United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 13, 2006
_______________________ Charles R. Fulbruge III Clerk No. 05-20434 Summary Calendar _______________________
KEVIN L. EVANS,
Plaintiff-Appellant,
versus
PETROLEOS MEXICANOS (PEMEX) and PEMEX EXPLORACION y PRODUCCION (PEP),
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court For the Southern District of Texas, Houston Division No. H-04-1510 ________________________________________________________________ Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Kevin Evans brings this appeal, challenging the district
court’s dismissal of his suit against Appellees Petroleos Mexicanos
(“PEMEX”) and PEMEX Exploracion y Produccion (“PEP”). Because we
conclude that Evans waived his argument that PEMEX and PEP are not
agencies of the Mexican Government and that Evans has failed to
sufficiently allege facts that would support an exception to the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et
seq., we AFFIRM.
I. Background
This case stems from an injury Evans suffered in 2003
while working on an oil platform in the territorial waters of
Mexico. At the time of his injury, Evans, an American citizen, was
employed as a supervisor for Cia. Tesco Corporation (“Tesco”), a
Mexican corporation headquartered in Mexico City. Tesco had
contracted with PEP to refurbish an oil platform owned by PEP, and
Evans was one of the workers on the project. While attempting to
setup a fiberglass ladder, Evans stepped into an exposed hole in
the platform and fell; he alleges that he suffered severe,
permanent, and disabling injuries as a result of Appellees’
negligence.
Evans sued PEMEX and PEP1 for damages in the Southern
District of Texas. The Appellees responded that they were
decentralized public entities of the Mexican Government and were
entitled to sovereign immunity under FSIA; Evans had asserted in
his original complaint that jurisdiction was proper under the
“commercial activities” exception to FSIA. 28 U.S.C. § 1605(a)(2).
The Appellees then moved to dismiss Evans’s complaint pursuant to
1 PEP is a subsidiary of PEMEX.
-2- FED. R. CIV. P. 12(b)(1) and 12(b)(2) for lack of subject matter and
personal jurisdiction, respectively. The district court found that
PEMEX and PEP were agencies of the Mexican government within the
meaning of FSIA and that Evans had not alleged or otherwise
explained how the “commercial activities” exception to FSIA would
apply to his case; as a result, the court dismissed Evans’s case.
Evans brought this timely appeal, which may be heard pursuant to 28
U.S.C. § 1291.
II. Discussion
This court reviews a district court’s dismissal for lack
of FSIA jurisdiction de novo. United States v. Moats, 961 F.2d
1198, 1205 (5th Cir. 1992). The FSIA provides the sole source of
subject matter jurisdiction in suits against a foreign state.
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,
434-39, 109 S. Ct. 683, 688-91 (1989). As a general matter,
foreign states and their agencies are immune from the jurisdiction
of courts in the United States. 28 U.S.C. § 1604; see also Byrd v.
Corp. Forestal y Indus. de Olancho S.A., 182 F.3d 380, 388 (5th
Cir. 1999). However, 28 U.S.C. §§ 1605-07 provide exceptions that
allow the American courts to exercise jurisdiction over foreign
states.
Evans first argues that PEMEX and PEP are not agencies of
the Mexican Government, and are therefore not entitled to FSIA
-3- protection. In its opinion, the district court noted that there
was “no dispute in this case that Defendants are agencies of the
Mexican government within the meaning of” FSIA. (Dist. Ct. Op. 1).
This is because in his first amended complaint, Evans conceded that
PEMEX and PEP were “decentralized public entities of the Mexican
Government.” (Appellee Record Excerpts at 41). Further, in his
reply to Appellees’ motion to dismiss, Evans did not change his
position on Appellees’ status; instead, he asserted that he needed
to conduct further discovery to develop his claims. For the first
time on appeal, Evans now asserts that the Appellees, particularly
PEP, ceased being instrumentalities of the Mexican Government
following a restructuring in 1992. Barring the “absence of
exceptional circumstances which would result in a miscarriage of
justice, a condition not present here, questions not presented to
the trial court will not be considered on appeal.” C.F. Dahlberg
& Co. v. Chevron U.S.A., Inc., 836 F.2d 915, 920 (5th Cir.
1988)(citing D.H. Overmyer Co. v. Loflin, 440 F.2d 1213, 1215 (5th
Cir. 1971)). Evans has waived this argument, and this court will
not consider his claims that PEMEX and PEP are no longer agencies
of the Mexican Government.
Next, there is the issue of whether Evans adequately
pleaded an exception to FSIA. Under FSIA, an American court can
only exercise jurisdiction over a foreign sovereign where an
-4- exception to sovereign immunity applies. Evans claims that an
exception to sovereign immunity exists in this case pursuant to 28
U.S.C. § 1605(a)(2), the “commercial activities” exception to FSIA.
28 U.S.C. § 1605(a)(2) states that a sovereign is not immune to the
jurisdiction of the United States Courts where:
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 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.
In order to successfully invoke one of the three
“commercial activities” exceptions to FSIA, a plaintiff must
demonstrate the “jurisdictional nexus necessary to support subject
matter jurisdiction in this country.” Arriba, Ltd. v. Petroleos
Mexicanos, 962 F.2d 528, 533 (5th Cir. 1992). Generalized and
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United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 13, 2006
_______________________ Charles R. Fulbruge III Clerk No. 05-20434 Summary Calendar _______________________
KEVIN L. EVANS,
Plaintiff-Appellant,
versus
PETROLEOS MEXICANOS (PEMEX) and PEMEX EXPLORACION y PRODUCCION (PEP),
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court For the Southern District of Texas, Houston Division No. H-04-1510 ________________________________________________________________ Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Kevin Evans brings this appeal, challenging the district
court’s dismissal of his suit against Appellees Petroleos Mexicanos
(“PEMEX”) and PEMEX Exploracion y Produccion (“PEP”). Because we
conclude that Evans waived his argument that PEMEX and PEP are not
agencies of the Mexican Government and that Evans has failed to
sufficiently allege facts that would support an exception to the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et
seq., we AFFIRM.
I. Background
This case stems from an injury Evans suffered in 2003
while working on an oil platform in the territorial waters of
Mexico. At the time of his injury, Evans, an American citizen, was
employed as a supervisor for Cia. Tesco Corporation (“Tesco”), a
Mexican corporation headquartered in Mexico City. Tesco had
contracted with PEP to refurbish an oil platform owned by PEP, and
Evans was one of the workers on the project. While attempting to
setup a fiberglass ladder, Evans stepped into an exposed hole in
the platform and fell; he alleges that he suffered severe,
permanent, and disabling injuries as a result of Appellees’
negligence.
Evans sued PEMEX and PEP1 for damages in the Southern
District of Texas. The Appellees responded that they were
decentralized public entities of the Mexican Government and were
entitled to sovereign immunity under FSIA; Evans had asserted in
his original complaint that jurisdiction was proper under the
“commercial activities” exception to FSIA. 28 U.S.C. § 1605(a)(2).
The Appellees then moved to dismiss Evans’s complaint pursuant to
1 PEP is a subsidiary of PEMEX.
-2- FED. R. CIV. P. 12(b)(1) and 12(b)(2) for lack of subject matter and
personal jurisdiction, respectively. The district court found that
PEMEX and PEP were agencies of the Mexican government within the
meaning of FSIA and that Evans had not alleged or otherwise
explained how the “commercial activities” exception to FSIA would
apply to his case; as a result, the court dismissed Evans’s case.
Evans brought this timely appeal, which may be heard pursuant to 28
U.S.C. § 1291.
II. Discussion
This court reviews a district court’s dismissal for lack
of FSIA jurisdiction de novo. United States v. Moats, 961 F.2d
1198, 1205 (5th Cir. 1992). The FSIA provides the sole source of
subject matter jurisdiction in suits against a foreign state.
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,
434-39, 109 S. Ct. 683, 688-91 (1989). As a general matter,
foreign states and their agencies are immune from the jurisdiction
of courts in the United States. 28 U.S.C. § 1604; see also Byrd v.
Corp. Forestal y Indus. de Olancho S.A., 182 F.3d 380, 388 (5th
Cir. 1999). However, 28 U.S.C. §§ 1605-07 provide exceptions that
allow the American courts to exercise jurisdiction over foreign
states.
Evans first argues that PEMEX and PEP are not agencies of
the Mexican Government, and are therefore not entitled to FSIA
-3- protection. In its opinion, the district court noted that there
was “no dispute in this case that Defendants are agencies of the
Mexican government within the meaning of” FSIA. (Dist. Ct. Op. 1).
This is because in his first amended complaint, Evans conceded that
PEMEX and PEP were “decentralized public entities of the Mexican
Government.” (Appellee Record Excerpts at 41). Further, in his
reply to Appellees’ motion to dismiss, Evans did not change his
position on Appellees’ status; instead, he asserted that he needed
to conduct further discovery to develop his claims. For the first
time on appeal, Evans now asserts that the Appellees, particularly
PEP, ceased being instrumentalities of the Mexican Government
following a restructuring in 1992. Barring the “absence of
exceptional circumstances which would result in a miscarriage of
justice, a condition not present here, questions not presented to
the trial court will not be considered on appeal.” C.F. Dahlberg
& Co. v. Chevron U.S.A., Inc., 836 F.2d 915, 920 (5th Cir.
1988)(citing D.H. Overmyer Co. v. Loflin, 440 F.2d 1213, 1215 (5th
Cir. 1971)). Evans has waived this argument, and this court will
not consider his claims that PEMEX and PEP are no longer agencies
of the Mexican Government.
Next, there is the issue of whether Evans adequately
pleaded an exception to FSIA. Under FSIA, an American court can
only exercise jurisdiction over a foreign sovereign where an
-4- exception to sovereign immunity applies. Evans claims that an
exception to sovereign immunity exists in this case pursuant to 28
U.S.C. § 1605(a)(2), the “commercial activities” exception to FSIA.
28 U.S.C. § 1605(a)(2) states that a sovereign is not immune to the
jurisdiction of the United States Courts where:
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 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.
In order to successfully invoke one of the three
“commercial activities” exceptions to FSIA, a plaintiff must
demonstrate the “jurisdictional nexus necessary to support subject
matter jurisdiction in this country.” Arriba, Ltd. v. Petroleos
Mexicanos, 962 F.2d 528, 533 (5th Cir. 1992). Generalized and
conclusory allegations that the § 1605(a)(2) exceptions apply are
not sufficient to establish a jurisdictional nexus.
Although both PEMEX and PEP carry out commercial
activities in the United States, Evans’s cause of action is based
upon a tort that occurred in Mexico, as part of one Mexican
corporation providing services to another. Thus, the first prong
of § 1605(a)(2) cannot be met based upon the facts alleged in
Evans’s complaint. The second, “in connection with,” prong
-5- requires that “the plaintiff’s action . . . be based upon the ‘act
performed in the United States in connection with a commercial
activity of the foreign state elsewhere.’ Thus, [a] material
connection . . . must exist between the plaintiff’s cause of action
and the act performed in the United States.” Stena Rederi AB v.
Comision de Contratos, 923 F.2d 380, 388 (5th Cir. 1991)(quoting 28
U.S.C. § 1605(a)(2)). Even accepting as true Evans’s claim that an
American-made “iron rough neck” was to be installed for PEP at the
site of his injury, this fact alone is insufficiently connected to
Evans’s fall, which was allegedly caused by the negligence of
Appellees. Finally, the “direct effect” prong only applies to
“foreign conduct that causes a ‘substantial’ and ‘direct and
foreseeable’ effect in the United States. Id. at 390 (quoting
Zernicek v. Brown & Root, Inc., 826 F.2d 415, 417-18 (5th Cir.
1987)). Accepting Evans’s allegations as true, he still comes
nowhere near alleging conduct that could cause a “substantial” and
“direct and foreseeable” effect in the United States.
Evans argues that he should be allowed to proceed with
discovery. In so arguing, he fails to appreciate the broad scope
of protections that sovereign immunity affords a defendant.
Sovereign immunity comprises more than just immunity from
liability; rather, it is “an immunity from the burdens of becoming
involved in any part of the litigation process.” Moats, 961 F.2d
-6- at 1203. As the facts alleged by Evans are insufficient to support
a § 1605(a)(2) exception to FSIA, Evans is not entitled to burden
Appellees with the lengthy and costly process of discovery to build
his case. As such, the district court did not err in dismissing
Evans’s claims for lack of jurisdiction.
III. Conclusion
Evans waived his argument that PEMEX and PEP were not
agencies of the Mexican Government, and he otherwise fails to
provide any specific allegations that an exception to FSIA applies
to his case. Therefore, the decision of the district court is
AFFIRMED.
-7-