on May 18, 1983. The trustee subsequently sued Granfinanciera and Medex alleging that at the time of the transfers C & S was insolvent
Defendants appeal alleging neither court properly exercised in personam jurisdiction over defendants, defendant Granfinanciera is an instrumentality of the Colombian government and thus is immune from United States jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. Secs. 1602-10 ("FSIA"), and the trustee's equitable cause of action which sought only monetary relief remains a legal proceeding to which the seventh amendment right to trial by jury attaches.
A. PERSONAL JURISDICTION
Service of process is the physical means by which personal jurisdiction is obtained over a party. Chapter 11 employs Rules 4(a), (b), (d), (e), and (g)-(i) of the Federal Rules of Civil Procedure for service in adversary proceedings.
Exercise of this Congressional grant of authority is not boundless, however. The due process clause of the fifth amendment
We look to International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and its progeny for guidance in determining whether due process is satisfied here.
326 U.S. at 316, 66 S.Ct. at 158 (citing Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). Inquiry into a defendant's contacts must not be mechanical. Id. 326 U.S. at 319, 66 S.Ct. at 159. Instead, a court must weigh the facts of each case to determine whether the requisite "affiliating circumstances" are present. Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978); Hanson v. Dencla, 357 U.S. 235, 246, 78 S.Ct. 1228, 1235-36, 2 L.Ed.2d 1283 (1958). In a minimum contacts inquiry where a defendant is an alien, the emphasis is on the fairness and reasonableness of requiring the defendant to appear in the United States. In re Deak, 63 B.R. at 430. See Max Daetwyler Corp., 762 F.2d at 294. Factors to be considered include (a) the extent of the defendant's purposeful interjection into the forum state; (b) the burden on the defendant of defending in the forum; (c) the extent of conflict with the sovereignty of defendant's state; (d) the forum state's interest in adjudicating the dispute; (e) the most efficient judicial resolution of the controversy; (f) the importance of the forum to plaintiff's interest in convenient and effective relief; and (g) the existence of an alternative forum.
1. Extent of defendant's purposeful interjection into Florida
The debtor, C & S, ordered the transfers out of which this cause of action arose from its Miami office. The transfers, in United States currency, were made from the debtor's New York and Miami bank accounts. Under 11 U.S.C. Sec. 548(a)(2) a fraudulent conveyance is established when a non-creditor of an insolvent debtor receives a transfer without returning value or consideration for the transfer. See Mayo v. Pioneer Bank and Trust Co., 270 F.2d 823, 829 (5th Cir.1959), cert. denied, 362 U.S. 962, 80 S.Ct. 878, 4 L.Ed.2d 877 (1960);
Moreover, the record supports the finding of the district court that the defendants conducted numerous international business transactions utilizing their bank accounts in Miami, as well as New York, Chicago, and San Francisco.
2. Burden on defendants of defending transfers in Florida
Modern means of communication and transportation have lessened the burden of defending a lawsuit in a distant forum. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292-93, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); Hanson, 357 U.S. at 251, 78 S.Ct. at 1238, McGee v. International Life Insurance Co., 355 U.S. 220, 222-23, 78 S.Ct. 199, 200, 2 L.Ed.2d 223 (1957). There appear to be relatively few impediments to defending this particular lawsuit. Transportation between Bogota and Miami is readily available. Compare Insurance Co. of North America, 649 F.2d at 1271 (no direct transportation to or from defendant shipyard to forum). Granfinanciera and Medex are good-sized banking concerns which, presumably, have access to at least telephone lines, if not the more sophisticated electronic telecommunication equipment available today.
3. Extent of conflict with Colombia's sovereignty
The doctrine of comity between sovereign nations dictates that we examine possible conflicts with Colombia's sovereignty. As discussed infra, Granfinanciera is presently an instrumentality of the Colombian government. This fact would, in most instances, bear negatively on the reasonableness of personal jurisdiction. See Insurance Co. of North America, 649 F.2d at 1272. These transfers occurred and this case was filed, however, before Granfinanciera's nationalization. Thus, as discussed infra, any benefits of sovereignty do not attach to this cause of action.
This cause of action arises under United States Bankruptcy laws. Except for the decrees pertaining to Granfinanciera's nationalization, no Colombian law or other interest of that government is involved in the present controversy.
4. Florida's interest in adjudicating the dispute; the most efficient judicial resolution of the controversy
The United States Bankruptcy Court for the Southern District of Florida has a substantial
5. Convenient and effective relief for C & S; existence of an alternative forum
This cause of action arose under United States bankruptcy law. Only a United States court would have subject matter jurisdiction. As discussed supra, C & S is a Florida corporation and most of the particulars of this case occurred in the Southern District of Florida. Thus, the Southern District of Florida is the most suitable forum. Granfinanciera and Medex are no more inconvenienced by a trip to one state than another. See Centronics Data Computer Corp. v. Mannesmann, A.G., 432 F.Supp. 659, 663 (D.N.H.1977). Accord DeJames v. Magnificence Carriers, Inc., 491 F.Supp. 1276, 1281 (D.N.J.1980), aff'd, 654 F.2d 280 (3d Cir.1981), cert. denied, 454 U.S. 1085, 102 S.Ct. 642, 70 L.Ed.2d 620 (1981).
In sum, the statutory and constitutional concerns are satisfied; both the bankruptcy and district court properly exercised in personam jurisdiction over Granfinanciera and Medex.
B. FOREIGN SOVEREIGN IMMUNITIES ACT
The United States follows the "restrictive" theory of sovereign immunity. Our courts will only waive jurisdiction if the cause of action arose out of a foreign sovereign's governmental rather than commercial act. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). FSIA, which embodies this theory, delineates the circumstances under which an agency or instrumentality of a foreign sovereign may be subject to suit in a court of the United States. Granfinanciera contends that it was nationalized by the Colombian government, is thereby an instrumentality of that government,
We agree with the district court's finding below. FSIA is inapplicable to the case at bar because the transfers in question and the suit to recover those transfers occurred before Granfinanciera was nationalized. Cf. Braka v. Bancomer, 589 F.Supp. 1465, 1469 (S.D.N.Y.1984), aff'd, 762 F.2d 222 (2d Cir.1985) ("Bancomer was a state instrumentality ... at the time of the lawsuit as well as at the time the act on which this suit is based took place."). Granfinanciera was not an instrumentality of the Colombian government at time of the transactions and thus would not be
C. RIGHT TO A JURY TRIAL
We turn finally to the defendants' demand for a jury trial. This presents two thorny issues; whether a defendant has a right to a jury trial where the bankruptcy trustee seeks to avoid transfers of money by the debtor to the defendants and, if the right does exist, whether a bankruptcy court has authority to conduct a jury trial in a core proceeding?
A defendant's right to a jury trial may arise either from the seventh amendment to the United States Constitution or from the statute which authorized the trustee's suit. In re Graham, 747 F.2d 1383, 1387 (11th Cir.1984); Sibley v. Fulton DeKalb Collection Service, 677 F.2d 830, 832-33 (11th Cir.1982). Because it may be quickly disposed of, we shall first discuss the possibility of a statutory right.
The cause of action sued upon by the trustee was brought under 11 U.S.C. Sec. 548(a)(2), the "constructive" fraud provision of the Bankruptcy Code. Section 548(a)(2) does not provide for a jury trial. Section 1480 of Title 28 of the 1978 Bankruptcy Reform Act did provide for jury trials, preserving any right to a trial by jury that existed prior to the enactment of the Act. Section 1480 was repealed, however, by the enactment of Sec. 1411 of the Bankruptcy Amendments and Federal Judgeship Act of 1984 ("BAFJA"). See Committee Note to abrogation of Rule 9015, Proposed Bankruptcy Rules, reprinted in 2 W.H. Drake & A.L. Mullins, Jr., Bankruptcy Practice, Appendix C, AC-178 (1987) (amendments become effective August 1, 1987); In re McLouth Steel Corp., 55 B.R. 357, 362 (E.D.Mich.1985); In re O'Bannon, 49 B.R. 763, 768 and n. 15 (Bankr.M.D.La.1985); King, Jurisdiction and Procedure Under the Bankruptcy Amendments, 38 Vand.L.Rev. 674, 703 (1985). Section 1411 affords jury trials only in personal injury or wrongful death suits. See Committee Notes, supra. This section has prospective effect and does not apply to cases pending on July 10, 1984, the effective date of BAFJA. See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, Sec. 122(b). The underlying bankruptcy action from which this dispute arose was filed before July 10, 1984, see In re Harbour, 59 B.R. 319, 324-25 (W.D.Va.1986), and the trustee's claim clearly is not for personal injury or wrongful death. There is, therefore, no statutory right to a jury trial in the case at bar.
The seventh amendment to the United States Constitution states: "In suits at common law, where the value in controversy exceeds twenty dollars, the right of trial by jury shall be preserved...." This amendment extends the right not only to suits existing in common law at the time the amendment was adopted, but also to any suit which is not of equity or admiralty jurisdiction. Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446-47, 7 L.Ed. 732 (1830). See also Curtis v. Loether, 415 U.S. 189, 192-93, 94 S.Ct. 1005, 1007-08, 39 L.Ed.2d 260 (1974).
The cause of action in the case at bar was to avoid three fraudulent transfers. Jury trials are not required in actions to recover fraudulent conveyances. See In re Graham, 747 F.2d at 1387; In re Newman, 14 B.R. 1014, 1015 (Bankr.S.D.N.Y.1981); In re Hause, 10 B.R. 628, 629 (Bankr.D.Mass.1981); In re Fleming, 8 B.R. 746, 749 (Bankr.N.D.Ga.1980); Towers v. Titus, 5 B.R. 786, 791 (N.D.Cal.1979). See also In re Glen Otis, 13 B.R. 279 (Bankr.N.D.Ga.1981) (jury trial denied in trustee's action to recover a voidable preference). Defendants contend that because the ultimate relief granted was monetary,
The trustee sought to avoid the fraudulent transfers made by C & S to Granfinanciera and Medex and appealed to the bankruptcy court's equitable discretion to grant "such other relief as is just and proper" in order to satisfy the ends of justice. That the court chose to grant monetary relief did not change the equitable nature of the cause of action.
Moreover, bankruptcy itself is equitable in nature and thus bankruptcy proceedings are inherently equitable. See In re Major Tire Co., 64 B.R. 305, 306 (Bankr.N.D.Ga.1986); In re Durbin, Inc., 62 B.R. 139, 145 (S.D.Fla.1986). A cause of action to avoid a fraudulent transfer is a "core proceeding." 28 U.S.C. Sec. 157(b)(2)(H). A core proceeding is a proceeding created by the Bankruptcy Code and is brought in a bankruptcy court, and thus is inherently equitable in nature. See Merrill v. Walter E. Heller & Co., 594 F.2d 1064, 1065 (5th Cir.1979) (no constitutional right to a jury trial in bankruptcy on a dischargeability issue), Baldwin-United Corp. v. Thompson, 48 B.R. 49, 56 (Bankr.S.D.Ohio 1985) (no constitutional right to jury trial in core proceeding); King, Jurisdiction and Procedure Under the Bankruptcy Amendments of 1984, 38 Vand.L.Rev. at 704 (no right to jury trial in core proceeding).
This is in accord with Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966) where the Supreme Court stated "[t]he Bankruptcy Act, passed pursuant to the power given to Congress by Art. I, Sec. 8, of the Constitution to establish uniform laws on the subject of bankruptcy, converts a creditor's legal claims into an equitable claim...."
Accordingly, the defendants' demands for a jury trial must be denied. We, therefore, need not determine whether a bankruptcy court has authority to conduct a jury trial.
Both the bankruptcy and district courts had personal jurisdiction over defendants Granfinanciera and Medex. FSIA is inapplicable in the case at bar. Neither defendant has a right to a jury trial. AFFIRMED.
Fed.R.Civ.P. 4(e), 28 U.S.C.A. (West 1960 & Supp.1986).
Other courts hold that the defendant's mere presence within the United States satisfies whatever due process concerns exist. See, e.g., Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir.1974) (where defendants reside within United States "minimal contacts" are present); Clement v. Pehar, 575 F.Supp. 436, 438-39 (N.D.Ga.1983) (where nationwide service of process is authorized, due process only requires defendant have minimum contacts with United States; defendants were U.S. citizens and properly served within U.S., therefore, district court "may constitutionally exercise jurisdiction over them.").
While still other courts determine that a due process analysis is completely unnecessary where service is nationwide and is properly performed outside the forum district yet within the United States. See e.g., Pioneer Properties, Inc., 557 F.Supp. at 1358 and n. 6 (no fifth amendment limitation on jurisdiction if nationwide service is properly perfected outside forum district but within United States); In re Prospect Hill Resources, Inc., 69 B.R. 79, 79-80 (Bankr.N.D.Ga.1986) (no due process "minimal contacts" requirement necessary to justify exercise of jurisdiction where defendant was Illinois resident, case involved federal question litigation, and Congress provided for nationwide service of process); In re Whippany Paper Board Co., 15 B.R. 312, 315 (Bankr.D.N.J.1981) ("minimum contacts test has no particular relevance" in bankruptcy suit between domestic corporations because federal statute confers jurisdiction and provides for nationwide service).
In the case at bar we need not determine which view is correct. Granfinanciera and Medex conducted numerous international business transactions utilizing their bank accounts in Miami, New York, Chicago, and San Francisco. The action was brought in the United States District Court for the Southern District of Florida. The transfers out of which this action arose were made from debtor's United States bank accounts in New York and Miami in United States currency, to the Miami bank accounts of each defendant. Sufficient contacts exist in this case with the entire United States and with the forum state.