UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

PHILLIP NELSON BURNS, MIRJANA 

PAVKOVICH, Administrator of the Estate of

Rade Pavkovich, Deceased, and Warren 

Elmer Halpap, 

 Plaintiffs, 

 -againstGRUPO MÉXICO, S.A. de C.V., a Mexican 

Corporation, 

 Defendant. 

Case No. 1:07-CV-3496(WHP) 

DEFENDANT GRUPO MÉXICO, S.A. DE 

C.V.'S MEMORANDUM OF LAW IN 

SUPPORT OF ITS MOTION TO REMAND OR, 

IN THE ALTERNATIVE, TO DISMISS THE 

AMENDED COMPLAINT FOR IMPROPER 

SERVICE AND LACK OF PERSONAL 

JURISDICTION

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 1 of 29
 

-iTABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES .......................................................................................................... i

PRELIMINARY STATEMENT ................................................................................................... 1 

PROCEDURAL HISTORY........................................................................................................... 2 

STATEMENT OF FACTS ............................................................................................................ 5

ARGUMENT................................................................................................................................. 7 

I. GRUPO MÉXICO WAS NOT PROPERLY SERVED IN THE BURNS 

LITIGATION..................................................................................................................... 7 

II. BECAUSE ASARCO’S PURPORTED REMOVAL WAS IMPROPER, THE 

ACTION SHOULD BE REMANDED. ............................................................................ 8 

A. A Non-Party Has No Authority to Remove in a Bankruptcy Proceeding ............. 8 

B. ASARCO’s Removal Is Blatantly Deficient.......................................................... 9 

III. GRUPO MÉXICO IS NOT SUBJECT TO PERSONAL JURISDICTION IN 

NEW YORK .................................................................................................................... 11 

A. Grupo México Has Not Consented to Jurisdiction .............................................. 12 

B. Grupo México is Not Subject to General Jurisdiction in New York ................... 13 

C. Grupo México Has Not Engaged in Any Purposeful Activity in New York 

Sufficient to Subject it to Specific or “Long-Arm” Jurisdiction.......................... 15 

1. ASARCO’s Claims Do Not Arise Out of Grupo México’s 

Transaction of Business in New York ..................................................... 15 

2. Grupo México Has Not “Transacted Business” in New York Under 

N.Y.C.P.L.R. § 302(a)(1)......................................................................... 17 

3. Grupo México Has Not Committed A Tortious Act Within the 

State Under N.Y.C.P.L.R. 302(a)(2)........................................................ 18 

4. Grupo México Has Not Committed a Tortious Act Causing Injury 

to Person or Property Within New York.................................................. 19 

D. Jurisdiction Over Grupo México’s Subsidiaries Cannot Be Imputed to 

Grupo México ...................................................................................................... 20 

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 2 of 29
 

-iiIV. GRUPO MÉXICO IS NOT SUBJECT TO PERSONAL JURISDICTION IN 

TEXAS............................................................................................................................. 21 

CONCLUSION............................................................................................................................ 22 

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 3 of 29
 

i

TABLE OF AUTHORITIES

Page(s)

CASES

Alpine View Co. v. Atlas Copco A.B., 

205 F.3d 208 (5th Cir. 2000) ................................................................................................ 24 

Am. Home Assurance Co. v. RJR Nabisco Holdings Corp., 

70 F. Supp. 2d 296 (S.D.N.Y. 1999)....................................................................................... 9 

Ball v. Metallurgie Hoboken-Overpelt, S.A., 

902 F.2d 194 (2d Cir.) cert. denied, 498 U.S. 854 (1990).................................................... 21 

Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 

171 F.3d 779 (2d Cir. 1999), vacated, 305 F.3d 120 (2d Cir. 2002) .............................. 12, 20 

Bensusan Rest. Corp. v. King, 

126 F.3d 25 (2d Cir. 1997).................................................................................................... 20 

Buechner v. Avery, No. 05 Civ. 2074 (PKC), 

2005 WL 3789110 (S.D. N.Y. 2005)...................................................................................... 9 

Burns v. Grupo México S.A. de C.V., 

No. 0114728/04 (Sup. Ct. New York County Oct. 15, 2004)............................................. 1, 4 

ComJet Aviation Mgmt. LLC v. Aviation Investors Holdings Ltd., 

303 A.D.2d 272 (N.Y. App. Div. 2003) ............................................................................... 14 

Fed. Ins. Co. v. Tyco Int’l Ltd., 

422 F. Supp. 2d 357 (S.D.N.Y. 2006)..................................................................................... 9 

First Nat’l Bank & Trust Co. v. Wilson, 

567 N.Y.S.2d 468 (App. Div. 1991)..................................................................................... 14 

Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 

485 N.E.2d 208 (N.Y. 1985)................................................................................................. 14 

Frummer v. Hilton Hotels Int’l, Inc., 

227 N.E.2d 851 (N.Y.), cert. denied, 389 U.S. 923 (1967) .................................................. 22 

Geiger v. Artco Enter., Inc., 

910 F. Supp. 130 (S.D.N.Y. 1996).......................................................................................... 8 

Hesseman v. Arthur Andersen (In re Global Crossing, Ltd. Sec. Litig.), 

Nos. 02 Civ. 910 GEL, 02 Civ. 10199 GEL, 2003 WL 21659360 (S.D.N.Y. 

July 15, 2003).......................................................................................................................... 8 

In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 

No. 1:00-1898, MDL 1358 (SAS), 14 21-88, 2006 WL 1004725 (S.D.N.Y. 

Apr. 17, 2006)....................................................................................................................... 12 

In re Ski Train Fire in Kaprun, Austria, 

230 F. Supp. 2d 403 (S.D.N.Y. 2002)............................................................................. 15, 19 

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 4 of 29
 

-iiInt’l Telecom, Inc. v. Generadora Electrica del Oriente, S.A., 

No. 00 Civ. 8695(WHP), 2002 WL 465291 (S.D.N.Y. Mar. 27, 2002)............................... 16 

Jazini v. Nissan Motor Co., 

148 F.3d 181 (2d Cir. 1998)............................................................................................ 22, 23 

Light v. Taylor, 

No. 05 Civ. 5003 (WHP), 2007 WL 274798 (S.D.N.Y. Jan. 29, 2007) ......................... 19, 21 

Maranga v. Vira, 

386 F. Supp. 2d 299 (S.D.N.Y. 2005)................................................................................... 20 

Marathon Oil Co. v. A.G. Ruhrgas, 

182 F.3d 291 (5th Cir. 1999) ................................................................................................ 25 

Martinez v. Servicios de Transportacion, M.G., S.A. de C.V., 

No. L-05-60, 2007 WL 543411 (S.D. Tex. Feb. 15, 2007) .................................................. 25 

McKee Elec. Co. v. Rauland-Borg Corp., 

229 N.E.2d 604 (N.Y. Ct. App. 1967) .................................................................................. 19 

McShan v. Omega Louis Brandt et Frere, S.A., 

536 F.2d 516 (2d Cir. 1976).................................................................................................. 14

Newman & Cahn, LLP v. Sharp, 

388 F. Supp. 2d 115 (E.D.N.Y. 2005) .................................................................................... 8 

Norben Imp. Corp. v. Metro. Plant & Flower Corp., 

No. 03 Civ. 8660 (WHP), 2004 WL 2378295 (S.D.N.Y. Oct. 25, 2004)................. 12, 13, 17 

Norkin v. DLA Piper Rudnick Gray Cary, LLP, 

No. 05 Civ. 9137 (DLC), 2006 WL 839079 (S.D.N.Y. 2006) ............................................... 9 

NSM Music, Inc. v. Alvarez, 

No. 2 C 6482, 2003 WL 685338 (ND Ill. Feb. 25, 2003)....................................................... 7 

Official Comm. of Unsecured Creditors v. Transpacific Corp. (In re Commodore 

Int’l, Ltd.), 

242 B.R. 243 (Bankr. S.D.N.Y. 1999)............................................................................ 15, 18 

Panda Brandywine Corp. v. Potomac Elec. Power Co., 

253 F.3d 865 (5th Cir. 2001) ................................................................................................ 24 

R & B Falcon Drilling (Int’l & Deepwater), Inc. v. Noble Denton Group, 

91 Fed. App’x 317 (5th Cir. 2004) ....................................................................................... 23 

Revell v. Lidov, 

317 F.3d 467 (5th Cir. 2002) ................................................................................................ 24 

Things Remembered, Inc. v. Petrarca, 

516 U.S. 124 (1995)................................................................................................................ 8 

Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 

751 F.2d 117 (2d Cir. 1984).................................................................................................. 23

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 5 of 29
 

-iiiWaldorf Assocs, Inc. v. Neville, 

533 N.Y.S.2d 182 (Sup. Ct. 1988) aff’d, 547 N.Y.S.2d 556 (App. Div. 1989).................... 14 

STATUTES

28 U.S.C. § 1441........................................................................................................................... 9 

28 U.S.C. § 1452(a) ................................................................................................................ 8, 10 

28 U.S.C. §1446(a) ....................................................................................................................... 8 

N.Y.C.P.L.R. § 301......................................................................................................... 12, 14, 15 

N.Y.C.P.L.R. § 302............................................................................................................... 12, 15 

N.Y.C.P.L.R. § 302(a) .......................................................................................................... 15, 16 

N.Y.C.P.L.R. § 3025(a) ................................................................................................................ 4 

OTHER AUTHORITIES

1 Norton Bankr. L. & Prac. 2d § 7:1 (2007)................................................................................. 8 

Hague Convention on the Service Abroad of Judicial and Extra-Judicial 

Documents in Civil or Commercial Matters, 20 U.S.T. 1361 ............................................ 7, 8 

Tex. Civ. Prac. & Rem. Code § 17.042 (West 2000) ................................................................. 22 

RULES

Fed. R. Civ. P. 12(b)(2)........................................................................................................... 2, 22 

Fed. R. Civ. P. 12(b)(5)................................................................................................................. 7 

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 6 of 29
 

PRELIMINARY STATEMENT

This lawsuit originally was filed in the Supreme Court of the State of New York, 

County of New York on or about October 15, 2004, against Grupo México, S.A. de C.V., et al. 

(“Grupo México”), several of its subsidiaries, a number of its banks and advisors, and several of 

its directors. See Burns v. Grupo México S.A. de C.V., No. 0114728/04 (Sup. Ct. New York 

County Oct. 15, 2004) (the “Burns Litigation” or “Burns”). The Burns Litigation was initiated 

by potential unsecured creditors of subsidiaries of ASARCO LLC (“ASARCO”) on their own 

behalf who sought to recover from Grupo México, and others, funds they believed were due and 

owing to them in connection with certain specified transactions, including the November 1999 

leveraged buyout of ASARCO by Grupo México. ASARCO was not and is not a party to the 

Burns Litigation. Nonetheless, ASARCO has attempted to remove five causes of action asserted 

in the Burns Litigation to this Court. 

The Burns Litigation should be dismissed on a number of grounds.1

 First, Grupo 

México, a Mexican corporation, has not properly been served in this litigation. Second, because 

ASARCO is not a party to the Burns Litigation, ASARCO lacks standing to remove any claims 

to this Court. Moreover, even if ASARCO could remove claims to this Court, Grupo México is 

not subject to personal jurisdiction in New York. Accordingly, this Court must either dismiss the 

claims against Grupo México in their entirety for improper service and lack of personal 

 

1

 This motion is made pursuant to the Scheduling Conference held before this Court on June 15, 

2007 and the accompanying Scheduling Order No. 1. Accordingly, by making this motion Grupo México 

does not intend to waive any other defenses available to it, including failure to state a claim upon which 

relief may be granted under Fed. R. Civ. P. 12(b)(6). 

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 7 of 29
 

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jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) or remand this case to New 

York state court.2

PROCEDURAL HISTORY

Plaintiffs3

 filed the Complaint in the Burns Litigation seeking to set aside several 

allegedly fraudulent transfers of ASARCO’s assets. Of all the transactions challenged in the 

Burns Litigation, Grupo México was directly involved in only one – the leveraged buyout of 

ASARCO in November 1999 (the “LBO”). Included among the alleged fraudulent transfers was 

the March 31, 2003 sale of a 54.2% ownership interest in the entity then known as Southern Peru 

Copper Corporation (“SPCC”) (the “SCC Shares”) to its parent, Americas Mining Corporation 

(“AMC”). AMC is a wholly-owned subsidiary of Grupo México.4

The SCC Shares were transferred on March 31, 2003, when SP Holdings, with the 

approval of its then parent, ASARCO Incorporated, now known as ASARCO, SPHC II 

Incorporated, and AMC entered into a stock purchase agreement (the “Stock Purchase 

Agreement”) for the transfer of the SCC Shares from SP Holdings to AMC. (the “Transfer”). 

$765 million of consideration was given in exchange for the SCC Shares.

The Transfer occurred after lengthy and protracted negotiations and after the 

completion of a public legal proceeding (the “Federal Proceeding”) in the United States District 

 

2

 Nor is Grupo México subject to personal jurisdiction in New York state court, as both courts 

apply New York’s standards for personal jurisdiction. 

3

 The Complaint alleges that plaintiffs Phillip Nelson Burns and Mirjana Pavkovich, administrator 

of the estate of Rade Pavkovich, are Arizona citizens, and Warren Elmer Halfpap is a citizen of New 

York. (collectively the “Asbestos Plaintiffs” or “Plaintiffs”.) The Plaintiffs are potential unsecured 

creditors of subsidiaries of ASARCO allegedly injured by ASARCO’s torts. Without further elaboration, 

the Asbestos Plaintiffs state that at the time of the alleged fraudulent conveyances, their claims against 

ASARCO “were both filed and unfiled.” (Am. Compl. ¶ 10.) 

4

 ASARCO erroneously alleges in its removal papers that ASARCO transferred the SCC Shares to 

AMC. In reality, the SCC Shares were owned and transferred by Southern Peru Holdings Corporation 

(“SP Holdings”), a wholly-owned subsidiary of ASARCO. 

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 8 of 29
 

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Court for the District of Arizona concerning the transaction. The transaction was open and 

known to the public. The United States Department of Justice, Environmental Protection 

Agency (the “DOJ”), one of ASARCO’s major creditors (then and now), scrutinized the 

transaction and consented to the Transfer in a pleading (the “Consent Decree”) filed with and 

approved by the United States District Court for the District of Arizona.5

 The Transfer was not 

concealed from any creditor of ASARCO or the transferor. Rather, SP Holdings, ASARCO and 

AMC negotiated the terms of the Transfer for several months within the context of the Federal 

Proceeding. ASARCO’s major creditors were, or should have been, aware of the proposed 

transaction and the ongoing Federal Proceeding. SPHC, ASARCO, AMC, the DOJ, and the 

United States District Court all signed the Consent Decree. The public nature of this transaction, 

conducted under the watchful eye of the DOJ, the United States District Court and creditors, and 

the provision of reasonably equivalent value and fair consideration in exchange for the Shares 

contravene any claim of this transaction being a fraudulent conveyance. 

Over one year after the Transfer, the Asbestos Plaintiffs commenced the Burns 

Litigation on October 15, 2004, by filing the Burns Complaint in the Supreme Court of the State 

of New York, New York County.6

 Four months after the Burns Complaint was filed, on 

 

5

 Attached as an exhibit to the Consent Decree is a signed opinion letter, dated January 24, 2003, 

from the independent firm of Ernst & Young Corporate Finance LLC (“E&Y”) to the Board of Directors 

of ASARCO wherein E&Y approved of the consideration paid for the SCC Shares: 

. . . it is our opinion, as of the date of this letter that, assuming the 

Transaction is consummated as proposed, the value of the consideration 

received by the Company for the [Shares] in connection with the 

Transaction is greater than the fair market value of the Stock Interest as 

of December 31, 2002, and therefore, constitutes reasonably equivalent 

value and fair consideration. 

Letter Opinion of E&Y, dated Jan. 24, 2003, at 4. 

6

 This litigation was assigned to the Honorable Bernard J. Fried. 

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February 7, 2005, the Asbestos Plaintiffs filed their First Amended Verified Complaint.7

 See

First Amended Verified Complaint, Burns, No. 0114728/04 (“Amended Complaint” or “Am. 

Compl.”). The Amended Complaint is the complaint ASARCO purports to remove. On August 

9, 2005, ASARCO filed a Voluntary Chapter 11 Petition in the United States Bankruptcy Court 

for the Southern District of Texas, Corpus Christi Division. See Voluntary Petition of ASARCO 

LLC, In re ASARCO LLC, No. 05-21207, docket # 1 (Bankr. S.D. Tex. Aug. 8, 2005). As a 

result, the Burns Litigation was automatically stayed. This stay was formalized by Justice 

Fried’s October 7, 2005 order. See Order Staying Litigation, Burns, No. 114728/04. 

On May 2, 2007, despite the fact that it is not a party to the Burns Litigation, 

ASARCO filed a notice of removal with this Court, purporting to remove the Seventh Claim for 

Relief in the Amended Complaint (alleging a fraudulent conveyance to “insiders” of the SCC 

Shares). See ASARCO LLC’s Notice of Removal to Federal Court, Burns v. Grupo México S.A. 

de C.V., No. 07-CV-3496 (S.D.N.Y. May 2, 2007). On June 20, 2007, ASARCO filed an 

Amended Notice of Removal with this Court which superseded the original Notice of Removal 

and sought to remove the First, Second, Third, Fourth and Seventh Claims for Relief in the 

Amended Complaint (alleging constructive fraud resulting in insolvency, constructive fraud 

resulting in insufficiency of capital, actual fraud in anticipation of debts, actual fraud – 

conveyance with intent to frustrate creditors, and fraudulent transfer – conveyance to insiders, 

respectively). See ASARCO LLC and Southern Peru Holdings, LLC’s Amended Notice of 

 

7

 On February 17, 2005 plaintiffs improperly filed their Second Amended Verified Complaint 

which added class-action allegations. Because plaintiffs had already amended their complaint once as of 

right, and failed to seek permission from the court to amend their complaint a second time, the Second 

Amended Verified Complaint should be disregarded. See Second Amended Verified Complaint, Burns, 

No. 0114728/04, see also N.Y.C.P.L.R. § 3025(a) (McKinney 2006). 

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 10 of 29
 

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Removal (“Notice of Removal”). At no time prior to filing the Notice of Removal did ASARCO 

seek to substitute itself as a party in the Burns Litigation.8

STATEMENT OF FACTS

In the Notice of Removal, ASARCO fails to articulate any basis upon which it has 

standing to remove any of the Asbestos Plaintiffs’ Amended Complaint. ASARCO baldly 

asserts that it is the “real party in interest” with respect to certain claims asserted in the Burns 

Litigation and seeks to remove additional claims that purportedly relate to the “fraudulent 

transfer of ASARCO’s 54.2% ownership interest in the Southern Peru Copper Corporation” 

(defined above as the “SCC Shares”).9

 The claims ASARCO seeks to remove relate to the 

following transactions: the LBO (Am. Compl. ¶¶ 28-39); ASARCO’s sale of Enthone-OMI, Inc. 

(Am. Compl. ¶ 46, 48); ASARCO’s sale of American Limestone Company (Am. Compl. ¶ 47-

48); ASARCO’s sale of “ASARCO’s business equipment.” (Am. Compl. ¶ 45); and the sale of 

the SCC Shares from Southern Peru Holdings to AMC (Am. Compl. ¶ 50, 55). The Amended 

Complaint, as filed by the Asbestos Plaintiffs, purports to challenge several of these transactions 

as alleged fraudulent transfers. In its Notice of Removal, however, ASARCO attempts to clarify 

that, with regard to Grupo México, it is only challenging the transfer of the SCC Shares. (Notice 

of Removal pp. 1, 5.) Notably, Grupo México was only directly involved in one of the 

transactions identified in the Amended Complaint - the LBO of ASARCO. Grupo México, was 

 

8

 By its Notice of Removal, ASARCO attempts assert claims against Grupo México that ASARCO 

itself failed to make years ago. 

9

 Without support or explanation, ASARCO claims that the allegations in the Amended Complaint 

“germane” to the removed claims are ¶¶ 1, 10-12, 23-30, 44-53, and 56-57. (Notice of Removal¶ 9.) 

Notably absent from Plaintiffs’ Notice of Removal are any allegations or references to the basis for 

jurisdiction, venue, and choice of law. 

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 11 of 29
 

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neither a transferor nor a transferee in the transaction involving the SCC Shares, but simply 

guaranteed a note issued by its subsidiary, AMC. 

Grupo México is a corporation organized under the laws of Mexico and 

headquartered in Mexico City, Mexico. (See Declaration of Alberto De La Parra Zavala in 

Support of Grupo México, S.A. de C.V.’s Motion to Remand and, in the Alternative, to Dismiss 

the Complaint for Improper Service and Lack of Personal Jurisdiction (“de la Parra Decl.”) ¶ 4.) 

Although the Amended Complaint makes several conclusory allegations in its attempt to 

establish that this Court has personal jurisdiction over Grupo México, it is clear that personal 

jurisdiction is lacking.10 First, Plaintiffs allege that Grupo México is “authorized to transact 

business in the state and/or ha[s] contracted to supply goods and services within the state.” (Am. 

Compl. ¶ 5.) Plaintiffs also allege that Grupo México has “committed tortious acts within the 

state of New York.” (Id.) Further, Plaintiffs allege that Grupo México “ha[s] [] contractually 

waived any right they might have had to contest the jurisdiction of this Court relating to the 

conveyances contested herein.” (Id. ¶ 6.) Finally, Plaintiffs allege that Grupo México has 

“designated within those same contracts that New York State Law governs principal transactions 

in the LBO.” (Id.) In contrast to the Asbestos Plaintiffs’ conclusory allegations, Grupo México 

has had no significant contact with New York and does not have a presence in New York. 

Grupo México is not a resident of New York, is not registered to conduct business 

in New York, and does not conduct business in New York. (de la Parra Decl. ¶ 6.) Grupo 

México does not maintain a registered agent for service of process in New York. (Id. ¶ 7.) 

Grupo México does not maintain an office or warehouse or any other facilities in New York, nor 

does it have a mailing address or any telephone numbers in New York. (Id. ¶ 8.) Further, Grupo 

 

10 Many of the allegations refer to “all defendants” in conclusory fashion. (Am. Compl. ¶ 5.) 

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 12 of 29
 

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México owns no real estate in New York and does not pay taxes in New York. (Id. ¶ 9.) Grupo 

México has no agents, employees, sales representatives, or any employees in New York nor does 

it conduct any direct advertising with any media based in New York. (Id. ¶¶ 10-11.) 

ARGUMENT

I. GRUPO MÉXICO WAS NOT PROPERLY SERVED IN THE BURNS 

LITIGATION 

Grupo México was not properly served with the Amended Complaint, thus they 

are not as of yet properly joined as a defendant in this action and the Amended Complaint should 

be dismissed in its entirety pursuant to Fed. R. Civ. P. 12(b)(5). Grupo México was served by a 

third party process server in Mexico City. Although the Hague Convention on the Service 

Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 

1361 (the “Hague Convention”), to which Mexico is a signatory, a permits service through a 

third party in certain limited circumstances, each participating nation has the option to object to 

effective service by a third party, requiring instead that service be effected through court officers. 

Mexico did object to such third party service and requires a specific court order allowing for 

proper service on a Mexican corporation by a third party, otherwise rendering third party service 

ineffective. See NSM Music, Inc. v. Alvarez, No. 2 C 6482, 2003 WL 685338 (ND Ill. Feb. 25, 

2003) (personal service is not effective via a privately-retained process server). As the only 

evidence plaintiffs provided as to service of the Amended Complaint upon Grupo México 

indicates that service was attempted by an unauthorized third party, such service is improper and 

wholly ineffective and warrants dismissal of this action. Id. (the Hague Convention 

contemplates personal service via the authorities of the country of destination, or through the 

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 13 of 29
 

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originating country's consular officials in the country of destination. See Hague Conv. Arts. 3-

9.).11

II. BECAUSE ASARCO’S PURPORTED REMOVAL WAS IMPROPER, THE 

ACTION SHOULD BE REMANDED. 

A. A Non-Party Has No Authority to Remove in a Bankruptcy 

Proceeding 

Under the federal removal statutes, a non-party, including an individual claiming 

to be a real party in interest, has no authority to seek removal.12 Newman & Cahn, LLP v. Sharp, 

388 F. Supp. 2d 115, 116 (E.D.N.Y. 2005). Specifically, the right to remove is vested 

exclusively in the defendants in an action. Geiger v. Artco Enter., Inc., 910 F. Supp. 130, 131 

(S.D.N.Y. 1996); Am. Home Assurance Co. v. RJR Nabisco Holdings Corp., 70 F. Supp. 2d 296, 

298 (S.D.N.Y. 1999); see also 28 U.S.C. §§ 1441, 1446(a). 

Similarly, Section 1452(a) of the Bankruptcy Code, Removal of Claims Related 

to Bankruptcy, grants removal authority only to parties in the action. 28 U.S.C. § 1452(a) (“[a] 

party may remove any claim or cause of action” in a bankruptcy proceeding) (emphasis added). 

See also Norkin v. DLA Piper Rudnick Gray Cary, LLP, No. 05 Civ. 9137 (DLC), 2006 WL 

839079, at *3 (S.D.N.Y. 2006) (§ 1452 “allows a party to remove an action from state court to 

federal district court if the district court has jurisdiction . . . .”) (emphasis added); see also Fed. 

 

11 In addition, the documents served on Grupo México were not translated by an authorized 

translator under the Mexican federal courts and thus do not meet the requirements of Article 5(a) 

of the Hague Convention. 

12 In the bankruptcy context, the Supreme Court has held that the general removal statutes continue 

to apply, coexisting with the § 1452 of the Bankruptcy Code, finding that “[t]here is no express indication 

in § 1452 that Congress intended that statute to be the exclusive provision governing removals and 

remands in bankruptcy.” Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 129 (1995); see also 1 

Norton Bankr. L. & Prac. 2d § 7:1 (2007); see also Hesseman v. Arthur Andersen (In re Global Crossing, 

Ltd. Sec. Litig.), Nos. 02 Civ. 910 GEL, 02 Civ. 10199 GEL, 2003 WL 21659360, at *2 (S.D.N.Y. July 

15, 2003) (“§ 1452 must be understood in the context of the general federal removal statute, 28 U.S.C. § 

1441”). 

Case 1:07-cv-03496-WHP Document 28 Filed 06/27/2007 Page 14 of 29
 

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Ins. Co. v. Tyco Int’l Ltd., 422 F. Supp. 2d 357, 373 (S.D.N.Y. 2006) (holding that “Title 28 

grants removal power in bankruptcy cases to any ‘party’”); accord Buechner v. Avery, No. 05 

Civ. 2074 (PKC), 2005 WL 3789110, at *4 (S.D. N.Y. 2005). 

ASARCO is not and never has been a party to this lawsuit. ASARCO did not 

substitute itself as a plaintiff in this action and therefore lacks standing to remove the action to 

this Court. Tellingly, ASARCO has been very vocal in the Bankruptcy Court proceedings and 

has repeatedly requested additional time to participate in various actions where it is a party. 

Never once has ASARCO requested additional time to substitute itself as a party in this action. 

Although ASARCO’s Notice of Removal makes reference to extensions of time to remove 

granted by the Bankruptcy Court, such extensions are irrelevant to ASARCO because the 

Bankruptcy Court could only extend to ASARCO additional time for removal of actions to which 

it was a party. 

B. ASARCO’s Removal Is Blatantly Deficient 

ASARCO’s Notice of Removal purports to remove five causes of action without 

any explanation of the basis for doing so. The Notice of Removal contains conclusory 

allegations regarding ASARCO’s and SP Holdings’ interest in this litigation, and offers no 

support for why these entities have a stake in this action. 

• ASARCO and SP Holdings are not the real parties in interest. 

ASARCO and SP Holdings state in the Notice of Removal that they are 

the real parties in interest in the action, but fail to offer any basis for this 

statement. (Notice of Removal p.1) These statements – lacking of any 

factual support – hardly explain how ASARCO and SP Holdings could be 

the real parties in interest to the Asbestos Plaintiffs’ tort claims. 

ASARCO was not the transferor of the SCC Shares and thus has no real 

interest in the fraudulent transfer claims. 

• The “removed” claims do not relate to transfer of SCC Shares. 

ASARCO and SP Holdings state in the Notice of Removal that they are 

removing to this Court “claims relating to the fraudulent transfer of 

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ASARCO’s 54.2% ownership interest in Southern Peru Copper 

Corporation, now known as Southern Peru Corporation (“SPCC”)”. 

(Notice of Removal p.1) It is only Count VII of the Amended Complaint 

that relates to the alleged fraudulent transfer of the SCC Shares and the 

remaining four claims which are the subject of the Notice of Removal 

relate to the leveraged buyout of ASARCO -- claims which ASARCO and 

SP Holdings make clear are not the subject of their attempted removal.13 

• The“removed” claims do not arise under Bankruptcy Code. The 

Notice of Removal erroneously states that “[r]emoval of the claims 

relating to the fraudulent transfer of ASARCO’s 54.2% ownership interest 

in SPCC to AMC asserted against Grupo México in Plaintiffs’ First, 

Second, Third, Fourth, and Seventh Claims for Relief in the State Court 

Amended Complaint is proper under 28 U.S.C. § 1452(a) because this 

Court has subject matter jurisdiction over those claims pursuant to 28 

U.S.C. § 1334(b)” and “the claims relating to the fraudulent transfer . . . 

‘arise under’ the Bankruptcy Code.” (Notice of Removal ¶¶ 1, 8) 

(emphasis added). A cursory glance at the Amended Complaint confirms 

the falsity of this statement as each and every one of these five claims is 

brought pursuant to the New York Fraudulent Conveyance Act and not 

pursuant to the Bankruptcy Code. Despite the misstatements in the Notice 

of Removal, there is no basis to remove these state law claims to this 

Court. 

• The “removed” claims are not part of the ASARCO bankruptcy 

estate. The Notice of Removal asserts that “[u]pon ASARCO’s 

bankruptcy filing, the claims asserted in the State Court Action, including 

the claims relating to the fraudulent transfer of ASARCO’s 54.2% 

ownership interest in SPCC to AMC . . . became property of the ASARCO 

bankruptcy estate pursuant to section 541 of the Bankruptcy Code”. 

(Notice of Removal ¶ 6) The Notice of Removal provides no support for 

this statement and the Asbestos Plaintiffs’ claims related to the fraudulent 

transfer of the SCC Shares are not property of the ASARCO estate. The 

fraudulent transfer claim is not property of the ASARCO estate because 

ASARCO was not the transferor of those shares and has no claim to or 

interest in their recovery. SP Holdings was the transferor of the SCC 

Shares and is the only entity that could have a real interest in avoiding the 

fraudulent transfer. These baseless allegations regarding the fraudulent 

transfer of the SCC Shares being property of the ASARCO estate have no 

impact on the First, Second, Third and Fourth Claims as those claims do 

not relate to the alleged fraudulent transfer of the SCC Shares. 

 

13 Even if the claims related to the LBO were claims that ASARCO attempted to remove, there are 

no allegations in the complaint that would give rise to this Court’s jurisdiction over Grupo México and 

ASARCO cannot amend the Asbestos Plaintiffs’ complaint now through its own Notice of Removal. 

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• “Removal” is not timely. ASARCO and SP Holdings claim that the 

Notice of Removal is timely based on the orders of the Bankruptcy Court 

extending the time to remove actions. (Notice of Removal ¶ 10) Of 

course, such extensions of time to remove apply only to parties who have 

standing to remove in the first place and cannot be deemed to grant to nonparties an independent right to remove. 

• This action is not a core proceeding. ASARCO and SP Holdings claim 

that this proceeding is core because it “invokes a substantive right 

provided by the Bankruptcy Code or is a proceeding that by its nature 

could only arise in the context of a bankruptcy case.” (Notice of Removal 

¶ 13) As discussed above, this matter is not brought under any provisions 

of the Bankruptcy Code but is rather brought pursuant to the New York 

Fraudulent Conveyance Act. 

It is beyond question that ASARCO – a non-party – has no statutory authority to 

seek removal, therefore removal was improper and this action must be remanded. See In re 

Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., No. 1:00-1898, MDL 1358 (SAS), 14 

21-88, 2006 WL 1004725, at *2 (S.D.N.Y. Apr. 17, 2006) (“If the removing party cannot 

establish its right to removal by competent proof, the removal is improper, and the district court 

must remand the case to the court in which it was filed.”). 

III. GRUPO MÉXICO IS NOT SUBJECT TO PERSONAL JURISDICTION IN 

NEW YORK 

Plaintiffs bear the burden of establishing that this Court has jurisdiction over 

Grupo México. See Norben Imp. Corp. v. Metro. Plant & Flower Corp., No. 03 Civ. 8660 

(WHP), 2004 WL 2378295 (S.D.N.Y. Oct. 25, 2004) (dismissing complaint where plaintiff did 

not demonstrate sufficient contacts to allow for personal jurisdiction) (citing Bank Brussels 

Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779 (2d Cir. 1999), vacated, 305 F.3d 120 

(2d Cir. 2002)). Because personal jurisdiction over a non-resident defendant is determined under 

the law of the forum state, this Court must determine whether it has personal jurisdiction over 

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Grupo México by applying New York’s personal jurisdiction statues, N.Y.C.P.L.R. §§ 301, 302. 

See Norben Imp. Corp., 2004 WL 2378295, at *2.14

A. Grupo México Has Not Consented to Jurisdiction 

The Asbestos Plaintiffs in the Amended Complaint, erroneously contend that 

Grupo México is subject to jurisdiction in New York because it (i) is “authorized to do business 

in New York and/or [has] contracted to supply goods and services within the state” and (ii) 

“committed tortious acts within the state of New York.” (Am. Compl. ¶ 5.)15 Plaintiffs also 

assert that Grupo México “contractually waived any right they might have had to contest 

jurisdiction of this Court relating to the conveyances contested herein” and that Grupo México 

has “designated within those same contracts that New York State Law governs principal 

transaction involved in the LBO.” (Am. Compl. ¶ 6.) Plaintiffs are wrong on both counts. 

Grupo México has not consented to the jurisdiction of this Court or the New York 

state court. Although the Amended Complaint alleges that Grupo México has “waived any right 

they might have had to contest the jurisdiction of this Court relating to the conveyances 

contested therein,” (Am. Compl. ¶ 6.), Plaintiffs fail to identify a single document, clause, 

agreement, or correspondence whereby Grupo México “waived” its right to contest jurisdiction 

in the this matter. Further, the Amended Complaint makes only a conclusory allegation that 

“these defendants [including Grupo México] have designated within [the] contracts that New 

York State Law governs principal transactions involved in the LBO.” (Id.) Even if Plaintiffs 

 

14 ASARCO argues that the Texas court could resolve the question of personal jurisdiction. 

ASARCO has not, however, offered any explanation as to why a Texas court is the more appropriate 

forum for resolution of the issue. Additionally, as discussed in Section IV, Grupo México is not subject 

to personal jurisdiction in Texas. 

15 Although ASARCO purports to remove the Burns Litigation, the named Plaintiffs continue to be 

the Asbestos Plaintiffs. Accordingly, references to “Plaintiffs” in this section continue to refer to the 

Asbestos Plaintiffs, as they made the allegations in the Amended Complaint currently before this Court. 

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identified an agreement that included a choice of law provision identifying New York as 

controlling law, this alone would not be sufficient to confer jurisdiction over Grupo México. 

The law is well settled “that a choice of law provision in a contract does not constitute a 

voluntary submission to personal jurisdiction in New York.” McShan v. Omega Louis Brandt et 

Frere, S.A., 536 F.2d 516, 518 (2d Cir. 1976); see also First Nat’l Bank & Trust Co. v. Wilson, 

567 N.Y.S.2d 468, 470 (App. Div. 1991) (“Nor does the parties’ selection of New York as the 

choice of law in their agreement constitute a voluntary submission to personal jurisdiction in 

New York.”) (citation omitted); Waldorf Assocs, Inc. v. Neville, 533 N.Y.S.2d 182, 184 (Sup. Ct. 

1988) (choice of law provision “has nothing to do with choice of forum or consent to submit to 

jurisdiction”) (citation omitted), aff’d, 547 N.Y.S.2d 556 (App. Div. 1989).16 Accordingly, 

Grupo México has not consented to jurisdiction in New York. 

B. Grupo México is Not Subject to General Jurisdiction in New York 

Plaintiffs do not allege a basis for general jurisdiction under N.Y.C.P.L.R § 301. 

Section 301 of New York’s Civil Procedure Law and Rules states, in pertinent part, that “a court 

may exercise such jurisdiction over persons, property, or status as might have been exercised 

heretofore.” N.Y.C.P.L.R. § 301. Pursuant to that section, this Court has general jurisdiction 

over a foreign corporation, such as Grupo México, when it is “doing business” in New York “not 

occasionally or casually, but with a fair measure of permanence and continuity.” Official Comm. 

of Unsecured Creditors v. Transpacific Corp. (In re Commodore Int’l, Ltd.), 242 B.R. 243, 251 

 

16 Even if Grupo México consented to jurisdiction in New York in a contract relating to the LBO, 

which it did not, the Asbestos Plaintiffs in the Amended Complaint cannot rely upon the contractual 

consent because they were not parties to the contract. See Fourth Ocean Putnam Corp. v. Interstate 

Wrecking Co., 485 N.E.2d 208 (N.Y. 1985); ComJet Aviation Mgmt. LLC v. Aviation Investors Holdings 

Ltd., 303 A.D.2d 272 (N.Y. App. Div. 2003) (dismissing complaint for lack of jurisdiction where plaintiff 

was not a party or beneficiary to any agreement where New York was the chosen forum). 

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(Bankr. S.D.N.Y. 1999) (quotations omitted) (dismissing fraudulent transfer claim where 

defendant was not subject to personal jurisdiction). Casual or occasional activity does not 

constitute “doing business;” rather N.Y.C.P.L.R. § 301 requires a showing of “continuous, 

permanent, and substantial activity in New York.” In re Ski Train Fire in Kaprun, Austria, 230 

F. Supp. 2d 403, 407 (S.D.N.Y. 2002) (quotation omitted) (dismissing case where defendant 

lacked sufficient contacts with New York). The traditional characteristics of “doing business” 

under the N.Y.C.P.L.R. include: (1) whether the company has an office in the state; (2) whether 

it has any bank accounts or other property in the state; (3) whether it has a phone listing in the 

state; (4) whether it does public relations work there; and (5) whether it has individuals 

permanently located in the state to promote its interests.” Id.

Plaintiffs make only the conclusory allegation that Grupo México, as one of the 

original defendants in the action, is “authorized to transact business in the state.” (Am. Compl. ¶ 

5.) This contention is unsupported statement and, more importantly, false. (de la Parra Decl. ¶ 

6.) Plaintiffs do not and cannot argue that Grupo México is “doing business” in New York for 

purposes of personal jurisdiction. Grupo México has no contacts with New York that would 

satisfy the requirements of N.Y.C.P.L.R. § 301. Grupo México is a Mexican corporation with its 

principal place of business in Mexico City, Mexico. (Id.¶ 4.) Grupo México is not a resident of 

New York and is not registered to conduct business in New York. (Id. ¶ 6.) Grupo México does 

not maintain an office or employees in New York, it does not have a New York telephone 

number or mailing address. (Id. ¶ 8.) For these reasons, Grupo México is not “doing business” 

in New York and this Court does not have general jurisdiction over Grupo México under 

N.Y.C.P.L.R. § 301. See Int’l Telecom, Inc. v. Generadora Electrica del Oriente, S.A., No. 00 

Civ. 8695(WHP), 2002 WL 465291 at *4 (S.D.N.Y. Mar. 27, 2002) (a single financing 

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arrangement such as a credit facility is “insufficient to constitute the continuous and systematic 

activity required to warrant the exercise of general personal jurisdiction”). 

C. Grupo México Has Not Engaged in Any Purposeful Activity in New 

York Sufficient to Subject it to Specific or “Long-Arm” Jurisdiction 

New York’s “long-arm” statute, N.Y.C.P.L.R. § 302, provides for personal 

jurisdiction of non-domiciliaries “[a]s to a cause of action arising from any of the acts 

enumerated in this section.” N.Y.C.P.L.R. § 302(a). Under this section, Grupo México would 

be subject to personal jurisdiction if it transacts business within New York and the claims alleged 

in the Burns Complaint arose out of that business. See Norben Imp. Corp., 2004 WL 2378295, at 

*2. The “acts enumerated” in Section 302(a) are: (1) the transaction of “any business within the 

state or contracts anywhere to supply goods or services in the state;” (2) committing “a tortious 

act within the state;” (3) committing a tortious act without the state causing injury to person or 

property within the state;” or (4) “own[ing], us[ing] or possess[ing] any real property situated 

within the state.” N.Y.C.P.L.R. § 302(a). 

As described below, none of Grupo México’s activities meet the prerequisites for 

this Court to exercise long-arm jurisdiction under Section 302(a). 

1. ASARCO’s Claims Do Not Arise Out of Grupo México’s 

Transaction of Business in New York 

For New York’s “long-arm” statute to apply to a given cause of action, that cause 

of action must have arisen out of Grupo México’s contacts with New York. Of the many 

transactions challenged by the Asbestos Plaintiffs in the Amended Complaint, Grupo México 

was directly involved in only one – the LBO. The Amended Complaint fails to establish that 

Grupo México had sufficient contacts to confer personal jurisdiction over it in connection with 

the LBO. Further, the claims that ASARCO seeks to remove do not even arise out of the LBO. 

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The LBO was completed in November 1999. The transfer of the SCC Shares that the Asbestos 

Plaintiffs challenge and that ASARCO purports to remove occurred in 2003 and is completely 

unrelated to the LBO. Accordingly, the sole transaction identified in the Notice of Removal – 

the transfer of the SCC Shares – is not related or connected in any way to the one transaction to 

which Grupo México was a party. Further, as discussed below, to the extent Grupo México 

played any role in any of these transactions, its connections to New York are not sufficient to 

establish personal jurisdiction. 

The remaining five transactions challenged by the Asbestos Plaintiffs were all 

performed and executed solely by ASARCO. (Am. Compl. ¶¶ 45-50.) Grupo México was not a 

party to the sale of Enthone. Grupo México was not a party to the discounting of the insurance 

proceeds. Grupo México was not a party to the sale of American Limestone to Rinker Materials 

Corporation and it was not a party to the alleged sale of “ASARCO’s business equipment.” 

Grupo México was not the transferor or transferee of the SCC Shares by SP Holdings to AMC, 

but merely acted as a guarantor for one of the promissory notes executed by AMC and delivered 

to SP Holdings. Plaintiffs repeatedly infer that many of these actions were “directed by” Grupo 

México, yet the Amended Complaint is utterly devoid of details as to what role Grupo México 

played in any of these transactions or how any alleged role would give rise to jurisdiction in this 

Court. Plaintiffs fail to allege details sufficient to identify where any of the transactions took 

place, such as where they were negotiated, executed, financed, where the closings took place, or 

even who participated in them. There are no allegations that Grupo México was ever physically 

present within New York in connection with any of the challenged transactions. 

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2. Grupo México Has Not “Transacted Business” in New York 

Under N.Y.C.P.L.R. § 302(a)(1) 

Under Section 302, “New York [has] personal jurisdiction over a nondomiciliary 

if two conditions are met: first, the nondomiciliary must ‘transact business’ within the state; 

second, the claim against the nondomiciliary must arise out of that business activity.” In re 

Commodore Int’l, Ltd., 242 B.R. at 253 (quotation omitted). Whether a non-domiciliary 

transacts business17 in New York is determined by considering a number of factors, including: 

(i) whether the defendant has an ongoing contractual relationship 

with a New York corporation, (ii) whether the contract was 

negotiated or executed in New York, (iii) whether, after executing 

a contract with a New York business, the defendant has visited 

New York for the purpose of meeting with parties to the contract 

regarding the relationship, (iv) what the choice of law clause is in 

the contract, and (v) whether the contract requires payments and 

notices to be sent into New York. 

Id. at 253-54. New York courts hold that a foreign corporation has not “transacted business” 

under Section 302(a)(1) unless the corporation performed some act by which it “purposefully 

avail[ed] [itself] of the privilege of conducting activities within [New York], thus invoking the 

benefits and protections of its laws.” Light v. Taylor, No. 05 Civ. 5003 (WHP), 2007 WL 

274798, at *3 (S.D.N.Y. Jan. 29, 2007) (quotation omitted); see also McKee Elec. Co. v. 

Rauland-Borg Corp., 229 N.E.2d 604, 607 (N.Y. Ct. App. 1967). 

The transaction that forms the basis for ASARCO’s removal is the transfer of the 

SCC Shares to AMC. The Amended Complaint is devoid of any allegations establishing that 

Grupo México transacted business in New York in connection with the transfer of the SCC 

Shares. Because Grupo México acted only as a guarantor for a promissory note executed by 

AMC and payable to SP Holdings, this Court has no personal jurisdiction over Grupo México. 

 

17 “’Transacting’ is a term of art that is only relevant for jurisdictional purposes when the plaintiff’s 

suit is related to the transaction in question.” In re Ski Train Fire, 230 F. Supp. 2d at 408. 

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The claims that ASARCO seeks to assert do not arise out of Grupo México’s involvement in that 

transaction and any potential contacts with New York. Accordingly, Grupo México cannot be 

subject to personal jurisdiction in New York under Section 302(a)(1). 

3. Grupo México Has Not Committed A Tortious Act Within the 

State Under N.Y.C.P.L.R. 302(a)(2) 

Section 302(a)(2) gives this court “personal jurisdiction over any non-domiciliary 

. . . who in person or through an agent . . . commits a tortious act within the state . . . . ” At 

minimum, to qualify for jurisdiction under Section 302(a)(2), “a defendant’s act or omission 

[must have] occur[ed] within the State.” Bank Brussels Lambert, 171 F.3d at 789-90 (quotation 

omitted), vacated, 305 F.3d 120 (2d Cir. 2002); see also Maranga v. Vira, 386 F. Supp. 2d 299, 

310 (S.D.N.Y. 2005) (“CPLR 302(a)(2) reaches only tortious acts performed by a defendant who 

was physically present in New York when he performed the wrongful act.”) (quoting Bensusan 

Rest. Corp. v. King, 126 F.3d 25, 28-29 (2d Cir. 1997)). 

With the exception of the conclusory allegation that Grupo México “committed 

tortious acts within the state of New York,” Plaintiffs fail to identify a single tort that occurred in 

New York, much less a tort committed by Grupo México. While Plaintiffs repeatedly allege that 

“Grupo México forced” or “directed” (see, i.e. ¶¶ 45-47) certain transfers to occur, they plead no 

details to support these self-serving statements. Further, the Amended Complaint does not 

identify what connection, if any, the transfer of the SCC Shares has to New York and how the 

transfer of those shares was a tort committed by Grupo México within New York. Accordingly, 

Grupo México is not subject to personal jurisdiction in New York under Section 302(a)(2). 

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4. Grupo México Has Not Committed a Tortious Act Causing 

Injury to Person or Property Within New York 

Under Section 302(a)(3), a non-domiciliary is subject to personal jurisdiction in 

New York if it commits a tortious act causing injury to person or property within New York and 

it either (i) “regularly does or solicits business, or engages in any other persistent course of 

conduct, or derives substantial revenue from goods used or consumed or services rendered, in the 

state” or (ii) “expects or should reasonably expect the act to have consequences in the state and 

derives substantial revenue from interstate or international commerce.” N.Y.C.P.L.R. §§ 

302(a)(3)(i)-(ii); see also Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 199-200 

(2d Cir.) (dismissing case where plaintiffs failed to demonstrate substantial revenue and that the 

associated goods were “used or consumed” in New York), cert. denied, 498 U.S. 854 (1990); 

Light, 2007 WL 274798 at *4-5 (dismissing complaint where plaintiff failed to show substantial 

revenue from interstate commerce). 

The Amended Complaint includes no allegations supporting jurisdiction under 

Section 302(a)(3). First and foremost, the Amended Complaint fails to identify a tort committed 

outside the state of New York that caused injury within the State. Second, as discussed above in 

Section III.B, Grupo México does not regularly solicit or conduct business in New York or 

derive “substantial revenue from goods consumed or services rendered” in New York. See In re 

Commodore Int’l, 242 B.R. at 255 (dismissing complaint “[w]ithout deciding where the location 

of the injury occurred, we have already determined that [defendant] does not do any business in 

New York. There is also no evidence that [defendant] has ever solicited business here or derives 

any revenue here, let alone substantial revenue.”).18

 

18 As discussed herein, Grupo México does not own or possess any real property in the state of New 

York. (de la Parra Decl. ¶ 9.) 

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D. Jurisdiction Over Grupo México’s Subsidiaries Cannot Be Imputed to 

Grupo México 

Even if New York had jurisdiction over one or more of Grupo Mexico’s 

subsidiaries, such as ASARCO or AMC, the law is clear that the acts of a subsidiary cannot be 

used to impute personal jurisdiction to a foreign parent unless it is shown that the parent 

maintained day-to-day control over the subsidiary. Under New York law, if “the claim is that a 

foreign corporation is present in New York state because of the activities there of its subsidiary, 

the presence of the subsidiary alone does not establish the parent’s presence in the state.” Jazini 

v. Nissan Motor Co., 148 F.3d 181, 184 (2d Cir. 1998) (dismissing claims against foreign 

company for lack of personal jurisdiction). For New York courts to have personal jurisdiction 

over a parent corporation based on its subsidiary’s presence in New York, “the subsidiary must 

be either an ‘agent’ or a ‘mere department’ of the foreign parent.” Id. 

To establish that a subsidiary is a mere ‘agent’ of the parent, plaintiffs must show 

that the subsidiary “does all the business which [the parent corporation] could do were it here by 

its own officials.” Id. (citing Frummer v. Hilton Hotels Int’l, Inc., 227 N.E.2d 851 (N.Y.), cert. 

denied, 389 U.S. 923 (1967). In determining whether a subsidiary is a “mere department” of its 

parent, New York courts rely on four factors first articulated in Volkswagenwerk 

Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir. 1984). Courts must 

consider (1) “common ownership”; (2) “financial dependency of the subsidiary on the parent 

corporation;” (3) “the degree to which the parent corporation interferes in the selection and 

assignment of the subsidiary’s executive personnel and fails to observe corporate formalities”; 

and (4) “the degree of control over the marketing and operational policies of the subsidiary 

exercised by the parent.” Jazini, 148 F.3d at 184-85 (quoting Beech Aircraft, 751 F.2d at 120-

22). The Amended Complaint is devoid of any specific allegations that any of Grupo Mexico’s 

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subsidiaries were agents or “mere departments” of Grupo México. The lack of any factual 

support in the complaint for the allegation that ASARCO or AMC is a mere agent or 

instrumentality of Grupo México is grounds for dismissal pursuant to Fed. R. Civ. P. 12(b)(2). 

See Jazini, 148 F.3d at 185 (dismissing complaint where allegations “lack the factual specificity 

necessary to confer jurisdiction”). 

IV. GRUPO MÉXICO IS NOT SUBJECT TO PERSONAL 

JURISDICTION IN TEXAS 

ASARCO seeks a change of venue to the United States District Court for the 

Southern District of Texas where the Fraudulent Transfer Litigation is currently pending against 

Grupo México’s subsidiary AMC. Transferring this action would not cure the personal 

jurisdiction flaws in connection with Grupo México, as Grupo México is not subject to personal 

jurisdiction in Texas either. 

The Texas long-arm statute’s authorization of personal jurisdiction is coextensive 

with the 14th Amendment’s due process requirements. See R & B Falcon Drilling (Int’l & 

Deepwater), Inc. v. Noble Denton Group, 91 Fed. App’x 317, 320 (5th Cir. 2004) (stating “[t]he 

Texas long-arm statute authorizes the district court to exercise personal jurisdiction over a non 

resident defendant to the fullest extent allowed by the United States Constitution,” and citing 

Tex. Civ. Prac. & Rem. Code § 17.042 (West 2000)). The minimum contacts required to satisfy 

due process “can be established either through contacts sufficient to assert specific jurisdiction, 

or contacts sufficient to assert general jurisdiction.” Panda Brandywine Corp. v. Potomac Elec. 

Power Co., 253 F.3d 865, 867 (5th Cir. 2001) (affirming dismissal based on lack of personal 

jurisdiction) (internal quotations omitted). “Specific jurisdiction over a nonresident corporation 

is appropriate when that corporation has purposefully directed its activities at the forum state and 

the litigation results from alleged injuries that arise out of or relate to those activities.” Alpine 

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View Co. v. Atlas Copco A.B., 205 F.3d 208, 215 (5th Cir. 2000) (affirming dismissal based on 

lack of personal jurisdiction over foreign corporation) (internal quotations omitted); see also

Revell v. Lidov, 317 F.3d 467, 470 (5th Cir. 2002). 

If a party’s contacts with Texas are continuous and systematic, they will be 

subject to general personal jurisdiction, in which case the cause of action need not arise out of 

activities in Texas. See Martinez v. Servicios de Transportacion, M.G., S.A. de C.V., No. L-05-

60, 2007 WL 543411 at *4 (S.D. Tex. Feb. 15, 2007) (dismissing action and holding that court 

lacked general personal jurisdiction over Mexican company that “operated in Mexico and had no 

office in the United States,” because its contacts with Texas were not continuous and 

systematic); see also Marathon Oil Co. v. A.G. Ruhrgas, 182 F.3d 291, 295 (5th Cir. 1999). 

Grupo México has no more contacts with Texas than it does with New York. (de 

la Parra Decl. ¶¶ 4-11.) Grupo México is not a resident of Texas, is not registered to conduct 

business in Texas, and does not conduct business in Texas. (Id. ¶ 6.) Grupo México does not 

have any office or warehouse in Texas, nor does it have a mailing address or any telephone 

numbers in Texas. (Id. ¶ 8.) Grupo México has no agents, sales representatives, or any 

employees in Texas. (Id. ¶ 10.) It does no advertising in Texas or with any Texas media. (Id. ¶ 

11.) Accordingly, Grupo México would not be subject to personal jurisdiction in Texas. 

CONCLUSION

For the foregoing reasons, Grupo México respectfully requests that the Court 

dismiss the First Amended Complaint in its entirety or, in the alternative, remand this action to 

the Supreme Court of New York where it will be dismissed for lack of personal jurisdiction. 

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