Carol Sachs v. Republic of Austria

Opinion by Judge TALLMAN; Concurrence by Judge BEA; Dissent by Judge GOULD.

OPINION

announcing the judgment of the Court:

In this case we consider what acts may be attributed to a foreign state in applying the commercial activity exception to immunity under the Foreign Sovereign Immunities Act.

Carol Sachs sued Austrian-owned OBB Personenverkehr after sustaining personal injuries as a result of her attempt to board a moving train in Innsbruck. The district court ruled that the commercial activity exception to the Foreign Sovereign Immunities Act did not apply and dismissed Sachs’s suit for lack of subject matter jurisdiction. Sachs appeals the district court’s order. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

I

In March 2007, Sachs purchased a Eu-rail pass in California from Rail Pass Experts, a company based in Massachusetts. A Eurail pass is a train ticket that allows passage on various railways of the Eurail Group, an association of thirty-one European railway transportation providers. Sachs’s pass permitted travel in Austria and the Czech Republic. In April Sachs traveled to Austria, where she intended to originate her journey, and there purchased a…

concurring in the judgment:

I concur in the majority’s holding that the district court correctly dismissed this case for lack of subject matter jurisdiction. I write separately, however, because I agree with Judge Gould that the definition of agency in Doe v. Holy See, 557 F.3d 1066 (9th Cir.2009) — a case concerning the tortious act exception to the Foreign Sovereign Immunities Act (FSIA) — need not be extended to the question of agency in cases concerning the commercial activity exception. This court’s decision in Sun v. Taiwan, 201 F.3d 1105 (9th Cir.2000) permits us to decide the case more narrowly, while assuming arguendo that an agency relationship exists between Rail Pass Experts (Experts), Eurail, and OBB Personenverkehr (OBB) which serves to impute the acts and omissions of Experts to OBB. I would affirm the district court on the basis that Sachs fails to allege facts sufficient to give rise to jurisdiction under Sun.

The FSIA provides immunity to foreign states in any action “in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity…

dissenting:

The majority decides that the sovereign immunity of OBB Personenverkehr (“OBB”), a national railway of Austria, defeats at the starting gate a domestic forum for a negligence claim by a United States citizen who bought a Eurail pass in the United States. Sachs, in California, bought a Eurail pass from Rail Pass Experts, a Massachusetts-based sub-agent of the Eurail Group. The Eurail Group markets and sells rail passes worldwide, including within the United States. OBB is a part-owner of the Eurail Group, and the OBB trains carry Eurail customers in Austria. The Eurail pass permitted Sachs to board an OBB train and to sit in an unoccupied seat. Sachs was seriously injured while trying to board an OBB train in Austria. I believe that, for purposes of sovereign immunity, a sensible interpretation of the FSIA permits a domestic forum in which Sachs may assert her negligence or other claims against OBB, that our Ninth Circuit precedent does not prevent this, and that we should follow the general approach of other federal circuits that have decided in similar cases that ticket sales by an agent in the United States invoked the commercial activity exception to sovereign…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAROL P. SACHS, 

Plaintiff-Appellant, No. 11-15458 v. D.C. No. REPUBLIC OF AUSTRIA; OBB  3:08-cv-01840-

HOLDING GROUP; OBB VRW

PERSONENVERKEHR AG, OPINION

Defendants-Appellees.  Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding

Submitted June 13, 2012* San Francisco, California

Filed September 26, 2012

Before: Ronald M. Gould, Richard C. Tallman, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Tallman; Concurrence by Judge Bea; Dissent by Judge Gould

*The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

11843 SACHS v. REPUBLIC OF AUSTRIA 11845

COUNSEL

Geoffrey Becker, Becker & Becker, Lafayette, California, for appellant Carol P. Sachs. 11846 SACHS v. REPUBLIC OF AUSTRIA Juan C. Basombrio, Dorsey & Whitney LLP, Costa Mesa, California, for appellees OBB Personenverkehr,…