Subir Gupta v. Thai Airways International, Ltd.

BEA, Circuit Judges.

BEA, Circuit Judge. (“Thai Airways, International Air- ways”) appeals from the district court’s Thai Airways’ motion to dismiss for lack of jurisdic- 12(b)(1). pursuant to Fed.R.Civ.P. Thai Airways claims the district court erred in refusing to recognize preclu- (“res ”) sive effect of an earlier order dismissing, under Foreign Sov- (“FSIA” ereign “Act”), Immunities Act §§ 28 U.S.C. seq., 1602 et an identi- cal brought by action Gupta. That Califor- nia order of dismissal appealed, was not and is now final. We raised the issue of jurisdiction during oral argument sua sponte and parties asked the to submit briefing on the discrete issue whether this court has to consider the dis- trict holding that res * Siler, Jr., cuit, Eugene The Honorable E. sitting by designation. Senior Judge United States Circuit for the Sixth Cir- fraud visa that led to regarding profes- his in this We conclude apply case. jurisdiction, and we reverse. sional losses. complaint business (2) alleged negligence; claims of re-

I. spondeat superior liability; negligent was Plaintiff-Appellee, training, Gupta, hiring, retention of unfit Subir and/or (4) fly Bangkok to Los infliction scheduled employee; intentional of emo- to board attempted Angeles. Gupta (5) When distress; employer’s tional authoriza- Thai Angeles, Los plane the bound for conduct; employee’s wrongful tion of Airways Gupta refused to allow employees se; intentional inter- per slander they his determined to board with contractual relations. ference Gupta invalid. Visa was United States “subjected him employees

claims the successfully Airways Thai moved of fraud after accusations unwarranted subject jurisdic for lack of matter 1 a and current presented valid [he] asserting “foreign it was a state” fly was unable to to Los Gupta Visa.” FSIA, exception to under and no the FSIA and claims he missed Angeles on date superior The court re applicable.2 meeting. business a lucrative jected Airways Gupta’s assertion that implicitly had waived its under timely complaint a Cali- Gupta filed 1605(a)(1) § by communicating 28 Court, U.S.C. Angeles Los Coun- Superior fornia regarding by suit Gupta with Airways employees sub- ty, alleging responding not to the service of the com- him to accusations of jected unwarranted state, courts, typical raising for 2. United States both federal and the method California by subject jurisdic subject possess personal lack of matter is means matter and sovereign” only of Civil Pro- “foreign of a demurrer. California Code a when an tion over 430.30(a) ("When ("CCP”) any § exception applies. Compania cedure to the FSIA Aviacion, Ct., objection complaint ap- ... ground to a De S.A. v. U.S. Dist. Mexicana objection pears face on the thereof (per 1358-59 ground may demurrer to be taken a curiam). Appeal The has California Court pleading.”). Motions to dismiss for lack explained FSIA the sole basis for that the “is however, subject jurisdiction, matter have 'foreign obtaining a state’ See, recognized law. in California case been Super. court. Bolkiah v. California state Court, e.g., Superior Cal.2d Goodwine Ct., Cal.Rptr.2d Cal.App.4th 481, 483-85, Cal.Rptr. 407 P.2d 1 Thus, (1999). Gupta's although com Donaldson, Guardianship In re plaint alleged Air tortious action 477, 484-85, Cal.Rptr. Cal.App.3d superi- ways—a over which the matter have described These motions been jurisdiction'— normally or would have general "a demurrer.” 5 substituted Air superior jurisdiction over Thai court’s Witkin, Procedure, § Pleading, California applicability an ex ways depended ed.1997). that a motion dis- The fact ception to the FSIA. miss for lack by Ministry owned 79% general rather was used in this case than Kingdom Un- of Thailand. Finance analysis not affect the here demurrer does law, controlling entity an whose der federal general alleging the same because a demurrer by a majority is owned or interest shares given sustained facts would been foreign political subdivision is itself state or Airways’ immunity Gup- 1603(b)(2). § “foreign U.S.C. state.” 28 plead to the FSIA. ta's failure to an provides state immune "any procedural (explaining error See id. and federal court unless from suit state eliminating complaint by motion rather applies. exception to prejudicial reversible than demurrer is not Airways is contended Thai Gupta has never general prop- could have been if demurrer amend”). “foreign erly not a state.” without leave sustained Consequently, plaint. the court proper held Thai because the Warsaw Convention immune in United allowed for suit “at place of destina- States courts accordance with 28 U.S.C. tion.” (“[A] foreign § 1604 state shall be immune In ruling on motion to from the of the courts of the dismiss, the district court held that ”). and of United States the States.... prior state judgment did not bar re-litiga- Gupta did not the state or- tion of the claim in federal court. Nomi- Rather, dismissing der the action.3 Gupta nally applying preclusion rules Cali- complaint filed a in federal district court in fornia, the court explained that “a court’s January alleging identical causes of dismissal for in action as those raised the dismissed judicata as to the merits of the claim be- state court complaint. cause it was not a judgment on the mer- Airways moved dismiss Gupta’s its.” Because the state court’s order dis- federal pursuant case to Federal Rules of missed Gupta’s action for lack subject 12(b)(1) 12(b)(3) Procedure Civil fo- matter based on Thai Airways’ rum non conveniens. Regarding Rule under the the court held 12(b)(1), Airways asserted that the it “was not a on the merits and subject issue of matter preclusive has no effect.” immunity under the judica- FSIA was res Next the district court held that “[s]uits ta virtue of state the court’s prior de- against foreign states under the Warsaw

termination of these issues. Thai Airways Convention are excepted from FSIA im- argued, also without reliance on judi- munity.” basis, On this the district court that it was a state and that cata^ then held that the against suit Thai Air- no to the FSIA was applicable. ways, even though it is a foreign state- Gupta responded by asserting that Thai carrier, owned was properly brought Airways the United States federal court. The Conven- United States pursuant to the War- tion applied case, to this the district court Convention, saw which governs the inter- reasoned, because the act of on embarking national transportation of passengers and an international flight airline was sufficient cargo. See for Convention the Unification to bring the incident within the ambits of of Certain Rules Relating to International the Convention. Transportation Air, Oct. Stat. (1934), T.S. No. 876 reprinted Finally the court explained that fo- in note following 49 § U.S.C. 40105.4 rum proper because Article 28 of the Gupta argued also the forum was Warsaw Convention allows for actions superior court's order is appeal, final because superior court's order fi- became Gupta neither complaint amended the nal December nor on appealed the dismissal within the time al- Gupta argued Articles 17 and 19 of the lowed for such actions. “An action is deemed Warsaw brought Convention Airways pending to be from time of its commence- within of United States courts ment until its upon final ap- determination despite the FSIA. provides Article for car- peal, or until the time passed has liability rier when physical injury on occurs Cal.Civ.Proc.Code board aircraft or course of embark- added). Pursuant the California Rules of ing disembarking or the aircraft. Article 19 Court, Gupta days had 60 to file a notice of provides for liability carrier damage appeal. 8.104(a). Thus, Cal. Rules of Court “by delay caused carriage by air of when days passed the 60 without a notice of passengers, luggage goods.” state court’s mining whether the California place in the located a court before brought Airways is immune holding that Thai Gup- Since destination. passenger’s the FSIA is suit under the district Angeles, Los bound for ta was Miller, Techs., Inc. v. federal court. in federal WMX proper forum is court held that (9th Cir.1997) (en F.3d in California. banc) not raise parties did (“Although the district appeals now jurisdiction, we have question to dismiss denying its motion must.”). We sponte, raised sua 12(b)(1). grounds of Rule conclude that exists. action federal Gupta’s argues that of res principles is barred under “is the exclusive The FSIA court determined the state jurisdiction over source immune from Airways is or their involving foreign states all suits claims as- identical United Compania Mexicana instrumentalities.” complaint. federal serted Ct., Aviacion, De U.S. Dist. S.A. (per cu- II. riam). Hence, if the Act’s one of an or is from appeal this Because immuni sovereign “specified exceptions lack of dismiss for a motion to denying der subject may a court exercise ty applies” order jurisdiction subject matter —an foreign over a sover matter ordinarily appealable is not which —we Bank B.V. Cent. eign. Verlinden ju have whether first must determine S.Ct. Nigeria, Airways’ appeal. to consider risdiction (1983).5 L.Ed.2d 81 Sch., High Union v. Glendale Savage foreign Because (stating 1036, 1040 only by appli may be exercised sovereign motion to dismiss of a “the denial FSIA, we exception to the cability of an judg final complete and ordinarily not a denying “an ”). order long held Although subject appeal ment appealable the FSIA is immunity juris under issue of not raise the did parties the doctrine.” order the under collateral to confirm diction, obligation the we have Mexicana, at 1358.6 859 F.2d Compania deter- sponte before jurisdiction sua We immunity. F.2d at 1357. sovereign Verlinden, Supreme further the In 5. doctrine the collateral order explained that explained: Corp., 337 Indus. Loan Cohen Beneficial applied by District the must be The [FSIA] L.Ed. 1528 S.Ct. foreign every against a action Courts (1949), interlocutory review of contemplates subject sovereign, matter since conclusively deter "orders small class of depends the existence any such action impor question, an disputed the resolve mine foreign exceptions specified of one merits separate the from completely tant immunity!.] At threshold sovereign effectively unreviewable against a a District Court every action Compania judgment.” a final therefore, state, must sat- the court foreign dealing Mexicana, at 1358. 859 F.2d Orders ap- exceptions one of isfy itself that immunity within fell foreign with doing apply the plies in so must —and reasoned, orders, we this class of collateral forth set law standards detailed federal qualified of absolute like claims the Act. official, foreign sover public immunity of a U.S. at immunity an eign immunity “is liability; it is case, defense to Mexicana, a mere rather than as Compañía In permit erroneously effectively if a case is lost to dismiss a motion court denied added) Id. go to trial.” ted to jurisdiction on the basis want of interlocutory appeal “An 12(b)(1), insures that ‘a Rule Thai Airways briefed two foreign state shall immune from grounds for dismissal in the alternative: jurisdiction of the courts of the United the state court’s already decision deter- except provided States and of mined Thai Airways’ under (alteration Id. and, origi- [in Act].’ judicata, of under principles nal) 1604).7 (quoting 28 U.S.C. Accord- precludes therefore further review of the ingly, issue; we have over the order Thai Airways a “foreign 12(b)(1) Airways’ Rule mo- state” within the meaning of and no tion. is applicable to confer the jurisdiction. The district court re- Airways moved the district court to jected both Airways’ of Thai arguments action on two grounds: and issued an order denying under motion to jurisdiction. dismiss for lack of 12(b)(1) non con- Fed.R.Civ.P. forum 12(b)(3).8 veniens Fed.R.Civ.P. In It is from this that Thai support of its motion to dismiss under Mexicana, is appealing. Under Compañía (citing Forsyth, Mitchell v. sue in only Hallock dealt with "whether a (1985)). L.Ed.2d 411 We apply refusal to bar of the Fed also that both the noted text of the FSIA and eral open Tort Claims Act is to collateral legislative history "supported] of the Act appeal.” ruling Id. at 956. such refusal prompt appellate determination of sover appealable constitute collateral eign immunity.” Id. Our later case law on order, the Court stressed that the class of holding has reaffirmed the collaterally appealable orders is "narrow and Compania Mexicana. See Blaxland v. Com selective in membership.” its Prosecutions, Dir. monwealth Pub. Court listed orders that fall this nar within (9th 1198, Cir.2003); Repub 1203 v. Phaneuf row class and denying included orders abso Indonesia, 302, (9th lic 106 F.3d 304 Cir. of qualified list, lute immunity and in the id.— 1997). analogized orders we denying orders We note that each of our sister circuits that foreign sovereign immunity in has considered whether a denial of a motion Mexicana, Compania 859 F.2d at 1358. The grounds on of Court reiterated the three factors to consider appealable is an collateral order determining whether an order is collateral " unanimously have held that it is. See Rux v. ly appealable: conclusively '[1] determine Sudan, 461, Republic (4th 461 F.3d 466-67 of question, the disputed impor [2] resolve an Cir.2006); Southway v. Nigeria, Cent. Bank of tant completely separate issue from merits 1210, (10th Cir.1999); 198 F.3d 1214 Rein v. and [3] be effectively unreview " People's Libyan Socialist Jamahiriya, Arab 162 appeal able judgment.' from a final Hal 748, (2d Cir.1998); 755-56 Hond. Air lock, (alteration 126 S.Ct. at 957 origi in the Hond., Registry, Ltd. v. Gov't 129 F.3d craft of nal) (quoting Aqueduct Puerto Rico and Sewer 543, (11th Cir.1997); 545 Fed. Ins. v. Co. Inc., 139, Auth. Eddy, v. & U.S. 506 Metcalf Co., Inc., 1270, I. Richard Rubin & 12 F.3d 144, 684, (1993)). S.Ct. 113 121 L.Ed.2d 605 (3d Cir.1993); 1279-82 Stena Rederi AB v. precise These are analyzed factors we Contratos, 380, de Comision 923 F.2d 385-86 Mexicana, Compañía 859 F.2d at 1358. (5th Cir.1991); Foremost-McKesson, Inc. v. short, nothing in ques Hallock causes us to Iran, 438, Republic

Islamic 905 F.2d 442- of reasoning Compañía of Mexicana and (D.C.Cir.1990); Gould, 43 Pechiney Inc. v. case law later denying holds orders Kuhlmann, Ugine 445, 853 F.2d 450-52 foreign sovereign immunity immediately are Cir.1988); Segni v. Commercial Office of appealable collateral orders. 344, Spain, 1987). 816 F.2d 346-47 Cir. reject Gupta's 7. We contention that Airways the Su- does not its claim of preme Hallock, had, Court’s decision in Will v. 546 non conveniens. If it we would forum 345, 952, 163 L.Ed.2d have lacked to consider (2006), interlocutory disallows ques- Coyle Indonesia, review of claim. See v. P.T. Garuda foreign sovereign 979, tions of immunity. (9th Cir.2004). The is- 363 F.3d prior judg court Whether state denying order review we precludes relitigation of an identical FSIA.9 ment immunity under the Airways depends pre claim federal Ill Migra War clusion rules of state. Educ., City Sch. Dist. Bd. ren 465 U.S. A. L.Ed.2d S.Ct. ju subject matter The existence of 90, 96, McCurry, Allen v. question is a under the FSIA risdiction This 66 L.Ed.2d 308 S.Ct. Coyle v. P.T. de novo. law reviewed statutory from the com principle results Indonesia, 7n. Garuda § “judicial mand 28 U.S.C. Blaxland, (9th Cir.2004); 323 F.3d at full proceedings shall have same in every court within the faith credit B. and its Pos Territories and United or they usage law from which sessions While they its such State from which one appealing is long taken.” “This statute has been mat to dismiss lack motion theory encompass the doctrines of understood to jurisdiction, first ter judicata, preclusion, or claim and col res dismissal is that California supporting San preclusion.” Air already estoppel, lateral determined state Hotel, City County L.P. v. Thus, Remo ways was immune under FSIA. Francisco, Cal., 323, 336, 125 has San this determination contends (2005) (inter court under the 162 L.Ed.2d 315 preclusive effect federal omitted). Hence, marks we judicata. of agree. quotation nal We principle Miller, Wright, R. & Charles Alan Arthur conclusion on 14A The dissent faults our Airways' Cooper, claim the Thai Edward H. Jurisdiction and Related basis immunity. (3d ed.1998) Were the issue not involve FSIA add- Matters judicata fully from the issue of res divorced ed). private when result occurs same agree immunity, we with the would court, party brought the first case state cogent thoughtful and dismiss for dissent federal court. See Kremer then filed in However, jurisdiction. want Corp., 102 456 U.S. Chem. Constr. premise, agree with do not the dissent’s 1883, 72 L.Ed.2d 262 ignores Airways’ judicata which res Hence, immunity question” “sovereign immunity; it is FSIA indeed claim involves settled, ap interlocutory deny and to is here nothing As immunity else. based FSIA purpose peal in case would frustrate the above, appealing explained qualified provide, to like which is denying Thai district court’s immunity, immunity “an suit rather immunity; we understand liability....” Compa than a mere defense to Airways’ be it is to claim Mexicana, (emphasis 859 F.2d at 1358 nia the state entitled to 194, Katz, added); see Saucier v. holding Airways was so decision court’s 200-01, 2151, 272 150 L.Ed.2d 121 S.Ct. judicata in federal court: immune is 982, Hansen, v. 987 Brittain 451 F.3d judgment dismissing ac- A district court Cir.2006) (“[Qjualified immunity is 'im tion for lack munity mere to rather than defense from suit the sov- because of FSIA determinative of ” Mitchell, at liability....’ (quoting Thus, question. private ereign immunity a 526, 2806)). immuni question jurisdic- party, lost on the who pursuant the state ty, to which it is entitled to tion, bring case in a state cannot the same decision, "effectively lost if would be court’s claiming the decision federal go to erroneously permitted to case is [the] only question to of federal extended Mexicana, at Compania trial.” sovereign immunity jurisdiction and not to courts. 1358. had force in the federal 766 to

look California law to determine (1979)).10 wheth- Cal.Rptr. 479 However, and de er principles judicata of res precluded the here, terminative such dismissal does bar “ district court from deciding anew Air- re-litigation of ‘issues necessary for the ” ways’ immunity under the FSIA. jurisdiction.’ determination of MIB, Inc. “ Ct., v.Super. 228, 106 233, Cal.App.3d 164 law, Under California or ‘[a]n Cal.Rptr. 828 (quoting Nichols v. der a motion or dismissing pro a Indus., Canoga 83 Cal.App.3d 956, 967, ceeding for procedural reasons such as (1978)).11 Cal.Rptr. 148 459 lack of As the judicata is not Cali as to fornia Supreme any the merits Court explained, underlying “when substantive question.’ jurisdictional Kalai the decision Gray, on the 109 question Cal. App.4th Cal.Rptr.2d upon based a determination of the mer added) (quoting Gorman its of an issue court, before the it consti Gorman, Cal.App.3d 454, 462, 153 tutes a binding determination of that is- Kalai, In "underlying MIB, ques- substantive corporate nonresident defendant tion” referred to the merits of a claim a served with summons complaint by mail homeowner-plaintiff brought against a con- filed a quash motion to the service sum- tractor based dispute arising from home grounds: mons on two improvements. Cal.App.4th at because the defendant did not have sufficient Cal.Rptr.2d agreement 449. The be- California, contacts with judicata. and res The tween the homeowner and the contractor in- judicata defendant asserted res because rul- cluded an arbitration clause that stated the ings prior in three actions filed plaintiff remedy exclusive party for either would against the defendant had determined that the through homeowner, arbitration. Id. The defendant had insufficient contacts with the however, brought court, in state state to be personal jurisdiction to than, filing petition "rather compel arbi- 230, California. Cal.App.3d 147 Cal. tration,” the contractor summary moved for Rptr. 777. The trial court denied the defen- judgment on the basis of the arbitration motion, dant's and the appealed. defendant agreement. Cal.Rptr.2d Id. The California Court of Appeal reversed based The contractor's motion was based on Charles judicata on the "res effect findings juris- J. Rounds Co. v. Joint Council Teamsters dictional facts....” Id. at Cal.Rptr. No. Cal.3d 95 Cal.Rptr. 777. Although a dismissal because of lack of (1971), P.2d 1397 "in which the [California] is not res on the merits of Supreme Court held that a party faced with a the underlying finding "a respect with lawsuit filed in contravention of an arbitra- jurisdictional facts bewill treated as res agreement may move summary judg- subsequent respect actions” with option ment as an filing petition to com- to those facts. Id. at 147 Cal.Rptr. 777. pel pursuant arbitration to Title 9.” Because the underlying facts per- California's granted the motion summary judg- sonal over the defendant had al- ment, doing, and in so ruled that the home- ready been determined previous ac- owner had right waived his arbitrate tions, plaintiff the prohibited was from re- bringing suit in state court. Id. The home- litigating the issue of per- California courts’ appealed. owner sonal over the defendant. reversed, The court holding that The the fully did decision MIB rights homeowner not waive his accords to with the explanation by filing arbitrate suit in in Kalai that state proce- court. dismissal for In so mentioned, ruling, the court dural reasons among does not bar litigation future numerous of grounds, other that the the merits of homeowner a claim. simply prohibits had not MIB litigated the re-litigation merits of jurisdictional his claims in superior of already facts de- court, cided; and therefore the pre- decision did the not merits of the claim still clude arbitration. Id. litigated at 135 Cal. in a court of competent jurisdiction. Rptr.2d 449. Kalai does pre- present not address the The analogous case is to MIB because clusive effect aof jurisdic- determination of superior the court here findings made ju- facts, tional which is the discrete issue here. risdictional facts. jurisdiction. court provides 677, 681, Convention Shore, 43 Cal.2d sue.” Shore in MIB Appellate The California P.2d similar where situation a faced juris- to attempting establish fourth action C. defendant, the an out-of-state over diction court conclud state Here, the California and new evidence introduced plaintiffs subject matter ed lacked 106 Cal. action. of causes new pleaded by the owned Airways is 79% The CahRptr. at App.3d of Kingdom Finance Ministry of not evidence “which held that court from immune therefore and is Thailand proceedings” in the earlier introduced under the United courts in effect of preclusive not overcome (in 1603(b)(2) § 28 U.S.C. the FSIA. CahRptr. at decisions. Id. prior entity “any “foreign state” aas cluding decision wrong, if earlier Even owner or other shares of whose majority a the same same issue and involving the foreign state is owned ship interest as correct one.” as conclusive parties, “is thereof’). The state subdivision political to opportunity and fair had a full Gupta Id. al not had Gupta concluded further court of United States establish to exceptions any of leged failed do Airways. He findings Airways. These applied a do-over.13 get now to the He does necessary determination so. were preclu- and therefore RE- and we REVERSE Accordingly, Shore, at Cal.2d under effect sive to the district instructions MAND with at MIB, Cal.App.3d P.2d Gup- its order and court vacate 828.12 231-35,164 Cal.Rptr. jurisdiction.14 suit for ta’s law, differ- it makes no California Under REMANDED. REVERSED the Warsaw now contends Gupta ence Supreme by the yet as unresolved an issue not affected here is the result note 12.We de novo We reviewed Id. then Court. Af-Cap, v. Chev- Inc. decision recent activi- for commercial meaning of “used Ltd., (Congo) 475 F.3d Overseas ron 1610(a). at 1087-91. § exception in ty” There, prin- apply Cir.2007). we declined determining estoppel collateral ciples of resemblance us bears no case before exception meaning FSIA’s legal Here, question purely on a Af-Cap. factual activity the United commercial "used than of more immunity ownership interest — 1610(a). Id. at § 28 U.S.C. States" nonexistence by a 50% decision, Circuit previous Fifth A 1086-87. exceptions to FSIA—we allegations of controversy before stemming the same only whether upon to consider called Califor- involving the same Af-Cap and Gupta bar principles of res nia "com- interpreted the already had plaintiff, immunity in feder- Airways' re-litigating Thai 1610(a). Id. exception in activity” already deter- mercial a state where al court Congo, 1087; Republic Af-Cap, application Inc. see basis for the factual mined Cir.2004). explained We Airways is immune. that Thai the FSIA: " ap- never been preclusion has '[i]ssue Gupta can nothing about whether rigor say We the same law with issues of plied to Airways where against Thai claims raise his Af-Cap, 475 fact[.]' to issues the FSIA. (quoting his claims original) (first alteration Inc., Co., & Tel. Segal v. Am. Tel. determined, ad- need not Cir.1979)). Having so 842, We also noted Gupta’s federal Airways' claim that importance dress Thai novelty the issue the Rooker-Feld- barred under court action area area —an developing the law doctrine. man had addressed circuit court one where TASHIMA, Circuit Judge, dissenting: of the prior State Court determina- tion and thus barred under majority finds Rooker-Feldman Doctrine. only by this case mistakenly assuming In support if any that of its issue, first decided Thai Air- ways argued that the district court interlocutory appeal, erred any other issue its decided motion same the prior ruling by can also be the state superior reached on interlocutory ap- judicata. was res peal. In support Because I disagree its would second dis- issue, Thai Airways argued miss this interlocutory appeal under the for lack of doctrine,1 Rooker-Feldman appellate jurisdiction Gupta’s action over the limited is- in the district court sues raised de and not facto appeal merits, reach the I of the state court’s dismissal of respectfully his dissent. earlier action. Thai Airways raised argument no Under the doctrine, collateral order in its briefs that it was immune from suit court would have jurisdiction over an inter- as a foreign state under Yet, the FSIA. locutory appeal from portion of the because Thai Airways is taking interloc- district court’s order denying Thai Air- utory appeal from an “order denying Thai ways’ claim to sovereign immunity under Airways immunity FSIA,” under the Maj. the Foreign Sovereign Immunities Act op. at 765 (emphasis added), the majority (“FSIA”), 28 §§ U.S.C. 1602-1611. But concludes, without analysis and erroneous- this rule does not confer ly my view, we have an interlocutory appeal parts from other review that portion of the district court’s the same order. order denying dismissal on the basis of res Thai Airways was very specific of the judicata. issues it raised on this appeal. It raised The collateral order doctrine is intended only two issues. quote To fully the “Is- to allow immediate appeal only of “that sues Presented for Review” section of Thai small class [of decisions] which finally de- Airways’ opening brief: termine claims of right separable from, 1. Whether the District Court erred in to, and collateral rights asserted in the Denying Thai Airways’ motion to action, too important to be denied review dismiss after the State Superior and too independent of the cause itself to determined, in an identical require that appellate consideration be de- prior action, that Thai Airways was ferred until the whole case adjudicated.” immune from suit Gupta’s claim Cohen v. Indus. Loan Corp., Beneficial in the United States under the For- 541, 546, U.S. 69 S.Ct. 93 L.Ed. eign Sovereign Immunities Act (1949). “The requirements for collat- (“FSIA”). 28 1604; U.S.C. Saudi eral order appeal have been distilled down Nelson, Arabia v. to three conditions: that an order con- 113 S.Ct. 123 L.Ed.2d 47 clusively determine disputed question, (1993). (2) resolve an important issue completely Whether subsequent identi- separate from the merits cal against action Thai Airways in effectively unreviewable on appeal federal court was a de from a final judgment.” Hallock, facto Will v. Co., Fidelity Rooker Trust 103 S.Ct. 75 L.Ed.2d 206 68 L.Ed. 362 Dist. Appeals Feldman, Columbia Court

769 on considered interloc- to be for it 957, in order 952, 163 345, 126 S.Ct. jurisdiction over Appellate appeal. utory (citation internal 836 L.Ed.2d court order in district rejected omitted). one claim marks quotation over all other jurisdiction not confer does per law case that it is true While Abney in the same order. rejected claims interlocutory appeal immediate mits 662-63, States, 97 651, v. United to dismiss a motion an order also see 2034, 651 52 L.Ed.2d S.Ct. immunity, sovereign on based Inc., Sys., Freight v. Yellow United Aviacion, S.A. De Mexicana Compania Cir.1980) (9th 1248, (“Inqui- 1251 F.2d Court, U.S. Dist. aof appealability the immediate ry into well- it is curiam), equally (per upon must focus pretrial order particular to dis a motion denial that the settled asserted.”). claim each is not grounds res based on miss of a that denial ruling Abney, after Will, In immediately appealable. on to dismiss defendant’s motion criminal respecting (“[The] rule of at S.Ct. immediately is an grounds jeopardy against double a defense by giving prior order, Supreme collateral appealable protect thought been has not relitigation course, “we, do not that noted Court appeal only immediate that great so values contained claims them.”). that other hold To re vindicate effectively can immediately appeal- are motion dismiss that the case, it is true while in this peat, well.” U.S. able as rejected appeals order claims that held “other The Court Thai Air immunity, its claim by, the district rejected to, and presented are direct only arguments ways’ motion to on the accused’s passing order, those of the bases other ed to if, if, appealable .... are Rooker- and the resting on collateral-or- fall within Cohen’s they too doctrine.2 Feldman rule.” final-judgment der the collat- discussing cases Although thus The 97 S.Ct. loosely refer sometimes doctrine eral order juris- lacked appeals the court that held being appeal- interlocutory orders denial district to review diction analyze actually fact, able, the cases on insuffi- to dismiss based motion in deter- presented or issue claim specific Id.3 indictment. ciency of on an jurisdiction scope of their mining courts must appellate principle pre- each claim And interlocutory appeal. sep- presented claim or each examine the re- meet independently must sented their arately to determine doctrine the collateral quirements in- this jurisdiction. appellate pendent any Rooker- make Airways did not inap- however, stance, jurisdiction is pendent arguments to the Feldman-based basis rule, independent no there is a federal general plicable because “As court. passed this over an issue not consider which County, 59 River v. Hood Swint Dodd upon "appended.” below.” be can Cf. 1995) (citation Comm'n, Cir. 50- County Chambers omitted). if Even quotation marks internal L.Ed.2d rule, general deviate from we wished to preemptively definitively ("We need not the Rooker-Feldman over we lack may proper be or when here whether settle lack reasons the same argument for jurisdiction over appeals, with for a court judicata issue. review, conjunctively, related ruling, to one independently not themselves rulings eased somewhat Abney rule 3. The appealable.”). exercise choose to where instances appeal is interlocutory also reflected in There be instances where it is not requirements that an order meet must to entirely clear whether the arguments two be immediately appealable. Those re- can be separate considered defenses.5 An quirements phrased are in terms of a dis- immunity defense preclusion issue puted “question” singular defense, however, clearly unrelated, —in —indicat- that it ing not the breadth of the separate See, defenses. e.g., Timpanogos that defines scope appellate jurisdic- Tribe v. Conway, 1195, 1200 (10th on an interlocutory appeal. Rather, Cir.2002) (refusing to pendent ju exercise particular each appealable issue that judicata risdiction over claim in an by resolved the order must be examined interlocutory appeal of the denial of a mo separately. Will, S.Ct. 957 tion to dismiss on Eleventh Amendment (noting that an order must “conclusively grounds, because there was no showing determine the disputed question and “re- the res claim was “inextrica solve an important completely issue sepa- bly intertwined” with the Eleventh rate from merits” to be immediately claim).6 Amendment appealable) added). Here, the rationale for applying the Co-

Hence, issue here is sepa- whether hen collateral order doctrine to appeals rate are raised claims/defenses from denials of foreign sovereign immunity Airways’ arguments to the district court of does encompass instances where the (1) a substantive entitlement appeal is taken and supported solely on sovereign immunity, and preclu- issue the grounds of preclusion. issue The Su- sion as to its entitlement to foreign sover- preme Court has pointedly remarked eign immunity. Here, simple logic, “the third question, Cohen right whether a applying Abney, if the arguments two con- is ‘adequately vindieable’ ‘effectively re- stitute separate claims, then this court viewable [on appeal from a final judg- does not have over an appeal ment],’ simply cannot be answered without taken solely from the portion of the dis- a judgment about the value of the interests trict court’s order rejecting that would be lost through rigorous appli- preclusion issue argument. The fact that cation aof final judgment requirement.” the ruling on argument one is interlocutor- Digital Equip. Corp. Direct, v. Desktop ily appealable does not mean that Inc., the oth- er is as well.4 128 L.Ed.2d 842 majority’s reliance Compañía Mexi- majority argues 6.The that because the state misplaced cana is only there the was based on immunity, that was before court on inter- that should make a difference in determining locutory appeal immunity un- whether over this inter- der the FSIA. locutory appeal judicata, based on res Maj. op. at 765 n. but it cites no 5. The case in transactional definition of a "claim” for support of that purposes assertion. It preclusion, of claim further conflates which is aimed inquiry by determining asserting deny whether allege two suits "to interloc- here, same cause of unhelpful utory appeal where this case would frustrate the court must consider the relationship purposes be- of the FSIA.” Id. But that frustration tween defenses rather than between claims. is caused appealing only Cent. States, Delta Water Agency v. United Cf. portion of the district Cir.2002) (most im- court’s order and not appealing from the portant preclusion factor in claim analysis is portion of the same order. “whether the two suits arise out of the same facts”). transactional nucleus of interlocutory this merits of reaching the rulings based why pretrial explaining In “the sub- majority frustrates appeal, merit im- not do grounds on res is meant finality interests emphasized have stantial appeal, mediate Will, 126 S.Ct. at further,” not meant is to judicata doctrine that scope” of right to “modest absolute intended expands a defendant give to Corrugated doctrine, at See, re e.g., In id. order collateral trial. avoid F.2d Litig., Antitrust Container appeal the to Airways chosen Had injury Cir.1983) only (“[T]he (5th to its ruling entitlement court’s review] of immediate denial [from immunity under sovereign to present have to will defendant] [the that jurisdic- exercised might we injury trial, that sort but at its defense However, nowhere appeal. tion over that dis- to a motion every denial follows Thai Air- reply brief did opening in its justify an and does not complaint amiss fact, Thai In argument. this ways make rule.”); see final-judgment to the that affirmatively declared Airways FTC, v.Co. Donnelley Sons & R.R. also not within are FSIA defense of its merits Cir.1991) (“Pre- (7th 430, 432-33 F.2d reply in its arguing appeal, scope of its not to ‘right case creates in a civil clusion Warsaw applicability that “the brief it creates that sense only in the tried’ be this ap- issue on not an Convention do legal doctrines win; many but right to its enti- argue to electing not By peal.” right inter- creating a also without that merits, immunity on the to FSIA tlement review.”). locutory appellate for has waived Airways preclusion only on issue Here, relying appeal. United of this purposes arguing is not arguments, Cir.2005). 1236, 1238 Kama, F.3d the FSIA purposes the substantive that defense preclusion Airways’ issue it by granting be served would to base which upon ground an insufficient admittedly weighty in- immunity. Those this inter- stake the interests are not terests locutory appeal. Airways is Rather, Thai appeal. this another respect arguing this I would Because The in- dismissal. entitles judgment dissent. respectfully I jurisdiction, being asserted claim stake terests ordinarily protected those simply Any interest judicata. of res doctrine pos- legitimately is not the FSIA avoiding suit under sess appeal, because in this implicated

truly merits arguing Airways is not Thus, immunity. to FSIA claim

its obtain “adequate means” Airways has an Airways ar- filing, Thai supplemental preju- relief, “damaged or not be and will lacking under find gues that if we appeal” if way correctable on in a rule, diced construe we should final relief. See provide mandamus do not mandamus. petition for appeal as Court, Dist. v. U.S. Bauman However, appeal my that this conclusion criteria (listing these 654-55 doc- collateral the Cohen within not fall considered should among the factors rights at that the my view is based trine mandamus). grant determining whether are ade- preclusion defense in an issue stake result, grant manda- reason I see no As a a final appeal from quately vindicable relief. mus implies that Thai conclusion judgment. This

Case Details

Case Name: Subir Gupta v. Thai Airways International, Ltd.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 30, 2007

Citation: 487 F.3d 759

Docket Number: 04-56389

Court Abbreviation: 9th Cir.