[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12834

____________________

HEREDEROS DE ROBERTO GOMEZ CABRERA, LLC, 

Plaintiff-Appellant.

versus

TECK RESOURCES LIMITED, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cv-21630-RNS

____________________

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2 Opinion of the Court 21-12834

Before NEWSOM, MARCUS, Circuit Judges, and COVINGTON,* District Judge.

NEWSOM, Circuit Judge:

In 1996, in response to the Cuban government’s decades-old 

program of confiscating private property, Congress enacted the 

Cuban Liberty and Democratic Solidarity Act—commonly called 

the Helms-Burton Act. That statute broadly imposes liability on

anyone who “traffics” in confiscated Cuban property to which a 

U.S. national has a claim. The plaintiff in this case, a Florida LLC 

called Herederos de Roberto Gomez Cabrera, sued a Canadian 

company, Teck Resources Limited, alleging that it had illegally 

trafficked in property to which Herederos says it has a claim. We 

hold that the federal courts don’t have personal jurisdiction over 

Teck, and we therefore affirm the dismissal of Herederos’s complaint. 

I 

In 1960, the revolutionary Cuban government confiscated 

Roberto Gomez Cabrera’s mineral mines. Cabrera’s children, who 

inherited his claim to the mines, allege that Teck, a Canadian corporation, managed the mines and thereby “traffic[ked]” in them in 

violation of the Helms-Burton Act. 

* Honorable Virginia M. Hernandez Covington, Senior United States District 

Judge for the Middle District of Florida, sitting by designation. 

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Cabrera’s children assigned their claims to a Florida LLC, 

Herederos de Roberto Gomez Cabrera, and Herederos sued Teck 

under the Helms-Burton Act in the U.S. District Court for the 

Southern District of Florida. Broadly speaking, the Act imposes liability on “any person” who “traffics in property which was confiscated by the Cuban Government on or after January 1, 1959.” 22 

U.S.C. § 6082. Teck moved to dismiss for lack of personal jurisdiction. The district court granted Teck’s motion, holding that Florida’s long-arm statute didn’t provide jurisdiction over Teck and, 

additionally, that Teck lacked the necessary connection to the 

United States to establish personal jurisdiction under Federal Rule 

of Civil Procedure 4(k)(2). For the reasons explained below, we 

agree with the district court.1

1 We review the district court’s dismissal for lack of personal jurisdiction de 

novo, accepting the allegations in the complaint as true. See Don’t Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284, 1292 (11th Cir. 2021). “When a 

defendant submits non-conclusory affidavits to controvert the allegations in 

the complaint, the burden shifts back to the plaintiff to produce evidence to 

support personal jurisdiction.” Id.

Teck separately contends that Herederos lacks Article III standing to 

sue. Because “there is no mandatory sequencing of jurisdictional issues,” and 

because “in appropriate circumstances . . . [we] may dismiss for lack of personal jurisdiction without first establishing subject-matter jurisdiction,” we resolve this case without addressing Herederos’s standing. Sinochem Int'l Co. 

v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007) (citation and quotation marks omitted). 

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II 

As relevant here, the Federal Rules of Civil Procedure, 

which govern suits brought in federal court, explain that a district 

court may exercise personal jurisdiction over a defendant if 

“(A) the defendant is not subject to jurisdiction in any state’s courts 

of general jurisdiction; and (B) exercising jurisdiction is consistent 

with the United States Constitution and laws.” Fed. R. Civ. P. 

4(k)(2). The parties here agree that Rule 4(k)(2)’s first condition 

applies—Teck isn’t “subject to jurisdiction in any state’s courts of 

general jurisdiction.” Accordingly, we must decide whether exercising personal jurisdiction here would be “consistent with the . . .

Constitution.” For purposes of this case, the relevant constitutional provision—and we flag this issue because it gets to the nub 

of the parties’ dispute—is the Fifth Amendment’s Due Process 

Clause, which applies to the federal government and its courts, not 

the Fourteenth’s, which applies to the states.2 

2 In the more usual case, we would assess whether jurisdiction would be 

proper under the Fourteenth Amendment because Rule 4(k)(1) authorizes personal jurisdiction in federal court over a person who “is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is 

located.” Fed. R. Civ. P. 4(k)(1)(A). Because state courts are limited by the 

Fourteenth Amendment, federal courts look through (in a manner of speaking) to that provision to determine whether a state court could exercise personal jurisdiction. See Walden v. Fiore, 571 U.S. 277, 283 (2014). Because the 

parties agree that no state court would have jurisdiction over Teck here, they

ask us to assess jurisdiction under Rule 4(k)(2) instead. 

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Despite their agreement that the Fifth Amendment governs 

the personal-jurisdiction inquiry here, Herederos and Teck advance competing jurisdictional analyses. For its part, Teck contends that we should analyze personal jurisdiction under the Fifth 

Amendment the same way we would under the Fourteenth

Amendment—i.e., ask whether the defendant has sufficient “minimum contacts” with the forum and whether “maintenance of the 

suit [would] offend ‘traditional notions of fair play and substantial 

justice.’” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945). Herederos, by contrast, urges us to apply a more lenient “arbitrary or 

fundamentally unfair” standard that we have sometimes used in 

what it calls “extraterritorial jurisdiction” cases. See Br. of Appellant at 15–16; Reply Br. of Appellant at 4. Although the language

and logic of the “extraterritorial jurisdiction” cases can be a little 

confusing, those decisions, as we’ll explain, aren’t really about personal jurisdiction at all. Accordingly, we hold that courts should 

analyze personal jurisdiction under the Fifth Amendment using the 

same basic standards and tests that apply under the Fourteenth 

Amendment. 

A 

We conclude that the personal-jurisdiction analysis under 

the Fifth Amendment is the same as that under the Fourteenth for 

three principal reasons. 

First, and most importantly, the operative language of the 

Fifth and Fourteenth Amendments is materially identical, and it 

would be incongruous for the same words to generate markedly 

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different doctrinal analyses. Compare U.S. Const. amend. V (“No 

person shall be . . . deprived of life, liberty, or property, without 

due process of law.”), with U.S. Const. amend. XIV, § 1 (“No State 

shall . . . deprive any person of life, liberty, or property, without 

due process of law.”). 

Second, this Court has all but held already that the Fifth 

Amendment’s personal-jurisdiction analysis should track the Fourteenth’s. See Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 

1219 n.25 (11th Cir. 2009) (“As the language and policy considerations of the Due Process Clauses of the Fifth and Fourteenth 

Amendments are virtually identical, decisions interpreting the 

Fourteenth Amendment’s Due Process Clause guide us in determining what due process requires in the Fifth Amendment jurisdictional context.”); see also SEC v. Marin, 982 F.3d 1341, 1349 (11th 

Cir. 2020) (conducting “minimum contacts” analysis in case assessing personal jurisdiction under the Fifth Amendment); Fraser 

v. Smith, 594 F.3d 842, 850 (11th Cir. 2010) (same). 

Third, adopting Herederos’s preferred “arbitrary or fundamentally unfair” standard for Fifth Amendment cases—rather than 

the traditional minimum-contacts test—would create unnecessary 

tension with personal-jurisdiction precedents more generally. 

Fourteenth Amendment decisions have repeatedly emphasized the 

heavy burden faced by foreign defendants forced to litigate in U.S. 

courts, and there’s no reason to think that those burdens are any 

lighter in cases governed by the Fifth Amendment. See, e.g., Asahi 

Metal Indus. Co. v. Superior Court, 480 U.S. 102, 116 (1987)

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(finding no jurisdiction over Japanese corporation partly because of 

the “the international context [and] the heavy burden on the alien 

defendant”); Oldfield, 558 F.3d at 1221 (“[I]n cases involving international defendants, courts should consider ‘[t]he unique burdens 

placed upon one who must defend oneself in a foreign legal system.’” (quoting Asahi, 480 U.S. at 114)).

For these fairly straightforward reasons, we think it makes 

eminent sense to apply the same basic personal-jurisdiction standards in cases arising under the Fifth Amendment as in those arising 

under the Fourteenth Amendment.

B 

What, though, of the “extraterritorial jurisdiction” cases that 

Herederos cites? In those decisions, Herederos notes, we have said 

that “the extraterritorial application of the law must comport with 

due process, meaning that the application of the law must not be 

arbitrary or fundamentally unfair,” United States v. Noel, 893 F.3d 

1294, 1301 (11th Cir. 2018), and that the “Due Process Clause prohibits the exercise of extraterritorial jurisdiction over a defendant 

when it would be ‘arbitrary or fundamentally unfair,’” United 

States v. Baston, 818 F.3d 651, 669 (11th Cir. 2016). But a close 

review of those cases shows that, in fact, they aren’t really about 

personal jurisdiction at all; rather, at their core, they address what 

is sometimes called “legislative jurisdiction”—i.e., the power of 

Congress (or another lawmaking body, as the case may be) to regulate conduct extraterritorially. 

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For instance, in United States v. Ibarguen-Mosquera, we 

looked to international law to determine whether Congress had 

constitutional authority to criminalize drug trafficking in international waters. See 634 F.3d 1370, 1378–79 (11th Cir. 2011). We 

held, in particular, that “the enactment of the [Drug Trafficking 

Vessel Interdiction Act] d[id] not offend the Due Process Clause” 

of the Fifth Amendment. Id. at 1379 (emphasis added). Similarly, 

in Noel, we examined an international treaty to determine whether 

Congress could criminalize a foreign defendant’s actions under the 

federal Hostage Taking Act. See 893 F.3d at 1304. So too, in an

earlier “extraterritorial jurisdiction” case, we held that defendants

could be charged with a “general understanding of international 

law” and, consequently, that it didn’t violate due process for Congress to criminalize drug offenses involving stateless vessels on the 

high seas. See United States v. Marino-Garcia, 679 F.2d 1373, 1384 

n.19 (11th Cir. 1982).

To be sure, in some of the “extraterritorial jurisdiction”

cases, we have analogized to personal-jurisdiction precedents or 

used language reminiscent of personal-jurisdiction analysis. American Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas County, 221 F.3d 1211 (11th Cir. 2000) (per curiam), is illustrative. The question there was whether a Florida county could apply 

a charitable-solicitation regulation to individuals and entities who 

claimed that they engaged in little, if any, activity in the jurisdiction. We began by framing the question presented as one involving “legislative jurisdiction”: “A state’s legislative jurisdiction is 

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circumscribed by the Due Process Clause.” Id. at 1216. In addressing that question, we noted, as relevant here, that “[t]he inquiry 

into whether sufficient legislative jurisdiction exists is similar to 

that explored in determining sufficient minimum contacts for the 

purposes of assessing whether a court can exercise personal jurisdiction consistent with due process.” Id. (analogizing to concepts 

of “minimum contacts,” “traditional notions of fair play and substantial justice,” and “purposeful[] avail[ment]”); see also, e.g., Gerling Glob. Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228, 

1236 (11th Cir. 2001) (applying a personal-jurisdiction-like test to 

determine whether Florida could regulate a German company’s 

conduct consistent with due process).

Be that as it may, the fact remains, as the Supreme Court has 

emphasized, that the “type of ‘jurisdiction’ relevant to determining 

the extraterritorial reach of a statute . . . is known as legislative jurisdiction, . . . and is quite a separate matter from jurisdiction to adjudicate.” Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813 

(1993) (quotation marks omitted) (emphasis added). Indeed, the 

Court observed in Hartford that the “extraterritorial reach of [a 

statute] has nothing to do with the jurisdiction of the courts” but, 

rather, “is a question of substantive law turning on whether, in enacting the [statute], Congress asserted regulatory power over the 

challenged conduct.” Id. 

The bottom line, then: The “extraterritorial jurisdiction”

cases that Herederos cites are overwhelmingly (if not exclusively) 

concerned with legislative jurisdiction. None are personalUSCA11 Case: 21-12834 Date Filed: 08/12/2022 Page: 9 of 16
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jurisdiction cases in the traditional sense. Herederos, it seems, asks 

us to decide the question of personal jurisdiction in this case by reference to the legislative-jurisdiction cases—thereby bringing to 

bear what it takes to be the more permissive “arbitrary or fundamentally unfair” standard. But we don’t need to reason, in essence,

by analogy to another body of law. We can and should just go 

straight to the source: the personal-jurisdiction cases themselves. 

Accordingly, we conclude that the “arbitrary or fundamentally unfair” standard does not apply here. We hold instead, to reiterate what we said in Marin—which, like this case, arose under 

the Fifth Amendment—that “[t]he exercise of personal jurisdiction 

comports with due process when (1) the nonresident defendant has 

purposefully established minimum contacts with the forum and 

(2) the exercise of jurisdiction will not offend traditional notions of 

fair play and substantial justice.” 982 F.3d at 1349 (quotation marks 

omitted). The lone difference between the Fifth and Fourteenth 

Amendments’ due-process analyses is that “[w]here, as here, the 

Fifth Amendment applies . . . the applicable forum for minimum 

contacts purposes is the United States, not the state in which the 

district court sits.” Id. at 1349–50 (quotation marks omitted); see 

also Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 619 

(1992) (assessing whether Argentina purposefully availed itself of 

the “United States”); Fraser, 594 F.3d at 850 (assessing contacts with 

the United States).

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III 

Applying the minimum-contacts test here is relatively 

straightforward. We hold that Teck doesn’t have contacts with the 

United States sufficient to establish either specific or general personal jurisdiction over it. 

A 

We start with specific personal jurisdiction. To establish a 

non-resident defendant’s minimum contacts with a forum for specific-jurisdiction purposes, (1) the plaintiff’s claim must “arise out 

of or relate to” one of the defendant’s contacts in the forum, (2) the 

defendant must have “purposefully availed” itself of the privilege 

of conducting activities within the forum, and (3) jurisdiction must 

comport with “traditional notions of fair play and substantial justice.” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355 

(11th Cir. 2013). 

Under the first prong, Herederos alleges that its claim arises 

out of Teck’s contacts with the United States because Teck committed a tort that harmed Herederos in this country. To determine 

whether a defendant’s conduct arose out of its contacts with the 

forum, “we look to the affiliation between the forum and the underlying controversy, focusing on any activity or occurrence that 

took place in the forum.” Waite v. All Acquisition Corp., 901 F.3d 

1307, 1314 (11th Cir. 2018) (cleaned up) (emphasis added); Ford 

Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1025 

(2021) (“[T]here must be an affiliation between the forum and the 

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underlying controversy, principally, [an] activity or an occurrence 

that takes place in the forum State and is therefore subject to the 

State’s regulation.” (quotation marks omitted)). Herederos alleged

only that the effects of Teck’s actions were felt in the United 

States—not that Teck engaged in any “activity or occurrence” in 

the United States. The incidental effects of a defendant’s actions 

are not by themselves sufficient to justify jurisdiction over the defendant in the forum. See World-Wide Volkswagen Corp. v. 

Woodson, 444 U.S. 286, 295–96 (1980) (finding no jurisdiction

where the only contact was injury in the forum).3

3 Consider two hypotheticals. If Brian throws a baseball from Pennsylvania 

into Maryland and hits Clay in the head, some occurrence attributable to 

Brian—the baseball’s movement—occurs in Maryland, and the effect—Clay’s 

resulting injury—is likewise felt in Maryland. In that case, Brian would be 

subject to jurisdiction in Maryland. See Ford, 141 S. Ct. at 1025, 1027–29 (indicating that Ford’s attempt to serve the Montana market by aggressively advertising there constituted an “activity or an occurrence” in Montana regardless of the fact that Ford wasn’t itself physically present in the state); Mosseri, 

736 F.3d at 1356 (holding due process satisfied where a defendant advertised, 

sold, and distributed trademark-infringing goods to Floridians from New 

York). By contrast, if Connor sells Sakina a faulty rock-climbing harness in 

Virginia, and Sakina takes it with her to climb in the Red River Gorge in Kentucky and falls while using it there, no part of Connor’s activity—selling the 

harness—occurs in Kentucky, even if the effect—Sakina’s fall—occurs there. 

In that case, Connor wouldn’t be subject to jurisdiction in Kentucky. See 

Woodson, 444 U.S. at 295–96. This case is like the second hypo: The harm 

might have been felt in the United States, but Teck didn’t take any action in 

this country related to that harm. 

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For these reasons, Herederos’s suit doesn’t arise out of or 

relate to any of Teck’s ties with the United States. And because a

relationship between the defendant’s conduct within the forum

and the cause of action is necessary to exercise specific jurisdiction, 

the lack of any such relationship here dooms Herederos’s effort to 

establish specific personal jurisdiction over Teck. See Mosseri, 736 

F.3d at 1356; Fraser, 594 F.3d at 850 (noting, for purposes of a Rule 

4(k)(2) specific-jurisdiction analysis, that “our inquiry must focus 

on the direct causal relationship among the defendant, the forum, 

and the litigation” (quotation marks omitted)). Because Herederos 

hasn’t shown that its claim arose out of Teck’s contacts with the 

United States, we needn’t go on to address the secondary and tertiary questions whether Teck “purposefully availed” itself of the 

United States or whether exercising jurisdiction over it would offend “traditional notions of fair play and substantial justice.”

B 

As for general jurisdiction, a “court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations 

to hear any and all claims against them when their affiliations with 

the State are so ‘continuous and systematic’ as to render them essentially at home in the forum.” Daimler AG v. Bauman, 571 U.S. 

117, 127 (2014) (quotation marks omitted). Traditionally, a corporation is “at home” in “its place of incorporation and principal place 

of business.” Ford, 141 S. Ct. at 1024. Teck’s principal place of 

business isn’t in the United States, and it isn’t incorporated here. 

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Nor, we conclude, are its other contacts sufficient to render it “at 

home” in the United States. 

Herederos asserts that Teck is “at home” in the United States 

because it has subsidiaries that are U.S. corporations. In Daimler, 

the Supreme Court held that a foreign defendant’ssubsidiary’s contacts with the forum were insufficient to establish the defendant’s

“at home” status. Herederos contends, though, that unlike in 

Daimler, where the subsidiary was not incorporated in the relevant 

forum and didn’t have its principal place of business there, Teck’s 

subsidiaries are incorporated in the United States and do have their 

principal places of business here. See Daimler, 571 U.S. at 139. 

Thus, Herederos says, Teck is “at home” in the United States.

We’ve recently held that a subsidiary’s contacts can be attributed to its parent company for personal-jurisdiction purposes 

when “the subsidiary is merely an agent through which the parent 

company conducts business in a particular jurisdiction or its separate corporate status is formal only and without any semblance of 

individual identity.” United States ex rel. v. Mortg. Invs. Corp., 987 

F.3d 1340, 1355 (11th Cir. 2021) (quotation marks and citation 

omitted) (emphasis added). In other words, a subsidiary’s contacts 

can justify jurisdiction over the parent when the subsidiary is a 

mere “alter ego” of the parent company. See Daimler, 571 U.S. at 

134; MIC, 987 F.3d at 1354; see also Meier v. Sun Int’l Hotels, Ltd., 

288 F.3d 1264, 1272 (11th Cir. 2002).

Teck’s subsidiaries can’t fairly be described as its mere alter 

egos. “[T]here is no litmus test for determining whether a 

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subsidiary is the alter ego of its parent. Instead, we must look to 

the totality of the circumstances. Resolution of the alter ego issue 

is heavily fact-specific and, as such, is peculiarly within the province 

of the trial court.” United Steelworkers of Am., AFL-CIO-CLC v. 

Connors Steel Co., 855 F.2d 1499, 1506 (11th Cir. 1988). Herederos 

points out that “[s]ome of Teck’s corporate officers or leadership 

are also officers of Teck’s U.S.- based subsidiaries,” and that Teck 

“consolidates its financial statements with those of its US- subsidiaries.” Br. of Appellant at 4–5. To be sure, those are factors courts 

use when assessing whether a subsidiary is an alter ego, see Connors Steel Co., 855 F.2d at 1505, but they are not by themselves 

sufficient to establish a subsidiary’s alter-ego status, see Consol. 

Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1293 (11th Cir. 2000) 

(“Where the ‘subsidiary’s presence in the state is primarily for the 

purpose of carrying on its own business and the subsidiary has preserved some semblance of independence from the parent, jurisdiction over the parent may not be acquired on the basis of the local 

activities of the subsidiary.”). Here, the district court found that 

Teck’s subsidiaries are independent of Teck, and the evidence supports that finding. Teck’s subsidiaries are legally distinct entities 

and observe all corporate formalities: Each subsidiary has its own 

board of directors, officers, books of account, and separate taxes. 

Based on the totality of the circumstances, Teck’s subsidiaries can’t 

be used to justify general jurisdiction over Teck.4

4 Herederos also argues that the district court abused its discretion by refusing 

to allow Herederos to conduct jurisdictional discovery. We disagree. 

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* * *

Herederos hasn’t alleged facts sufficient to allow the United 

States courts to exercise either specific or general personal jurisdiction over Teck.5 Accordingly, we AFFIRM. 

“[P]arties have a qualified right to jurisdictional discovery, meaning that a district court abuses its discretion if it completely denies a party jurisdictional discovery unless that party unduly delayed in propounding discovery or seeking 

leave to initiate discovery.” ACLU of Fla., Inc. v. City of Sarasota, 859 F.3d 

1337, 1341 (11th Cir. 2017) (quotation marks and citations omitted). Here, as 

the district court found, Herederos knew that jurisdiction over the defendant 

would be challenged, and it previously considered the need for jurisdictional 

discovery, yet it never moved for jurisdictional discovery. Thus, Herederos 

“unduly delayed in . . . seeking leave to initiate discovery.” Furthermore, Herederos concedes that it “did not file a distinct and entirely independent motion to take jurisdictional discovery” as it was required to. Br. of Appellant at 

36; see also Fed R. Civ. P. 7(b)(1)(A) (“A request for a court order must be 

made by motion. The motion must be in writing unless made during a hearing 

or trial.”).

5 Teck also contends that Herederos failed to state a claim, but because we 

hold that the court lacked personal jurisdiction, we don’t address the merits. 

See In re Breland, 989 F.3d 919, 923 (11th Cir. 2021). 

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