Subir Gupta v. Thai Airways International, Ltd.

Thai Airways, International (“Thai Airways”) appeals from the district court’s order denying Thai Airways’ motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Thai Airways claims the district court erred in refusing to recognize the preclu-sive effect (“res judicata ”) of an earlier order dismissing, under the Foreign Sovereign Immunities Act (“FSIA” or “Act”), 28 U.S.C. §§ 1330 , 1602 et seq., an identical action brought by Gupta. That California order of dismissal was not appealed, and is now final. We raised the issue of jurisdiction during oral argument sua sponte and asked the parties to submit briefing on the discrete issue whether this court has jurisdiction to consider the district court’s holding that res judicata does *761 not apply in this case. We conclude that we have jurisdiction, and we reverse.

I.

Subir Gupta, Plaintiff-Appellee, was scheduled to fly from Bangkok to Los Angeles. When Gupta attempted to board the plane bound for Los Angeles, Thai Airways employees refused to allow Gupta to board because they determined his United States Visa was invalid. Gupta claims the employees “subjected him to unwarranted accusations…

dissenting:

The majority finds appellate jurisdiction in this case only by mistakenly assuming that if any issue decided by the district court is subject to interlocutory appeal, any other issue decided in the same order can also be reached on interlocutory appeal. Because I disagree and would dismiss this interlocutory appeal for lack of appellate jurisdiction over the limited issues raised and not reach the merits, I respectfully dissent.

Under the collateral order doctrine, this court would have jurisdiction over an interlocutory appeal from that portion of the district court’s order denying Thai Airways’ claim to sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-1611 . But this rule does not confer jurisdiction over an interlocutory appeal from other parts of the same order.

Thai Airways was very specific of the issues it raised on this appeal. It raised only two issues. To quote fully the “Issues Presented for Review” section of Thai Airways’ opening brief:

In support of its first issue, Thai Airways argued that the district court erred in denying its motion to dismiss because the prior ruling by the state superior court was res…

487 F.3d 759 Subir GUPTA, Plaintiff-Appellee, v. THAI AIRWAYS INTERNATIONAL, LTD., Defendant-Appellant. No. 04-56389. United States Court of Appeals, Ninth Circuit. Argued October 25, 2006. Submitted May 30, 2007. Filed May 30, 2007. Mark S. Priver, Ohashi & Priver, Pasadena, CA, and David A. Nelson, Nelson Law Firm, P.C., Pasadena, CA, for the defendant-appellant. Luis E. Lopez, Lopez & Morris, LLP, Riverside, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California; Robert J. Timlin, Senior District Judge, Presiding. D.C. No. CV-04-00152-RT. Before: EUGENE E. SILER, JR., * A. WALLACE TASHIMA, and CARLOS T. BEA, Circuit Judges. BEA, Circuit Judge. 1 Thai Airways, International ("Thai Airways") appeals from the district court's order denying Thai Airways' motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Thai Airways claims the district court erred in refusing to recognize the preclusive effect (" res judicata ") of an earlier order dismissing, under the Foreign Sovereign Immunities Act ("FSIA" or "Act"), 28 U.S.C. §§ 1330 , 1602 et seq., an identical action…