Full opinion text
ORDER RAYMOND P. MOORE, United States District Judge THIS MATTER comes before the Court on Defendant OAO Lukoil’s (“Lukoil”) Motion to Dismiss (“Motion”) Plaintiff Archangel Diamond Corporation Liquidating Trust’s (“Trust”), as successor-in-interest to Archangel Diamond Corporation (“Archangel”), Complaint pursuant to Fed.R.Civ.P. 12(b)(2), 12(b)(6), and under abstention theories. (ECF No. 29.) The Trust’s action against Lukoil, a Russian corporation, arises from allegations that it joined and furthered an “illegal scheme” (“Illegal Scheme”) by Arkhangelskgeoldo-bycha (“AGD”), a Russian corporation, to deprive Archangel, a Canadian corporation, of the benefits of a “rich” diamond discovery in Russia. The primary issues before the Court are whether this action should be dismissed for lack of-personal jurisdiction and/or forum non conveniens. The participants (AGD and Lukoil) in the alleged Illegal Scheme are Russian entities and the party injured (Archangel) was a Canadian corporation. Lukoil’s conduct complained of, however, had connections not only to 'Russia but also to Colorado as that was where Archangel had its principal place of business and felt the effects of Lukoil’s alleged conduct — the lulling of Archangel into, investing more funds to potentially develop the diamond discovery and the bankruptcy of Archangel in Colorado. But, the Colorado state courts have already determined that they may not exercise specific or general personal jurisdiction over Lukoil, albeit under Colorado’s long arm statute and the Fourteenth Amendment, on the claims now before this Court. And, after a careful consideration of the record and the applicable laws, the Court reaches the same conclusion as that of the Colorado state courts— that Lukoil is not subject to personal jurisdiction in Colorado - and, further, that this action should be dismissed based on forum non conveniens. I. BACKGROUND: CLAIMS AGAINST LUKOIL In Order to understand the claims against Lukoil, events which allegedly occurred prior to Lukoil’s involvement merit discussion. • A. THE RUSSIAN DIAMOND LICENSE 1. The Russian Connections In 1993, Russia announced a competitive tender for the development of diamonds in the Archangelsk Region in Northern Russia. (ECF No. 1, Complaint, ¶¶27, 28.) Archangel’s predecessor negotiated a joint venture agreement with State Enterprise Arkhangelgeology (“AGE”), a Russian state corporation, to submit a tender to develop the “Verkhotina Area” in the Archangelsk Region. (Conaplaint, ¶¶ 16, 29.) Thereafter, in November 1993, Archangel entered into an agreement (the “1993 Agreement”) with AGE to form a joint venture in which AGE would bid for the license and Archangel would provide up to $5.3 Million funding for the diamond exploration/development license. (Complaint, ¶ 30.) In December 2013, AGE won the tender and received the Diamond License issued by the Russian government. (Complaint, ¶ 30.) In January 1994, Archangel and AGE agreed that additional funds would be needed and the Diamond License would be transferred to the joint venture, as subsequently memorialized in February 25,1994 (the “1994 Memorandum”) (1993 Agreement and 1994 Memorandum, collectively, “Agreement”). (Complaint, ¶31.) The parties incorporated Almazny Bereg (“AB”) as the joint venture company. (Complaint, ¶ 32.) In approximately May 1995, a new law permitted.the transfer of the Diamond License from AGE to the joint venture. (Complaint, ¶ 35.) AGE was subsequently-privatized in December 1995, and became known as AGD. (Complaint, ¶ 35.) In approximately February 1996, a rich pipe of diamonds was discovered in the Verkhotina Area. (Complaint, ¶ 37.) This is when AGD is said to have begun its Illegal Scheme to deprive Archangel of its interest in the diamond discovery. In April 1996, AGE transferred the Diamond License to AGD, which Archangel thereafter requested be transferred to AB. (Complaint, ¶¶36, 37.) AGD, however, threatened to transfer the Diamond License to a new company, and not AB. (Complaint, ¶¶ 38, 39.) 2. The Colorado Connections In February 1997, Archangel hired a Colorado resident (Gary Davis) as Chief Financial Officer and moved its financial center from Canada to Colorado. (Complaint, ¶¶ 4, 45.) Thereafter, AGD engaged in various actions in an attempt to avoid the parties’ agreement to transfer the Diamond License. Initially, in April 1997, AGD informed Archangel that the Diamond License would be transferred to the joint venture. (Complaint, ¶ 40.) In August 1997, however, AGD informed Archangel that it was withdrawing from the Agreement and selling its shares of AB. (Complaint, ¶ 41.) AGD also sent a letter of its decision to Archangel’s financial ad-visors, purportedly to disrupt Archangel’s ability to finance the project. (Complaint, ¶ 43.) However, AGD subsequently agreed to abide by the Agreement and sent Archangel a letter confirming the Agreement was in effect, and that Archangel should proceed to fund a work program. (Complaint, ¶¶ 44, 91a.) Unbeknownst to Archangel, AGD was planning to transfer its shares in AB to a newly formed subsidiary which, under Russian law, would have prohibited AGD from transferring the Diamond License to AB. (Complaint, ¶ 44.) By November 1997, Archangel hired another Colorado resident (Timothy Haddon) as the Chief Executive Officer and moved its principal place of business to Colorado. (Complaint, ¶¶ 4, 45.) On December 18, 1997, Archangel notified AGD that Archangel had moved its headquarters to Colorado. (Complaint, ¶ 46.) AGD confirmed the Diamond License would be transferred to AB following completion of and payment for the work program. In reliance on AGD’s representations, Archangel signed the work program and agreed to invest an additional $5.2 Million in funds. (Complaint, ¶ 47.) At that time, Archangel had already contributed $4.9 Million to the project.' (Complaint, ¶ 48.) B. LUKOIL’S ACTIONS WHILE ARCHANGEL WAS IN COLORADO 1. Lukoil Allegedly Joins the Illegal Scheme In about February 1998, Lukoil, a Russian public corporation and Russia’s largest oil company, obtained control over AGD by acquiring a majority of its shares and appointing a former Lukoil executive to head AGD. Lukoil, however, assured Archangel that AGD would honor the Agreement. (Complaint, ¶¶ 4, 15, 50-53, 87.) In a March 17, 1998 memo, AGD stated to Archangel that the Agreement remained in effect. (Complaint, ¶ 91.b.) In a letter dated April 3, 1998, Lukoil implied to Archangel that it would abide by the Agreement. (Complaint, ¶ 52.) By May 1998, however, AGD- (allegedly under the control of Lukoil) informed Archangel that it would not honor the Agreement and planned to transfer the Diamond License to another entity. (Complaint, ¶ 54.) Nonetheless, between May and June 1998, AGD had communications with Archangel concerning the ongoing status of the diamond project. (Complaint, ¶ 91d & e.) By August 1998, however, pursuant to the Agreement, Archangel initiated arbitration proceedings in Stockholm (“Stockholm Arbitration”) against AGD, Lukoil and others. The arbitrators decided that it had jurisdiction to hear Archangel’s claim against AGD, but not Lukoil. (Complaint, ¶ 56.) In the arbitration, AGD and Archangel agreed that Russian law applied to their dispute and relations' in general. (ECF No. 29-20, page (p.) 4, ¶ 132; No. 47, p. 40 n.26.) Nonetheless, Archangel subsequently argued that Swedish law applied. (ECF No. 47, p. 40 n. 26; No. 47-69, pp. 138-159.) While the arbitration was pending, AGD and Archangel resolved their dispute and entered into an agreement dated July 15, 1999 (the “1999 Agreement”). (Complaint, ¶ 57.) AGD communicated to Archangel in Colorado on many occasions between July 1999 and August 2000 concerning the diamond project. (Complaint, ¶ 91j-s.) In reliance on AGD’s communications that the agreements concerning the diamond project would be performed — communications allegedly directed by Lukoil — Archangel funded its operations in the United States and Russia, and authorized (through the mail and wire) the transmission of funds to AGD to fund the diamond venture. (Complaint, ¶¶ 91, 92.) AGD did not, however, honor the Agreement or the 1999 Agreement and did not transfer the Diamond License to the joint venture. Accordingly, Archangel reactivated the Stockholm Arbitration. (Complaint, ¶ 63.) AGD challenged jurisdiction again, but this time the arbitrators decided they lacked jurisdiction to hear the dispute. (Complaint, ¶ 65.) Thereafter, on November 27, 2001, Archangel filed suit against Lukoil and AGD in the District Court, City and County of Denver, Colorado, which the trial court dismissed for lack of personal jurisdiction. (Complaint, ¶ 66.) In 2000 or 2001, Lukoil acquired the remaining interest in AGD. (Complaint, ¶ 50.) 2. Archangel’s Move Back to Canada Due to Financial Difficulties By December 2002, after litigating against AGD and Lukoil for so many years, Archangel was out of money. Archangel was able to find investors associated with DeBeers, a large diamond producer, to provide funding to prosecute its claims, but this required Archangel to move its principal place of business backed to Canada. (Complaint, ¶¶ 13, 67, 68.) Archangel successfully appealed the arbitrators’ decision and filed a renewed arbitration (Complaint, ¶ 69). Archangel also successfully appealed the dismissal of the Colorado state court action but only as to Lukoil. (Complaint, ¶ 70.) Subsequent to these decisions, Archangel, DeBeers, AGD, and Lukoil attempted to resolve their dispute and the matters were effectively stayed. When the parties were unable to resolve their dispute, Archangel resumed the Colorado state court action and the Stockholm Arbitration. (Complaint, ¶ 71.) Archangel, however, again ran out of funds. (Complaint, ¶ 71.) C. LUKOIL, DSE, THE “SLUSH FUND COMPANIES,” AND OTHER SCHEMES In addition to actions taken in Colorado in connection with Archangel and the Illegal Scheme involving the Diamond License, Lukoil also allegedly had other contacts in Colorado. Lukoil allegedly did business in Colorado through DSE Engineering, Inc., a Colorado corporation which has maintained an office in Colorado since February 1999, and engaged in tax fraud. (Complaint, ¶¶ 19, 75, 93.) Lukoil also allegedly funded DSE though the “Slush Fund Companies,” ie., Oldberry Investments, Ltd., Gilwood Investments, Ltd., and Lukoil Israel, Ltd. (Complaint, ¶¶ 23-25, 75.) These Slush Fund Companies were shells and Lukoil used them as conduits for the “Cash Smuggling,” “False Expenses,” “Buy High, Sell Low,” and “Dividends” schemes. (Complaint, ¶25.) Such contacts, however, had nothing to do with the Illegal Scheme and caused no injury to Archangel or the Trust. (ECF No. 100, p. 118.) II. PROCEDURAL HISTORY A. THE COLORADO STATE COURT ACTION AND BANKRUPTCY ACTION As stated, on November 27, 2001, Archangel filed an action in the Denver District Court against Lukoil and AGD. (Complaint, ¶ 9; ECF No. 29-3.) The Colorado state court complaint alleged breach of contract against AGD, and tort based claims against AGD and Lukoil. (ECF No. 29-3.) In 2002, the Colorado state trial court dismissed the action based on lack of personal jurisdiction as to AGD and Lukoil. (Complaint, ¶ 10, 16; ECF No. 29-5.) In 2004, the Colorado Court of Appeals affirmed (Appeal I). (Complaint, ¶ 10; ECF No. 29-1.) In 2005, the Colorado Supreme Court reversed as to general jurisdiction over Lukoil but affirmed the dismissal as to AGD (Appeal II). (Complaint, ¶ 10, 70; ECF No. 29-2.) The action was remanded to the Colorado state trial court, with Archangel as the plaintiff and Lukoil as the sole defendant. (Complaint, ¶ 70; see ECF No. 29-6.) The Colorado state court action was informally stayed until early 2009, while the parties engaged in settlement discussions. (Complaint, ¶ 11.) With no settlement, in 2009, Archangel filed bankruptcy in Colorado and the Trust acquired Archangel’s assets as successor-in-interest. (Complaint, ¶¶ 5, 11, 14, 71.) The Trust’s principal place of business is in Colorado and its sole trustee is a Colorado resident. (Complaint, ¶ 14.) The Colorado state court action proceedings continued in Denver, and the parties were allowed to engage in jurisdictional discovery, including taking the deposition of Dean Sillerud, president and sole shareholder of DSE. (Kg, ECF No. 47-72.) In November 2009, Archangel amended its Colorado state complaint (“First Amended Complaint”) to add RICO and other claims. (ECF No. 29-6.) In October 2011, after the Trust had been substituted as the plaintiff, the Colorado state trial court (“DDC”) again dismissed the case against Lukoil for lack of personal jurisdiction, general or specific. (Complaint, ¶ 73; ECF No. 29-8.) The Trust appealed. On January 6, 2012, while the Colorado appeal was pending, the Trust filed the action before this Court under the Colorado savings statute, C.R.S. § 13-80-111. (Complaint, ¶ 12.) On August 23, 2012, the Colorado Court of Appeals affirmed the dismissal of Archangel’s (by now, through the Trust) claims against Lukoil. (ECF Nos. 61, 63.) On July 1, 2013, the Colorado Supreme Court denied the Trust’s petition for writ of certiorari. (ECF No. 77.) B. THE ACTION BEFORE THIS COURT In the action before this Court, the Trust asserts the following claims: (1) Violation of RICO § 1962(c) (Count I); (2) Violation of RICO § 1962(d) (Count II); (3) Violation of COCCA, C.R.S. § 18-17-104(3) (Count III); (4) Violation of COC-CA, C.R.S. § 18-17-104(4) (Count IV); (5) Fraud and Aiding and Abetting Fraud (Count V); (6) Intentional Interference with Contractual Relations (Count VI); and (7) Unjust Enrichment (Count VII). The Trust alleges subject matter jurisdiction based on diversity (28 U.S.C. § 1332(a)), federal question (28 U.S.C. § 1331), commerce and antitrust (28 U.S.C. § 1337(a)), and actions to prevent and restrain violations of 18 U.S.C. § 1962 (RICO) (18 U.S.C. § 1964(c)). (Complaint, ¶ 7.) The claims are substantially the same as those alleged in the First Amended Complaint before the Colorado state court. (ECF Nos. 29-6, 29-10.) The Trust served Lukoil extraterritorially in Russia under Fed.R.Civ.P. 4(f). (ECF Nos. 8, 9; No. 100, pp. 17,18,102.) III. OVERVIEW: LUKOIL’S MOTION Lukoil moves to dismiss the Trust’s Complaint based on four arguments. First, Lukoil alleges the Complaint should be dismissed because it violates the prohibition against “claim splitting” and under the related Colorado River Doctrine. Next, Lukoil argues it is not subject to specific or general personal jurisdiction in Colorado. Third, Lukoil contends dismissal is appropriate under the doctrine of forum non conveniens. Finally, Lukoil asserts the Trust’s RICO and COCCA claims are subject to dismissal for failure to state a claim and lack of standing. The Court finds it need only address the second and third arguments. IV. RULE 12(B)(2): PERSONAL JURISDICTION A. LEGAL STANDARD — RULE 12(B)(2) The plaintiff bears the burden of establishing personal jurisdiction over the defendant. Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1065 (10th Cir.2007). When personal jurisdiction is challenged under Rule 12(b)(2), absent an evidentiary hearing, the plaintiff need only make a prima facie showing of facts that, if true, support personal jurisdiction over the defendant. Melea, 511 F.3d at 1065; Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir.1999). The court accepts plaintiffs allegations as true if un-controverted by defendant’s evidence, and resolves evidentiary disputes in favor of jurisdiction. Melea, 511 F.3d at 1065. “The plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant. In order to defeat a plaintiffs prima facie showing of jurisdiction, a defendant must present a compelling case demonstrating that the presence of some other considerations would render jurisdiction unreasonable.” Omni Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998) (internal quotation marks omitted). - B. DATE FOR ASSESSING MINIMUM CONTACTS The parties dispute the relevant date for assessing whether Lukoil has sufficient minimum contacts with Colorado, or the United States, as the case may be. Lukoil contends that date should be the date when Archangel originally filed its complaint in the Colorado state court — November 27, 2001. The Trust contends the date should be when its complaint was filed in this Court — January 6, 2012 — and, therefore, Lukoil’s contacts with Colorado and the United States between 2001 and 2012 should also be considered. Under the facts and circumstances of this case, the Court finds the relevant date to be as of November 27, 2001. Generally, in determining personal jurisdiction, the contacts of the defendant with the forum state are to be assessed as of the time suit was filed. See Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569-570 (2nd Cir.1996) (“In general jurisdiction cases district courts should examine a defendant’s contacts with the forum state over a period of time that is reasonable under the circumstances — up to and including the date suit was filed.... ”); Cameron v. Group Voyagers, Inc., 308 F.Supp.2d 1232, 1240 (D.Colo. 2004) (post-suit contacts could not be used as basis for exercising general personal jurisdiction over nonresident defendant in diversity case); Fairbrother v. American Monument Foundation, LLC, 340 F.Supp.2d 1147, 1157 n. 3 (D.Colo.2004) (noting that only prelitigation contacts are relevant to jurisdictional question). In this case, two actions were filed. Archangel filed before the Colorado state court in 2001 and the Trust — as successor-in-interest — filed before this Court in 2012. The Trust’s Complaint, however, was filed pursuant to C.R.S. § 13-80-111, the Colorado savings statute. (Complaint, p. 3, ¶ 12.) Under that statute, if an action commenced in a Colorado court is dismissed because of lack of jurisdiction, the plaintiff may commence a new cause of action “within ninety days after the termination of the original action or within the period otherwise allowed by this article [80], whichever is later....” C.R.S. § 13-80-111(1). The action before this Court is therefore, in effect, the same action that was that filed in 2001 in the Colorado state court. Accordingly, the Court finds that the general rule applies and Lukoil’s contacts with the forum as of November 27, 2001 control. In addition, the Court finds the “curable-defect doctrine” would not apply to allow the Trust to utilize contacts subsequent to the original 2001 filing to support a finding of jurisdiction. Under that doctrine, suit may be brought again where a jurisdictional defect has been cured or loses its controlling force based on changes in circumstances which occur subsequent to the prior litigation. Park Lake Resources Ltd. Liab. Co. v. U.S. Dept. of Ag., 378 F.3d 1132, 1137 (10th Cir.2004); Eaton v. Weaver Mfg. Co., 582 F.2d 1250, 1256 (10th Cir.1978). As these facts are not present in this case, Lukoil’s contacts subsequent to the filing of the 2001 complaint are irrelevant to the jurisdictional analysis. C. PERSONAL JURISDICTION IN DIVERSITY ACTION 1. The Standard In a diversity action, to -obtain personal jurisdiction over a nonresident defendant, two criteria must be met: First, a federal district court may only exercise personal jurisdiction over a defendant who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located- Second, an exercise of personal jurisdiction under state law must comport with the Fourteenth Amendment’s due process clause.... In Colorado, only one inquiry is necessary, as the Colorado long-arm statute confers the maximum jurisdiction permitted by the due process clauses of the United States and Colorado constitutions, and its requirements are necessarily addressed under a due process analysis. Melea, 511 F.3d at 1065 (internal quotation marks, citations and alterations omitted); Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir.2004), cert. denied, 544 U.S. 974, 125 S.Ct. 1826, 161 L.Ed.2d 723 (2005). A two-step analysis is conducted when evaluating personal jurisdiction under the due process clause. At the first step, the Court examines “ ‘whether the non-resident defendant has ‘minimum contacts’ with the forum state such'that he should reasonably anticipate being haled into court there.’” Melea, 511 F.3d at 1065 (quoting TH Agric. & Nutrition, LLC v. Ace European Group, Ltd., 488 F.3d 1282, 1287 (10th Cir.2007)). If the defendant has sufficient contacts, the Court moves on to the second step and asks “whether the court’s exercise of jurisdiction over the defendant offends ‘traditional notions of fair play and substantial justice,’ that is, whether the exercise of jurisdiction is ‘reasonable’ under the circumstances.” Melea, 511 F.3d at 1066 (some internal quotation marks omitted). “The ‘minimum contacts’ test may be met in either of two ways. First, if a defendant has ‘continuous and systematic general business contacts’ with the forum state, it may be subjected to the general jurisdiction of the forum state’s courts.” Melea, 511 F.3d at 1066 (emphasis added). Second, if a defendant “purposefully directed” its activities at the state’s residents, and if the cause of action arises out of those activities, it may be subjected to the specific jurisdiction of the forum state’s courts. Melea, 511 F.3d at 1066; Benton, 375 F.3d at 1076. For specific personal jurisdiction, in the tort context, the court asks whether the nonresident defendant “purposefully directed” its activities at the forum state. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir. 2008). In contract cases, the courts “sometimes ask whether the defendant ‘purposefully availed’ itself of the privilege of conducting activities or consummating a transaction in the forum state.” Id. 2. Specific Jurisdiction Lukoil argues the Colorado state courts have already determined that Archangel did not establish specific jurisdiction over Lukoil so the Trust is precluded from re-litigating all discussions of specific jurisdiction under the doctrine of collateral es-toppel or issue preclusion. Specifically, Lukoil argues that the Colorado state courts already decided that the alleged fraudulent communications into Colorado as part of the Illegal Scheme were insufficient to establish a prima facie case of specific jurisdiction and in Appeal II the Colorado Supreme Court already addressed the “effects test” under Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). In response, the Trust contends the- Colorado court decided specific jurisdiction under Colorado’s long-arm statute and the Fourteenth Amendment,, but did not address whether specific jurisdiction may exist pursuant to RICO and the Fifth Amendment. Upon an examination of the record, the Court agrees the issue of whether Lukoil is subject to specific personal jurisdiction has already been decided, and the Trust is precluded from relitigating the same. “[I]ssue preclusion bars a party from relitigating an issue once it has suffered an adverse determination on the issue, even if the issue arises when the party is pursuing or defending against a different claim.” Park Lake, 378 F.3d at 1136. Generally, issue preclusion applies if four factors are met: “(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” Park Lake, 378 F.3d at 1136. In the case of dismissals for lack 'of jurisdiction, issue preclusion prevents a party from relitigating the issues determined in ruling on the jurisdiction question. Park Lake, 378 F.3d at 1136; Monsantos Commercial Corp. v. Applebee’s Int’l, Inc., 245 F.3d 1203, 1209-1210 (10th Cir.2001). The Court’s review of the record shows the Colorado state courts decided the issue of whether Archangel failed to establish a prima facie case of specific jurisdiction under Colorado’s long-arm statute and the Fourteenth Amendment and, in doing so, considered Archangel’s (and, now the Trust as successor-in-interest) allegations of an illegal scheme and the Calder effects test. (E.g., ECF No. 29-1, Appeal I, pp. 9-12; No. 29-2, Appeal II, pp. 9,10, 13,14; No. 29-8, DDC, pp. 5-7, 10, 16.) The Trust argues these determinations are no barrier to the issue it raises as this Court decides specific jurisdiction related to RICO under the Fifth Amendment, relying on Dudnikov, AST Sports Sci, Inc. v. CLF Distrib. Ltd., 514 F.3d 1054 (10th Cir.2008), and Calder. The problem with the Trust’s argument is that these cases were analyzed under the Fourteenth Amendment, an analysis already conducted by the Colorado state courts in favor of Lukoil. Concomitantly, the Trust has not shown how the Calder test would be applied differently under the Fifth Amendment. Instead, the Trust’s position that the Colorado state courts did not apply the standard for tort based (as opposed to contract based) specific personal jurisdiction is nothing more than an argument that one or more of those courts erred in their analysis of whether such jurisdiction exists. (E.g., ECF No. 100, pp. 48, 153.) An argument made by Archangel and the Trust before the Colorado courts, and considered and rejected by those courts. (See, e.g., ECF No. 29-9, p. 6; No. 63-1, pp. 41, 43.) And, an analysis the Trust is asking this Court to now conduct anew but which it cannot. The issue of whether specific personal jurisdiction exists in Colorado has already been decided under the Calder effects test and otherwise; therefore, the Trust is precluded from relitigating it before this Court. 3. General Jurisdiction The Trust argues that Lukoil is subject to general jurisdiction under agency and alter ego theories, as Lukoil allegedly used DSE to avail itself of the privilege of doing business in Colorado. As with specific personal jurisdiction, Lukoil argues that the Trust’s allegations to support general personal jurisdiction are identical to those asserted by Archangel in Colorado state court and the DDC’s determination precludes the Trust from arguing general jurisdiction premised on the alleged schemes. After examining the record, the Court agrees. The arguments raised by the Trust are the same as those raised before the DDC. And, the issue which the Trust asks this Court to address is the same as that decided by the DDC— whether Lukoil is subject to general personal jurisdiction under agency, alter ego, and illegality theories. (ECF No. 47, pp. 30-33; ECF No. 29-8, pp. 6-13.) Accordingly, the Trust is barred from relitigating the issue of whether Lukoil is subject to general personal jurisdiction in Colorado. Lukoil is not and, accordingly, the Trust may not rely on the exercise of personal jurisdiction on this basis. D. PERSONAL JURISDICTION BASED ON FEDERAL LAW 1. Jurisdiction Based on RICO In an action based on a federal question, “[i]n determining whether a federal court has personal jurisdiction over a defendant, the court must determine (1) whether the applicable statute potentially confers jurisdiction by authorizing service of process on the defendant and (2) whether the exercise of jurisdiction comports with due process.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir.2006); Peay v. BellSouth Med. Assist. Plan, 205 F.3d 1206, 1209 (10th Cir.2000). Thus, pursuant to Rule 4(k)(l)(C), “[s]erving a summons or filing of a waiver of service establishes personal jurisdiction over a defendant ... when authorized by a federal statute.” “While service of process and personal jurisdiction both must be satisfied before a suit can proceed, they are [nonetheless] distinct concepts that require separate inquiries.” Peay, 205 F.3d at 1209. “ ‘When a federal statute provides for nationwide service of process, it becomes the statutory basis for personal jurisdiction.’ ” Peay, 205 F.3d at 1210 (quoting Republic of Panama v. BCCI Holdings (Luxemborg) S.A., 119 F.3d 935, 942 (11th Cir.1997)). “[P]ro-vided that due process is satisfied, [such statute] confers jurisdiction over defendants by authorizing service of process on them.” Peay, 205 F.3d at 1210; Cory v. Aztec Steel Bldg., Inc., 468 F.3d 1226, 1229 (10th Cir.2006), cert. denied, 550 U.S. 918, 127 S.Ct. 2134, 167 L.Ed.2d 864 (2007). In this case, 18 U.S.C. § 1965(b) gives RICO nationwide jurisdictional reach. Aztec Steel Bldg., 468 F.3d at 1229. Lukoil contends RICO does not confer jurisdiction because it does not authorize worldwide service of process. The Court agrees. The Trust’s argument that the application of RICO and the Fifth Amendment confers specific personal jurisdiction in Colorado pursuant to the Colder effects test was previously addressed and rejected. To the extent the Trust’s argument is also based on the proposition that jurisdiction exists under RICO’s authorization for service of process, that argument is also rejected. In- this case, Lukoil was served in Russia, and there is no contention that RICO authorizes worldwide service of process. 2. Jurisdiction under Fed.R.Civ.P. 4(k)(2) Pursuant to Rule 4(k)(2), “[fjor a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if: (A) the defendant is not subject to jurisdiction in any state’s courts of gen-' eral jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws.” This Rule “serves as a federal long-arm statute, which allows a district court to exercise personal jurisdiction over a foreign defendant whose contacts with the United States, but not with the forum state, satisfy due process.” Synthes (U.S.A.) v. CM. Dos Reis Jr. Ind. Com De Equip. Medico, 563 F.3d 1285, 1296 (Fed.Cir.2009). The parties agree that three conditions must be satisfied in order for this Rule to apply, but dispute who bears the burden and whether such conditions are met. a) Claim under Federal Law Lukoil argues the Trust fails to state a claim for RICO so'there is no claim which arises under federal law on which personal jurisdiction under Rule 4(k)(2) can be based. Personal jurisdiction, however, “is an essential element of the jurisdiction’of a district court, without which the court is powerless to proceed to an adjudication” of a case. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (internal quotation marks and alterations omitted); Arocho v. Lappin, 461 Fed.Appx. 714, 719 (10th Cir.2012). Once a court determines it lacks jurisdiction over a claim, it lacks jurisdiction to make any determination of the merits of the underlying claim. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1217 (10th Cir.2006) (discussing dismissal for lack of subject matter jurisdiction). Lukoil contends the Court may first determine whether a plaintiff successfully asserts a RICO claim before considering personal jurisdiction, relying on Shell v. Am. Family Rights Ass’n, No. 09-cv-00309, 2010 WL 1348548, at *12 (D.Colo. Mar. 31, 2010), and the Trust did not argue otherwise. Shell, however, never analyzed whether or when it would be permissible for the court to decide whether a RICO claim was stated before turning to the issue of personal jurisdiction based on RICO. The Court finds that to decide a Rule 12(b)(2) based on an analysis under Rule 12(b)(6) would essentially conflate two different analysis. Instead, the Court agrees with the analysis conducted by the Eleventh Circuit in Republic of Panama: When a jurisdictional motion tó dismiss depends ... on the assertion of a right created by a federal statute, the court should dismiss for lack of jurisdiction only if the right claimed is so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise devoid of merit as not to involve a federal controversy. Republic of Panama, 119 F.3d at 941 (internal quotation marks omitted). This analysis is identical to that used by the Tenth Circuit in determining whether a proceeding fails 'to present a colorable claim arising'under federal law sufficient to invoke a court’s subject matter jurisdiction based on federal question. McKenzie v. U.S. Citizenship & Immigration Servs., 761 F.3d 1149, 1156-1157 (10th Cir.2014). Accordingly, the Court finds that a determination of the merits of the Trust’s claim is inappropriate before determining whether this Court has jurisdiction to decide the claim. In this case, facially, the Trust has arguably pleaded a colorable RICO claim as to Lukoil’s alleged engagement in the Illegal Scheme, see Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir.2002) (identifying four elements of a RICO claim), and the parties have not argued otherwise. On the other hand, the Trust has not done so as to the other schemes alleged as it lacks standing to bring claims based on schemes from which it admittedly suffered no injury (Complaint, ¶¶ 134, 138; ECF No. 100, p. 118). See Holmes v. Securities Investor Prot. Corp., 503 U.S. 258, 276, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (“We hold that, because the alleged [conduct] did not proximately cause the injury claimed, [plaintiffs] allegations and the record before us fail to make out a right to sue. ...Tal v. Hogan, 453 F.3d 1244, 1254 (10th Cir.2006), certy. denied, 549 U.S. 1209, 127 S.Ct. 1334, 167 L.Ed.2d 81 (2007) (“[Standing for private individuals under RICO requires a plaintiff to have been injured in his business or property by the conduct constituting the violation.”) (internal quotation marks omitted). Nonetheless, based on the alleged Illegal Scheme, the first condition is satisfied for jurisdictional purposes. b) Not Subject to Jurisdiction in Any Other State’s Court of General Jurisdiction Lukoil argues the burden is on the Trust to establish that Lukoil is not subject to a court of general jurisdiction anywhere in the United States, and the Trust cannot meet its burden when: (1) it asserts that Colorado’s long-arm statute confers jurisdiction; and (2) it asserts Lukoil has contacts through its agents or alter egos. In response, the Trust argues that Lukoil has already stated it is not subject to personal jurisdiction in any state, and such admission is sufficient. In deciding this issue, the Court must first resolve who bears the burden of showing a lack of personal jurisdiction over a defendant in any state — the “negation requirement.” Synthes, 563 F.3d at 1294. Neither party has directed the Court to any case from the Supreme Court or Tenth Circuit on this issue, and the Court’s independent investigation revealed none. In Pandaw America, Inc. v. Pandaw Cruises India Pvt. Ltd., 842 F.Supp.2d 1303 (D.Colo.2012), however, the Honorable William J. Martinez from this district adopted the rationale from the Seventh Circuit in ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548 (7th Cir.2001). After a review of cases from other Circuits and the different methods for determining whether the negation requirement is met, see, e.g., Synthes, 563 F.3d at 1294-1295 (describing various approaches taken by different circuits), the Court agrees with the approach taken by the Seventh and some other Circuits, and by Judge Martinez. Normally, the plaintiff bears the burden of proving personal jurisdiction over the defendant. E.g., Dudnikov, 514 F.3d at 1069. Here, if the Court were to follow the “normal” route for the negation requirement, the plaintiff would have to prove the defendant is not subject to personal jurisdiction in any of the 50 states. This burden could be onerous as it is generally the defendant who possesses .this information. This burden could also present practical difficulties for the plaintiff who pleads in the alternative that the defendant is subject to suit under a state’s long-arm statute. Synthes, 563 F.3d at 1294. The record in this case shows such are the circumstances here. On the other hand, shifting the burden to the defendant “requires that the defendant concede its potential amenability to suit in federal court (by denying its amenability to suit in any state court) or submitting to jurisdiction in a particular state, an uninviting choice.” Touchcom, Inc. v. Bereskin & Parr, 574 F.3d 1403, 1413 (Fed.Cir.2009). Nonetheless, Rule 4(k)(2) was added to close a loophole which existed prior to the 1993 amendments to the Federal Rules of Civil Procedure. Specifically, This paragraph corrects a gap in the enforcement of federal law. Under the former rule, a problem was presented when the defendant was a non-resident of the United States having contacts with the United States sufficient to justify the application of United States law and to satisfy federal standards of forum selection, but having insufficient contact with any single state to support jurisdiction under state long-arm legislation or meet the requirements of the Fourteenth Amendment limitation on state court territorial jurisdiction. In such cases, the defendant was shielded from the enforcement of federal law by the fortuity of a favorable limitation on the power of state courts,.... Advisory Committee Notes on Fed.R.Civ.P. 4(k)(2), 146 F.R.D. 401, 571 (1993). These comments are entitled to weight in consideration of the application of the Rule. See generally Schiavone v. Fortune, 477 U.S. 21, 31, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) (“[T]he construction given by the [Advisory] Committee is ‘of weight.’ ”) (quoting Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444, 66 S.Ct. 242, 90 L.Ed. 185 (1946)); Esposito v. United States, 368 F.3d 1271, 1275 (10th Cir.2004) (“Courts have ... looked to the Advisory Committee Notes accompanying the Rule [17(a) ] to provide parameters for its application.”). Accordingly, the Court finds that: [a] defendant who wants to preclude use of Rule 4(k)(2) has only to name some other state in which the suit could proceed. Naming a more appropriate state would amount to a consent to personal jurisdiction there (personal jurisdiction, unlike federal subject-matter jurisdiction, is waivable). If, however, the defendant contends that he cannot be sued in the forum state and refuses to identify any other where suit is possible, then the federal court is entitled to use Rule 4(k)(2).... This'procedure makes it unnecessary to traipse through the 50 states, asking whether each could entertain the suit. ISI Int’l, 256 F.3d at 552. In this case, Lukoil “maintains ... now, and it maintained in 2001, that it is not subject to jurisdiction anywhere in the United States.” (ECF No. 100, pp. 30-31; see No. 101, p. 2 (“Lukoil is not ‘essentially at home’ in Colorado or anywhere else in the United States to render it ‘comparable to a domestic enterprise.’ ”) (emphasis in original).) Under the approach adopted in ISI Int’l, shifting of the burden to Lukoil shows the second requirement under Rule 4(k)(2) is met. Lukoil’s concession, however, can also be viewed as evidence that the Trust has met its burden, if the burden was its to bear. In this case, before the Court made any determination as to who bears the burden of showing Rule 4(k)(2) has been satisfied, Lukoil admitted it was not subject to any state’s court of general jurisdiction. Whether such an admission is an evidentiary or a judicial one, it obviated the Trust’s need to conduct discovery or litigate in 50 states to establish a fact at issue. Such admission in this context is no different from any other party opponent admission-it alleviates the party who bears the burden of proof from having to establish the fact so admitted. A party-opponent's admission operates as "a kind of estoppel or waiver theory"-"that a party should be entitled to rely on his opponent's statements." Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 667 (10th Cir.2006) (discussing admissibility of party-opponent admissions) (internal quotation marks omitted). And, "[jiudicial admissions are formal admissions which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact." Grynberg v. Bar S Servs., Inc., 527 Fed.Appx. 736, 739 (10th Cir.2013) (internal alteration and quotation marks omitted). Accordingly, the Court finds the second requirement is satisfied, regardless of who bears the burden. c) Consistent with the Constitution&emdash; The Due Process Clause of the Fifth Amendment. Lukoil contends that the Colorado state courts’ determination that it would be unconstitutionally burdensome for Lukoil to defend here bars the Trust from relitigat-ing that issue before this Court. Lukoil argues that under Peay, for purposes of jurisdictional analysis, there is no difference between due process under the Fifth Amendment and due process under the Fourteenth Amendment. If it is unconstitutional under the Fourteenth Amendment, then it is also unconstitutional under the Fifth Amendment, so states’ Lukoil. The Court finds otherwise. First, as recognized by the Advi-. sory Committee: There remain constitutional’ limitations on the- exercise of territorial jurisdiction by federal courts over persons outside the United States. These restrictions arise from the Fifth Amendment rather than from the Fourteenth Amendment, which limits state-court reach and which was incorporated into federal practice by the reference to state law in the text of the former subdivision (e) that is deleted by this revision. The Fifth Amendment requires that any defendant have affiliating contacts with the United States sufficient to justify the exercise of personal jurisdiction over that party. There also may be a further Fifth Amendment constraint in that a plaintiffs forum selection might be so inconvenient to a defendant that it would be a denial of “fair play and substantial justice” required by the due process clause, even though the defendant had significant affiliating contacts with the United States. Advisory Committee Notes, 146 F.R.D. at 571-572 (internal citation omitted) (emphasis added). Thus, under Rule 4(k)(2), the Court must consider national contacts with the United States, rather than contacts with the forum state. Pandaw, 842 F.Supp.2d at 1311; see Republic of Panama, 119 F.3d at 945 n. 16 (relevant forum under the Fifth Amendment is the United States). And, under the national contacts test, a district court may constitutionally exercise jurisdiction over a defendant as long as it has minimum contacts with the United States as a whole, “regardless of a defendant’s contacts with the forum [state] or the burden on the defendant of litigating in that forum.” Peay, 205 F.3d at 1211. Under this part of the analysis, there is no requirement that there be any contacts at all with the forum state, “even though it is a relevant factor to consider.” Touchtone Group, LLC v. Rink, 913 F.Supp.2d 1063, 1072 (D.Colo.2012). Next, Peay does not sweep as broadly as Lukoil contends. While Peay recognized that the Due Process Clauses of the Fourteenth and Fifth Amendments “are virtually identical” and designed to “protect individual liberties from the same types of government infringement,” Peay, 205 F.3d at 1212, the factors which the Tenth Circuit outlined in determining whether the defendant has demonstrated that its liberty interests have been infringed under the Fifth Amendment are not the same factors used in determining whether those interests are infringed under the Fourteenth Amendment. Cf. Peay, 205 F.3d at 1212 (outlining five factors for consideration under the Fifth Amendment in determining jurisdiction over a domestic corporation) with, e.g., Dudnikov, 514 F.3d at 1080 (outlining factors under the Fourteenth Amendment). Moreover, even if a defendant establishes constitutional “inconvenience,” jurisdiction will still comport with due process “if the federal interest in litigating the dispute in the chosen forum outweighs the burden imposed on the defendant.” Peay, 205 F.3d at 1213. ' Third, under Lukoil’s theory that the Due Process Clauses under the Fifth and Fourteenth Amendment are identical, if a defendant is not subject to personal jurisdiction under a state’s long-arm statute as violative of the Due Process Clause under the Fourteenth Amendment, that defendant .would necessarily also not be subject to jurisdiction under Rule 4(k)(2). Such a result would effectively render Rule 4(k)(2) moot in Colorado. Accordingly, the Court must conduct its own analysis to determine whether the exercise of personal jurisdiction comports with the Due Process Clause of the Fifth Amendment. Before it reaches the Peay factors, the Court must consider the “minimum contacts” analysis to be conducted under general or specific jurisdiction. The Trust argues that a specific jurisdiction analysis is required (ECF No. 100, p. 11), but contends a “less rigorous” general jurisdiction analysis is sufficient in one response (ECF No. 47, p. 24), and then argues specific and general jurisdiction in a supplemental response (ECF No. 102). Lukoil, on the other hand, argues that it is not subject to specific jurisdiction and, therefore, the Trust must satisfy the test for general jurisdiction (ECF No. 29, p. 20). At the time Lukoil made that argument, however, the Colorado Court of Appeals had not yet issued its decision finding Lukoil was not subject to general jurisdiction. Therefore, the Court assumes that Lukoil’s current position as to general jurisdiction is the same as that for specific jurisdiction, ie., that the issues have already been decided by the Colorado courts and cannot be relitigated. That position, however, is rejected for reasons previously discussed, e.g., while the Fourteenth and Fifth Amendments may be “nearly identical,” they are not identical; the Colorado state courts analyzed Lukoil’s contacts with Colorado as the relevant “forum” but under Rule 4(k)(2), while Lukoil’s contacts with Colorado may be relevant in assessing whether the exercise of personal jurisdiction would be “reasonable,” it is Lukoil’s contacts with the United States which is the relevant forum for assessing minimum contacts. On this record, the Court will conduct an analysis under general arid specific jurisdiction. (1) Minimum Contacts— General Jurisdiction Lukoil argues the traditional “continuous and systematic general business contacts” test applies, and that it is not “at home” in Colorado or anywhere else in the United States. The Trust asserts a lesser standard is required, apparently relying on Synthes ’ reference to the Advisory Committee’s comment that “[t]he Fifth Amendment ... requires that any defendant have affiliating contacts with the United States.” Synthes, 563 F.3d at 1295 (emphasis added). Nonetheless, the Trust contends Lukoil’s contacts satisfy the “continuous and systematic” standard. To satisfy this standard, a defendant’s “affiliations” with the forum must be “ ‘so ‘continuous and systematic’ as to render it essentially at home in the forum State.’ ” Daimler AG v. Bauman, — U.S. -, 134 S.Ct. 746, 761, 187 L.Ed.2d 624 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, — U.S. -, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011)) (internal brackets omitted). The Tenth Circuit has established several factors to consider in deciding whether general jurisdiction has been established against a non-resident corporate defendant, including: “(1) whether the corporation solicits business in the state through a local office or agents; (2) whether the corporation sends agents into the state on a regular basis to solicit business; (3) the extent to which the corporation holds itself out as doing business in the forum state, through advertisements, listings or bank accounts; and (4) the volume of business conducted in the state by the corporation.” Grynberg v. Ivanhoe Energy, Inc., 490 Fed.Appx. 86, 95 (10th Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 941, 184 L.Ed.2d 726 (2013) (quoting Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 457 (10th Cir.1996)); Doering, 259 F.3d at 1210. In this case, the Trust relies on allegations of the contacts of Lukoil, and its alleged alter egos and agents, to show that sufficient national contacts exist. An examination of each contact, singly and in the aggregate, shows they are insufficient to establish that Lukoil’s affiliations with the United States as of November 27, 2001 were so “continuous and systematic” as to render it “at home” in the United States. The Level-1 American Depository Receipts (“ADR-ls”): The Trust argues that Lukoil established an ADR program to gain access to U.S. capital markets and contacts related to such program are sufficient to establish a prima facie case of jurisdiction. While the Court finds that Lukoil’s contacts with respect to the sponsorship of ADR-ls may properly be considered to show “continuous and systematic” general business contacts, they are not, by themselves, sufficient to establish general personal jurisdiction. ADRs are “negotiable instruments] issued by an American bank as a substitute for stock shares in a foreign-based corporation.” Black’s Law Dictionary 101 (10th ed.2014). They are “the most common method by which foreign companies secure American shareholders.” Id.; see Pinker v. Roche Holdings Ltd., 292 F.3d 361, 367 (3rd Cir.2002) (ADRs are “one of the preferred methods for trading foreign securities in the United States.”). • “ADRs are tradeable in the same manner as any registered American security, may be listed on any of the major exchanges in the United States or traded over the counter, and are subject to the Securities Act and the Exchange Act.” Pinker, 292 F.3d at 367. “ADRs may be either sponsored or unsponsored. An unsponsored ADR is established with little or no involvement of the issuer of the underlying security. A sponsored ADR, in contrast, is established with the active participation of the issuer of the underlying security. [That issuer] enters into an agreement with the depositary bank and the ADR • owners. The agreement establishes the terms of the ADRs and the rights and obligations of the parties, such as the ADR holders’ voting rights.” Pinker, 292 F.3d at 367 (internal citations omitted). There are a few jurisdictions which have considered when ADRs may support the exercise of personal jurisdiction over a foreign defendant. The Trust relies on Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir.2000), cert. denied, 532 U.S. 941, 121 S.Ct. 1402, 149 L.Ed.2d 345 (2001), while Lukoil relies on Pieczenik v. Cambridge Antibody Tech. Grp., 2004 WL 527045 (S.D.N.Y. Mar. 16, 2004), a case which relies on the general proposition cited in Wiwa. In Wiwa, the Second Circuit stated: We agree that the prevailing caselaw accords foreign corporations substantial latitude to list their securities on New York-based stock exchanges and to take the steps necessary to facilitate those listings (such as making SEC filings and designating a depository .for their shares) without thereby subjecting themselves to New York jurisdiction for unrelated occurrences.... [However,] it is not that activities necessary to maintain a stock exchange listing do not count, but rather that, without more, they are insufficient to confer jurisdiction. Wiwa, 226 F.3d at 97. The court went on to find sufficient contacts to establish general jurisdiction because the defendants: (1) had an investor relations office which conducted a “broader range of activities” than those “merely incidental to the stock exchange listing,” i.e., those which resulted “from legal or logistical requirements incumbent upon corporations that list their shares on the New York Stock Exchange”; and (2) had a “substantial ‘physical corporate presence’ ” in New York which promoted the defendants’ interests. Wiwa, 226 F.3d at 97-98. In this case, Lukoil issued sponsored ADR-ls in the United States, first in 1995 and then again in 1997. (E.g., ECF No. 29-16, p. 3, ¶ 4;- No. 47-19, p. 1; No. 47-20, p. 1.) Lukoil also engaged in activities that are necessary to facilitate those listings. (E.g., ECF No. 47-27.) One 2006 paper regarding .“Capital Day” — a day for Lukoil’s management to present its “capital program” and “policy on investor relations” — contains a reference that it is Lukoil’s “regular tradition” to present its annual report in New York and, impliedly, that it has done so for the last 10 years. (ECF No. 47-63, p. 1.) However, as of November 27, 2001, Lukoil had not done much more. The Trust relies on the maintenance of an investor relations person, but states that was from 2003 for-, ward. The Trust also relies on assertions that Lukoil sent “CEO Alekperov” and “Officer Fedun” to the United States from .the mid-1990s forward, but a review of the referenced exhibits do not support such assertion. Similarly, the Court was also unable to find support in the referenced materials for the Trust’s contention that Lukoil hosted “Investors Day” and road shows in the United States since “apparently the mid 1990’s.” Therefore, while Lukoil’s sponsorship of ADR-ls is of jurisdictional significance, it is, by itself, insufficient to confer general jurisdiction. The U.S. Real Estate In 1998, Lukoil issued a press release that it opened an office in New York. (ECF No. 47-20, p. 1.) The Trust argues that this announcement, coupled with the maintenance of an office “technically owned” by Lukoil Pan Americas LLC (“Pan Americas”), shows the continuous operation of an office sufficient to establish jurisdiction. The Court finds otherwise. First, Pan America’s lease was signed in 2009, after the relevant time period. (ECF No. 47-40.) Next, Lukoil has not sufficiently shown, by allegations or otherwise, Pan America’s lease of an office in 2009 constitutes a continuous operation of an office by Lukoil in New York from 1998 forward. Nonetheless, the Court agrees that Lukoil’s announcement that it opened an office in New York in 1998 is a relevant factor to assess whether Lukoil’s affiliations with the United States are so “continuous and systematic” to render it essentially “at home.” The U.S. Gas Station Network The Trust argues that Lukoil’s business presence in the U.S. is shown by its acts in promoting gas stations as its own, and using such gas stations to “provide synergy for exporting and distributing petroleum products to the U.S. from Lukoil’s production facilities.” (ECF No. 47, p. 28.) Lukoil argues the Trust inaccurately imputes numerous alleged actions of Lukoil subsidiaries to Lukoil without correctly identifying the relevant entity at issue. The Court agrees. “ ‘A holding or parent company has a separate corporate existence and is treated separately from the subsidiary in the absence of circumstances justifying disregard of the corporate entity.’ ” Benton, 375 F.3d at 1081 (quoting Quarles v. Fuqua Indus., Inc., 504 F.2d 1358, 1362 (10th Cir.1974)) (internal brackets omitted). In this case, a review of the papers shows Lukoil acquired Getty Petroleum Marketing Inc. (U.S.) in 2000 and it is Getty which sells petroleum products through Getty’s gasoline filing stations. (E.g., ECF No. 47-6, pp. 2, 4, 6, 7; No. 47-21, p. 1.) The Trust cites to general case law regarding agents and alter egos but has not shown — by nonconclusory allegations or otherwise — that Getty was the agent or alter ego of Lukoil such that Getty’s contacts can be attributed to Lukoil for the purposes of personal jurisdiction. Lukoil’s press release did indicate that “[i]n the future, [it] may seek to supply the Getty stations with our own [Lukoil] petroleum products,” but, as previously discussed, Lukoil’s contacts after November 27, 2001 cannot be used to support the-exercise of personal jurisdiction. Similarly, to the extent the Trust is relying on Lukoil’s activities in acquiring other gas stations in the United States, such as those • from ConocoPhillips, those activities also occurred after November 27, 2001. (ECF No. 47-23.) The U.S. Trademarks and Marketing The Trust argues that Lukoil’s property interest in its U.S. trademarks and its open and notorious use of such trademarks in its U.S. marketing campaigns are long standing ones which establish a prima fa-cie case of personal jurisdiction. Lukoil did not address the impact, if any, of such interest. The Court’s examination of the evidence shows that all but three of such interests were applied for after 2001, and the use of such trademarks upon which the Trust relies occurred after 2001. (ECF No. 47-47.) As such, the majority of the evidence concerning trademarks and their use may not be used to support the exercise of personal jurisdiction. Instead, the issue is whether the three trademark applications are sufficient to establish “continuous and systematic” contacts in the United States. On this record, where there is no allegation of the use of the trademark during the relevant time period, the Court finds it is not. See Decon Labs., Inc. v. Decon Labs. Ltd., 703 F.Supp.2d 481, 485 (E.D.Pa.2009) (Where defendant used its trademark in the U.S., “[t]he existence of the [defendant’s] trademark registered in the United States is certainly indicative of its continued presence in this country.”); General Motors Corp. v. Ignacio Lopez De Arriortua, 948 F.Supp. 656, 666 n. 9 (E.D.Mich.1996) (plaintiff could not rely on foreign defendant’s registration of trademarks in the U.S. and the filing of suits in the U.S. to protect its trademarks to subject such defendant to personal jurisdiction). Nonetheless, the Court finds that Lukoil’s three trademark applications are a factor which may be considered in determining the sufficiency of its nationwide contacts in the United States. The U.S. Credit Card Program The Trust also relies on Lukoil’s issuance of credit cards but has not argued or shown that such activities occurred on or before November 27, 2001. The Trust’s supporting documents show no date, a copyright date of 2012, or a print date of January 7, 2010. (ECF No. 47-46; No. 47-61, p. 3; No. 47-62, p. 6.) Indeed, as such documents also reflect “Getty,” these cards could not have existed until sometime after Lukoil acquired Getty in 2000. (ECF No. 47-6, p. 2.) The U.S. Export-Import Bank Business Here, the Trust relies on Lukoil’s agreement with the ExporL-Import Bank of the United States (“Ex-Im Bank”) and Com-merzbank AG (New York branch) to provide Lukoil with millions of dollar in financing, guaranteed by Ex-Im Bank. (ECF No. 47-22.) Again, the Trust’s reliance is misplaced as the papers reflect the agreement was entered into September 2002, almost a year after the date in which Lukoil’s contacts may be considered for purposes of the exercise of personal jurisdiction. The argument that Lukoil must have exchanged correspondence or had other contacts in the United States leading up to the consummation of this one agreement is immaterial to the analysis. Similarly, Lukoil’s use of such loan proceeds thereafter — even if in the United States — ■ is also irrelevant. The U.S.Based Global Trading Business Finally, Pan Americas’ office in New York and its supply of Lukoil products to the U.S. markets also do not support the exercise of personal jurisdiction over Lu-koil. First, the Trust’s conclusory statement that Pan Americas is Lukoil’s agent, without more, is insufficient to attribute Pan Americas’ contacts to support the exercise jurisdiction over Lukoil. Next, the documents reflect that Pan Americas is affiliated with Lukoil, through which Lu-koil supplies its petroleum products to the United States. (ECF No. 47-25; No.