Broidy Capital v. Benomar, 944 F.3d 436

Broidy Capital and Elliott Broidy sued Jamal Benomar in SDNY alleging he acted as a paid Qatari agent in a 2017–2018 hack/smear campaign and thus engaged in commercial activity outside any diplomatic functions.
Benomar stated he was a Moroccan diplomat; after the complaint was filed, the U.S. State Department registered him with full diplomatic privileges (Nov. 13, 2018).
Benomar moved to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction based on diplomatic immunity under the Vienna Convention on Diplomatic Relations (VCDR); the district court granted the motion.
Plaintiffs argued the commercial-activity exception to diplomatic immunity applied and sought jurisdictional discovery; they attached limited evidence (a short deposition excerpt) but did not attach phone records they referenced.
The district court denied jurisdictional discovery (plaintiffs failed to make the specific requests the court required) and denied leave to amend as futile; the Second Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Who bears burden of proof when diplomatic status is shown?	Burden should shift to defendant (analogizing to FSIA burden‑shifting)	Plaintiff must prove jurisdiction/exceptions to immunity	Where defendant demonstrates diplomatic status, plaintiff must prove by a preponderance that an exception applies
Whether the commercial‑activity exception to VCDR applies	Benomar performed for‑profit work organizing/distributing hacked materials for Qatar	No competent evidence Benomar engaged in or was paid for such activity; communications were diplomatic; some conduct preceded status	Plaintiffs failed to prove by a preponderance that Benomar engaged in commercial/professional activity; exception does not apply
Whether denial of jurisdictional discovery was an abuse of discretion	Court should have permitted discovery to establish exception	Plaintiffs failed to follow court instructions to make specific discovery requests; discovery intrusive on a diplomat and premature	Denial affirmed; plaintiffs did not make required, specific requests and court properly balanced interests
Whether denial of leave to amend was an abuse of discretion	Leave should be granted to add allegations after Benomar obtained status	Proposed amendments were conclusory and would not cure jurisdictional defects; amendment would be futile	Denial affirmed as amendment would be futile and would not cure jurisdictional deficiency

Brzak v. United Nations, 597 F.3d 107 (2d Cir.) (diplomatic immunity is a jurisdictional bar)
Swarna v. Al‑Awadi, 622 F.3d 123 (2d Cir.) (treaty interpretation principles and plaintiff burden discussions)
Makarova v. United States, 201 F.3d 110 (2d Cir.) (plaintiff bears burden to establish subject‑matter jurisdiction by preponderance)
767 Third Ave. Assocs. v. Permanent Mission of Republic of Zaire to United Nations, 988 F.2d 295 (2d Cir.) (VCDR codifies customary diplomatic immunity; functional view)
Tabion v. Mufti, 73 F.3d 535 (4th Cir.) (commercial‑activity understood as trade/business for personal profit)
Arch Trading Corp. v. Republic of Ecuador, 839 F.3d 193 (2d Cir.) (standard for reviewing denial of jurisdictional discovery)
E. Airlines, Inc. v. Floyd, 499 U.S. 530 (U.S. 1991) (look to text, context, drafting history in treaty interpretation)
Medellin v. Texas, 552 F.3d 491 (U.S.) (use drafting/negotiation history and postratification understanding in treaty interpretation)