EOTT Energy Operating Ltd. Partnership v. Winterthur Swiss Insurance

OVERVIEW

We are presented with the question of whether there is subject matter jurisdiction in this case. Eleven years ago, Appel-lee EOTT Energy, then known as Enron, filed this action in Montana state court. Appellant Icarom, then the Insurance Cor *995 poration of Ireland (“ICI”), removed this action to federal court on the ground that it was an instrumentality of a foreign state as defined by the Federal Sovereign Immunities Act (“FSIA”). Since that time, this case has been up on appeal before us and back to the district court where summary judgment was granted on some claims and a trial was held on others. This appeal then ensued.

During the pendency of this appeal, Appellants filed a letter with this Court stating that they had recently become aware of our decision in Gates v. Victor Fine Foods, 54 F.3d 1457 (9th Cir.1995), and suggesting that, applying Gates , we might lack subject matter jurisdiction under the FSIA. We ordered supplemental briefing and heard argument on the issue. Both Appellants and Appellee argued there was jurisdiction. We conclude that Icarom is not a foreign state under the “majority owned” prong of the FSIA, but we remand for further fact-finding…