Sachs v. Republic of Austria et al

Filing 64

ORDER directing plaintiff to file supplemental memorandum re Doc #43 on or before December 17, 2010. OBB may file a response on or before January 14, 2010, at which time the motion to dismiss will be deemed submitted. (vrwlc1, COURT STAFF) (Filed on 11/22/2010)

Sachs v. Republic of Austria et al

Doc. 64

1 2 3 4 5 6 7 8 9 United United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAROL P SACHS, Plaintiff, v REPUBLIC OF AUSTRIA, OBB HOLDING GROUP, OBB PERSONENVERKEHR AG, Defendants. / IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

No

C 08-1840 VRW ORDER

Defendants the Republic of Austria and OBB Personenverkehr AG ("OBB") move to dismiss the above-captioned action based on, among other things, want of subject matter jurisdiction. Doc ##43 & 51. Although plaintiff opposes OBB's

motion, Doc #58, she has filed a statement of non-opposition to that of Austria. Doc #60. Austria's motion to dismiss, Doc #51,

therefore is GRANTED.

For the reasons that follow, the court

DECLINES TO RULE on OBB's motion to dismiss, Doc #43, subject to further briefing on the matter. //

Dockets.Justia.com

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I This action arises out of an accident that occurred at a train station in Innsbruck, Austria on April 27, 2007, when plaintiff, while attempting to board a moving train, fell to the tracks and suffered severe injuries which resulted in the amputation of her legs above each knee. Doc ##43 at 10; 58 at 1-2.

OBB's motion to dismiss advances four distinct theories: (i) the court lacks subject matter jurisdiction under the Foreign Sovereign Immunities Act ("FSIA"), 28 USC §1602 et seq; (ii) the doctrine of forum non conveniens requires dismissal; (iii) the court lacks personal jurisdiction over OBB; and (iv) international comity requires abstention. Doc #43. The court held a hearing on

OBB's motion on November 18, 2010, during which the parties argued at length regarding OBB's first and second theories for dismissal. It is clear from the parties' memoranda and argument that the only jurisdictional fact presented in this case is plaintiff's March 2007 purchase of an Eurail Pass from the Rail Pass Experts, a corporate entity apparently located in Massachusetts. 2. Doc #58 at

Plaintiff argues that because the purchase of the pass occurred

in the United States, and her injury claim is based upon OBB's commercial activity in this country, this court has subject matter jurisdiction. The FSIA makes clear, however, that the relevant commercial activity must be undertaken "by the foreign state." USC §1605(a)(2). Eurail pass. Plaintiff does not allege that OBB sold her a 28

Instead, plaintiff lays out the following argument:

OBB is a member [and owner] of the Eurail Group * * *. The [Eurail Group's] website says that the `Eurail passes are available from our wide network of Sales Agents worldwide' * * * [and] confirms that the Eurail Group represents OBB * * *. OBB has authorized the Eurail Group to sell passes directly to 2

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American citizens. * * * The issuing office was the Rail Pass Experts in Massachusetts[, which] * * * was the intermediary for the carriers in Europe including the OBB. Doc #58 at 3. Thus, plaintiff's argument goes, the Rail Pass

Experts's actions may be imputed to OBB, because the Rail Pass Experts is an agent of the Eurail Group, an entity which OBB partowns and to which it belongs. But plaintiff's argument, in its

current form, seems insufficient to establish that the Rail Pass Experts's sale of a ticket to plaintiff constituted commercial activity by the foreign state. Plaintiff relies heavily on Kirkham v Societe Air France, 429 F3d 288, 290 (DC Cir 2005) in support of her argument that the Rail Pass Experts's ticket sale constituted commercial activity by OBB in the United States. Doc #58 at 2-3. In Kirkham, however,

Air France did not contest the commercial activity issue, a point which the DC Circuit expressly noted in its holding: "[b]ecause Air France concedes the ticket sale constituted a commercial activity in the United States, and because Kirkham must establish that sale in order to prevail on the merits, the commercial activity exception applies." 429 F3d at 293. Although plaintiff contends

that Kirkham is "factually similar to this case in that the tickets in both cases were purchased by agents," Doc #58 at 3, Kirkham cannot stand for the proposition that a ticket sale of the type here constitutes commercial activity by a foreign state. Moreover, traditional indicia of an agency relationship between OBB and the Rail Pass Experts are lacking from plaintiff's complaint and opposition to OBB's motion to dismiss. While

plaintiff alludes to connections between OBB and the Eurail Group, and between the Eurail Group and the Rail Pass Experts, there are 3

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no factual allegations or evidence that the Rail Pass Experts acted under the control or on behalf of OBB. If anything, plaintiff

suggests that the Rail Pass Experts acted as "intermediary of the carriers in Europe," Doc #58 at 3, not exclusively on behalf of OBB. In short, without further clarification from plaintiff, her unwieldy theory of subject matter jurisdiction would seem to ensnare all thirty members of the Eurail Group, if indeed each could be considered a foreign state under the FSIA. Before the

court renders a decision on OBB's motion, however, it seems prudent to allow plaintiff to develop further her theories of subject matter and personal jurisdiction. On or before December 17, 2010, plaintiff may file a 15page supplemental brief addressing: (1) her "agency" theory of subject matter jurisdiction in greater detail, supported with appropriate citations; (2) any additional case law, other than Kirkham, which suggests that the ticket sale here constitutes commercial activity by the foreign state under 28 USC § 1605(a)(2); (3) the line of Ninth Circuit cases cited by OBB (including Theo H Davis & Co, Ltd v Republic of the Marshall Islands, 174 F3d 969, 974 (9th Cir 1999); Siderman de Blake v Republic of Argentina, 965 F2d 699, 705 n4 (9th Cir 1992) and Gregorian v Izvestia, 871 F2d 1515, 1529 (9th Cir 1989)) which seem to indicate that, in addition to 28 USC 1330(b) factors, plaintiff must establish that the court's exercise of personal jurisdiction over OBB would comport with due process. // 4

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Furthermore, plaintiff may supplement her earlier opposition to OBB's motion to account for additional theories under FSIA that would establish subject matter or personal jurisdiction. If it desires, OBB may file a 10-page response to plaintiff's supplemental memorandum on or before January 14, 2010, at which time the matter will be submitted without further argument.

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge

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