# Appendix — Arango v. Compania Dominicana de Aviacion > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0800%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1985 - **Citation:** 474 U.S. 995 ## Text (9) Supreme Court, U.S, 85-5 23% | FILED AUG 19 1985 NO. JOSEPH F. SPANIOL, JR. CLERK SUPREME COURT OF THE UNITED STATES | OCTOBER TERM, 1984 | | RAMIRO ARANGO, Petitioner Ve COMPANIA DOMINICANA, de AVIACION, Respondent UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT SUPPLEMENTAL APPENDIX TO PETITION FOR A WRIT OF CERTIORARI ON WRIT OF CERTIORARI TO THE MIGUEL SAN PEDRO, ESQ. Attorney for Petitioner 154 Gireld- Avenue Coral Gables, Florica 33134 Telephone: 305-448-4728 INDEX Opinion of the U.S. Circuit Court for the Fifth Circuit in the case subjudice, dated on 7-25-1980 Opinion of the U.S. Circuit Court for the Eleventh Circuit in the case subjudice, dated on 6-4-1985 — 2 - 57-110 eee Aen samo. Ramiro ARANGO and Gabriella Arango, Individually, etc., et al., Plaintiffs- Appellants, Vv. GUZMAN TRAVEL ADVISORS CORPORATION, etc., et al., Defendants-Appellees. No. 79-1280. United States Court of Appeals, Fifth Circuit. July 25, 1980. Based on nonperformance of vacation tour contract and the injuries and in- conveniences suffered in “involuntary re- routing" from Dominican Republic vacation site, plaintiffs brought suit in state court against four defendants, all al- leged to have collaborated in the mar- keting and formation of the package tour so as to create a joint venture for pur- poses of the action arising therefrom. One defendant, the national airline of we _ the Dominican Republic, removed the claims to federal district court. On ap- peal from an order of the United States District Court for the Southern District of Florida, at Miami, James Lawrence King, J., dismissing suit against the airlime, the Court of Appeals, Reavley, Circuit Judge, held, inter alia, that the removal statute, when invoked by a "foreign state" defendant, operates to re- move the entire action pending in state court against all defendants, private and domestic, as well as the foreign sover- eign; accordingly, in the instant case, when the national airline of the Domini- can Republic removed plaintiffs’ claims against it to federal court, it carried with it the remaining parties in the state proceeding; thus, the order of dis- 3 siemeaienemnemiendieeeteieen dette th tarees Cee ee missal as to the airline did not adjudi- cate the rights and liabilities of all parties and was not an appealable final judgment. Appeal dismissed and cause remanded. 1. Federal Courts --542 Though neither party raised the is- sue of appealability, it is axiomatic that the Court of Appeals may, indeed must, undertake such a jurisdictional inquiry sua sponte. 28 U.S.C.A. $ 1291. 2. Federal Courts --599,660 Ordinarily, an order, however desic- nated that adjudicates the rights and liabilities of fewer than all parties is not final or appealable unless the dis- trict court "certifies" appealability by making an express determination that there is no just reason for delay and 4 then explicitly directs the entry of judgment on the order; this principle applies even to dismissals based on jurisdictional or immunity grounds not pertinent to the rights and liabilities of the remaining parties. 28 U.S.C.A. $ 1291; Fed.Rules Civ.Proc. Rule 54(b), 28 U.S.C.A. 3. Federal Courts --600 Removal of Cases --58 Removal statute, when invoked by a "foreign state” defendant, operates to remove the entire action pending in state court against all defendants, private and domestic, as well as the foreign sover- eign; accordingly, in the instant case, when national airline of the Dominican Republic removed plaintiffs' claims a- gainst it to federal court, it carried 5 ; r ‘ aS fue Die , vist o.4” , 7 a ey aS v2 : a “a , , % rode 1.» Se - 7 “ = i} - : cola Pap ei Ao SE cle ibed Scan Sa 8s 8 sine fy Si ee a err A = 5 > s Z et eee ia » an © . ‘ i = ¥ - cot ¥ ; 7 ; > aeuy 10. Lat ty eae oe a ro aw : £4 ' ee ; ou ‘ rat J eat Ge 2 ee Vere Dees ; Si? \82 SERRee ereeoe ; ; pau . A ~ "4 P ag , Oe, cee ee > i a ry ra % Ag? ee ED ph Ps | Les : en es yD Co rn 7 oi Jae 23 ce ro oF : ak rae : ae = ee ANG. eon, af aes ios oe oo We Bs hope ee with it the remaining parties in the state proceeding; thus, the order of dis- ' missal as to the airline did not adjudi- cate the rights and liabilities of all parties and was not an appealable final judgment. 28 U.S.C.A. 88 1291, 1441(d); Fed.Rules Civ.Proc. Rule 54(b), 28 U.S.C. A. 4. International Law -- 10.33 While defendant national airline, wholly owned by the Dominican Government, undisputably was a "foreign state" as de- fined for purposes of the For2ign Sover- eign Immunities Act, it failed to demons- trate, with respect to the entirety of plaintiffs' action against it, that the claims did not lie within any exception specified in the Act; although the air- line's actions in: connection with the 6 "inveluntary re-routing" of the vacation our plaintiffs were not commercial and ithus did not come within exception to the lanket grant of immunity, the same could gnot be said of plaintiffs' claims for breach of warranty and contract based on the miscarriage and nonperformance of the jtour and apparent failure of defendants to refund the price paid. 28 U.S.C.A. 38 1603(a), (d, e), 1694, 1605-1607, 1605 (a) (2). 5. International Law --10.8 Act of state doctrine is an embodi- ment of the deference to be accorded the sovereignty of other nations; it averts potential diplomatic embarrassment from the courts of one sovereign sitting in judgment over the public acts of another. = 7 6. International Law --10.8 Act of state doctrine does not simply relieve the foreign government of liabili- ty for its acts, but operates as an issue preclusion device, foreclosing judicial inquiry into the validity or propriety of such acts in litigation between any set of parties. 7. International Law --10.9, 10.33 Plaintiffs' battery and false impris- onment claims against airline wholly owned by the Dominican Republic were foreclosed under the act of state doctrine, as well as under the Foreign Sovereign Immunities Act, since those claims would, by defini- tion, require an adjudication of the propriety and legality of the acts of the Dominican immigration authorities--and, more, specifically, of airline employees 8 while effectively deployed as agents of that government under orders of those authorities-in the performance of their official governmental duties in denying plaintiffs entry into the Dominican Repu- blic and effecting their removal. 28 U.S.C.A. & 1604. 8. International Law --10.8 Act of state doctrine only precludes judicial inquiry into the legality, va- lidity and propriety of the acts and moti- vations of foreign sovereigns acting in their governmental roles within their own boundaries; it does not preclude judicial resolution of all commercial consequences stemming from the occurrence of such public acts. 9. International Law --10.9 Sale of airline tickets and tourist 9 cards to plaintiffs by the national air- line of the Dominican Republic and its activities and omissions in connection therewith, which took place wholly in the United States, were not “acts of state" insulated under the act of state doctrine. 10. Carriers --280(1.), 303(7) Under the law of Florida, the state in which contract for air transportation was executed and in which performance commenced, common carrier was required to exercise the highest degree of care, fore- sight, prudence, and diligence toward its passengers; this specifically included a duty to warn a passenger, upon the pur- chase of a ticket, of potential danyers from third parties at the point of arrival. ll. Carriers --303(1) If plaintiffs could demonstrate 10 either that defendant national airline of the Dominican Republic, with knowledge of a list of undesired foreigners who would be denied entry into the Dominican Repu- blic, sold plaintiffs “tourist cards" upon the false assertion that those cards, a- lone, would assure their entry into the country, or that the airline had access tc list, knew or should have known that plaintiffs' names were on it, and there- fore that the object of their vacation tour contract was impossible, yet pro- ceeded to arrange for their vacation air transportation, a cognizable cliim against the airline would be proved. Appeal from the United States Dis- trict Court for the Southern District of Florida. ll Before GOLDBERG, GARZA and REAVLEY, Circuit Judges. REAVLEY, Circuit Jud-7: Plaintiffs-appellants, Ramiro Arango and his family, attack the district court's dismissal of their tort and breach of contract claims against ap- pellee, Compania Dominicana de Aviacion ("Dominicana"), the national airline of the Dominican Republic. Dominicana, one of four defendants against whom suit had originally been filed in a Florida State court, had removed the claims to federal district court pursuant to 28 U.S.C. 3 1441(d). We conclude that § 1441(d) operated to remove tne claims against the remaining state court defendants, as well, and, consequently, that the order dismissing Dominicana, alone, did not 12 constitute a final judgment appelable under 28 U.S.C. 31291 because it failed to adjudicate the rights and liabilities of all parties properly before the court. Fed.R.Civ.P. 54(b). Therefore, we dis- miss the appeal. The Arangos' claims arose from the events of an abortive package vacation tour from Miami, Florida to the Dominican Re- public. The Arangos' jaunt terminated abruptly and prematurely when Dominican immigration officials denied them entry into that country upon their arrival at the airport in Santo Domingo, apparently because of their inclusion on an official list of "undesiranle aliens". The of- ficials then compelled the Arangos' im- mediate, “involuntary re-routing" back to the United States via Dominicana, the air jae carrier on which they had arrived. Be- cause of the unavailability of immediate return flights directly to Miami, the requirement that the Arangos leave the country resulted in their being shunted first to San Juan, Puerto Rico, and the next day to Port-au-Prince, Haiti, where they apparently were left to arrange and pay for their own return to Miami, which they finally -were able to accomplish four days later. Based on the non-performance of the facation contract and the sundry injuries and inconveniences suffered in their "in- voluntary re-routing”, the Arangos brought F suit in state court.against four defen- dants, all alleged os have collaborated in the marketing and formation of the package tour so as to create a joint ven- 14 ture for purposes of the action arising therefrom: Guzman Travel Advisors Corp., a Plotide corporation and the actual pur- veyor of the package tour; Trailways Travel & Tourism International Corp., also a Florida corporation and the tour organi-*r; Sheraton Hotels & Inns, World Corp., a foreign corporation whose local hotel was to provide food and lodging; and the appellee here, Dominicana, which was to provide air transportation and "tourist cards" necessary for entering the Dominican Republic and which had been responsible for the Arangos' carriage during their "re-routing" to the United States. Wholly owned by the Dominican government, Dominicana exercised its pre- rogative under the relevant provisions of the Foreign Sovereign Immunities Act of 15 1976 ("FSIA") as a "foreign state," 28 e.$.C. . 1603,- to remove the action to 1. 28 U.S.C. 1603 provides, in pertinent. part: For pusposes of this chazter- (a) A “foreign state"...in- cludes ...an agency or ins- trumentality of-@ foreign state as defined in subsec- tion (b). (b) An “agency or instrumen- tality of a foreign state" means any entity-. (1) which is a separate legal person, corporate or other- wise, and ; (2) which is an organ of a foreign state or political subdivision thereof, or a ma- jority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, . and . (3) which is neither a citizen | of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country (emphasis added). } federal district court: pursuant to 16 has pean aap oan ee ae ome Tae . Sindcheacath SA RA SEO OES. Ae PN SOT et AL TS ee ee 28 U.S.C. 8 1441 (a) 7. Once in federal court, Dominicana moved to dismiss the action under Fed.R.Civ.P. 12(b) (1), (6), arguing first, that as a foreign sover- eign, it was immune from the jurisdiction | of the court under the pertinent provi- jsions of the FSIA, 28 U.S.c. $8 1604- 407; and second, that the Arangos' com- plaint stated no claim upon which relief 2. 28 U.S.c. 8 1441(d) provides: (ad) Any civil action brought against a foreign state as de- fined in section 1603(a) of this title may be removed by the foreign state to the dis- trict court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446 (b) of this chapter may be enlarged at any time for cause shown. 17 eould be granted because all alleged injuries derived from the official acts of Dominican immigration authorities, which acts are insulated from judicial scrutiny in United States courts by the "act of state" doctrine. Without spe- cifying upon which ground it relied, the district court granted the motion and dismissed the suit against Dominicana. I. APPEALABILITY OF THE ORDER (1) The question that must precede review of the order of dismissal as to Dominicana is whether that order is at this point a final judgment within our appellate jurisdiction., 28 U.sS.c. 8 1291. Though neither party raised the issue of appealability, it is axiomatic hat this court may, indeed must, under- take such a jurisdictional inquiry sua 18 sponte. Oswalt v. Scripto, Inc., 616 F.2d 191, 192 (5th Cir. 1980). (2) The basis for our concern here is whether the order dismissing the suit with respect to Dominicana disposed of all parties before the district court. Ordi- narily, under Fed.R.Civ.P. 54(b) an order, however designated, that adjudicates the rights and liabilities of fewer than all parties is not final or appealable under $1291 unless the district court "certi- fies" appealability by making an express determination that there is no just reason for delay and then explicitly directs the entry of judgment on the order. Oswalt v. Scripto, Inc., 616 F.2d at 194; Huckeby §V. Frozen Food Express, 555 F.2d 542-545-46 (Sth Cir. 1977). See Curtiss-Wright Corp. v. General Electric Co., --U.S.--, 100 S. 19 Ct. 1460, 1465-67, 64 L.Ed.2d 1 (1980) (guidelines for issuance of rule 54(b) "“certificate"). This principle applies even to dismissals based on jurisdictional or immunity grounds not pertinent to the rights and liabilities of the remaining parties. See, e.g., Morrisson v. City of Baton Rouge, 614 F.2d 77 (5th Cir. 1980); Cason v. Owen, 578 F.2d 572, 573-74 (5th Cir. 1978); Huckeby v. Frozen Food Express, 555 F.2d at 545-49. Since Dominicana was the sole propo- nent and subject of the dismissal order and since no rule 54(b) “certificate” ac- companied that order, our inquiry is di- rected merely to whether or not there were any other parties properly before the court. This ordinarily simple ques- 20 tion is complicated here by the uncertain scope of removal under $1441(d). If only the claims against Dominicana were re- moved to federal court, the order dis- missing Dominicana obviously was final. If, on the other hand, Dominicana's 21441 (d) petition precipitated a removal of the entire case involving all defendants, the rights and liabilities of those other de- fendants have yet to be adjudicated, and, consequently, the dismissal of Dominicana is not yet final or appealable. The district court, as well as the state court and all the parties involved, apparantently understood the removal to have encompassed only the claims against Dominicana. Neither the record nor mi- nutes of the federal proceeding reflect any filings by any of the other three de- 21 fendants or any judicial recognition of their presence. > The state court pro- ceeded with the claims against the supposedly remaining defendants, and, in fact, later dismissed the action as to Sheraton and Trailways Travel. Nonethe- 3. Curiously, the Arangos did file requests for admissions. Fed R.Civ P.36. directed to Guzman and Trail~ ways Travel with the federal court. R. at 37, 41,42. No answers or further actions on these requests, nor any recognition of them by the court, are indicated in the record, however. 4. Of course, as these two parties will no doubts be chagrined to learn, since we decide here that the removal petition filed by Dominicana effected the removal of the entire action against all parties, all state pro- ceedings in the case subsequent to that court's receipt of the removal petition, including these dismissals, are void. 28 U.S.C. $1446(e); 1A MOORE'S FEDERAL PRACTICE 0.168( 3 8), at 515 16 (2d ed 1979). See e.g., Heniford v. American Motors Sales Corp., 471 F.Supp. 328 (D.S.C.1979). 22 wless, while the confusion of the parties and trial courts here is understandable - this appears to be a question of first im- pression - we are convinced that the better -interpretation of $8 1441(d) is that when a "foreign state" defendant in a multiparty suit removes under that pro- vision, the entire action against all defendants accompanies it to federal court. The language of $1441(d) does not expressly address its operation in mul- tiparty lawsuits. Cf. 28 U.S.C. 31441 (c) (explicitly providing for removal of "en- tire case" when otherwise removable claims are joined with a "separate and independent" non-removable claim). None- theless, its legislative history indicates a rather clear congressional intent that 23 when a "foreign state," joined with other non-foreign codefendants in state court, petitions for removal, it is the action - embracing all defendants - that is to be transferred to federal court. The Report of the House Judiciary Committee in its section-by-section analysis of the FSIA, states that "(n)ew subsection (d) of section 1441 permits the removal of any Such action at the discretion of the foreign state, even if there are multiple defendants and some of these defendants desire not to remove the action or are citizens of the State in which the action has been brought". H.R.Rep. No. 94-1437, 94th Cong., 2d Sess. 32, reprinted in (1976) U.S.Code Cong. & Admin. News. pp. 6604, 6631 (emplasis added) hereinafter "H.R.Rep.") See also 14 C. Wright, A. Miller & E. Cooper, Federal Practice & 24 Procedure § 3729 (Supp. 1979). Since 2 1441(d) by its terms requires no defendant other than the "foreign state" to assent to or to join the removal petition, the desires as to removal and the citizenship of the non-foreign defen- dants obviously would be wholly irrelle- vant and would have warranted no comment by the Committee if the action with res- pect to them were not also to be‘removed. Further, by its explicit delineation of the imavietality of domestic, forum- state citizenship of some of the defen- dants, we are given a reflection of Congress' specific intent that removal of multi-party actions under the acgis of this limited new provision should not be susceptible to the general bar of 28 U.S. c. 8 1441(b) against removal of multi- 25 party non-federal-question suits where | any defendant is a citizen of the forum state. Thus, the strong inference from , the statement quoted above is that Con- gress understood that a petition under $1441 (a) would effect the removal of _ the entirety of an action against mul- : tiple defendants, foreign or domestic. The language of the section, though : it does not compel this interpretation, : certainly accommodates it nicely. . Section 1441(d) provides for the removal | of "civil actions", not simply claims, | involving "foreign state" defendants. The same phrase in the remaining sub- 5 sections of $ 1441> denotes the entirety 5. The remainder of 28 U.S.C. & 1441, the general removal statute, provides: (a) Except as otherwise pressly provided by Act of Congress, 26 any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division em- bracing the place where such action is pending. (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. (c) Whenever a separate and in- dependent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not othérwise within its original jurisdiction. f the proceedings in question, not merely ose aspects involving discrete federal 27 chaims or parties. Section 1441(b), for Zexample, provides that no "civil action", other than those based on rederal ques- tions, may be removed where there are multiple defendants and any one of them is a citizen of the forum state; the “civil action's" removability is deter- mined as to its entirety, not as to par- ticular claims or parties. See also Naylor v. Case & Mc.Grath, Inc., 585 F.. 557, 560-61 (2d Cird. 1978), and 14 C. Wright, A. Miller & E. Cooper, supra 3 3722 at 573 (pendent jurisdiction allows removal of entire case, federal an claims, under $1441(a)). Moreover, the same or similar lan- guage in other limited removal provi- sions, available only to particular types of defendants as is 2 1441(d), has consis- tently been construed and applied to ef- 28 OO fect the removal of the entire action in multi-party suits. For instance, this § court has previously held that when a federal officer exercises his prero- i gative under 28 U.S.C. 8 1442(a) (1) to remove any "civil action" commenced against him in state court, the entire | case against all defendants, federal and non-federal, is removed to federal court regardless of the wishes of his co-defen- dants. Fowler v. Souther Bell Telephone & Telegraph Co., 343 F.2d 150, 152 (5th Cir. 1965). Accord, e. g., Murphy v. Kodz, 351 F.2d 163, 165-67 (9th Cir. 1965); Bottos v. Avakian, 477 F.Supp. 610, 6ll n. 3 (N.D.Ind.1979); Howes v. Chil- ders, 426 F.Supp. 358, 359 (E.D.Ky. 1977). The same power of removal of the entire cause of action against all parties has 29 been recognized in cases of removal of "civil actions" in tort against federal employees pursuant to 28 U.S.C., 8 2679 (d). 14 C. Wright, A. Miller & E. Cooper, supra 3 3727, at 693. See e.g., Darnell lv. Starks, 258 F.Supp. 31 (D.Ore. 1966). Applications of other removal provisions are similarly consistent with our inter- pretation of 3 1441 (a) °, See Farina v. 6. A substantial policy factor also favoring this interpretation is that removal of the entire action ordina- rily will promote judicial economy. Particularly where, as here, the claims are commonly lodged against all defendants as a "joint venture" and all such claims arise from a Single, interlocked series of tran- sactions, see American Fire & Casual- ty Co..v. Finn, 341 U.S. 6, 14, 71 S.Ct. 534, 540, 95 L.Ed. 702 (1951), one would justifiably expect to liti- gate the merits of such claims in a Single proceeding. While the principal purpose of the FS1A was to provide a federal forum for the adjudication of assertions of foreign sovereign immunity. 28 30 u.S.c. 8 1602, the federal hearing is not restricted to this issue but must proceed to the merits when the for- eign a is found not to be immune. a If under 441(d) all parties, "for- eign state" and domestic, are con- Sidered to be removed to federal court, in those instances in which the foreign state is found not to be ‘immune, the federal court may proceed to consider the merits of the claims against the domestic defendants, just as it is obliged to do with respect to the non-immune foreign state. See, e.g., Outboard Manne Corp. v. Pezetel, 461 F.Supp. 384 (D.Del.1978). Conversely, when the foreign sover- eign is found to be immune and the source of federal removal juris- diction is thereby withdrawn from the case, the district court is free to exercise its discretion to re- mand the remaining defendants to state court,- and in most instances will no doubt do so. See Overman v. United States, 563 F.2d 1287, 1292 (8th Cir. 1977) (where claims against federal officer, who removed under § 1442(a) (1), were concluded, court strongly suggested use of dis- cretionary remand as to non-federal defendants). Brough v. United Steel- workers of America, 437 F.2d 743, 750 (lst Cir. 1971) (suggesting re- mand of remaining parties after sum- Mary judgment eliminated independent federal jurisdictional base) Murphy 31 v. Kodz, 351 F.2d at 167-78. See also United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (recognizing discretion to maintain or remand claims within the district court pendent jurisdiction when fed- eral jurisdictional basis drops out of case before substantial commit- ment of judicial resources). [In either case the merits of plain- tiff's claims may be adjudicated in a Single proceeding without a need- less duplication of effort and re- sources. Mission Investment Trust, 615 F.2d 1068 (Sth Cir. 1980) (sanctioning removal of entire action against all defendants in a suit removed by the FDIC pursuant to its sole prerogative provided in 12 U.S.C. 3 1819(4)); In re Frankling National Bank Securities Litigation v. Andersen, 532 F. 2d 842, 846 (2d Cir. 1976) (same). (3) From the foregoing, we conclude that Congress intended that $1441(d), when invoked by a "foreign state" defendant, should operate to remove the entire action 32 ee ——————£L£ pending in state court against all defen- dants, private and domestic, as well as the foreign sovereign. ’ Accorcingly, we 7. The statute, so interpreted, does not entail an unconstitutional arrogation of power to the federal courts. Certainly, it is the con- flict between a United States citizen and a foreign state —. taps the power of Article III, 82 ("The judicial Power (of the United States) shall extend ...to Contro- versies between a State, or Citi- zens thereof, and foreign States, Citizens, or Subjects"). None- theless, that power, once flowing, may also extend to closely related claims against other parties not independently susceptible to feder- al jurisdiction, pursuant to the same rationale that supports the exercise of "pendente party" juris- diction, see Aldinger v. Howard, 427 U.8. I. 18, 96 3.Ct. 2413, 2422, 49 L.Ed.2d 276 (1976), and the established principle that fed- eral courts are constitutionally able (though, in most instances, not statutorily allowed) to en- tertain actions between several parties characterized by only "minimal diversity” - i.e., "di- versity of citizenship between two or more (adverse parties) without regard to the circumstances that other rival 33 » qth eA ap i (Ste Ob Ol ew ee sl Tet * s Hate cooiety beeieey ne Tease pr eles: Estee (9 hat awe Se 0 i2agrtie ao @et og: 30: Yigiedae® .agseo Sheesliiote BGS ias x pumas? w5ii3 es eise MB LSLoO > 6 bis Abs.dsc YG. (abe SASSPSZA 20 F005 Sgttoa? eye 2A) gewed in is2is* ar yt tae ot... ites Liesta (sacngt Kio Se ha eladstey A T160WS OS cast Sev oe | F 4 ‘ a. ne esadh batwaeS’ Sas Scetnds saps 4 . = a it beitele. yl seh ost Snatat Chis: Yee 10, ROS SBRG SOATO. facies emiete- tebe? of sléizgepar ieee nate See L mii GOS PUB, OE: a git tr ioguve 2fay Slbcole st SaBs wy — 2 5, 4 ré& £ re e. gy 7 ™y 7 re P 5 ~2 iva een Os Heise I SRZOTSLe ’ dees wv teorrh lA oa¢ ~, Aeros 4 4 *.r led ® ~~ a a € td . =~ a o™% a “ » ry ee et hd + Lae a > | te as x « Z * G» a 4 a2 =e om ’ > #8 “ , = ~ * fr 2s f at LA ce bake 2 bite ofa Detail (Ass ae- oe viseucitet lrencs si8 as ayes (sie ers wegen. 3eom 21 Jurisdiction over actions invol- 2 ' ; ‘ , , ;' The sovereign immunity issue in this litigation was determined in the prior appellate opinion. Arango, 621 F.2d at 1378-80. Former 28 U.S.C. 1332(a)(2)provided: (a)The district courts shall have Original jurisdiction over all civil actions where the matter in contro- versy exceeds the sum or value of $10,C00, exclusive of interest and costs, and is between- 3 (2) citizens of a State, and for- eign states or citizens or subjects 79 thereof; and (3) citizens of different States and in which foreign states or citizens or subjects thereof are additional parties. ving foreign parties now depends upon classification of the lawsuit according to categories defined by Congress. For example, 28 U.S.C. 8 1330 provides federal jurisdiction over actions initiated against foreign states: (a) The district court shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for which relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any ap- licable international agreement. 80 5 sieaiaiiiil A- foreign state defined as: For purposes of this chapter- (a) A ‘foreign state', except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a for eign state as defined in subsection (b). (b) An ‘agency or instrumentality of a foreign state' means any entity- (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other owner- ship interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third coun- 81 Ph try. 28 U.s.c. § 1603.4 By their express terms, 28 U.S.C. $8 1330 and 14419d) prohibit a -ase brought against a foreign state, as de- fined in section 1603, from being tried before a jury, whether the lawsuit is initiated in federal court or removed by the foreign state to that forum. Al- though an issue of first impression in this circuit, other circuits have con- sidered and rejected efforts to circumvent this prohibition against jury trials, con- cluding that section 1330(a) is the sole source of federal jurisdiction in suits against foreign states. See McKeel v. Is- lamic Republic of Iran, 722 F.2d 582 (9th Cir.1983), cert. denied, - U.S. - , 105° S.Ct. 243, 83 L.Ed.2d 182 (1984); Goar v. Compania Peruana de Vapores, 688 F.2d 82 417 (5th Cir.1982); Rex v. CIA. Peruana de Vapores S.A., 660 F.2d 61 (3d Cir. 1981), cert. denied, 456 U.S. 926, 192 S. Ct. 1971, 72 L.Ed.2d 441 (1982); Wil- liams Shipping Corp. of India v. The Way _ v. Shipping Corp. of India, 653 F.2d 875 (4th Cir.1981), cert. denied, 455 U.S. 982, 102 S.Ct. 1490, 71 L.Ed.2d 691 (1982); Ruggiero v. Compania Peruana de Vapores S.A., 639 F.2d 872 (2d Cir.1981).> Jurisdiction over other actions involving forei parties is based upon 28 U.S.C. 1332(a) (2) (action between citizen of a state and citizen or subject of a foreign state), (a)(3) (actions between citizens of different states, in which citizens or subject of foreign state are additional parties), and fa) (4) (action between foreign state as plaintiff and citizens of a state or of different states). a The Supreme Court's opinion in Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1°62, 1971, 1973, 76 L.Ed.2d 81 (1983), also supports this conclu- sion. 83 ee ee In Ruggiero, the Second Circuit determined that jurisdiction in a suit against a foreign corporation that falls within the definition of a foreign state cannot also be predicated on diversity of citizenship, even if the amount in con- troversy exceeds $10,000. 639 F.2d at 875-76. The court further rejected the argument that the presence of a federal question could provide an alternative basis for jurisdiction. Id. at 876. In spurning these arguments, the court observed: The courts must learn to accept that, in place of the familiar dichotomy of fe- deral question and diversity jurisdic- tion, the Immunities Act has created a tripartite division-federal question cases, diversity cases and actions against foreign states. If a case falls within the third division, there is to be no jury trial even it is might also come within one of the other two. Id. (footnote omitted). The Third, 84 Fourth, and Fifth Circuits followed the Ruggiero court's decision. Goar, 688 F.2d at 421-23; Rex, 660 F.2d at 64-65; Williams, 653 F.2d at 880-81; see also McKeel, 722 F.2d at 586-87 (following Reseieco on diversity jurisdiction; federal question jurisdiction fails be- cause of absence of federal issue in well- pleaded complaint). Rather than retrace the paths of those who have tried and failed in their quest for a jury trial, appellants here argue that Dominicana is not an instru- mentality of a foreign state within the meaning of section 1603(a). Although Dominicana is not incorporated in a State within the United States, appel- lants contend that it has several of- fices within the United States, parti- 85 cularly Florida, has bank accounts in the United States, and pays taxes to the City of Miami, Dade County, the State of Flori- da, and the United States. These factors, appellants claim, make Dominicana a "de facto local corporation," and remove it from the definition of an instrumentality of a foreign state. We disagree. First, appellants' current assertion is contrary to their actions in the court below. When Dominicana removed this liti- gation to federal court, appellants made a demand for a jury trial, but did not ob- ject to the basis for removal, section 1441(a). Only foreign states or their instrumentalities can avail themselves of this removal provision. Moreover, appel- lants: stipulated that this lawsuit is "a civil action seeking in personam relief 86 against a foreign state as defined in 28 c.8.c. a 1663(a)..."° Finally, in its pre-trial order, the district court stated that the case was set to be tried without a jury. Appellants never objected to this Order. We do not ordinarily consider ar- guments on appeal that were not raised in the court below. See Sanders v. United States, 740 F.2d 886, 888 (llth Cir. 1984). Even had appellants advanced this ar- gument earlier, however, we would not agree. Under the definition offered in section 1603(a), a corporation, a majority of whose shares are owned by a foreign government, is a foreign state unless the corporation is "a citizen of a State of the United States as defined in section Order Setting Cause for Trial at l; Record and 462. 87 1332(c) and (d) of this title", or was "created under tne laws of any third country." 28 U.S.C. 8 1603(b)(3). Appel- lants co not argue that Dominicana was created under the laws of a third country. Furthermore, section 1332(c) provides: For the pu’seses of this section and section 1443 of this title, a corpo- ration shall be deemed a citizen of any State by which its has been in- corporated and of the State where it -has its principal place of business. The district court was presented with no evidence that Dominicana is incorporated in the State of Florida, or that Florida is Dominicana's principal place of busi- ness. Appellants cite no cases in support of the view that Dominicana's activities automatically render it a citizen of Florida within the meaning of section 1332(c). Appellants' argument that Domi- nicana should be treated as a citizen 88 Le a ae | of Florida because it is a "de facto" Florida corporation is particularly un- persuasive, given Congress' definition of a foreign state. Congress could have chosen to exclude from foreign st: ce Status a foreign corporation that does a substantial part of its business in the United States, or one that pays taxes in the United States. It chose not to, and there is no reason to question this judg- ment. (6) Appellants argue that to permit jury trials in some actions but not in this one violates the equal protection principles subsumed within the due process clause of the fifth amendment. Their ar- gument is intertwined with the question of whether there is a constitutional right to a jury trial in actions against foreign states... The seventh amendment provides in 89 part that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved..." The seventh amendment did not create a right to trial by jury. 5 J. Moore, Federal Practice (38-08(5) at 38-55 (2d. ed. 1984). Rather, the amendment functions to pre- serve the right that existed with respect to particular kinds of actions at common law. The reference to “common law” re- quires that we examine the common law of England in 1791, the year the seventh amendment was adopted. 9 C. Wright & A. Miller Federal Practice and Procedure 3 2302 at 14-15(1971). Because actions against foreign sovereigns were not per- mitted in 1791, we conclude that the seventh amendment does not require a jury 90 in a suit against a corporation owned by a foreign sovereign. The Second, Third, Fourth, and Fifth Circuits already have held that the FSIA's requiremenc of a monjury trial does not wolate the seventh amendment. Goar, 688 F.2d at 424-27; Rex, 660 F.2d at 65-69; Williams, 653 F.2d at 881-83; Ruggiero, 639 F.2d at 878-81. Writing for the Sec- ond Circuit in Ruggiero, Judge Friendly reviewed the history of the immunity of foreign sovereigns: from suits. 639 F.2d at 878-879. At common law, suits against foreign sovereigns were not permitted. See The Schooner E’xchange v. McFacdcdo, ll U.S. (7 Cranch) 116, 136-37, 3 L.Ed. 287 (1812). This immunity was based upon the principle that all sovereigns possessed "equal rights and equal independence” un- der international law, and that a sover- 91 aoe eign enters the territory of a friendly foreign nation confident that immunities conferred upon it by reason of its sover- eignty will be preserved. Id. The same immunity extended to commercial entities owned by foreign governments. Berizzi Brothers Co. v. S.S. Pesaro, 271 U.S. 562, 46 S.Ct. 611, 70 L.Ed. 1088 (1926). During the middle of this century, inter- national custom changed, and the Supreme Court began to recognize that whether a foreign government should be afforded im- munity from liabilities arising out of commercial transactions should depend upon whether the State Department considered the abolition of immunity in che circum- stances to be inimical to United States foreign relations. See Republic of Mexico v. Hoffman, 324 U.S. 30, 65 S.Ct. 530, 89 92 L.Ed. 729 (1945); Ex Parte Republic of Peru, 318 U.S. $78, 63 §.Ct. 793, 87 L.Ed. 1014 (1943). Congress, apparently dis- Satisfied with the results obtained under this system, directed the federal courts to determine whether immunity should be accorded in particular circumstances, using the categories codified by the FSIA as guidance. See H.R Rep. at 7, 1976 U. S. Code Cong. & Ad.News at 6605-96. Thus it is clear that suits against foreign governments or commercial entities controlled by them only recently have been permitted to go forward. Even now, these lawsuits have been allowed only because of a change in executive und legislative policy, not by operation of common law principles-the law of liability of foreign sovereigns is in fact suit generis. Rex, 660 F.2d at 68; Ruggiero, 639 F.2d at 88l. 93 If these suits were not permitted in 179i, it is inexorably clear that no right to a jury trial attached under the seventh amendment. Nothing has been presented that contradicts this conclusion. There- fore, we agree with the other circuits that have considered the issue, that the FSIA's nonjury trial requirement does not offend the seventh amendment.’ ns We caution that our analysis does not mean that the seventh amendment is not applicable to any cause of action created after 1791. Rather, seventh amendment rights may attach to a cause of action not in exis- tence in 1791, "if it involves rights and remedies of the sort traditio- nally enforced in an action at law or its nearest historical analog is an action at common law." Goar, 688 F. ad at 427; see Purnell v. Southall Realty, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974); FDIC v. New London Enterprises, 619 F.2d 1099 (5th Cir.1980). The distinction involved in this case is that a waiver of immunity creates rights and remedies that never before existed. Goar, 688 F.2d at 427; Ruggiero, 639 F.2d at 880-881. 94 (7, 8) Appellants' equal vrotection argument is also without merit. There is a rational basis for Congress' decision to classify commercial entities owned by for- eign governments in the same category as the governments themselves, in that his- torically both were afforded immunity as foreign sovereigns. See Berizzi Bros., 271 U.S. at 574, 46 S.Ct. at 612. The stated reason for disallowing jury trials in actions against foreign states was "to promote a uniformity in decision when foreign governments are involved." H.R. Rep. No. 1487 at 13; 1976 U.S.Code Cong. & Ad. News at 6611-12. Further, suits brought against the United States may be tried to a jury only if the right is guaranteed by an appropriate statute. Galloway v. United States, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943). In 95 many instances it is not. See generally 5 J. Moore, Federal Practice (38.31(2) (2¢€ ed. 1984). Congress could have considered that it should subject foreign states en- gaged in commercial activity to lawsuits on the same terms the United States must defend itselr.°® Such a consideration can e. Each of the courts that has up- held the FSIA's nonjury trial re- quirement has analoagized this pro- vision to the denial of jury trials in suits against the United States. Goar, 688 F.2d at 426; Rex, 660 F.2d at 67; Williams, 653 F.2d at 842; Ruggiero, 639 F.2d at 879-81, The Supreme Court on several occasions has reaffirmed that there is no seventh amendment right to a jury trial in those instances when the United States has waived its sover- eign immunity. Lehman v. Nakshian, 453 U.S. 156, 101 S.Ct. 2698, 2701- 2701, 69 L.Ed.2d 548 (1981) (because of United States' immunity from suit, seventh amendment right never existed with respect to suit against United State, and does st attach when im- munity has been »aived); Galloway v. United States, 319 U.S. 372, 388-89, 63 S.Ct. 1077, 1086, 87 L.Ed. 1458 (1943) ("It can hardly be maintained 96 that under the common law in 1791 jury trial was a matter of right for persons asserting claims against the sovereign."); McElrath v. United States, 102 U.S. (12 otto 426, 440, 26 L.Ed. 189 (1880) (suits ayainst the United States in the Court of Claims are not suits at common law; the United States cannot be suit without its consent and this princi- ple necessarily permits the sovereign to prescribe procedures to be used in such suits). Although there are different rationales for the immu- nities, this does not affect the seventh amendment issue. Goar, 688 F.2d at 426; Ruggiero, 639 F.2d at 880. "A suit against a foreign state ‘ was just as unknown to the common law of 1791 as was a suit against the United States." Ruggiero, 639 F.2d at 880. be viewed as important to the United States' foreign relations. This does not mean Congress could require that a case be tried without a jury whenever it con- cludes it is a good idea. Such a decision would be subject to scrutiny under the seventh amendment. But where, as here, this decision does not invoke seventh amendment implications, we can consider . 97 only whether the decision bears a rational relationship to a legitimate governmental objective. See G.D.Searle & Co. v. Cohn, 455 U.S. 404, 102 S.Ct. 1137, 1141, 71 L. Ed.2d 250 (1982); Harris v. McRae, 448 U. S. 297, 100 S.Ct. 2671, 2691, 65 L.Ed. 2d 784 (1980). We conclude that it does. Thus, the district court was correct in trying the case without a jury. IV. WHETHER THE DISTRICT COURT ERRED IN RULING IN FAVOR OF APPELLANTS Appellants next content that the dis- trict court incorrectly rules in favor of Dominicana on the negligence and breach of contract claims. We reject their argu- ments with respect to both claims. A. Negligence: Breach of Duty to Warn (9) Appellants argue that Florida Law requires that Dominicana, as a common carrier, exercise the "highest degree of 98 ee ae care, foresight, prudence and diligence reasonably demanded at any time by the conditions or circumstances that affected the passengers and the carriers." Werndli v. Greyhound Corp., 365 So.2d 177, 178 (Fla.Dist.Ct.App.1978) (quoting Whitman v. Red Top Sedan Service, Inc., 218 So.2d 213, 216 (Fla.Dist.ct.App.1969)).? Ac- cording to appellant, Dominicana breached its cuty to exercise this degree of care because Dominicana previously had trans- ported persons to the Dominican Republic who were not permitted to enter the coun- try by immigration officials. Aware of this potential danger to its passengers, me None of the parties filed any papers stating an intent to raise an issue of foreign law pursuant to Fed. R.Civ.P. 44.1 Nor is there any con- tention that any law other than Florida's should govern the outcome of this case. 99 Dominicana nevertheless failed to provide any warning of this possibility. We need not decide whether Florida law would obligate an airline to ensure that its passengers were aware that they might not be permitted to enter a foreign “nation, because Dominicana's failure to warn cannot be seen as the cause in fact 10 See Stahl v. Me- of appellants' injury. aS. It is not even clear what such a warning would entail, or how effec- tive it would be. It may be one thing to require that an airline carrying passengers internationally ensure that its passengers know that a valid passport and travel visa are necessary to enter a foreign country. See Compagnie Nationale Air France v. Castano, 358 F.2d 203, 208-09 (lst Cir.1966). A Dominicana agent testi- fied that appellee does make sure that all passengers travelling in- ternationally possess valid pass- ports. To charge an airline that is responsible for warning passengers of other reasons why they may be denied entry would impose on it a difficult task. Cf. Sprayregen v. American Airlines, 570 F.Supp. 16, 17-18 (S.D.N.Y¥.1983) (it would be un- 100 reasonable to require an airline to warn of how altitude changes might affect particular physical or emotio- nal conditions of its passengers). Foreign nations may not disclose the reason why a person is denied entry. For example, in this case, there is nothing in the record that clearly explains why Ramiro Arango was re- fused entry into the Dominican Re- public. Further, the court below found that Dominicana did not have access to the list of undesirable foreigners. Thus, the airline could do no more than state that for un- known reasons, the Dominican Repu- blic has refused to allow certain travelers to enter its borders. tropolitan Dade County, 438 So.2d 14, 17- 19 (Fla.Dist.Ct.App.1983); Restatement (Second) of Torts 8 432(1). Appellant Ramiro Arango testified at trial, and ad- mitted in his deposition, that he knew that foreign nations do not permit every- one who attempts to travel within their borders to do so. Moreover, Ramiro tes- | tified that he himself had been denied jentry into a foreign nation on three 101 occasions prior to the one that led to this litigation. Under these circum- Stances, Dominicana cannot be liable for failure to warn appellants that they might be turned away by immigration of- ficials. See Perez v. National Presto In- dustries, 431 So.2d 667, 669 (Fla.Dist.Ct. App.1983); Wickham v. Baltimore Copper Paint Co., 327 So.2d 826, 827 (Fla.Dist. Ct.App.1976). B. Misrepresentation (10) Appellants advance another theory in their effort to impose liability upon Dominicana. Appellants purchased from Dominicana, for two dollars apiece, tourist visas that read “Welcome to the Dominican Republic." The cards were blank when they were tendered to the Arangos; the Arangos filled in their names and the 102 ———— Other required information. Appellants now argue that Dominicana misrepresented the nature of these cards, and that they were given the impression that "all would be taken care of with respect to their trip." It is not clear what representa- tions the Arangos claim they relied “oon. The cards do state the terms under which a tourist may travel in the Dominican Republic, but do not purport to guarantee that possession of a card will ensure entry into the Dominican Republic, nor did Ramiro Arango testify that any Dominicana agent told him that they would. This de- ficiency aside, the theory of recovery fails anyway because Ramiro Arango admit- ted that he was aware that each nation had its own rules with respect to the ad- mission of tourists. Hence, appellants 103 cannot reasonably claim that they relied upon these alleged misrepresentations. See Butts v. Dragstrem, 349 So.2d 1205, 1206-07, (Fla.Dist.Ct.App.1977). C. Duty to Provide Food and Lodging Appellants further argue that Domini- cana breached its duty to exercise care on behalf of its passengers by forcing them to spend the night in San Juan at their Own expense. After denying the Arangos entry into the Dominican Republic, immi- gration officials ordered Dominicana to transport them out of the country. The Arangos were rerouted to San Juan, where, according to Ramiro Arango, they inquired about flights to Miami. Ramiro testified that Dominicana's San Juan agent told him to come to the airport the next morning. When Arango asked whether Dominicana would provide his family with food and lodging 104 ———— tt (i i‘COiéiC;O~™~””:CSN for the evening, the Dominicana agent responded in the negative. The Arangos proceeded to a hotel, where they paid for lodging and meals. (11,12) A common carrier is obli- gated to exercise a high degree of care with respect to the boarding, carriage, and disembarkment of its passengers. Atlantic Greyhound Lines v. Lovett, 134 Fla. 505, 184 So. 133, 136 (1938); Pividal v. City of Miami, 105 So.2d 502, 503 (Fla. Dist.Ct.App.1958). The requirement that carriers exercise this degree of care may extend to the provision of terminals into which passengers enter upon exiting the carrier. Eastern Airlines v. Dixon. 310 So.2d 336, 338 (Fia.Dist.Ct.App.1975) (Hendry, J., concurring). But see Werndl v. Greyhound Lines, 412 So.2d 384, 386 & n.3(Fla.Dist.Ct.App.1982). There is no 105 duty, however, that recuired Dominicana to pay for the Arangos' food and lodging in San Juan under the circumstances of this case. Dominicana was ordered by immigration officials to transport the appellants out of the country on the very next flight leaving for their country of origin. Ramiro Arango tes- tified that the police even escorted him and his family through the airport and onto the aircraft. Dominicana had no con- trol over the civeumeeaneen under which the Arangos were taken to San Juan. Fur- thermore, the Arangos make no claim that they were unable to pay for fooi and lodg- ing for some reason attributadlu to the airline. To impose the duty requested would require airlines to guarantee the success of its passengers' travel ven- tures. We conclude, therefore, that Do- 106 Ph a a mMinicana was under no obligation to pay the Arangos' food and lodging expenses incurred in Sak Juan. D. Breach of Contract of Carriage (13) Finally, appellants claim that their contract with Dominicana, created by the purchase of the airline ticket, was breached, because Dominicana did not re- turn them to Miami as promised or pay for their transportation aboard another car- rier. Once Dominicana was ordered to take the Arangos out of the country. Dominica- na issued them tickets for passage to San Juan and from San Juan to Miami. The trip from San Juan to Miami was arranged aboard Eastern Airlines, »ecause at the time Dominicana did not fly that route. The Arangos were’ not scheduled for any particular Eastern flight. The day after they arrived in San Juan, they flew to 107 eee Port-au-Prince, Haiti via Air France, using new tickets issued by Dominicana. Their return to Miami was aboard Pan Am. Ramiro Arango testified that he paid cash for the flight from Port-au-Prince to Miami. The court below concluded that there was no breach of contract because the court found that the Arangos voluntarily decided to travel to Port-au-Prince ins- tead of returning to Miami. This decision was made to enable the Arangos to vacation in Haiti as a substitute for their failed plans. Although Ramiro Arango testified that his family ‘slew to Haiti in an effort to secure passage tv Miami, there is subs- tantial evidence in the record that con- tradicts this explanation. We can over- turn the district court's finding on this issue only if it is clearly erroneous, Fed. 108 R»sCiv.F. 52(a), and we conclude that it is not. We hold therefore that Dominicana did not breach its contract of carriage. V. CONCLUSION Unfortunately for the Arangos, their vacation was not as planned. Under the theories advanced in this case, however, Dominicana cannot be held liable for their losses. The judgment of the court below in favor of Dominicana is therefore AF- FIRMED. We instruct the district court to take the appropriate action in entering final judgment that will resolve the Aran- gos' claims against defendants Guzman and Trailways. ai. ln their brief, appellants make several references to the opinion that disposed of the initial appeal in this case, apparently in an effort to esta- blish that the district court's opini- on violates the law of the case. This contention has no merit. The former Fifth Circuit ruled only that some of 109 the appellant's claims sufficed to survive a motion to dismiss, while observing that flaws in the theories of recovery may become evidence at a later date. Arango, 621 F.2d at 1381-82. 110 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0800%3A2. Public record. Not legal advice.