Vinum Tokaj International, LLC v. Grand Tokaj Zrt

668 F. App'x 790

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 7, 2016
• Docket: 15-55822
• Status: Unpublished

Opinion

MEMORANDUM **

Grand Tokaj Zrt appeals the district court’s order denying its motion to dismiss under the Foreign Sovereign Immunities Act. See 28 U.S.O. §§ 1602-1611. We have jurisdiction over the district court’s denial of the motion to dismiss under the collateral order doctrine. Gupta v. Thai Airways Int'l Ltd., 487 F.3d 759, 763 (9th Cir. 2007).

The district court did not err in rejecting GTZ’s argument that Dr. Istvan Kiss, the Chief Executive Officer of GTZ, lacked actual authority to execute the marketing and distribution agreement with VTI on behalf of GTZ. Eniko Kiraly’s conclusory and unsupported statement that no significant agreement was valid until approved by the GTZ Board of Directors and supervising body failed to establish Kiss’s lack of actual authority by a preponderance of the evidence, given VTI’s submission of Dr. Kovacs Kond’s supplemental declaration, the Hungarian certified copy of the GTZ’s register showing that GTZ’s chief executive officer could bind the company, and Attila Balia’s supplemental declaration regarding his interactions with the GTZ Board. Nor did the district court err in relying on VTI’s evidence: GTZ waived any objection to the timeliness of its admission, see In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010), and the district court did not abuse its discretion in ruling that Balia’s testimony was admissible non-hearsay, see Fed. R. Evid. 801(d)(2). Likewise, the district court did not err in concluding that Balia’s testimony authenticated the marketing and distribution agreement. See Fed. R. Evid. 901(b)(1). ■

Because GTZ failed to carry its burden of showing that Kiss lacked actual authority, the district court did not err in concluding that the “waiver” and “commercial activity” exceptions to immunity under the Foreign Sovereign Immunities Act were applicable. See 28 U.S.C. § 1605(a)(1)-(2); see also Randolph v. Budget Rent-A-Car, 97 F.3d 319, 324 (9th Cir. 1996).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.