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77 F.3d 860

Docket No. 94-60732.

Brown v. Valmet-Appleton

Fifth Circuit Court of Appeals

Decided March 18, 1996.

Fifth Circuit Court of Appeals · decided 1996-03-18

Cited by 12 later decisions — most recently July 2002

7 federal appellate ·

3 counsel of record

Key passage — most relied on by later courts

“(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case— (2) in which the action is based upon a commercial activity carried on in the United States by a foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.”

quoted by 1 later decision, including Byrd v. Corporacion Forestal Y Industrial De Olancho S.A.

“. . . includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). (b) An”

quoted by 1 later decision, including Davis International Inc v. Yemen the Republic of Ministry of Supply and Trade

Applies 28 U.S.C. § 1602 (§ 4 of the Foreign Sovereign Immunities Act of 1976) · 28 U.S.C. § 1603 (§ 4 of the Foreign Sovereign Immunities Act of 1976) · 28 U.S.C. § 1604 (§ 4 of the Foreign Sovereign Immunities Act of 1976)

Relies on Argentine Republic v. Amerada Hess Shipping Corp. · Saudi Arabia v. Nelson · Schultea v. Wood

Good law ✅— No negative treatment on recordhow we know

Decided 1996-03-18

View the full empirical analysis of this case →

¶1*861Michael Evan Jaffe, David L. Kelleher, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, Michael B. Wallace, Phelps, Dunbar, Jackson, MS, for Defendant-Appellant Valmet Paper Machinery, Inc.

¶2Mark D. Lumpkin, Paul S. Minor, Monor & Guice, Biloxi, MS, for Plaintiffs-Appellees Kenneth Brown and Elmira Brown.

¶3Karl R. Steinberger, Gina L. Bardwell, Colingo, Williams & Heidelberg, Pascagoula, MS, for Intervenor-Plaintiff-Appellee International Paper Co.

¶4Before POLITZ, Chief Judge, and JONES and PARKER, Circuit Judges.

¶5POLITZ, Chief Judge:

¶6Valmet Paper Machinery, Inc. (VPI), a Finnish corporation, appeals the trial court’s denial of a claim of sovereign immunity as a *862defense to plaintiffs’ complaint. For the reasons assigned we affirm and remand.

¶7Background

¶8Kenneth Brown was employed by International Paper Company as an operator at the company’s Moss Point, Mississippi paper mill. On August 1, 1990, Brown suffered serious injury when his right hand and arm were pulled into a paper winder. He has undergone several surgical procedures for the reconstruction of his arm and allegedly is maimed for life.

¶9On July 6, 1993, Brown and his wife filed the instant action against, inter alia, VPI which responded with a motion to dismiss for lack of subject matter jurisdiction, invoking the Foreign Sovereign Immunities Act of 1976 (FSIA), codified at 28 U.S.C. §§ 1602et seq.1In its motion, VPI averred that it was a wholly-owned subsidiary of Valmet Corporation, 70% of the stock of which is held by the Republic of Finland. As such, VPI claimed qualification as a foreign state under 28 U.S.C. § 16032 and concomitant entitlement to sovereign immunity under 28 U.S.C. § 1604.3 The district court denied this motion, applying the commercial activity exception to foreign sovereign immunity.4 VPI timely appealed.

¶10Analysis

¶11The interlocutory order denying VPI’s motion to dismiss, based upon a denial of sovereign immunity under the FSIA, is an appealable collateral order.5 We review de novo the district court’s legal conclusions concerning VPI’s immunity under the FSIA; we examine for clear error the factual findings upon which those conclusions are based.6

¶12VPI first contends that the plaintiffs do not allege with sufficient particularity the jurisdictional facts required to overcome the presumption of immunity created by 28 U.S.C. § 1604.7 In considering this contention “we assume that we have truthful allegations before us though many of those allega*863tions are subject to dispute”8 and may, if appropriate, look to materials outside of the complaint to clarify disputed issues.9 The plaintiffs allege, and information derived from interrogatories and other discovery devices support, the proposition that VPI was involved in the production, distribution, and/or installation of the paper winder which caused Brown’s injuries.10 VPI has received fair notice of the activities upon which the subject matter jurisdiction of the district court is premised.11 This contention, therefore, is not persuasive.

¶13VPI next challenges the merits of the district court’s decision denying immunity. In Aldy v. Valmet Paper Machinery,12 a panel of this court affirmed the denial of foreign sovereign immunity in a case involving facts essentially akin to those at bar. Finding any legal and factual variance between Aldy and the instant action irrelevant to today’s decision, we adopt the careful and comprehensive reasoning of our colleagues and affirm the trial court’s denial of immunity.

¶14AFFIRMED and REMANDED for further proceedings consistent herewith.

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