Tag Archives: Subject-Matter Jurisdiction

Court of Appeals’s Short But Definitive Ruling: Successive Removal Petitions Fail Notwithstanding Silent Statute

In a short and unpublished opinion, the Eleventh Circuit, per curiam, decided Watson v. Carnival Corp., No. 10-15411 (Aug. 2011).  The important international practice lesson to be learned from the decision relates to a federal common law limitation placed on the otherwise clear statutory right to remove cases from state to federal court granted by … Continue Reading

Second Circuit Affirms District of Columbia Refusal To Dismiss Case Against Afghanistan Under Noncommercial Tort Exception To FSIA; Case Remanded to S.D.N.Y. for Jurisdictional Discovery

Doe v. Bin Laden, Islamic Emirate of Afganistan, et al., No. 09-4958-cv (2d Cir. Nov. 2011) (per curiam), affirmed a District Court in the District of Columbia’s decision to permit a case to proceed against Afghanistan, rejecting the argument that Afganistan was immune from suit under the Foreign Sovereign Immunities Act.   The claims arose out … Continue Reading

FSIA Immunity Found In Suit Against Germany; Neither Commericial Activity Nor Takings Exceptions Applies To Real Property Located in Germany.

Hammerstein v. The Federal Republic of Germany, 09-CV-443 (ARR)(RLM) (E.D.N.Y. Aug. 2011), dismisses for want of subject matter jurisdiction claims asserted against Germany.   Plaintiff fought over the right to own the property located in Germany, ultimately won that fight against claims of ownership by both the government of Schwerin, Germany and the Conference on Jewish … Continue Reading

Failure To Follow German Validation Procedure Dooms Claims for Payment on Pre-War German Bearer; FSIA Precludes Balance of Claims

We have previously posted on the signficance of the international practice decisions by the Second and Eleventh Circuits’ decisions relating to validation procedures preventing Foreign Sovereign Immunities Act immunity.  Mortimer Off Shore Services, Ltd. v. Federal Republic of Germany, Nos. 08-1783-cv, 08-2358-cv (2d Cir. 7/26/10); and World Holdings v. The Federal Republic of Germany, No. … Continue Reading

Court Dismisses Both “Foreign Cubed” as Well as “Foreign Squared” Securities Claims Based on Morrison

In the absence of appellate guidance, District Courts continue to apply or expand the ruling of Morrison v. National Australia Bank Ltd., No. 08-1191 (June 24, 2010), the first “foreign-cubed” securities action to appear before the Supreme Court—in which (i) non-U.S. plaintiffs, (ii) sued a non-U.S. issuer, (iii) based on securities transactions outside of the United … Continue Reading

District Court Avoids Testing Common Law Sovereign Immunity Defense Remanded by the Second Circuit But Dismisses the Claims on Personal Jurisdiction Grounds Instead

Carpenter v. Republic of Chile, et al., 07-CV-5290 (JS)(ETB) (E.D.N.Y. June 2011), is the remand from a Second Circuit decision of last year (601 F.3d 776 (2d Cir. 2010)) requiring the District Court to reconsider the dismissal on sovereign immunity grounds of various individual defendants (the Court of Appeals affirming the balance of the District … Continue Reading

Second Circuit Finds Mid-Case Default Forfeits Defendants’ Right To Appeal From Rulings That Statute Creates A Cause of Action and that Personal Jurisdiction Was Present; Remands For Reconsideration of Remedy

In cases where there are solid grounds to believe personal jurisdiction is missing, the strategic decision whether to appear and contest personal jurisdiction or whether to stay out of a jurisdiction altogether is among the hard questions facing litigants in international litigation practice.  The Second Circuit’s decision in City of New York v. Mickalis Pawn … Continue Reading

Ninth Circuit Refuses To Permit Case Involving Peppercorns and Trochus Buttons To Proceed Against the Sovereign State of Pohnpei

AHPW, Inc., et al. v. State of Pohnpei, et al., No. 09-17871 (9th Cir. Jun. 2011) (unpublished), addresses several common issues that arise in the context of international litigation practice involving non-U.S. sovereigns but in an uncommon geographical and factual setting. In this case the non-U.S. sovereign is Pohnpei, the name of one of the four … Continue Reading

Illinois Federal District Court Upholds ATS Claims Against Banks for Aiding and Abetting Genocide by Looting

Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank, et al., No. 10 C 1884 (N.D. Ill. May 2011), addresses motions to dismiss filed by international banking institutions that allegedly “played a role in a wealth expropriation scheme involving the theft and withholding of assets and funds from Hungarian Jews who were victims of the … Continue Reading

D.C. Circuit Finds 3-Month Period To Move To Vacate Arbitral Award Statutory and Thus Incapable of Being Extended Under Fed. R. Civ. P. 6.

Argentine Republic v. National Grid PLC, No. 10-7093 (D.C. Cir. Mar. 2011), is a per curiam decision of the D.C. Circuit addressing an important issue that affects international practice particularly:  can a federal court extend time deadlines imposed by statute when dealing with the exercise of a right under international convention or treaty, here the … Continue Reading

Ninth Circuit Examines U.S. Sovereign Immunity; Applies Rule 44.1 Broadly To Determine if Reciprocity Condition of Federal Statute Satisfied

Tobar v. U.S., No. 08-56756 (9th Cir. Apr. 2011), involves a review by the United States Court of Appeals for the Ninth Circuit of a suit against the U.S. government arising from the U.S. Coast Guard’s stopping of an Ecuadorian vessel in international waters near the Galapagos Islands for suspected involvement in smuggling drugs.  After boarding … Continue Reading

Second Circuit Follows Its Kiobel Decision; Assumes “Hypothetical” Subject Matter Jurisdiction; Affirms a Strict Rule for Finding Alter Ego Liability for an Instrumentality of a Non-U.S. Sovereign

Shan v. China Construction Bank Corp., No. 10-2992-cv (unpublished) involves claims by a resident alien of the U.S. against China Construction Bank for alleged torture in violation of the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 note, as well as torture and alleged cruel, inhumane, degrading treatment, and prolonged arbitrary detention in China … Continue Reading

New York Federal Court Confirms that Issue of Joinder/Consolidation Is for Arbitrator, Not the Court, Notwithstanding Stolt-Nielsen

In Safra Nat’l Bank (SNB) v. Penfold Investment Trading, Ltd., 10 Civ. 8255 (S.D.N.Y. Apr. 2011),  the plaintiff sought an injunction to enjoin a AAA arbitration and sever Penfold’s separate claims into separate arbitration proceedings.  Each defendant was allegedly induced to purchase an investment security by the SNB broker.  The arbitration agreement apparently did not … Continue Reading

SEC v. Torre — German Discovery Rejected; Many Claims Dismissed Under Morrison

We have previously posted on the Magistrate Judge’s rejection of Fabrice Tourre’s discovery requests concerning Germany in SEC v. Goldman Sachs & Co. and Fabrice Tourre, 10 Civ. 3229 (S.D.N.Y.).  In a short order, the District Court has now affirmed the Magistrate Judge’s Report and Recommendation. At the same time, the District Court, on June … Continue Reading

Applying Federal Common Law, Court Finds Matter Should Be Arbitrated; Simultaneously Upholds Forum Selection Clause

Farrell v. Subway Int’l, 11 Civ. 08 (S.D.N.Y. Mar. 2011), is a decision on a motion to stay arbitration and simultaneous invalidation of a negotiated forum selection clause. Farrell is a citizen of Ireland and operates three Subway franchises in Dublin. Subway filed a demand for arbitration with the American Dispute Resolution Center and requested … Continue Reading

District Court in Eleventh Circuit Deepens the Circuit Conflict By Upholding Alient Tort Statute Claims Against Corporate Defendant

In re Chiquita Brands Int’l, Inc. Alient Tort Statute and Shareholder Derivative Litigation, Case No. 08-01916 (S.D.Fla June 2011), is multidistrict litigation of seven cases consolidated in the Southern District of Florida.   The opinion just rendered is the MDL court’s decision on motions to dismiss claims under the Alien Tort Claims Statute (ATS), 28 U.S.C. sec. 1350, … Continue Reading

First Circuit Dissent Explores the Constitutional Infirmity of the Extraterritorial Application of U.S. Drug Trafficking Law

U.S. v. Jose Del Carmen Cardales-Luna, No. 08-1028 (1st Cir. Jan. 2011), involves the First Circuit’s review, and affirmance, of a drug trafficking conviction by a jury in the District of Puerto Rico of a Columbian crew member of a Bolivian flag vessel boarded by the U.S. Coast Guard in international waters.  The majority opinion … Continue Reading

Fifth Circuit Grants and Then Withdraws Mandamus, But New York Convention Removal By Non-Defendant Still Improper

The Fifth Circuit’s decisions in In re Chrystal Power Co. Ltd, No. 11-40115 (5th Cir. 21 March 2011), on rehearing (16 May 2011), address whether mandamus lies for a District Court order erroneously permitting removal of a case to federal court under the New York Convention, as codified in 9 U.S.C. secs. 201, et seq. Crystal … Continue Reading

The Principal-Agency Conundrum For Securing U.S. Jurisdiction (Part IV)

Bernardus Henricus Funnekotter, et al. v. Republic of Zimbabwe, 09 Civ. 8168 (S.D.N.Y. 2/10/11), sought to modify a judgment so that it would run against certain alleged instrumentalities of the government of the Republic of Zimbabwe. The District Court denied the request with leave to renew once service was properly effected.  The example is the … Continue Reading

Second Circuit Affirms Instrumentality FSIA Exemption: The Principal-Agency Conundrum For Securing U.S. Jurisdiction (Part III)

Servaas Inc. v. Republic of Iraq, No. 10-828-cv (2d Cir. 2/10/11) (unpublished), deserves to be considered in light of the District Court decisions discussed in our two most recent postings, Parts I and II concerning the principal-agency challenges to laying jurisdiction in U.S. courts.   One of the District Court opinions was decided shortly before, and one decided shortly … Continue Reading

Claim Against Argentine Instrumentality Dismissed: The Principal-Agency Conundrum For Securing U.S. Jurisdiction (Part II)

NML Capital v Rep of Argentina, 09 Civ. 7013 (S.D.N.Y. 2/15/11), represents another effort by a creditor owed money by Argentina attempting to recover its judgment against funds in the hands of Argentine entities other than the Republic of Argentina itself. Here the entity is called Energla Argentina SA, or ENARSA. The grounds for the … Continue Reading

Claims Against Austrian Instrumentality Dismissed Under FSIA: The Principal-Agency Conundrum For Securing U.S. Jurisdiction (Part I)

Sachs v. Republic of Austria, et al., No. C 08-1840 (N.C. Cal. Jan. 2011), involves claims against Austria and OBB Personenverkehr AB (OBB) arising from the plaintiff’s severe personal bodily injuries caused when plaintiff fell on train tracks in Innsbruck, Austria. In the court’s decision, OBB is treated as a state entity or instrumentality subject to … Continue Reading

Fifth Circuit Affirms Dismissal of Major Challenge to OPEC and to National Oil Companies’ Participation, Citing Political Question and Act of State Doctrines

Spectrum Stores, et al. v. Citgo Petroleum Corp., et al., No. 09-20844 (5th Cir. Feb. 8, 2011), involves two class actions brought by gasoline retailers against oil production companies alleging antitrust violations.  Most of the defendant oil companies are owned by OPEC member nations.  Even though the plaintiffs sued numerous non-sovereigns, the Fifth Circuit affirmed … Continue Reading

Ninth Circuit Holds that Defense Based on Prior Arbitration Creates “Relates To” Jurisdiction To Support Removal of Litigation To Federal Court Under New York Convention

Infuturia Global Ltd. v. Sequus Pharmaceuticals, Inc., et al., No. 09-16378 (9th Cir. Feb. 7, 2011), addressed what the Court of Appeals described as the “novel question” whether, under the U.S.’s statutory embodiment of the New York Convention in 9 U.S.C., “removal” jurisdiction exists over a case where the defendant raises an affirmative defense related to … Continue Reading