Vieira v. Korda et al

Filing 27

OPINION AND ORDER: Defendants' 6 MOTION to Dismiss for Lack of Jurisdiction is DENIED and the Clerk of Court shall TRANSFER this case to the U.S. District Court for the Middle District of Florida. Signed by Judge John M. Conroy on 5/8/2018. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Felipe Accioly Vieira,
Plaintiff,
v.

Civil Action No. 2:17–cv–160-jmc

Anthony Korda,
The Korda Law Firm,
Defendants.
OPINION AND ORDER
(Doc. 6)
On August 25, 2017, Plaintiff Felipe Accioly Vieira filed the present civil action
in this Court, bringing seven counts against Defendants Anthony Korda, Esq., and the
Korda Law Firm (the Firm). (Doc. 1 at 10–18, ¶¶ 66–111.) The gravamen of these
claims is that Korda and his law firm failed to adequately represent and advise Vieira
while he sought, under the EB-5 Immigrant Investor Program administered by U.S.
Citizenship and Immigration Services (USCIS), to secure permanent residency in the
United States by investing in Jay Peak in Jay, Vermont. (See generally Doc. 1.) Based
on these purported failures, Vieira seeks total damages in excess of $2,000,000 and
such other relief as this Court deems proper. (Id. at 18, ¶ 9.)
Presently before the Court is a Motion to Dismiss Case for Lack of Jurisdiction
jointly filed by Korda and the Firm pursuant to Fed. R. Civ. P. 12(b)(2). (Doc. 6.) In
their Motion, Korda and the Firm argue that this Court lacks personal jurisdiction
because Korda “practices federal immigration law, handled outside of Vermont,

without reference to Vermont law” and because Korda’s representation of Vieira was
limited to preparing Vieira’s EB-5 application. (Id. at 3.) Vieira opposes the Motion,
asserting that all aspects of Vieira’s representation involved Vermont and that Korda
benefited from an ongoing business relationship with Jay Peak. (Doc. 17 at 1–2.)
Concluding that Vieira’s Complaint fails to plausibly allege that Korda and the
Firm had sufficient contacts with Vermont, this Court lacks personal jurisdiction over
Korda and the Firm. Rather than dismissing the action without prejudice, however,
the Court concludes that the interests of justice warrant transfer of this case; thus,
Defendants’ Motion to Dismiss for Lack of Jurisdiction (Doc. 6) is DENIED and the
Clerk of Court shall TRANSFER this case to the United States District Court for the
Middle District of Florida.
Factual Background
The following background is drawn from the allegations in Vieira’s Complaint
(Doc. 1), the Motion to Dismiss Case for Lack of Jurisdiction jointly filed by Korda and
the Firm (Doc. 6), the parties’ responses to this Motion (Docs. 17, 23), and the
documents and affidavits accompanying the parties’ filings. (Docs. 6-1–6-3; Docs.
17-4–17-21); see Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001)
(stating that personal jurisdiction may be established through the plaintiff’s “own
affidavits and supporting materials” (internal quotation marks omitted)). For the
purposes of deciding a Rule 12(b)(2) motion on affidavits and accompanying
documents, the Court construes the allegations in the light most favorable to Vieira
and resolves all doubts in his favor. Id. (internal quotation marks omitted).

2

I.

Relevant Persons and Companies
Plaintiff Vieira resides in Stowe, Vermont; prior to his conditional immigration

to the United States, he was a resident of Brazil. (Doc. 1 at 1, ¶ 1; Doc. 17-12 at 4.)
Defendant Korda is a resident of Naples, Florida,1 and is licensed to practice
law in California. (Doc. 1 at 1, ¶¶ 2, 3; Doc. 6-1 at 1, ¶ 2.) At all relevant times, Korda
was the President of the Firm,2 which has its principal place of business in Naples,
Florida, and an office in Beverly Hills, California. (Doc. 1 at 1, ¶¶ 3, 4; Doc. 6-1 at 1,
¶ 1.) Korda and the Firm provide legal services related to federal immigration law,
including the EB-5 Immigrant Investor Program, which is discussed in detail below.
(Doc. 1 at 2, ¶¶ 11–12; Doc. 6-1 at 1, ¶ 3.) Neither Korda nor the Firm advertise or
solicit work in Vermont. (Doc. 6-1 at 1, ¶ 4.)
William Stenger is the former CEO and President of Jay Peak. (Doc. 1 at 3,
¶ 17.) In this capacity, Stenger oversaw a number of EB-5 immigrant investor
programs at Jay Peak, (id.), including Jay Peak Hotel Suites Stateside, L.P. (the Jay
Peak Project), the project that Vieira ultimately invested in as part of the EB-5
Immigrant Investor Program. (Id. at 3–4, ¶ 21.)
II.

EB-5 Immigrant Investor Program
Under the EB-5 Immigrant Investor Program, a foreign entrepreneur who

makes a capital investment in the United States can receive a permanent U.S. visa.

Korda was originally a resident of England, (Doc. 17-5); he gained his permanent residency by
investing in an early stage of Jay Peak and participating in the EB-5 Immigrant Investor Program.
(Id.; Doc. 1 at 3, ¶ 19.)
1

The Firm is a successor in interest to Korda, Zitt & Associates, which was the name of the
firm at the time the alleged events occurred. (Doc. 1 at 1, ¶ 4; Doc. 6 at 1 n.1.)
2

3

(Id. at 2, ¶ 12.) To apply, an entrepreneur must first file a Form I-526, entitled
“Immigrant Petition by Alien Entrepreneur,” with USCIS. (Id. at 2–3, ¶ 13); 8 C.F.R.
§ 204.6(a). In the I-526 Petition, the entrepreneur must show, with supporting
documentation, that the entrepreneur has either invested capital in or is in the
process of investing capital in a new commercial enterprise in the United States that
will create at least 10 full-time jobs for qualified workers. (Doc. 1 at 2–3, ¶¶ 12–14);
8 C.F.R. § 204.6(j). In most cases, the entrepreneur’s investment is administered by a
specific regional center, which is designated by USCIS. (Doc. 1 at 2, ¶ 12); 8 C.F.R.
§ 204.6(j), (m)(3). If USCIS approves the I-526 Petition, the entrepreneur and his
dependent family members are eligible for conditional permanent residency in the
United States. (Doc. 1 at 2–3, ¶ 13.)
After two years, to gain permanent residency, the entrepreneur must submit a
Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident
Status. See 8 C.F.R. § 216.6; (see also Doc. 17-14.) If the foreign entrepreneur’s
investment satisfies the commercial enterprise and job-creation requirements, 8
C.F.R. § 216.6(c)(1)(i)–(iv), USCIS will grant the Form I-829 Petition and the
immigrant investor is eligible to permanently live and work in the United States. Id.
§ 216.6(d)(1); (Doc. 1 at 3, ¶ 15.)
III.

Vieira’s Investment in the Jay Peak Project and I-526 Petition
In February 2012, after discussions with Stenger, Vieira preliminarily decided

to invest in the Jay Peak Project as a means of securing his U.S. immigration through
the EB-5 Program. (Id. ¶ 17.) To this end, Vieira asked Stenger to recommend
attorneys familiar with the EB-5 process. (Id.) Rather than providing a list of

4

attorneys, in a February 24, 2012 email, Stenger recommended Korda as a “very good
[EB]-5 lawyer” who “knows Jay Peak . . . very well.” (Doc. 17-7; see also Doc. 1 at 3,
¶ 18.)
On the same day—February 24, 2012—Korda emailed Vieira to offer his
services as an “Immigration Attorney focusing on EB 5 cases” who has “filed numerous
I-526 petitions for clients, many of whom . . . invested in Jay Peak projects.”3 (Doc.
17-8.) Four days later, on February 28, Korda followed up with Vieira, again noting
that he had “worked with Jay Peak on many successful applications” and offering a
discounted service to Vieira because Jay Peak was “kind enough to refer clients to
[him.]” (Doc. 17-9.) Further, Korda stated that, if Vieira decided to invest in a project
other than Jay Peak, he could “assist with due diligence” and provide “advice about
projects . . . to be wary of.” (Id.) Finally, Korda noted that, “[g]iven the nature of the
EB-5 practice,” most of his clients were not located in Naples and this caused “no
logistical difficulties” with filing and preparing documents. (Id.)
Korda’s entreaties persuaded Vieira and, on March 5, 2012, Vieira and Korda
executed a document entitled “Fee Agreement for Legal Services” (the Agreement).
(Doc. 1 at 3–4, ¶ 21; see generally Doc. 6-2.) At the time Korda and Vieira entered into
the contract, Vieira was a resident of Brazil and Korda was a resident of Florida.
(Doc. 6-1 at 1, ¶ 8; Doc. 17-12 at 4.)

This was not the first time that Korda emailed Vieira. In a March 29, 2010 email, Korda
reached out to Vieira with a similar offer of representation that touted Korda’s EB-5 experience and his
familiarity with Jay Peak. (See generally Doc. 17-5.) Apparently, Vieira responded to this email and
asked a question regarding tax returns, (Doc. 17-6 at 2), but nothing further developed from this initial
communication.
3

5

The parties’ Agreement provided that “[a] Client who enters this Fee Agreement
for Legal Services is certifying and does hereby certify . . . that he or she has reached a
firm and final decision to invest in [the Jay Peak Project] independently of any
representations made by . . . the Firm.” (Doc. 6-2 at 1.) Further, by signing the
Agreement, Vieira authorized Korda and the Firm to communicate with Jay Peak to
facilitate the preparation of the I-526 Petition. (Id.) The Agreement also defined the
scope of Korda’s services, limiting Korda’s representation to the “preparation and
filing of the I-526, Immigrant Petition by Alien Entrepreneur” and any initial
collateral applications. (Doc. 6-2 at 3.) Beyond the preparation of the I-526 Petition,
the contract specified that “[n]o other legal services” would be provided. (Id.) In
particular, the contract indicated that Korda’s services did not include “[m]otions to
[r]e[]consider any denial of a petition or application” or “[a]dvice upon or the filing of
an application to remove conditions of lawful permanent residence.” (Id.) Notably, the
Agreement did not require Korda to prepare and file the second immigration form
required for Vieira to gain permanent residency under the EB-5 program: a Form
I-829, or Petition by Entrepreneur to Remove Conditions on Permanent Resident
Status. (Id.); see also 8 C.F.R. § 216.6. Similarly, the Agreement did not require
Korda to perform a due diligence inquiry on the Jay Peak Project, nor did the contract
require Korda to make the actual investment in the Jay Peak Project on behalf of
Vieira. Finally, the Agreement set a flat fee for Korda’s preparation of the I-526
Petition, (id. at 4–5), and indicated that the contract would be “governed by the laws of
the State of Florida, U.S.A.” (Id. at 6.)

6

On March 9, 2012, as the initial payment for Korda’s services, Vieira sent a
cashier’s check from the People’s United Bank branch located in Stowe, Vermont to
Korda in Florida. (Doc. 17-11; Doc. 17 at 7.) Although Vieira still resided in Brazil at
this time, Vieira had specifically set up a bank account with People’s United to make
monetary transfers to the Jay Peak Project easier. (Doc. 17-10.)
During the same approximate time period that Vieira engaged Korda, in late
February and early March 2012, Vieira became concerned with the allocation of
investor funds for the Jay Peak Project. (Doc. 1 at 4, ¶ 25.) In particular, on February
28, 2012, Rapid USA Visas—a third-party EB-5 consulting company—terminated its
relationship with Jay Peak because “Rapid USA no longer [had] confidence in the
accuracy of representations made by Jay Peak . . . or in the financial status of and
disclosures made by the various limited partnerships.” (Doc. 17-20 at 2.) When Vieira
confronted Stenger regarding Rapid USA’s actions, Stenger purportedly “downplayed
the problems raised by Rapid USA” and stated that the issues surrounding Rapid USA
were merely a “business dispute.” (Doc. 1 at 4, ¶ 26.)
Unsatisfied with Stenger’s response, (id. ¶ 27), in early March 2012, Vieira
sought advice from Korda regarding Rapid USA and his EB-5 investment.4 (Id. at 5,
¶ 31.) On March 1, 2012, Korda emailed Vieira indicating that the issues between Jay
Peak and Rapid USA were recent and that Jay Peak was “in the process of
reorganizing their investor liaison.” (Doc. 17-14 at 6.) Korda further reassured Vieira

Apparently Vieira also contacted James Candido, the Director of the Vermont Regional Center
authorized under the EB-5 program. (Doc. 1 at 4, ¶ 28.) According to Vieira, Candido telephoned Vieira
and explained that the issues between Jay Peak and Rapid USA involved a “business dispute.” (Id. at
5, ¶¶ 29–30.)
4

7

that he had “emailed and ask[ed] that someone contact[] you as soon as possible as you
are anxious to start the process.” (Id.) On March 9, 2012,5 Korda sent another email
stating that he had “absolutely no information” about the disagreement between Rapid
USA and Jay Peak but he speculated that it involved a “business fallout.” (Doc.
17-15.) Korda also wrote that he had “no inside knowledge and so [could not] allay
[Vieira’s] concerns,” but he offered to work with any regional center project that Vieira
chose. (Id.) Vieira now claims that Korda did, in fact, have specific knowledge
regarding the issues between Rapid USA and Jay Peak. (Doc. 1 at 8, ¶¶ 51–54.)
Despite Vieira’s concerns, in roughly mid-March 2012, Jay Peak provided Vieira
with an escrow agreement and offering documents to invest in the Jay Peak Project.
(Doc. 1 at 6, ¶ 36.) Apparently, these offering documents included a “due diligence
period,” which was set to end on approximately June 2, 2012. (Id. ¶ 37.) Vieira alleges
that Korda “completely failed” to assist with this due diligence process. (Id. ¶ 38.)
On or about April 10, 2012, Korda finished preparing a draft I-526 Petition,
which described Vieira’s intention to invest in the Jay Peak Project and to emigrate
from Brazil once his conditional visa was approved under the EB-5 immigrant investor
program. (Doc. 17-12 at 2, 4.) This draft petition was not filed at that time.
Instead, Vieira continued to seek additional financial information from Stenger
regarding the investment of EB-5 funds. (Doc. 1 at 7, ¶ 41.) Rather than provide

Also on March 9, 2012, Korda sent a general email to all of his clients warning that the
legislation authorizing the EB-5 regional center program was set to expire on September 30, 2012.
(Doc. 17-17 at 2.) Korda’s email indicated that there was “overwhelming support in Congress” for
extending the regional center program through new legislation, but warned potential investors that
there could be repercussions if the legislation did not pass by September 30, 2012. (Id. at 3; see also
Doc. 1 at 6, ¶ 35.)
5

8

financial information, on May 21, 2012, a Jay Peak representative provided Vieira
with a subscription agreement, an investor questionnaire, and instructions for wiring
money to invest in the Jay Peak Project. (Doc. 1 at 6–7, ¶¶ 40–43.) Frustrated by a
perceived lack of disclosure, Vieira instructed Korda to draft a letter aborting his
investment in the Jay Peak Project. (Id. at 7, ¶ 44.) Rather than draft the requested
letter, Korda purportedly defended Jay Peak and asked Vieira to meet with Stenger
directly. (Id. ¶¶ 45–47.) Then, on approximately May 25, Stenger sent Vieira a
number of operational reports involving the Jay Peak Project, although these reports
did not contain the financial information sought by Vieira. (Id. at 7–8, ¶ 48.) It is
unclear whether Vieira ever received the additional information he requested. In his
Complaint, however, Vieira alleges that he believed “his opportunity to live the
American [D]ream was about to disappear if he did not execute the [Jay Peak Project]
subscription agreement.” (Id. at 8, ¶ 49.) As a result, he signed the Jay Peak Project
subscription agreement on or about May 30, 2012. (Id. ¶ 50.)
Subsequently, additional concerns arose. Specifically, on June 28, 2012, Korda
forwarded an email from an attorney representing Jay Peak to Vieira, (Doc. 17-13); the
email described recent requests from USCIS seeking additional independent evidence
of the budget for the Jay Peak Project and the project’s effect on job creation. (Doc.
17-13 at 2.) Given the requests by USCIS, Korda advised Vieira to delay filing the
I-526 Petition until Jay Peak provided the evidence requested by USCIS. (Id. at 3.)
Then, on July 12, 2012, Korda followed up with Stenger for an update because “[he
had] a number of clients anxious to file.” (Doc. 17-21 at 2.)

9

It is unclear whether Jay Peak ever provided the information requested by
USCIS. It is clear, however, that around this time, Korda submitted Vieira’s I-526
Petition to the USCIS office in California. (Doc. 6-1 at 2, ¶ 17; see also Doc. 6-3.)
Specifically, an I-797 Notice of Action approving Vieira’s I-526 Petition indicates that
the California office received Vieira’s I-526 Petition on August 23, 2012. (Doc. 6-3.)
Along with approving Vieira’s I-526 Petition as of December 11, 2012, the I-797 Notice
also transferred Vieira’s approved immigrant visa petition to the Department of State
National Visa Center in Portsmouth, New Hampshire, for further processing. (Id.).
After Vieira’s I-526 Petition was approved, Korda’s representation of Vieira
ended and Vieira did not retain Korda for any additional work. (Doc. 6-1 at 3,
¶¶ 20–21.) Vieira and his family were granted conditional lawful permanent resident
status on September 24, 2013, (Doc. 17-14 at 3), and they then emigrated from Brazil
to Stowe, Vermont. (Doc. 6-1 at 3, ¶ 19; Doc. 1 at 1, ¶ 1.)
In April 2016, the United States Securities and Exchange Commission filed a
securities fraud lawsuit against the Jay Peak developers, including Stenger, for
misappropriating EB-5 investor funds. (Doc. 1 at 9, ¶ 57.)
Subsequently, on November 3, 2017, USCIS sent Vieira a Notice of Intent to
Deny his application for permanent residency status. (See Doc. 17-14 at 2.) In
evaluating Vieira’s I-829 Petition to Remove Conditions, which was filed on September
16, 2015, the USCIS evaluator concluded that the evidence Vieira submitted did not
demonstrate that the Jay Peak Project would create enough jobs to satisfy the job
creation requirement of the EB-5 program. (Id. at 5.) As a result, USCIS afforded
Vieira an additional 30 days to submit evidence demonstrating his eligibility to have

10

the conditions on his permanent residency status removed. (Id.) The record does not
indicate whether Vieira complied with this request; however, Vieira asserts that he is
now facing deportation. (Doc. 17 at 15.)
Procedural Background
On August 25, 2017, Vieira filed the present lawsuit in this Court. (Doc. 1.) In
his Complaint, in addition to the facts set forth above, he brings seven causes of action
against Korda and the Firm: in Count I, Vieira claims that Korda and the Firm
committed legal malpractice by “failing to abide by Mr. Vieira’s lawful instructions
and requests,” (Doc. 1 at 10, ¶ 66); in Count II, Vieira alleges that Korda and the Firm
breached the Agreement by inadequately providing the bargained-for services, (id. at
11, ¶¶ 69–74); in Count III, Vieira claims that Korda and the Firm breached the duty
of good faith and fair dealing by neglecting to satisfactorily represent Vieira under the
Agreement’s terms, (id. at 11–12, ¶¶ 75–80); in Count IV, Vieira asserts that Korda
and the Firm were unjustly enriched by receiving money for legal services that were
not performed, (id. at 12–13, ¶¶ 81–84); in Count V, Vieira claims that Korda and the
Firm violated federal securities law, (id. at 13–15, ¶¶ 85–97); in Count VI, Vieira
argues that Korda and the Korda Law Firm violated Vermont’s Consumer Fraud Act,
9 V.S.A. §§ 2451–2466b, by making false representations that were likely to mislead
Vieira, (id. at 15–16, ¶¶ 98–104); and in Count VII, Vieira asserts that Korda and the
Korda Law Firm breached their fiduciary duty to Vieira by failing to disclose conflicts
of interest and by engaging in a “sham representation.” (Id. at 16–18, ¶¶ 105–116.)
For these alleged violations, Vieira seeks total damages in excess of $2,000,000 and
such other relief as this Court deems proper. (Id. at 18, ¶ 9.)

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On October 10, 2017, Korda and the Firm jointly filed the present Motion to
Dismiss Case for Lack of Jurisdiction. (Doc. 6.) In the Motion, filed pursuant to Fed.
R. Civ. P. 12(b)(2), Korda and the Firm argue that this Court lacks personal
jurisdiction because Korda “practices federal immigration law, handled outside of
Vermont, without reference to Vermont law.” (Id. at 3.) Further, according to Korda
and the Firm, Korda’s representation of Vieira was tangentially related to Vermont
only because Vieira chose to invest in the Jay Peak Project. (Id.) Aside from this
oblique relationship, Korda and the Firm assert that they could not foresee being
haled into a Vermont court because the parties’ Agreement expressly limited Korda’s
legal representation to the I-526 Petition, the contract was governed by Florida law,
and Vermont has no special interest in resolving Vieira’s allegations. (Id. at 3–4.)
Vieira opposes the Motion to Dismiss, arguing that “every aspect of Attorney
Anthony Korda’s and the Korda Law Firm’s . . . representation in this matter involved
Vermont[ and] no meaningful aspect involved any other location.” (Doc. 17 at 1.)
Vieira further claims that Korda benefited from an ongoing business relationship with
Jay Peak, including Korda’s initial investment in the Jay Peak Project as an EB-5
immigrant investor and “as a regular recipient of client ‘referrals’ from the Jay Peak
Eb-5 projects.” (Id. at 2.) As a result, Vieira asserts that, “[b]oth generally, and as to
[himself], Attorney Korda purposefully availed himself of the benefits and privilege of
conducting activities with the District of Vermont.” (Id. (internal quotation marks
omitted).)
In reply, Korda and the Firm argue that Vieira’s claims have little to do with
either the actual contacts between Korda and Vermont or the Agreement that the

12

parties signed. (Doc. 23 at 1.) Instead, Korda and the Firm again assert that their
contract with Vieira concerned only Vieira’s I-526 Petition and they deny any
responsibility for Vieira’s decision to invest in the Jay Peak Project. (Id. at 2.)
On April 11, 2018, this Court held a hearing on the pending Motion to Dismiss,
wherein both parties repeated the arguments advanced in their memoranda. See
generally Hearing Argument, Viera v. Korda et al., No. 2:17–cv–160 (April 11, 2018)
(Conroy, Mag. J.). Neither party presented additional evidence. (Id.) At the end of
the hearing, for the first time, Vieira’s counsel requested jurisdictional discovery. (Id.
at 2:02.)
Analysis
I.

Personal Jurisdiction
A.

Legal Standard

“In the absence of a federal statute specifically directing otherwise, and subject
to limitations imposed by the United States Constitution, [courts] look to the law of
the forum state to determine whether a federal district court has personal jurisdiction
over a foreign corporation.” Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d
Cir. 2016). On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears
the burden of demonstrating that the defendant has sufficient contacts with the forum
state to provide the court with jurisdiction over the defendant’s person. Country Home
Prod., Inc. v. Schiller-Pfeiffer, Inc., 350 F. Supp. 2d 561, 566–67 (D. Vt. 2004) (citing
Metro. Life Ins. Co. v. Robertson–Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996)). Where,
as here, no evidentiary hearing has been held on the Motion to Dismiss and no
discovery has occurred, the “plaintiff may defeat a motion to dismiss based on legally

13

sufficient allegations of jurisdiction.” Metro. Life Ins. Co., 84 F.3d at 566; see also
Whitaker, 261 F.3d at 208 (“A plaintiff may carry this burden by pleading in good faith
. . . legally sufficient allegations of jurisdiction, i.e., by making a prima facie showing
of jurisdiction.” (alteration in original) (internal quotation marks omitted)).6 In
evaluating this prima facie showing, “all allegations are construed in the light most
favorable to the plaintiff and doubts are resolved in the plaintiff’s favor.” Whitaker,
261 F.3d at 208 (alterations and internal quotation marks omitted).
Personal jurisdiction generally involves a two-step inquiry. A court must first
determine whether the defendant is amendable to service of process under the forum
state’s laws, Bensusan Restaurant Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997), and,
next, the court must decide whether the Due Process Clause of the Fourteenth
Amendment permits the exercise of personal jurisdiction over the defendant. Int’l
Shoe Co. v. State of Wash., 326 U.S. 310, 316 (1945). In Vermont, however, the
Vermont Supreme Court has interpreted the state’s long-arm statute, 12 V.S.A.
§ 913(b),7 to allow the assertion of jurisdiction to the “full extent permitted by the Due
Process Clause” of the Federal Constitution. Northern Aircraft, Inc. v. Reed, 154 Vt.
36, 40, 572 A.2d 1382, 1385 (1990). In other words, the two inquiries merge under
Vermont law and the Court may exercise personal jurisdiction so long as jurisdiction
“Eventually, of course, the plaintiff must establish jurisdiction by a preponderance of the
evidence, either at a pretrial evidentiary hearing or at trial. But until such a hearing is held, a prima
facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat
the motion.” Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981).
6

12 V.S.A. § 913(b) provides: “Upon the service [of process on a party outside the state], and if
it appears that the contact with the State by the party or the activity in the State by the party or the
contact or activity imputable to him or her is sufficient to support a personal judgment against him or
her, the same proceedings may be had for a personal judgment against him or her as if the process or
pleading had been served on him or her in the State.”
7

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comports with constitutional due process. Ben & Jerry’s Homemade, Inc. v. Coronet
Priscilla Ice Cream Corp., 921 F. Supp. 1206, 1209 (D. Vt. 1996).
To comply with the limitations imposed by the Due Process Clause, personal
jurisdiction must satisfy both a “minimum contacts” test and a “reasonableness”
inquiry. Metro. Life Ins. Co., 84 F.3d at 567. With respect to minimum contacts, the
plaintiff must demonstrate that the defendant has sufficient contacts with the forum
state to justify the court’s exercise of personal jurisdiction over the defendant. Int’l
Shoe Co., 326 U.S. at 316. “Intentional and affirmative action by the nonresident
defendant in the forum state is the key to personal jurisdiction.” Ben & Jerry’s, 921 F.
Supp. at 1210; see also Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cty.,
480 U.S. 102, 109 (1987) (“[M]inimum contacts must have a basis in ‘some act by
which the defendant purposefully avails itself of the privilege of conducting activities
within the forum State, thus invoking the benefits and protections of its laws.’”
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
In determining whether minimum contacts exist, courts distinguish between
“specific” and “general” jurisdiction. Specific jurisdiction—also known as “case-linked”
jurisdiction, Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919
(2011)—applies “when a State exercises personal jurisdiction over a defendant in a
suit arising out of or related to the defendant’s contacts with the forum.” Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984). By comparison,
general jurisdiction—or “all purpose” jurisdiction, Goodyear Dunlop Tires Operations,
564 U.S. at 919—usually applies to corporations and “is based on the defendant’s
general business contacts with the forum state and permits a court to exercise its

15

power in a case where the subject matter of the suit is unrelated to those contacts.”
Metropolitan Life, 84 F.3d at 567–68. Because the contacts that establish general
jurisdiction are unrelated to the events giving rise to the suit, courts impose a “more
stringent” version of the minimum contacts test for general jurisdiction than for
specific jurisdiction. Id. at 568. That more stringent test is whether the defendantcorporation’s “affiliations with the State are so ‘continuous and systematic’ as to
render [it] essentially at home in the forum State.” Daimler AG v. Bauman, 134 S. Ct.
746, 761 (2014) (alteration in original) (quoting Goodyear Dunlop Tires Operations,
564 U.S. at 919).
If the plaintiff establishes the defendant’s minimum contacts with the forum
state, the “reasonableness” inquiry requires the court to decide “whether the assertion
of personal jurisdiction would comport with ‘fair play and substantial justice.’” Burger
King, 471 U.S. at 476 (quoting Int’l Shoe, 326 U.S. at 320). In making this
determination, the court looks to “the burden on the defendant, the forum State’s
interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and
effective relief, the interstate judicial system’s interest in obtaining the most efficient
resolution of controversies, and the shared interest of the several States in furthering
fundamental substantive social policies.” Id. at 477 (internal quotations omitted).
“While the exercise of jurisdiction is favored where the plaintiff has made a threshold
showing of minimum contacts at the first stage of the inquiry, it may be defeated
where the defendant presents ‘a compelling case that the presence of some other
considerations would render jurisdiction unreasonable.’” Metropolitan Life, 84 F.3d at
568 (quoting Burger King, 471 U.S. at 477).

16

B.

Specific Jurisdiction over Korda Individually

Here, as discussed in detail below, the Court concludes that the Complaint does
not plausibly allege that Korda has the requisite “minimum contacts” with Vermont
with respect to Vieira’s claims arising from contract and tort law; however, as to
Vieira’s private action under the Securities Exchange Act of 1934, the Court concludes
that Korda has sufficient contacts with the United States generally for this Court to
exercise personal jurisdiction. Nevertheless, under the second step of the due process
inquiry, the Court determines that other considerations render personal jurisdiction
over Korda unreasonable.
1.

Minimum Contacts Inquiry

The Court first examines Korda’s minimum contacts in relation to the counts
set forth in Vieira’s Complaint. As summarized above, under the Due Process Clause,
whether an out-of-state defendant’s contacts with the forum state give rise to specific
jurisdiction “depends on an affiliation between the forum and the underlying
controversy.” Goodyear Dunlop Tires Operations, 564 U.S. at 919 (alteration and
internal quotation marks omitted); Huey v. Bates, 135 Vt. 160, 164, 375 A.2d 987, 990
(1977) (stating that there must be a “nexus between the defendant, the injuring
agency, and the cause of action brought in the forum state”). Courts evaluate this
nexus under a totality of the circumstances test, always considering the “quality and
nature” of the contacts between the out-of-state defendant, the forum state, and the
cause of action. Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d Cir. 2007)
(quoting Burger King, 471 U.S. at 475); see also Walden v. Fiore, 134 S. Ct. 1115, 1121
(2014) (“For a State to exercise jurisdiction consistent with due process, the

17

defendant’s suit-related conduct must create a substantial connection with the forum
State.” In this case, Vieira’s Complaint contains counts arising from (a) contract law,
(b) tort law, and (c) federal securities law. (See Doc. 1 at 10–18, ¶¶ 61–116.) Below,
the Court examines the quality and nature of Korda’s contacts with Vermont in
relation to these causes of action.
a.

Claims Sounding in Contract

Three counts in Vieira’s Complaint are grounded in contract law: in Count II,
Vieira alleges that Korda breached their Agreement by failing to provide the
bargained-for services, (Doc. 1 at 11, ¶¶ 69–74); in Count III, Vieira claims that Korda
breached the duty of good faith and fair dealing by failing to adequately represent
Vieira under the contract’s terms, (id. at 11–12, ¶¶ 75–80); and in Count IV, Vieira
asserts that Korda was unjustly enriched by receiving money for unperformed legal
services. (Id. at 12–13, ¶¶ 81–84.) As to these claims, the Court concludes that
Vieira’s Complaint does not plausibly allege that Korda had sufficient “minimum
contacts” with Vermont for the Court to exercise personal jurisdiction over Korda.
Where specific jurisdiction is purportedly grounded in a contractual
relationship, a nonresident defendant generally satisfies the minimum-contacts test by
reaching out beyond his or her state to “create continuing relationships and
obligations” with the citizens of the forum state. Burger King, 471 U.S. at 473
(internal quotation marks omitted). The mere fact that an out-of-state party contracts
with a forum state’s resident does not, by itself, automatically establish sufficient
minimum contacts in the forum state. Id. at 478. Instead, the court must examine the
“prior negotiations and contemplated future consequences, along with the terms of the

18

contract and the parties’ actual course of dealing” to evaluate whether the defendant
purposefully established minimum contacts within the forum. Id. at 479. The
touchstone of the inquiry is whether it is foreseeable that “the defendant’s conduct and
connection with the forum State are such that he [or she] should reasonably anticipate
being haled into court there.” Id. at 474 (internal quotation marks omitted); see also
Best Van Lines, Inc., 490 F.3d at 242 (“The crucial question is whether the defendant
has purposefully availed itself of the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its laws.” (alteration and internal
quotation marks omitted)).
Here, Vieira’s Complaint does not plausibly allege that the parties’ Agreement
created sufficient contacts with Vermont for Korda to reasonably anticipate being
haled into a Vermont court. As an initial matter, when Vieira and Korda entered into
the contract, neither party resided in Vermont; instead, Vieira resided in Brazil and
Korda resided in Florida. (Doc. 6-1 at 1, ¶ 8; Doc. 17-12 at 4.) Further, nothing in the
parties’ Agreement gave rise to a specific legal obligation in Vermont, nor did the
contract create a legal benefit in Vermont. (See generally id.) Instead, the contract
limited the duration, scope, and location of Korda’s obligations to preparing and filing
Vieira’s I-526 Petition, with the goal of securing Vieira’s conditional immigration into
the United States under the EB-5 program. See Bissonnette v. Podlaski, 138 F. Supp.
3d 616, 625 (S.D.N.Y. 2015) (declining to exercise personal jurisdiction in New York
where “Defendants’ engagement letter expressly limited their representation of
Plaintiff.”). Beyond these services, the contract specified that “[n]o other legal services
[were to be] provided under [the] Fee Agreement for Legal Services.” (Doc. 6-2 at 3.)

19

As the correspondence between Korda and Vieira indicates, moreover, Korda
anticipated performing all of his contractual obligations from Florida. (Doc. 17-9.)
Finally, the contract stated that Florida law would govern any dispute, indicating that
the parties’ perceived their contacts to be with Florida, not Vermont. RLB & Assocs.,
Ltd. v. Aspen Med. Pty., Case No. 2:15-cv-123, 2016 WL 344925, at *6 (D. Vt. Jan. 27,
2016) (citing Thompson Hine, LLP v. Taieb, 734 F.3d 1187, 1192 (D.C. Cir. 2013)). In
sum, given the parties’ correspondence and the express language in the Agreement, it
is plain that neither party contemplated that the Agreement would produce ongoing
and wide-reaching contacts with Vermont. Cf. Burger King Corp., 471 U.S. at 473,
480.
Furthermore, although Vieira’s investment in the Jay Peak Project formed the
basis for the I-526 Petition prepared by Korda, Vieira’s decision to invest does not, by
itself, establish Korda’s minimum contacts with Vermont. (Doc. 6-2 at 3.) On this
point, Bissonnette v. Podlaski is instructive. See generally 138 F. Supp. 3d 616. In
Bissonnette, the plaintiff, a former U.S. Navy SEAL, agreed to publish a book with a
New York publisher. Id. at 619. Subsequently, the plaintiff’s New York literary agent
contacted the defendants, an Indiana law firm, who agreed to examine the book for
potentially classified information and to provide advice regarding the plaintiff’s
confidentiality obligations. Id. Although the defendants communicated with the
plaintiff, his publisher, and his agent in New York for this purpose, at no time did the
defendants actually enter New York or represent the plaintiff in New York. Id. at 624.
Based on these facts, the Southern District of New York concluded that the
defendant’s activities did not confer personal jurisdiction in New York. Id. The court

20

acknowledged that “aspects of the underlying transaction . . . took place in New York”
but noted that the “[d]efendants’ engagement letter expressly limited their
representation of [the] [p]laintiff,” that the defendants did not agree to provide
representation in New York relating to the contract, and that the defendants never
actually provided representation in New York. Id. at 625.
As in Bissonnette, the contract between Korda and Vieira contained express
limitations. As noted above, the contract specifically restricted Korda’s representation
to the preparation and filing of the I-526 Petition. (Doc. 6-2 at 3.) Similarly, the
Agreement required Vieira to certify that “he or she has reached a firm and final
decision to invest in [the Jay Peak Project] independently.” (Id. at 1 (emphasis
added).) By agreeing to this language, the parties plainly limited the services
provided under the contract and, further, indicated that Korda did not anticipate any
future consequences arising from the Jay Peak Project’s location in Vermont. See
Bissonnette, 138 F. Supp. 3d at 625. Like Bissonnette, moreover, Korda did not agree
to provide representation for Vieira in Vermont, nor did Korda actually provide
representation in Vermont. Id. Korda did what Vieira hired him to do: he prepared
and filed Vieira’s I-526 Petition, which resulted in USCIS granting Vieira and his
family conditional lawful permanent resident status. (Doc. 17-14 at 3.) These actions
do not suggest that Korda anticipated being haled into Vermont court on the basis of
the Agreement. Cf. Burger King Corp., 471 U.S. at 473, 480.
Accordingly, as to Vieira’s contractual claims, the Complaint does not allege
sufficient contacts with Vermont for the Court to exercise personal jurisdiction over
Korda.

21

b.

Claims Arising From Tort Law

Similarly, Vieira’s Complaint does not plausibly allege that Korda’s purportedly
tortious conduct created a substantial connection with Vermont sufficient for this
Court to exercise personal jurisdiction over Korda.
For a claim sounding in tort, such as legal malpractice or breach of fiduciary
duty, see Restatement (Second) of Torts §§ 299A, 874 (1979), if a nonresident
defendant committed the tort within the forum state, a sufficient nexus generally
exists between the out-of-state defendant, the forum state, and the cause of action.
Goodyear Dunlop Tires Operations, 564 U.S. at 919; cf. Schwartz v. Frankenhoff, 169
Vt. 287, 293, 733 A.2d 74, 79 (1999) (stating attorneys’ letters and phone calls to
Vermont residents were insufficient for jurisdiction absent an “independent wrong”
committed by the attorney). In other instances, a sufficient relationship with the
forum state may arise if a nonresident defendant “intentionally acts outside the forum
state to cause tortious harm within the forum state.” Schwartz, 169 Vt. at 293, 733
A.2d at 79 (citing Calder v. Jones, 465 U.S. 783, 788–89 (1984)). In either
circumstance, “the relationship must arise out of contacts that the ‘defendant himself’
creates with the forum State” and “not [from] the defendant’s contacts with persons
who reside there.” Walden, 134 S. Ct. at 1122 (quoting Burger King Corp., 471 U.S. at
475) (emphasis in original). In other words, “the defendant’s suit-related conduct must
create a substantial connection with the forum State,” a nonresident defendant cannot
be haled into court “based on the ‘random, fortuitous, or attenuated’ contacts he makes
by interacting with other persons affiliated with the State.” Id. at 1121–23 (quoting

22

Burger King, 471 U.S. at 475); see also State v. Atl. Richfield Co., 2016 VT 22, ¶ 14,
201 Vt. 342, 142 A.3d 215.
Applying these principles, Vieira’s Complaint does not plausibly allege that
Korda’s conduct created a substantial connection with Vermont. The three counts in
Vieira’s Complaint sounding in tort law are based on the attorney-client relationship
formed between Korda and Vieira and their resulting communications: in Count I,
Vieira claims that Korda committed legal malpractice by “failing to abide by
Mr. Vieira’s lawful instructions and requests,” (Doc. 1 at 10, ¶ 66); in Count VI, Vieira
argues that Korda violated Vermont’s Consumer Fraud Act, 9 V.S.A. §§ 2451–2466b8
by making false representations that were likely to mislead Vieira, (id. at 15–16,
¶¶ 99–101); and in Count VII, Vieira asserts that Korda breached his fiduciary duty to
Vieira by failing to disclose his conflicts of interest and by engaging in a “sham
representation.” (Id. at 17–18, ¶¶ 109, 111.) Simply put, these allegations rely on
Korda’s contacts with Vieira, not Korda’s contacts with Vermont. Cf. Walden, 134 S.
Ct. at 1122 (“[O]ur ‘minimum contacts’ analysis looks to the defendant’s contacts with
the forum State itself, not the defendant’s contacts with persons who reside there.”).
Further, Korda had no physical presence in Vermont. As noted above, Korda is
a Florida resident and does not maintain a law office in Vermont, (Doc. 1 at 1, ¶¶ 2, 3),
Vermont’s Consumer Fraud Act provides a private cause of action to consumers who contract
for goods or services in reliance upon false or fraudulent representations or practices prohibited by Vt.
Stat. Ann. tit. 9 § 2453, or who sustain damages or injury as a result of the same. Id. § 2461(b). Given
that tort law concepts of fraudulent misrepresentation inform consumer fraud claims, see Restatement
(Second) of Torts § 557 (1977), the Court considers Vieira’s consumer fraud claim along with his other
claims sounding in tort law. The Court notes, however that, “although certain representations may give
rise to a [legal] malpractice claim, they are generally not actionable under the Consumer Fraud Act if
they are the product of the defendant’s ‘professional judgment based upon his legal knowledge and
skill.’” Webb v. Leclair, 2007 VT 65, ¶ 23, 182 Vt. 559, 933 A.2d 177 (quoting Kessler v. Loftus, 994 F.
Supp. 240, 243 (D. Vt. 1997)).
8

23

nor does it appear from the Complaint that Korda ever visited Vermont, let alone that
Korda went to Vermont in order to represent Vieira. “[A]lthough physical presence in
the forum is not a prerequisite to jurisdiction, . . . physical entry into the State—either
by the defendant in person or through an agent, goods, mail, or some other means—is
certainly a relevant contact.” Walden, 134 S. Ct. at 1122. The lack of Korda’s physical
presence is particularly relevant here because, without a physical presence in
Vermont, Korda’s link to Vieira is one of the only connections between Korda and
Vermont.9 Id. (“[T]he plaintiff cannot be the only link between the defendant and the
forum.”).
Similarly, the Complaint does not plausibly allege that Korda directed the
purportedly harmful effects of his out-of-state conduct at Vermont. See Calder, 465
U.S. at 787 n.6. Korda did not market his legal services to potential clients in
Vermont nor did Korda purposefully seek to promote and maintain a client base in
Vermont. (Doc. 6-1 at 2, ¶ 4.) Instead, he marketed himself to clients as having the
ability to assist them in the EB-5 application process. (Id.); cf. Bank Brussels Lambert
v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 128 (2d Cir. 2002) (“[T]he picture
which emerges from the above facts is that of a law firm which seeks to be known in
the New York legal market, makes efforts to promote and maintain a client base there,
and profits substantially therefrom.”). While it is true that Stenger referred
prospective investors in the Jay Peak Project to Korda, “a defendant’s relationship

As noted above, Korda gained his permanent residency by investing in an early stage of the
Jay Peak and participating in the EB-5 Immigrant Investor Program. (Doc. 1 at 3, ¶ 19.) But this prior
interaction with Vermont and the Jay Peak Project is not suit-related conduct and, so, cannot be the
basis for jurisdiction. Walden, 134 S. Ct. at 1121.
9

24

with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction.”
Walden, 134 S. Ct. at 1123 (emphasis added). Here, only Stenger’s referral10 and
Vieira’s independent decision to invest in the Jay Peak Project connect Korda with
Vermont. Indeed, the Complaint fails to allege that, in the course of the parties’
attorney-client relationship, Korda communicated with Vieira while he was living in
Vermont. Absent additional and plausible allegations that Korda intentionally
directed his conduct at Vermont residents, Korda cannot be haled into a Vermont
court based on his attenuated interactions with Stenger and Jay Peak. Id.; see also
Smith v. Morris & Manning, 647 F. Supp. 101, 103 (S.D.N.Y. 1986) (declining personal
jurisdiction where the attorney “performed all of its services for [the plaintiff] in
Georgia, leaving those services to be performed within New York to [the plaintiff’s]
local counsel” and “[t]he agreement under which [the plaintiff] retained [the attorney]
was entered into while he resided in South Carolina, and no one from the firm has
ever been present within [New York] in connection with the firm’s services for [the
plaintiff].”).

At the hearing, Vieira’s counsel expanded on this allegation, claiming that Stenger referred
“well over 20 and less than 100” potential Jay Peak investors to Korda and arguing that, because Korda
profited from these referrals, personal jurisdiction was appropriate in Vermont. Hearing Argument at
1:52–1:57, Viera v. Korda et al., No. 2:17–cv–160 (April 11, 2018) (Conroy, Mag. J.); (see also Doc. 17 at
20). Even crediting these additional allegations as true, Metropolitan Life Insurance Co., 84 F.3d at
566, these claims are insufficient to establish this Court’s personal jurisdiction because “a defendant’s
relationship with a . . . third party, standing alone, is an insufficient basis for jurisdiction.” Walden, 134
S. Ct. at 1123. Moreover, Vieira’s allegations regarding the purported referral program principally
involve Stenger’s actions, rather than Korda’s suit-related conduct. Id. at 1122 (“[I]t is the defendant’s
conduct that must form the necessary connection with the forum State.”). As discussed above, all of
Korda’s suit-related conduct occurred in Florida and involved the preparation and filing of Vieira’s I-526
Petition under federal immigration law. No allegation suggests that Korda directed his conduct at
Vermont residents or, indeed, suggests that Korda communicated with anyone in Vermont other than
Stenger. Finally, to the extent that Vieira argues that he was damaged in Vermont by Korda’s
purported malfeasance, “[i]t is not sufficient that conduct incidentally had an effect in the forum, or
even that effects in the forum were foreseeable.” Gordon v. Invisible Children, Inc., No. 14 Civ.
4122(PGG), 2015 WL 5671919, at *7 (S.D.N.Y. Sept. 24, 2015).
10

25

Vieira’s arguments to the contrary are not persuasive. Vieira urges this Court
to exercise personal jurisdiction because “[e]very aspect of the transaction and every
aspect of this litigation is . . . in Vermont.” (Doc. 17 at 23.) As an initial matter, to the
extent that Vieira’s personal-jurisdiction argument relies on acts performed by
Vieira—such as Vieira’s establishment of a bank account in Vermont and his current
residence in Vermont, (Doc. 17 at 23–24)—these acts cannot form the basis for the
Court’s personal jurisdiction over Korda. Walden, 134 S. Ct. at 1122 (“We have
consistently rejected attempts to satisfy the defendant-focused “minimum contacts”
inquiry by demonstrating contacts between the plaintiff (or third parties) and the
forum State.”). More importantly, Vieira’s argument relies on the faulty assumption
that Vieira’s independent decision to invest in the Jay Peak Project provides a basis
for personal jurisdiction over Korda. Instead, as discussed above, Vieira’s investment
in the Jay Peak Project was collateral to the core purpose of the parties’ Agreement
and the resulting attorney-client relationship. Cf. Smith, 647 F. Supp. at 103;
Bissonnette, 138 F. Supp. 3d at 625. Moreover, Vieira’s decision to invest in the Jay
Peak Project does not establish a sufficient affiliation between Korda and Vermont.
Walden, 134 S. Ct. at 1122. Although personal jurisdiction may arise if “a defendant’s
contacts with the forum State [are] intertwined with his transactions or interactions
with the plaintiff or other parties,” id. at 1123, Vieira’s Complaint does not point to
any conduct by Korda that formed a sufficient connection with Vermont, aside from
the parties’ attorney-client relationship. Id. at 1122 (“[T]he plaintiff cannot be the
only link between the defendant and the forum. Rather, it is the defendant’s conduct

26

that must form the necessary connection with the forum State that is the basis for its
jurisdiction over him.”).
Indeed, rather than citing precedent to support his assertion of Korda’s
“minimum contacts” with Vermont, Vieira relies on case law that emphasizes the
absence of any affiliation between Korda and Vermont. In each case cited by Vieira,
(see Doc. 17 at 22–23), the nonresident attorney or attorneys provided services in the
forum state, specifically availing themselves of the forum state’s laws and protections.
See, e.g., Schur v. Porter, 712 F. Supp. 1140, 1145 (S.D.N.Y. 1989) (exercising personal
jurisdiction where out-of-state attorneys contracted to represent clients in the forum
state and to negotiate and form partnerships in the forum state); Gracious Living
Corp. v. Colucci & Gallaher, PC, 216 F. Supp. 3d 662, 669 (D.S.C. 2016) (finding
jurisdiction where out-of-state attorney prepared and filed a confession of judgment in
the forum state); Pagliara v. Johnston Barton Proctor & Rose, LLP, No. 3:10-cv-00679,
2010 WL 3940993, at *4 (M.D. Tenn. Oct. 6, 2010) (exercising jurisdiction where the
out-of-state attorney directed purportedly tortious conduct at resident of the forum
state); Gomberg v. Shosid, No. 1:05-cv-356, 2006 WL 1881229, at *5 (E.D. Tenn. July
6, 2006) (finding personal jurisdiction where the purpose of the contract was to provide
for the sale of assets in the forum state); Masada Inv. Corp. v. Allen, 697 S.W.2d 332,
335 (Tenn. 1985) (finding jurisdiction over attorney who prepared documents to be
filed in forum state). Here, nothing in the Complaint plausibly alleges that Korda
provided services in Vermont and, indeed, the Agreement expressly limited Korda’s
services to preparing and filing the I-526 Petition.

27

In sum, the conduct at issue here—the performance of legal research, rendering
of legal advice, and preparation of the I-526 Petition—occurred in Florida. Nothing in
the Complaint plausibly suggests that Korda’s suit-related conduct sufficiently
affiliated him with Vermont. As a result, the Complaint does not plausibly allege the
necessary minimum contacts for personal jurisdiction over Korda as to Vieira’s claims
sounding in tort.
c.

Federal Securities Law Claim

A private cause of action may be brought under 17 C.F.R § 240.10b-5, which the
U.S. Securities and Exchange Commission promulgated pursuant to § 10(b) of the
Securities Exchange Act. Janus Capital Grp., Inc. v. First Derivative Traders, 564
U.S. 135, 142 (2011). In bringing a Rule 10b-5 action, the Securities Exchange Act
authorizes worldwide service of process, see 15 U.S.C. §§ 77v(a), 78aa, and “permits
the exercise of personal jurisdiction to the limit of the Due Process Clause of the Fifth
Amendment.” S.E.C. v. Unifund SAL, 910 F.2d 1028, 1033 (2d Cir. 1990). Thus,
unlike the personal jurisdiction analysis described above, which is derived from the
limitations placed on the states by the Due Process Clause of the Fourteenth
Amendment, International Shoe and its progeny do not directly govern personal
jurisdiction in matters involving federal securities laws. S.E.C. v. Softpoint, Inc., No.
95 Civ. 2951 GEL, 2001 WL 43611, at *3 (S.D.N.Y. Jan. 18, 2001). Nevertheless, given
the identical language in the Fifth Amendment’s Due Process Clause, id., courts
generally apply the same two-part test for personal jurisdiction: “the ‘minimum
contacts inquiry’ and the ‘reasonableness’ inquiry.” See, e.g., S.E.C. v. Compania
Internacional Financiera S.A., No. 11 Civ. 4904(DLC), 2011 WL 3251813, at *4

28

(S.D.N.Y. July 29, 2011) (quoting Metro. Life Ins. Co., 84 F.3d at 567). Because the
Securities Exchange Act provides for worldwide service of process, the relevant
“minimum contacts inquiry” is whether the defendant has “sufficient contacts” with
the United States as a whole. Compania Internacional Financiera S.A., 2011 WL
3251813, at *4; see also Softpoint, Inc., 2001 WL 43611, at *3 (“[W]here, as here, the
United States, and not the [forum state], is the only sovereign whose power to
adjudicate is in question, . . . the relevant ‘minimum contacts’ . . . should be the
defendant’s contacts with the United States, and not his contacts with the [forum
state.]”).
Here, because the Complaint alleges sufficient contacts by Korda with the
United States, the “minimum contacts” element of the personal-jurisdiction inquiry
has been satisfied as to Vieira’s federal securities law claim. See S.E.C. v. Syndicated
Food Servs. Int’l, Inc., No. 04-CV-1303 (NGG)(ALC), 2010 WL 3528406, at *2
(E.D.N.Y. Sept. 3, 2010) (“The minimum contacts requirement is satisfied where a
defendant’s conduct and connection with the United States are such that ‘he should
reasonably anticipate being haled into court there.’” (quoting World–Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297 (1980))). Korda is a citizen and resident of the
United States and all of his alleged unlawful conduct took place in the United States.
(Doc. 1 at 1, ¶ 2; see generally id. at 2–10, ¶¶ 7–60.) Indeed, Korda does not assert
that he has insufficient contacts with the United States, but instead focuses on the
absence of connections with Vermont in his Motion to Dismiss. (See generally Doc. 6.)

29

Accordingly, because Vieira’s Complaint alleges sufficient minimum contacts as to
federal securities law, the Court turns to the second part of the due process inquiry.
2.

Reasonableness Inquiry

Under the second prong of the due process test, the Court must consider
whether exercising personal jurisdiction over Korda as to Vieira’s federal securities
law claim would be reasonable.11 Determining that exercising personal jurisdiction in
this manner would effectively bifurcate Vieira’s federal securities claim from his tort
and contract law claims, the Court concludes that personal jurisdiction is
unreasonable.
As the Second Circuit has observed, “the exercise of jurisdiction is favored
where the plaintiff has made a threshold showing of minimum contacts at the first
stage of the inquiry.” Metro. Life Ins. Co., 84 F.3d at 568. In evaluating whether the
assertion of personal jurisdiction comports with “traditional notions of fair play and
substantial justice” a court must assess five factors:
(1) the burden that the exercise of jurisdiction will impose on the
defendant; (2) the interests of the forum state in adjudicating the case; (3)
the plaintiff’s interest in obtaining convenient and effective relief; (4) the
interstate judicial system’s interest in obtaining the most efficient
resolution of the controversy; and (5) the shared interest of the states in
furthering substantive social policies.

Because Korda lacks the requisite “minimum contacts” with Vermont in relation to Vieira’s
tort and contract law claims, the Court need not move on to the second step of the personal jurisdiction
inquiry and examine the “fair play and substantial justice” of personal jurisdiction in relation to Vieira’s
claims sounding in tort and contract. See Burger King, 471 U.S. at 476 (quoting Int’l Shoe, 326 U.S. at
320); see also Metro. Life Ins. Co., 84 F.3d at 568 (observing that if minimum contacts are lacking, “the
inquiry ends” and there is no need to evaluate the reasonableness prong (quoting Donatelli v. Nat’l
Hockey League, 893 F.2d 459, 465 (1st Cir. 1990)).
11

30

Id. (citing Asahi Metal Indus. Co., 480 U.S. at 113–14). Furthermore, in evaluating
these factors, a court’s exercise of jurisdiction may be defeated where “the defendant
presents ‘a compelling case that the presence of some other considerations would
render jurisdiction unreasonable.’” Id. (quoting Burger King, 471 U.S. at 477).
Here, because the Court lacks personal jurisdiction over Korda as to the tort
and contract law claims, the five factors outlined above weigh decisively against this
Court exercising personal jurisdiction over Korda in relation to Vieira’s federal
securities law claim. Under the first factor, given the convenience of modern
communication and transportation, it would appear that Korda would only be slightly
burdened by traveling to Vermont to defend the federal securities law claim. Metro.
Life Ins. Co., 84 F.3d at 574. Critically, however, Korda would be significantly
burdened if he were forced to defend himself in two related matters in separate
jurisdictions in Florida and Vermont. As to the second factor, because federal courts
have exclusive jurisdiction to adjudicate violations of the Securities Exchange Act,
Vermont has no distinct or local interest in resolving this discrete dispute, let alone a
greater interest than Florida. See 15 U.S.C. § 78aa(a). Further, under the third
factor, because Vieira would be forced to pursue his actions in both Vermont and
Florida district court, Vieira’s ability to obtain convenient and effective relief would be
unduly hampered. In other aspects, moreover, a suit in Florida would be more
appropriate than an action in Vermont, given that Korda resides in Florida and any
records are more likely to be found in his office in Florida. This fact also favors
jurisdiction in Florida under the fourth factor, because “courts generally consider
where witnesses and evidence are likely to be located.” Metro. Life Ins. Co., 84 F.3d

31

at 574. More importantly, the interstate judicial system’s interest in obtaining the
most efficient resolution of this controversy plainly weighs against dividing Vieira’s
claims between Vermont and Florida. Finally, the fifth factor does not favor either
party because neither party identifies substantive social policies that would be
furthered by permitting the federal securities law claim to be heard in Vermont.
In sum, four of the five factors weigh against the exercise of personal
jurisdiction, particularly because it would be unreasonable to bifurcate Vieira’s claims
on the basis of personal jurisdiction over Korda. Thus, under the circumstances,
personal jurisdiction over Korda would not comport with “traditional notions of fair
play and substantial justice.” Id. at 575.
C.

Specific Jurisdiction over the Firm

Similarly, the Court concludes that it lacks specific personal jurisdiction over
the Firm.
Like a natural person, a corporation may be subject to specific jurisdiction if the
corporation’s activities within the state give rise to obligations affiliated with the case
before the court. Int’l Shoe Co., 326 U.S. at 319. In judging the minimum contacts of a
corporation, “agency relationships[] . . . may be relevant to the existence of specific
jurisdiction” because “a corporation can purposefully avail itself of a forum by
directing its agents or distributors to take action there.” Daimler, 134 S. Ct. at 759
n.13 (emphasis omitted). On the other hand, “the casual presence of the corporate
agent or even his conduct of single or isolated items of activities in a state in the
corporation’s behalf are not enough to subject it to suit on causes of action unconnected
with the activities there.” Int’l Shoe Co., 326 U.S. at 317. The touchstone is whether

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the corporation can reasonably anticipate being haled into court in the forum state
based on the agent’s activities. Burger King, 471 U.S. at 474.
Here, Vieira points to no basis, other than Korda’s personal actions, for this
Court to exercise specific jurisdiction over the Firm. Vieira’s Complaint states that
Korda “was actively involved in the management, business decisions, and marketing of
The Korda Law Firm.” (Doc. 1 at 2, ¶ 9.) But Korda’s management of the Firm
neither links the Firm with activities in Vermont, nor plausibly establishes that Korda
acted as an agent of the Firm in Vermont. In fact, like Korda, the Firm has no
physical presence in Vermont. (Id. at 1, ¶¶ 2–3.) Moreover, as stated above, this
Court has concluded that Korda’s activities are insufficient to support specific personal
jurisdiction over him; given this conclusion, Korda’s activities as a purported agent of
the Firm are also insufficient to form the basis for specific jurisdiction over the Firm,
absent plausible allegations in the Complaint of specific actions taken by the Firm
directed at Vermont. And the Complaint contains no such allegations. Thus, the Firm
has insufficient contacts for this Court to exercise specific personal jurisdiction and
there is no need to inquire into the reasonableness of jurisdiction. Metro. Life Ins. Co.,
84 F.3d at 568 (citing Donatelli v. Nat’l Hockey League, 893 F.2d 459, 465 (1st Cir.
1990)).
Accordingly, Vieira has failed to plausibly allege that this Court has specific
personal jurisdiction over the Firm.

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D.

General Jurisdiction over the Firm

The Court next addresses Vieira’s proposition “that general jurisdiction should
be applicable to any attorney who regularly practices law within a given state” and, as
a result, the Firm should be subject to general jurisdiction in Vermont. (Doc. 17 at
24–25.) As Vieira acknowledges, (id. at 24), this argument runs counter to the
Supreme Court’s decision in Daimler, 134 S. Ct. 746; as such, this Court declines to
endorse this argument.
In Daimler, the Supreme Court reiterated that general jurisdiction over a
foreign corporation requires “affiliations with the State [that] are so ‘continuous and
systematic’ as to render [it] essentially at home in the forum State.” Id. at 761 (second
alteration in original) (quoting Goodyear Dunlop Tires Operations, 564 U.S. at 919).
Applying this principle, the Supreme Court refused to exercise general jurisdiction
over a foreign corporation that was neither incorporated in the forum state nor had a
principal place of business in the forum state, even though the foreign corporation had
a subsidiary in the forum state. Id.; see also Gucci Am., Inc. v. Weixing Li, 768 F.3d
122 (2d Cir. 2014).
Here, the Firm is not incorporated in Vermont, nor does it have a principal
place of business in Vermont. (Doc. 1 at 1, ¶¶ 2–3.) This is not the “‘exceptional case’”
where a court may exercise general jurisdiction even though Vermont is not the Firm’s
formal place of incorporation or its principal place of business. Gucci Am., Inc., 768
F.3d at 135 (quoting Daimler, 134 S. Ct. at 761 n.19). Moreover, Vieira’s argument
that Korda regularly practices law in Vermont is belied by the record; as discussed
above, Korda’s practice involves federal immigration law and, specifically, the

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preparation and filing of EB-5 applications. Nothing in the record plausibly
establishes that Korda regularly practices law in Vermont, let alone with the
continuous and systematic frequency necessary to establish general jurisdiction. Cf.
Daimler, 134 S. Ct. at 761.
Accordingly, the Court concludes that Vieira’s Complaint does not plausibly
allege that this Court has general personal jurisdiction over the Firm.
III.

Transfer of Venue
Because the Court lacks personal jurisdiction over Korda and the Firm, the

lawsuit cannot proceed in Vermont. But “the Court’s lack of [personal] jurisdiction
does not require dismissal of the action because 28 U.S.C. § 1406(a) permits transfer of
an action commenced in the wrong judicial district to the proper district in the interest
of justice.” Grill v. Walt Disney Co., 683 F. Supp. 66, 69 (S.D.N.Y. 1988) (citing
Goldlawr v. Heiman, 369 U.S. 463, 466 (1962)). “Whether transfer is appropriate lies
within the sound discretion of the district court.” Blauschild v. Tudor, 31 F. Supp. 3d
527, 533 (E.D.N.Y. 2014).
Here, the case could have been brought in the Middle District of Florida because
Korda resides in that district and the Firm’s principal place of business is located in
that district.12 (Doc. 1 at 1, ¶¶ 3, 4.) And, because Vieira is a resident of Vermont,
diversity of citizenship would be complete in Florida. See Viko v. World Vision, Inc.,
No. 2:08-CV-221, 2009 WL 2230919, at *18 (D. Vt. July 24, 2009).

The Court takes judicial notice of the fact that Korda and the Firm are located in Naples,
Florida, which is in the jurisdiction of the U.S. District Court for the Middle District of Florida. Fed. R.
Evid. 201(f); see Bulova Watch Co. v. K. Hattori & Co., 508 F. Supp. 1322, 1328 (E.D.N.Y. 1981)
(“Judicial notice may be resorted to on a motion to dismiss for lack of jurisdiction.”).
12

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Moreover, the Court finds that the interests of justice compel transfer of this
case rather than dismissal. It does not appear that Vieira unreasonably sought venue
in Vermont, and he did not do so in bad faith. Instead, he commenced this action in
Vermont because he is a Vermont resident seeking redress in the most convenient
forum to him. Furthermore, neither Korda nor the Firm will be prejudiced by transfer
of this case because they have actual notice of the litigation and reside in the Middle
District of Florida. See Am. Wholesalers Underwriting, Ltd. v. Am. Wholesale Ins.
Grp., Inc., 312 F. Supp. 2d 247, 259–60 (D. Conn. 2004) (concluding transferring case
to district where defendants resided would not prejudice defendants who had actual
notice of the litigation).
Finally, although Korda and the Firm request a dismissal of this action, (Doc. 6
at 12), and neither party requested a transfer under 28 U.S.C. § 1406(a), the decision
to transfer an action lies within the discretion of the Court. Blauschild, 31 F. Supp. 3d
at 533; see also Schiller v. Mit-Clip Co., 180 F.2d 654, 655 (2d Cir. 1950). Accordingly,
the Court concludes that the case should be transferred to the U.S. District Court for
the Middle District of Florida.
Conclusion
Based on the foregoing, Korda and the Firm’s joint Motion to Dismiss for Lack
of Jurisdiction (Doc. 6) is DENIED and the Clerk of Court shall TRANSFER this case
to the U.S. District Court for the Middle District of Florida pursuant to 28 U.S.C.
§ 1406(a). Further, given Vieira’s failure to establish a prima facie showing of this
Court’s personal jurisdiction over either Korda or the Firm, the Court DENIES
Vieira’s dilatory request for jurisdictional discovery. See Marine Midland Bank, N.A.

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v. Miller, 664 F.2d 899, 904 (2d Cir. 1981) (“In deciding a pretrial motion to dismiss for
lack of personal jurisdiction a district court has considerable procedural leeway.”); see
also 4 Wright & Miller, Fed. Prac. & Proc. Civ. § 1067.6 (4th ed.) (“A court need not
hold an evidentiary ruling to allow the plaintiff to present evidence supporting
personal jurisdiction when the specific allegations of the plaintiff even if fully credited
do not make a prima facie showing of jurisdiction.”).
Dated at Burlington, in the District of Vermont, this 8th day of May 2018.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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