holding that district court erred in allowing plaintiff to depose Greek officials, in order to resolve whether that court had subject matter jurisdiction under the FSIA commercial activity exception, when the court could have first considered whether the case could survive a motion to dismiss on grounds of forum non conveniens
How later courts described this case
- holding that district court erred in allowing plaintiff to depose Greek officials, in order to resolve whether that court had subject matter jurisdiction under the FSIA commercial activity exception, when the court could have first considered whether the case could survive a motion to dismiss on grounds of forum non conveniens
- rejecting “recruitment efforts in the U.S. as a basis for jurisdiction over a contract for employment abroad” and holding that “acts that are not themselves commercial transactions, but that are merely precursors to commercial transactions” do not give rise to jurisdiction
- stating that dismissing on nonmerits grounds such as personal jurisdiction or forum non conveniens, before deciding subject-matter jurisdiction, is permissible under Steel Co.
- stating that “our cases do not foreclose the possibility that some degree of solicitation in the U.S. might satisfy the ‘substantial contact’ requirement”
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Dominguez-Cota v. Cooper Tire & Rubber, et
See, e.g., In re Papandreou, 139 F.3d 247, 263 (D.C. Cir. 1998) (“We have never decided precisely what ‘substantial contact’ amounts to in the FSIA context, though we have said that it requires more than the minimum contacts sufficient to satisfy due process in establishing personal jurisdiction.”), superseded by statute on other grounds as recognized in Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82…
The opinion
KAREN LeCRAFT HENDERSON, Circuit Judge,
concurring:
I concur in the majority opinion except for its suggestion that discovery could reveal facts entitling the appellants to invoke the first commercial activity exception in 28 U.S.C. §1606 (a)(2).
In Janini v. Kuwait University, 43 F.3d 1534 (D.C.Cir.1995), we held, construing Saudi Arabia v. Nelson, 507 U.S. 349 , 113 S.Ct. 1471 , 123 L.Ed.2d 47 (1993), that an action for breach of an employment contract, where the breach was caused by a decree of the Kuwaiti Council of Ministers that automatically terminated all contracts between the government and non-Kuwaiti citizens, was “based upon the termination of the employment contracts and not... upon any pre-employment negotiations or recruitment conducted in this country.” 43 F.3d at 1536 . I believe ■ Janini compels the conclusion that the breach of contract action here is based upon the casino license revocation (which is not alleged to have occurred anywhere but in Greece — plainly not in the United States) and not on any pre-contractual solicitation in this country. Nor do I believe that the license revocation on which the lawsuit is based can have a ‘substantial contact with the United States,' as the majority supposes, based on the pre-contractual solicitation activities, which the majority acknowledges can neither form the basis for the transaction, Maj. Op. at 253 n.4, nor even be characterized as “ ‘commercial transactions,’ ” id. at 253 (quoting Zedan v. Kingdom of Saudi Arabia, 849 F.2d 1511, 1513 (D.C.Cir.1988)). While it is true that “[w]e have never decided precisely what ‘substantial contact’ amounts to in the FSIA context,” Maj. Op. at 253, I cannot imagine we would ever find it attaches to a contractual breach simply by virtue of pre-contractual solicitation.
Although I do not believe the appellants can adduce facts to support the first section 1605(a)(2) commercial activity exception, they may be able to do so for the third exception, which the majority found it unnecessary to consider. See Maj. Op. at 253 n.4. If discovery reveals that the Greek government knew its revocation would cause losses to investors in this country, then the revocation may constitute “an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere” that “causes a direct effect in the United States,” triggering the third exception. See Callejo v. Bancomer, S.A., 764 F.2d 1101, 1112 (5th Cir.1985) (action against Mexican *257 bank for breach of obligations under certificates of deposit issued to American investors comes within third exception where bank “engaged in a regular course of business conduct” with investors “over a several-year period,” having “called them in the United States, mailed the certificates to them there, and remitted payments through an American correspondent bank”); cf. Republic of Argentina v. Weltover, Inc., 504 U.S. 607 , 112 S.Ct. 2160 , 119 L.Ed.2d 394 (1992) (Argentina’s rescheduling of payment dates for bonds caused direct effect in United States within third exception where bond payees had designated their accounts in New York as the place of payment, and Argentina made some interest payments into those accounts before announcing that it was rescheduling the payments”).