GARLAND, Circuit Judge:
In 1996 and 1997, World Wide Minerals Ltd., a Canadian corporation, entered into a series of agreements with the Republic of Kazakhstan. Pursuant to those agreements, World Wide took over the management of one of Kazakhstan's major uranium complexes and loaned Kazakhstan several million dollars to fund the restoration of the facility. World Wide contends that, in return, Kazakhstan agreed (inter alia) to permit World Wide to export Kazakhstan uranium. World Wide alleges that Kazakhstan breached its agreements by failing to issue World Wide a uranium export license and by seizing its assets in Kazakhstan. World Wide further alleges fraudulent inducement, tortious interference, conversion, conspiracy, and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq.
The defendants in this case are Kazakhstan and two of its instrumentalities, as well as Nukem, Inc., a New York corporation that World Wide contends conspired with Kazakhstan in committing wrongful acts against World Wide. The district court concluded that Kazakhstan and its instrumentalities had waived sovereign immunity against suit, and that the court therefore had jurisdiction over the claims against these defendants under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1330, 1605(a)(1). The court nonetheless dismissed those claims pursuant to the act of state doctrine. The court also dismissed World Wide's claims against Nukem, holding that it did not have personal jurisdiction over that New York corporation because World Wide's injuries did not arise out of any act that took place in the District of Columbia.
We affirm the dismissal of World Wide's claims against the Kazakhstan entities, albeit on somewhat different grounds. Although we agree that Kazakhstan waived
In 1995, the Republic of Kazakhstan issued a decree announcing the privatization of the country's uranium industry and its intention to contract with foreign investors for the management of previously state-run facilities. Am. Compl. ¶ 40.
The first agreement was the Management Agreement. That agreement, signed by World Wide and the State Committee of the Republic of Kazakhstan on the Management of State Property (Kazakhstan State Committee) on October 7, 1996, granted World Wide the right to manage and control the assets of TGK. Id. ¶ 56; Management Agreement ¶ 2.11. In return, World Wide agreed to satisfy TGK's outstanding debts and to implement a restructuring program for the uranium complex. Management Agreement ¶¶ 2.11(b), 2.22. The agreement listed a number of additional points "which have not been concluded in this Agreement" but which were to be "addressed in good faith negotiations," including the granting of a license to World Wide to export TGK uranium for international sale. Id. ¶ 2.17, Sched. 2 ¶ 2.3. World Wide was entitled to terminate the agreement if Kazakhstan did not grant it the license by December 16, 1996. Id. ¶ 2.18. Although World Wide never received the license, it did not suspend performance under the contract until April 30, 1997. Am. Compl. ¶ 73.
On November 14, 1996, World Wide, the Kazakhstan State Committee, and TGK executed a second agreement, the Loan Agreement. Under that agreement, World Wide agreed to lend TGK at least $5 million to fund the restoration and operation of the uranium complex. In the same month, World Wide took over management of the TGK complex and began to make loans under the Loan Agreement. Id. ¶¶ 58, 59, 61.
The third agreement was the Strategic Alliance Agreement, which World Wide entered into with Kazatomprom on February 28, 1997. Kazatomprom is a corporation, wholly owned by the Republic of Kazakhstan,
Finally, on March 25, 1997, World Wide, TGK, and the Kazakhstan State Committee entered into a fourth agreement, the Pledge Agreement. This agreement gave World Wide a security interest in the assets and shares of TGK as collateral for its loans. The Pledge Agreement also prohibited the transfer of any of the pledged assets or shares. Am. Compl. ¶¶ 70, 85; Pledge Agreement ¶ 5.1.3.
On March 27, 1997, following execution of the Pledge Agreement, World Wide entered into a contract with Consumers Energy Company, a Michigan utility, to deliver approximately $4.1 million worth of Kazakhstan uranium. In order to fulfill this contract, World Wide needed to receive an export license by May 30, 1997. By the end of April, however, World Wide had not received the necessary license, and, on April 30, it suspended mining operations at the TGK complex. Am. Compl. ¶¶ 71-73.
In May 1997, in response to its requests for an export license, a Kazakhstan official told World Wide that Kazakhstan had previously given another company, Nukem, exclusive rights to the entire quota of uranium that Kazakhstan was permitted to export to the United States. That quota was determined by a Suspension Agreement between the two countries. Id. ¶¶ 77, 78.
Thereafter, what was left of World Wide's relationship with Kazakhstan quickly deteriorated. On August 1, Kazakhstan terminated the Management Agreement, declaring that World Wide had failed to fulfill its obligations. It then allegedly seized $1 million worth of World Wide's uranium and other property located at the TGK complex, and forced World Wide's employees to leave the country. Id. ¶¶ 86-87. Finally, on October 2, 1997, Kazakhstan issued a decree transferring all of the assets and shares of TGK to Kazatomprom. Id. ¶ 17; Republic of Kazakhstan,
In May 1998, World Wide sued Kazakhstan, the Kazakhstan State Committee, Kazatomprom, and Nukem in the United States District Court for the District of Columbia. In its eleven-count amended complaint, World Wide alleged that Kazakhstan and the Kazakhstan State Committee (collectively Kazakhstan) breached their agreements with World Wide, fraudulently induced World Wide to enter into several of the agreements, wrongfully converted its property, tortiously interfered with its contracts, unlawfully conspired against it, and committed acts that violated RICO. In addition to damages for these violations, World Wide sought a declaratory judgment establishing its "right to market Kazakhstan uranium under the Suspension Agreement or otherwise." Am. Compl. ¶ 161. World Wide joined Kazatomprom in most of these counts, and joined Nukem as a defendant in the counts for tortious interference, conspiracy, and violation of RICO, and in its request for a declaratory judgment. Although World Wide alleges various wrongful conduct, the amended complaint identifies Kazakhstan's denial of its application for an export license as "the very heart of this matter." Id. ¶ 157.
The defendants moved to dismiss World Wide's amended complaint, arguing that the court lacked personal and subject matter jurisdiction, and that the act of state doctrine barred adjudication of World Wide's claims. The district court granted the motions to dismiss, and denied World Wide's request to file a second amended complaint as futile. World Wide Minerals Ltd. v. Republic of Kazakhstan, 116 F.Supp.2d 98 (D.D.C.2000). The court began by holding that, because Kazakhstan had expressly waived its sovereign immunity in the Pledge Agreement, the FSIA, 28 U.S.C. §§ 1330(a) & (b), 1605(a)(1), gave the court personal jurisdiction over Kazakhstan and Kazatomprom and subject matter jurisdiction over all of World Wide's claims against them. 116 F.Supp.2d at 103.
The district court also dismissed World Wide's claims against Nukem, holding that it lacked personal jurisdiction over the corporation. The court rejected all of the jurisdictional theories asserted by World Wide, including the "transacting business" clause of the District of Columbia's long-arm statute, D.C.Code § 13-423(a)(1), and "conspiracy jurisdiction." The court rejected the latter two theories on the ground that the only act sufficient to satisfy their prerequisites took place after World Wide's injuries had already been incurred. 116 F.Supp.2d at 108. World Wide now appeals.
We review the district court's dismissal of World Wide's complaint de novo, and must accept the complaint's allegations as true for purposes of this appeal. See El-Hadad v. United Arab Emirates, 216 F.3d 29, 31, 32 n. 5 (D.C.Cir.2000). In doing so, we consider only the allegations of the (first) amended complaint. Although World Wide indicated in its notice of appeal that it planned to challenge the district court's refusal to permit it to file a second amended complaint, see FED.R.CIV.P. 15(a), it failed to do so until its reply brief. As we have said many times before, a party waives its right to challenge a ruling of the district court if it fails to make that challenge in its opening brief. See, e.g., Students Against Genocide v. Department of State, 257 F.3d 828, 834-35 (D.C.Cir.2001); Board of Regents v. EPA, 86 F.3d 1214, 1221 (D.C.Cir.1996); see also Terry v. Reno, 101 F.3d 1412, 1415 (D.C.Cir.1996) (holding that where the appellants listed challenges in the "Statement of Issues," but failed to brief them, the challenges were waived).
World Wide contends that none of the defendants' motions to dismiss should have been granted. In response, Kazakhstan, Kazatomprom, and Nukem assert that the district court was correct in ruling that a variety of threshold obstacles, including sovereign immunity, the act of state doctrine, and lack of personal jurisdiction, barred World Wide's claims. In the following three Parts, we address the issues relating to each defendant separately.
World Wide's amended complaint levels ten of its eleven charges against Kazakhstan (including the Kazakhstan State Committee). They are: Count I (breach of the Management Agreement), Count II (breach of the Loan Agreement), Count III (breach of the Pledge Agreement), Count V (fraud in the inducement to enter into the Management and Loan agreements),
We turn first to whether the district court was correct in concluding that it had subject matter jurisdiction over all of World Wide's claims against Kazakhstan. See In re Papandreou, 139 F.3d 247, 254-56 (D.C.Cir.1998) (holding that jurisdiction must be resolved before applying the act of state doctrine, because that doctrine is "a substantive rule of law").
In the district court, World Wide argued that the court had subject matter jurisdiction under two FSIA exceptions: the waiver exception, 28 U.S.C. § 1605(a)(1), and the commercial activity exception, id. § 1605(a)(2). In its briefs on appeal, however, World Wide did not argue that the commercial activity exception was applicable, relying instead on the waiver exception.
There is no question that Kazakhstan clearly indicated its intent to waive its immunity for the claims contained in Count I (breach of the Management Agreement) and Count III (breach of the Pledge Agreement), as both the Management and Pledge agreements contain express waivers of sovereign immunity — the latter referring specifically to the FSIA.
Indeed, the fact that only two of the four agreements contain waivers is particularly significant in creating ambiguity. Although it could be argued that the parties saw no need for repetition once a waiver was made in the Management Agreement, which was the first of the four, that does not explain why they thought it necessary to include a waiver in the Pledge Agreement, which was the last. Moreover, regardless of what could be argued, the fact is that the presence of waivers in only two of four agreements creates real ambiguity as to Kazakhstan's intent. Cf. Marra v. Papandreou, 216 F.3d 1119, 1123 (D.C.Cir.2000) ("If the Greek government were sued by Marra for breach of two different contracts, it certainly would have the prerogative to waive a sovereign immunity defense with respect to one of the contracts and invoke that defense for the other."). So, too, do provisions in both the Loan and Strategic Alliance agreements that suggest Kazakhstan did not contemplate that disputes over those agreements would be resolved in United States courts, but rather by arbitration in Kazakhstan and Sweden.
Nor do we see evidence that, by waiving immunity for claims for breach of the Management and Pledge agreements, Kazakhstan unambiguously intended to expose itself to the miscellany of tort and tort-like claims with which World Wide has charged it. Unlike the claims for breach of those two contracts, which arise out of consensual agreements containing waivers of immunity, the tort claims arise out of exogenous law. Indeed, in this case that law is truly "exogenous." World Wide seeks application of the law of the United States (including RICO), see World Wide Opp'n to Mot. to Dismiss, notwithstanding that no American national was a party to any of the four agreements, and notwithstanding that each agreement declares that it "shall be governed by and construed in accordance with the laws of Kazakhstan." Management Agreement ¶ 6.1; Pledge Agreement ¶ 18.1; Loan Agreement ¶ 4.1; Strategic Alliance Agreement ¶ 9.2.
In sum, we find that Kazakhstan clearly and unambiguously waived its sovereign immunity only for claims of breach of the Management and Pledge agreements, and we therefore hold that the district court only had jurisdiction to hear counts that make such claims. Those counts are Count I (breach of the Management Agreement) and Count III (breach of the Pledge Agreement), as well as Count XI (declaratory judgment) to the extent that it seeks a declaration that Kazakhstan breached the Management Agreement.
Having concluded that the district court had subject matter jurisdiction over the claims in Counts I, III, and XI, we now turn to Kazakhstan's contention that another threshold objection — the act of state doctrine — bars adjudication of those counts. Although ordinarily we would first examine the validity of the district court's decision that it had personal jurisdiction over Kazakhstan, see Papandreou, 139 F.3d at 254-56, Kazakhstan does not dispute that decision on appeal. Unlike subject matter jurisdiction, a party waives the right to dispute personal jurisdiction by failing to contest it on appeal. See Spann v. Colonial Village, Inc., 899 F.2d 24, 32-33 (D.C.Cir.1990).
The act of state doctrine "precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory." Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401, 84 S.Ct. 923, 926, 11 L.Ed.2d 804 (1964). It is applicable when "the relief sought or the defense interposed would [require] a court in the United States to declare invalid the official act of a foreign sovereign performed within" its boundaries. W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., 493 U.S. 400, 405, 110 S.Ct. 701, 704, 107 L.Ed.2d
The gravamen of Count I is a claim that Kazakhstan breached the Management Agreement by "failing to issue an export license" to World Wide. Am. Compl. ¶ 93. Count XI seeks a declaratory judgment for breach of that agreement, and declares that "the denial of Plaintiff[']s export license" is "the very heart of this matter." Id. at ¶ 157. We have no doubt that issuance of a license permitting the removal of uranium from Kazakhstan is a sovereign act. As we have previously held in the context of the FSIA, the "right to regulate imports and exports is a sovereign prerogative." Millen Indus., Inc. v. Coordination Council for North Am. Affairs, 855 F.2d 879, 885 (D.C.Cir.1988) (internal quotation marks and alteration omitted); see Int'l Ass'n of Machinists v. OPEC, 649 F.2d 1354, 1361 (9th Cir.1981) (affirming "the principle of supreme state sovereignty over natural resources" in applying the act of state doctrine); cf. Rush-Presbyterian-St. Luke's Med. Ctr. v. Hellenic Republic, 877 F.2d 574, 578 (7th Cir.1989) (holding that "a contract whereby a foreign state grants a private party a license to exploit the state's natural resources is not a commercial activity [under the FSIA], since natural resources, to the extent they are `affected with the public interest,' are goods in which only the sovereign may deal"); MOL, Inc. v. Peoples Republic of Bangladesh, 736 F.2d 1326, 1328 (9th Cir.1984) (holding that "licensing the exploitation of natural resources is a sovereign activity" under the FSIA).
Because the relief sought here would require us to question the "legality" of Kazakhstan's denial of the export license by ruling that denial a breach of contract,
Our analysis of Count III is the same. In that count, World Wide alleges that Kazakhstan breached the Pledge Agreement by "transferring the shares of TGK to Kazatomprom and by converting all pledged property, assets and interests for [its] own use." Am. Compl. ¶ 103. The amended complaint makes clear that this transfer and alleged conversion were accomplished pursuant to an official decree of the Republic of Kazakhstan. Id. ¶ 17; see Republic of Kazakhstan, Ministry of Finance, Resolution No. 317 (Oct. 2, 1997) (J.A. at 431). That kind of expropriation of property is the classic act of state addressed in the case law. And as the Supreme Court declared in Sabbatino, "the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government." 376 U.S. at 428, 84 S.Ct. at 940; see id. at 430, 439, 84 S.Ct. at 941, 946; Riggs Nat'l Corp. v. Comm'r of Internal Revenue Serv., 163 F.3d 1363, 1367 (D.C.Cir.1999) (citing Sabbatino, 376 U.S. at 403-04, 84 S.Ct. at 927); Dayton v. Czechoslovak Socialist Republic, 834 F.2d 203, 206 (D.C.Cir.1987); Empresa Cubana Exportadora v. Lamborn & Co., 652 F.2d 231, 237-38 (2d Cir.1981); Hunt v. Mobil Oil, 550 F.2d 68, 73 (2d Cir.1977). Because Count III would require the court to undertake just such an examination, we affirm its dismissal.
At oral argument, World Wide acknowledged that both the denial of export licenses and the expropriation of property are sovereign acts under the act of state doctrine. It nonetheless contended that this case comes within an exception to that doctrine for "commercial activity." The existence of such an exception is an unsettled question that this court has never addressed.
In claiming the benefit of the exception here, World Wide contends that its claims are not based on Kazakhstan's expropriation of its assets or on its denial of an export license, but rather on the following "purely" commercial conduct: 1) Kazakhstan's failure to repay loans and interest; 2) its refusal to enter into a joint venture with World Wide; and 3) its failure to pay management fees. World Wide Br. at 24, 26. However, the first of these claims is made only in Count II (breach of the Loan Agreement) — a count that we have already held must be dismissed for lack of subject matter jurisdiction. The second is made only in Count IV (breach of the Strategic Alliance Agreement), which does not name Kazakhstan as a defendant (and for which there was also no waiver of sovereign immunity). And the third is not made anywhere in the complaint — not even in what would seem the most likely place, Count I (breach of the Management Agreement). We, therefore, have no cause to address World Wide's contention that its claims fall within a commercial activity exception to the act of state doctrine.
In addition to naming Kazakhstan as a defendant, most of the counts of the amended complaint also name Kazatomprom, a corporation wholly owned by Kazakhstan.
Our decision in Part III.B also effectively disposes of those two remaining counts. In that part, we held that because the gravamen of both Counts I and XI is an attack on the legality of Kazakhstan's refusal to grant World Wide an export license, those counts are barred — as against Kazakhstan — by the act of state doctrine. And since World Wide offers no reason to distinguish between Kazakhstan and Kazatomprom for purposes of the application of that doctrine,
Finally, we turn to the district court's decision to dismiss World Wide's claims against Nukem. The amended complaint names Nukem as a defendant in four counts: Count VIII (tortious interference), Count IX (civil conspiracy), Count X (violation of RICO), and Count XI (declaratory judgment). Because Nukem is neither a state nor the instrumentality of a state, it cannot assert sovereign immunity as a defense. Nor can we say, as we did regarding Kazatomprom, that our resolution of the act of state issues with respect to Kazakhstan removes any substantial federal question regarding the claims against Nukem, since we never reached the act of state question with respect to Counts VIII-XI, dismissing them instead for lack of subject matter jurisdiction.
Nukem is a New York corporation with its principal place of business in Connecticut. In the district court, World Wide asserted four alternative grounds for personal jurisdiction, all of which the court rejected: the transacting business clause of the District of Columbia's long-arm statute, D.C.Code § 13-423(a)(1); conspiracy jurisdiction; the nationwide service of process provision of RICO, 18 U.S.C. § 1965(d); and the nationwide service of process provision of the Clayton Act, 15 U.S.C. § 22. On appeal, World Wide argued only the first two grounds in its opening brief and has therefore waived reliance on the latter two. See Students Against Genocide, 257 F.3d at 834-35.
Under the District's long-arm statute, local courts may exercise personal jurisdiction over any person "as to a claim for relief arising from the person's ... transacting any business in the District of Columbia." D.C.Code § 13-423(a)(1). The statute makes clear that, where jurisdiction is predicated solely upon the long-arm statute, "only a claim for relief arising from acts enumerated in this section may be asserted." Id. § 13-423(b). Thus, personal jurisdiction under this theory "is limited to claims arising from the particular transaction of business" in the District. AMAF Int'l Corp. v. Ralston Purina Co., 428 A.2d 849, 850 (D.C.1981); see Naartex Consulting Corp. v. Watt, 722 F.2d 779, 785-86 (D.C.Cir.1983). Similarly, 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." Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1031 (D.C.Cir.1997) (internal quotations marks omitted).
The district court held, and World Wide does not dispute, that the only act that might satisfy these jurisdictional requirements was a meeting between Nukem officials and Kazakhstan's Ambassador, which World Wide alleges took place at Kazakhstan's embassy in Washington, D.C. 116 F.Supp.2d at 106-07; World Wide Br. at 45. World Wide alleges that these individuals met at the embassy "for the purpose of obtaining and/or confirming [Kazakhstan's] agreement to unlawfully breach its contract with Plaintiffs by denying their pending petition for a license to export" Kazakhstan uranium to the United States. Am. Compl. ¶ 6. As a result of some confusion in the parties' pleadings,
On appeal, the parties agree that there was a misunderstanding in the district court regarding the date upon which the embassy meeting allegedly occurred. Both World Wide and Nukem now agree that the relevant allegation — which we must take as true for purposes of this appeal — is that Nukem and Kazakhstan conspired together at a meeting that took place in the District of Columbia in late May 1997. See Am. Compl. ¶ 6; Nukem Br. at 11. The basis for the district court's dismissal therefore no longer suffices. Although Nukem contends that May 1997 was also too late to have contributed to the injuries claimed by World Wide, World Wide disputes that contention. Accordingly, we must remand the case to the district court to resolve the dispute over its jurisdiction.
For the foregoing reasons, we affirm, although in part for different reasons, the district court's dismissal of World Wide's complaint against Kazakhstan and Kazatomprom. The dismissal with respect to Nukem is remanded for further proceedings consistent with this opinion.
Affirmed in part and remanded in part.