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Case number 22-7118, EIG Energy Fund 14 LP et al versus Petrolio Brasileiro SA Appellants, ODIBREC SA et al.

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Mr. Marotta for the appellant, Mr. Goldman for the appellees.

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Mr. Marotta, good morning.

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Thank you, Judge Henderson.

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And may it please the court, Sean Marotta on behalf of the appellant Petrobras.

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In what the parties call EIG2, this court held that on the facts alleged in EIG's operative complaint, EIG had made out a prima facie case of jurisdiction over Petrobras in the United States.

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But the allegations in EIG's operative complaint have not been borne out by the summary judgment evidence.

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For that reason, EIG2 does not control this case.

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First and most importantly, this court credited allegations that Petrobras had targeted U.S.

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investors for Seche, including EIG.

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But discovery revealed that it was the other way around.

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EIG and potentially other U.S.

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investors targeted Petrobras for investment in Seche.

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But the summary judgment evidence revealed is that EIG approached Petrobras about the potential to invest in Seche, that Petrobras had no interest in taking U.S.

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money for Seche, and that EIG saw its task as convincing Petrobras to take money for Seche.

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And in fact, by the time of March when Seche was handed off to be a separate and independent company, 90% owned by entities that were not Petrobras, EIG admitted it had never been solicited for money and it still had not made an investment decision.

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In short, EIG was targeting Petrobras, trying to get Petrobras to take the money for Seche.

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And in fact, when Seche did close the first round of funding, it did so without any US investors.

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Well, let me ask you this.

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In the opinion from the previous panel on motion to dismiss,

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Do you contest that your client sent a presentation containing a, quote, cautionary statement for U.S.

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investors or that you created one of these tips to facilitate foreign investment with regard to this such a project?

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There are two separate allegations, Judge Henderson.

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The first one with respect to sending the presentation.

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In fact, what the summary judgment evidence showed, and this is JA 1236, showed that the presentation that contained that cautionary statement you referred to came from Society General.

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It was an old colleague of Mr. Corrigan who was working at EIG and said, hey, I hear you're interested in investing in Brazil.

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Here's something you might be interested in that I got.

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So Petrobras did not send that presentation to Mr. Corrigan that contains that statement.

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That was the allegation at motion to dismiss that, of course, this court had to take it true.

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But it's not what the summary judgment record revealed.

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With regard to FIP Sandus, which is the entity that you referred to, Judge Henderson, yes, Petrobras was the architect of that structure.

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But foreign investment is not the same thing as US investment.

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There are countries in the world other than the United States that Petrobras could have been considering when it created that particular structure.

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And there's no evidence that there was an intent to solicit U.S.

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investment through creating that structure.

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In fact, there were all number of sovereign wealth funds and other investors outside United States that Petrobras could have possibly considered as investors.

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Can I ask a procedural question?

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I don't believe I saw it in your brief, but correct me if I'm wrong.

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Are you contending that the district court found the fact to be undisputed that was really in dispute?

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No, I mean, I think what's unusual in this case is we lay out our statement of facts in the blue brief literally directly just taking the district court's opinion at face value because that's what we have to do on an interlocutory appeal from summary judgment.

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We're contesting immunity in this way.

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It's really EIG that's sort of rummaging through, I think, the summary judgment record to pull up a thing.

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So no, I mean, they moved to dismiss.

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That was referred to the merits panel.

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But we just take the facts as we find them.

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All we're asking this court to do is to say the facts as related in the district court's opinion as taken to be undisputed

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Does that add up to what this court called targeting in EIG2?

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That's a legal question.

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I think EIG has this conception that the abstract legal question on an interlocutory appeal of this sort has to be like a 1292B sort of novel question of law.

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But as the Supreme Court has made clear, that is not the standard when it comes to interlocutory immunity.

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Can I ask, why do we even need targeting?

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In the prior opinion, we said targeting is sufficient to establish a direct effect, but the statutory standard is direct effect.

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So suppose they had made statements just to the universe, as if they were issuing a prospectus or something.

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And as a result of those statements,

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a US investor took dollars in America and sent them off to Switzerland as part of this investment.

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Why isn't that a direct effect?

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And I'm thinking of the line from Weltover, which is the defendant did something, and as a result, in that case, it was money that should have flowed into the US didn't.

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In this case, it would be money that shouldn't have flowed out of the US did.

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Well, I think the concern that this courts and all the other circuits cases had is that sovereign shouldn't be held in the United States without doing something that I hate to say targeted, because unfortunately, a lot of these words kind of loop back in on themselves when we're talking about focus of behavior, but on the focus of behavior that is not referenced the United States.

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So I think in terms of statutory standard, it wouldn't be direct then, because it is sort of dispersed throughout the entire world.

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So that's why the courts have always said.

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Why is that fair on direct?

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I think it bears on directness because it would be an indirect effect in the United States the extent that and remember it's the suit must be based upon the actions that cause the direct effect in the United States.

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So what the courts this court's cases and all the other courts cases said merely suffering a harm in the United States.

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The mere fact that money has left her pocket is not sufficient to create a direct effect.

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And as a result, there must be something more.

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And the something more this case is court held in the IG2 was the targeting.

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But even if you conceive of the something more as being something else, there isn't in this case.

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Because, and I think it would be quite troubling if every time a US investor is essentially going after a foreign sovereign and the foreign sovereign picks up the phone or takes a meeting in response to that outreach, they would then be subject to the United States suit.

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So also if a if if such a said we welcome investment from any and everywhere.

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And they happen to get U. S. Investment, but they don't target U. S. Investment.

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What's the result there?

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I think there wouldn't be jurisdiction there, and I'll just emphasize Judge Wilkins, there is an important difference between Seche and Petra Ross here.

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Because Seche, and this is actually one of the ways in which this case and summary judgment differs quite dramatically from the facts that were alleged in EIG2.

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In EIG2, it was alleged and this court credited the allegation

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that Seche was just an instrumentality of Petrobras that was created to carry on this bribe scheme.

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But what summary judgment evidence revealed is Seche was actually formed for the real purpose of creating drill sheds.

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And it was 90% owned by folks who weren't Petrobras, sophisticated Brazilian and other investors who had full control over the company, the same way any other shareholders do.

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So I think a key point, Judge Wilkins, is that Seche is, one, a break in the causal chain in our argument, and two, you just can't lump Petrobras and Seche together when talking about their conduct.

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But when it comes to Petrobras' conduct, to the extent they were willing to take meetings with anybody, that's not, we would say, targeting of the United States.

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It's simply picking up the phone.

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And that's why we refer to the personal jurisdiction case.

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I'm getting back to Judge Katz's question.

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Let's suppose

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the undisputed facts were that Petro boss said we want investment from any and everybody.

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We welcome it.

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And those were the operative facts.

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Um, as Judge Katz's Lisa's question alluded to, targeting isn't necessarily the test.

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We've said targeting is sufficient, but let's suppose those were the facts.

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Is that enough to result in a direct effect?

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I think it'd be a harder case for me, Judge Wilkins.

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I don't think it's enough, however, because it would still not be what this court and the other circuits have said.

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There's something more.

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Because we know certainly from this court's cases that merely losing money in the United States is not sufficient in a direct effect.

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There has to be something on top of that.

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So if all there is is undifferentiated information that is out in the world, and the EIG says, boy, this sounds like a good deal,

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And Petrobras says, goodness, your money is as good as anybody else's.

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Sure, we'll take it.

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I don't think that constitutes a direct effect in the United States, particularly where, as you have here, all of the meetings up to the time of the point of

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investment were occurring in Brazil.

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They were coming to Brazil to talk to a Brazilian company about a Brazilian investment.

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And I understand, under the third clause, you don't necessarily have to have physical conduct in the United States.

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But whether you know whether somebody is targeting the United States or directing its actions towards the United States, and that's what differs this case from Atlantica, is are you going to the United States?

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And the answer is no.

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What case do you have in mind for the need something more proposition?

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Is it Odeyama?

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I will have it back for you when I come up on rebuttal, Judge Katz.

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I think it's a number of this court's case.

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But I will certainly have it for you in rebuttal, unless the court has further questions.

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Give me a couple of minutes to reply.

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Thank you.

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Mr. Goldman?

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Please, the court, my name is Daniel Goldman.

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I represent the appellees.

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I'm 311.

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Judge Anderson, you asked a question about the promotion materials that had the cautionary statement for U.S.

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investors.

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Petrobras used that in pitches to multiple U.S.

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investors, not just to EIG, to U.S.

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banks, to private equity firms, to conferences.

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It was widely distributed.

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The document that EIG received, the district court found, was a basis for the fraud funding and summary judgment, regardless of whether it came from Society General.

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I guess Petrobras put that document out in the streaming of commerce.

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In terms of Judge Casas' question about targeting, targeting is not part of the statute.

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Simply have to have foreign conduct, commercial conduct, causes a direct impact.

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The targeting concept originated in the Antares case in the Second Circuit, where in that case it was very different than this case.

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In that case, Nigeria impounded a plane in Nigeria

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that just happened to be owned by US LLC.

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That was the only connection.

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The Second Circuit said, well, that's happened.

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That's law.

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That's not jurisdiction.

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And then the Atlanta case took that and said, well, there's got to be something more when the injury in the US tort case

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When the direct effect court case is a US injury, it has to be something where it cannot stand alone.

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And that was this court's language in the prior opinion.

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It cannot stand alone.

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In this court's prior opinion, the court found that the EIG's allegations clearly made it so EIG's injury did not stand alone.

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And the evidence bears it out, whether or not you engage in the semantic games of what's targeted and what's not.

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Because as Judge Henderson correctly pointed out, from day one, Petrobras sought international investors, including US investors.

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The structure of the investment, it's called the FIP, was meant to encourage international investment to give international investors, including Americans, a tax break.

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For us, from Petrobras in 2009,

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Did a road show in the U.S.

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with the U.S.

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to seek over a billion dollars of debt capital.

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Petrobras created promotional materials in English with a cautionary statement for U.S.

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investors and distributed them widely.

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Petrobras met and on many occasions EIG in Brazil

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and also sent emails to the US and let EIG into the data room, which contained English materials that were basically pitch books for this project.

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This was an enormous project, 28 drill ships,

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$700 million a piece, one of the largest capital projects in history.

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So of course they were going to seek international investors.

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They did it at every structure of the capital.

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They did it in the A equity that EIG invested in it.

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They did it in debt.

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And they did it for the B equity, which was going to be the operators of the ships who were also going to take equity in the deal because they wanted to get, as you might expect, a number of US companies who were going to operate in these drill ships were also going to take equity

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So it was an enormous project with international investors, including American investors from all over the world, from day one.

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Let me ask you this about targeting, because I think that's become some sort of a issue in this case.

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To me, targeting in the economic realm is like marketing.

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I mean, when companies say, well, we're going to target teenagers, or we're going to target old people, or whatever, they're talking about marketing to them.

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That's all.

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And this was clearly, at least in my view, marketed to the United States and to EIG in particular.

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Right.

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I think that under any definition of the word targeted, EIG has met that and established its primatization case.

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And, you know, but Atlantic of course talks about targeting, but it also talks about whether or not the defendant in that case contemplated U.S.

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investment.

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Petrobras tries to have a bright line between contemplation and targeting.

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I don't think there's such a bright line.

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I think it was essentially the same thing in this case.

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They contemplated

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They targeted, they had numerous contacts, potential US investors, both before and after Seche went operational, which was actually May of 2011.

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Patrick Ross remained involved in trying to raise money, both before and after Seche went operational from potential US investors.

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Could I ask you about the merits?

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We have cases for the proposition that as long as an assertion of immunity remains unresolved, you can't make the foreign sovereign litigate the merits.

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And as far as I can tell here, the only thing that district court has done with respect to immunity is deny summary judgment.

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So how do you defend the entry of a summary judgment on the merits while, at least as far as one can tell from the papers, the immunity issue is open, still open for trial?

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Well, that's an interesting question.

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I think perhaps you're referring to your own case, the process.

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I'm sorry.

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I said I think perhaps you're referring to your own case, the case that you opened.

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P&ID, yeah.

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Judge Wilkins and I.

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What the district court did is it first resolved foreign sovereign immunity jurisdiction or it reached them.

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And it followed the roadmap set forth by this court.

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It first determined whether or not EIG had established a prima facie case based upon the three factors set out by this court in its prior opinion.

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Finding that EIG- That's the substantive law of immunity, but in terms of

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rules of civil procedure, the only thing the court did was deny summary judgment.

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It didn't make findings and it didn't grant summary judgment the other way.

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He didn't grant summary judgment the other way, but the court has an obligation when jurisdiction is raised to make a finding.

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It's not just a summary judgment finding.

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Whenever jurisdiction is raised, the court has an obligation to go on the pleadings, to look at the evidence and make a finding.

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If you look at his opinion, he said, I find there's jurisdiction.

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That Patrick Ross did not establish an affirmative defense.

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But there's one other point.

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It reads like he's resolving the facts.

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But there's a big difference, though, between this case and the Nigeria case, too.

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In the Nigeria case that you authored, Nigeria objected to any briefing on the merits.

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Here, Petrobras itself moved for summary judgment, a very different procedural stance.

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But I will say this.

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Petrobras has said on page 45 of his

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that the determination from the district court is not a conclusive determination.

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Well, as this court knows, to get jurisdiction under the collateral order, there has to be a conclusive determination.

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So Petrobras has effectively admitted, and we disagree, they have effectively admitted there's no conclusive, there's no conclusive

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that there would not, that there should effectively no collateral order doctrine doesn't apply.

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But I think that the real point is this.

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Petrobras will continue to challenge jurisdiction, because that's their own fence.

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They now have summary judgments on either.

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I am sure that when we get to trial, they will continue to raise it until the district court is divested jurisdiction.

[00:18:57] Speaker 05:
I'm confused here.

[00:19:00] Speaker 05:
when a defendant challenges the existence of jurisdiction, they can file a 12 B one motion and then either that's granted or denied.

[00:19:13] Speaker 05:
Um, and then that's an appealable order.

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Um, generally in this context, if a plaintiff says after kind of going through that process, look,

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There are no disputed facts as to jurisdiction, and we've taken all the discovery that we need to take with respect to jurisdiction.

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We don't think that we need to have a trial to determine whether you have jurisdiction.

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We think that you can essentially grant summary judgment in favor and find that there is jurisdiction here, that there has been a waiver of sovereign immunity.

[00:19:58] Speaker 05:
Why isn't that an appropriate way for a plaintiff to proceed in a district court to resolve jurisdiction where there's no dispute over the material facts?

[00:20:10] Speaker 02:
That's a good question.

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And I think if you look at the way Judge Madea framed this, he said, I have to determine whether there are any disputed facts as to whether or not

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Petrobras has an affirmative.

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He found that there were no disputed facts on that issue.

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Based on that finding, he determined

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that he had jurisdiction.

[00:20:39] Speaker 05:
But did your client ask him to find that affirmatively in briefing?

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Did you say, Judge, we want you to enter a judgment within the meaning of Rule 54, which is any decree or order that is appealable

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Did you say we want a judgment that there is jurisdiction here?

[00:21:03] Speaker 05:
And did you ask for that relief?

[00:21:05] Speaker 02:
And we did not ask for that.

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Leave.

[00:21:09] Speaker 02:
I think as a branch general, we had jurisdiction based on this fire.

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We did two years of discovery.

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reviewed millions of pages of documents, took many depositions.

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We had jurisdiction.

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So as a plaintiff, we were not going to then say, by the way, we want to make sure you have jurisdiction, Judge.

[00:21:31] Speaker 02:
Patrick Boss came in and challenged Patrick for jurisdiction.

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We opposed it.

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And the court found it had jurisdiction.

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Otherwise, the court would not have reached the merits.

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If the court did not think it had jurisdiction, it wouldn't have reached the merits.

[00:21:44] Speaker 05:
And when they challenged jurisdiction, did they challenge it?

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by filing another 12B1 motion, or did they file a Rule 56 motion?

[00:21:54] Speaker 02:
It was in the context of a Rule 56 motion.

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They did not file a 12B1 motion.

[00:21:59] Speaker 02:
Well, they could have, but they chose not to.

[00:22:01] Speaker 02:
And at the same time, they chose to file their own summary judgment motion on the merits.

[00:22:07] Speaker 02:
So they were litigated simultaneously.

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And then EIG filed a motion, cross motion, for summary judgment.

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That was granted.

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only after the court determined that it had jurisdiction.

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I don't think had EIG moved affirmatively, it would have been the same result.

[00:22:26] Speaker 02:
There would have been a finding that EIG had established its

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There would have been a finding that Petrobras did not meet its burden to establish affirmative defense.

[00:22:36] Speaker 02:
I think it's really a semantic difference.

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And while Petrobras may move in the future, or will be otherwise, or try to put in evidence, it's going to have to come up, obviously, with new evidence to a challenge.

[00:22:52] Speaker 02:
Because what's interesting in actually telling

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Petrobras did not submit a single one of its internal documents to challenge the crime of Basher case.

[00:23:03] Speaker 02:
It did not submit a single line of testimony from any current or former employees.

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It relied entirely on semantic games of what targeting is and hearsay testimony.

[00:23:18] Speaker 05:
What I'm trying to understand is, in the district court's mind, does the district court believe that this case is over?

[00:23:26] Speaker 05:
court has entered judgment for your client and it's done other than determining damages?

[00:23:35] Speaker 02:
Yes.

[00:23:37] Speaker 02:
At this point, all we have is a trial on damages.

[00:23:41] Speaker 02:
Limited trial on damages and also mitigation, other issues, just essentially a damages issue.

[00:23:48] Speaker 02:
But yes, if you were to ring up Judge Maitis and say, Judge, are we finished now?

[00:23:53] Speaker 02:
What do we have to do?

[00:23:54] Speaker 02:
He'd say we have damages and mitigation.

[00:23:56] Speaker 02:
That would be interesting.

[00:23:58] Speaker 02:
All right.

[00:23:58] Speaker 02:
Thank you.

[00:24:01] Speaker 06:
Thank you.

[00:24:12] Speaker 04:
Thank you, Your Honor.

[00:24:13] Speaker 04:
Judge Katzis, let me start on the question I left on.

[00:24:16] Speaker 04:
It was out in Hambo, which is where this court worried about creating unilateral jurisdiction.

[00:24:21] Speaker 04:
And also in EIG2, when it said, referring to Antares, we're not concerned about the sum financial loss from a foreign court cannot standing alone create jurisdiction.

[00:24:30] Speaker 03:
Yeah, but that case, that's a little bit different.

[00:24:32] Speaker 03:
I mean, the concern about a foreign plaintiff being defrauded and then moving to the US

[00:24:40] Speaker 03:
for litigation reasons, very different from a U.S.

[00:24:46] Speaker 03:
investor who's defrauded by statements projected into the world by the defendant.

[00:24:52] Speaker 04:
But I think the concern that runs through both Anaheim and the Antares case is that the mere loss of money in the United States shouldn't be enough to create jurisdiction.

[00:25:00] Speaker 04:
Because otherwise, it's just the plaintiff that's creating jurisdiction by the fact they are located in the United States, I think is the concern that's always been raised.

[00:25:08] Speaker 04:
And divesting a foreign sovereign of its immunity on the basis of the mere location of the plaintiff, which I think also runs across to the personal jurisdiction case.

[00:25:17] Speaker 03:
It just seems whether you think of this as

[00:25:21] Speaker 03:
a personal jurisdiction like issue, a choice of all like issue, a place of injury for extra territoriality issue.

[00:25:31] Speaker 03:
Plaintiff in jurisdiction one harms a plaintiff in jurisdiction two.

[00:25:37] Speaker 03:
It's perfectly common for the defendant to bring an action in his home form.

[00:25:46] Speaker 04:
I think it's common, but I think in all those cases, we look for something more than the act of harm.

[00:25:52] Speaker 04:
And I think that gets to the point.

[00:25:53] Speaker 04:
More than the place of harm?

[00:25:55] Speaker 04:
That was the traditional choice of law rule.

[00:25:58] Speaker 04:
Well, and then I think it gets to the discussion that EIG too had about it's not clear whether you're in the place of harm.

[00:26:03] Speaker 04:
So I mean, I think part of the problem with EIG's argument is they say, well, if it's not that, then look at that.

[00:26:07] Speaker 04:
Well, if it's not that, look at the other thing.

[00:26:09] Speaker 04:
And they keep pivoting away as to what it is not.

[00:26:11] Speaker 04:
But I don't think they have a good theory as to what it is.

[00:26:15] Speaker 04:
I think as to Judge Henderson's question about even if you think of targeting as marketing, there's no marketing in the United States in this case.

[00:26:21] Speaker 04:
It's that EIG learned about this opportunity from a third party and then reached out to Petrobras saying, hey, we want in and viewed its task over a course of several months as attempting to persuade Petrobras to take its money, which never even occurred until the handoff to such an entirely independent company.

[00:26:41] Speaker 04:
Finally, before I sit down, I'd just like to endorse the questions from both Judge Katz's and Judge Wilkins.

[00:26:46] Speaker 04:
If you read the district court's opinion, I can't summon the spirit of Judge Meda up here, but the opinion is written as a summary judgment.

[00:26:53] Speaker 04:
All the district court did was deny summary judgment.

[00:26:55] Speaker 03:
Are there facts that you would like to contest?

[00:26:59] Speaker 03:
going forward.

[00:27:00] Speaker 03:
I mean, this has a little bit of an unreal aspect to it.

[00:27:06] Speaker 03:
I mean, you were litigating jurisdictional issues and the merits issues simultaneously below, which you could have resisted if you wanted to.

[00:27:17] Speaker 03:
And the opinion reads as if

[00:27:25] Speaker 03:
Judge made a is resolving the immunity issue.

[00:27:29] Speaker 03:
Find finding facts are finding none of the facts.

[00:27:32] Speaker 04:
I don't I don't understand judge made it to be finding facts.

[00:27:35] Speaker 04:
I understand just made it be taking the facts and the light was favorable to IG.

[00:27:38] Speaker 04:
For instance, what are the inferences?

[00:27:40] Speaker 03:
It doesn't read like the normal summary judgment opinion, which says

[00:27:46] Speaker 03:
Defendants' evidence is X, plaintiff's evidence is not X. That's a genuine conflict, so we need to go to trial.

[00:27:56] Speaker 03:
It just reads as if here are the facts.

[00:28:00] Speaker 04:
Here's the record and you lose.

[00:28:02] Speaker 04:
It's the facts related in a particular light, the same way, for instance, a court may lay out a set of facts on a motion to dismiss.

[00:28:08] Speaker 04:
And everybody understands, of course, that's just the facts as related in the complaint, even though they're related in sort of an authoritative factual tone.

[00:28:16] Speaker 04:
I think in terms of facts we'd like to contest, I don't want to prejudge my trial strategy.

[00:28:21] Speaker 04:
But I think, for instance, the Kevin Forigan testimony and what inferences that are to be drawn from

[00:28:25] Speaker 04:
You know, EIG has one view of what Kevin Forrigan's testimony meant about Petrobras's interests.

[00:28:31] Speaker 04:
We have a different view.

[00:28:32] Speaker 04:
And the district court said, well, you know, even, you know, it basically said, look, the Kevin Forrigan testimony, I view it in a certain way, but did not say, this is my holding, this is, I'm entering judgment on this.

[00:28:43] Speaker 04:
Again, it was just in a summary judgment.

[00:28:45] Speaker 05:
What I don't get is, I asked you whether there was some fact that was in dispute and you said no.

[00:28:56] Speaker 05:
Well, what you're saying, what you seem to be saying is there were no facts in dispute, but maybe we can maybe we can argue about what inferences should be drawn from those facts.

[00:29:08] Speaker 04:
And if that's if I misunderstood your question earlier, Judge Wilkins, I apologize.

[00:29:11] Speaker 04:
I took it in the context of

[00:29:14] Speaker 04:
the jurisdictional issue over the appeal, which that EIG had raised.

[00:29:18] Speaker 04:
And for the purposes of this appeal, we are not disputing the genuineness of anything.

[00:29:23] Speaker 04:
And that was not my question.

[00:29:24] Speaker 04:
Then I misunderstood the question.

[00:29:25] Speaker 05:
I'm trying to get down the brass tacks of how a case is supposed to proceed through trial.

[00:29:30] Speaker 04:
Right.

[00:29:31] Speaker 05:
Yes.

[00:29:31] Speaker 05:
OK.

[00:29:31] Speaker 05:
So if the district judge is in a posture where the district judge does not believe that there are any disputed facts with respect to jurisdiction,

[00:29:44] Speaker 05:
district judge doesn't have to have a trial does he he or she well in the district judge can if the facts are undisputed rule yes there is jurisdiction or no there is a jurisdiction without having a trial can't that be

[00:30:02] Speaker 04:
a course of action that's permissible?

[00:30:04] Speaker 04:
That can be permissible on summary judgment, but then understanding your question correctly, which I did not understand when I got up the first time, understanding your question correctly, we believe there are disputed facts as to the intent and interest of Petrobras as to whether it was soliciting or had the intent of seeking United States input.

[00:30:21] Speaker 05:
But that's not an argument you made in your brief anywhere.

[00:30:24] Speaker 05:
I'm hearing it for the first time now in rebuttal at war argument.

[00:30:28] Speaker 04:
well it's not an argument we make in our brief because on an interlocutory appeal from an immunity issue i can't get up here and say you know what the judge you know this judge misunderstood the facts that were at issue and also i'm not challenging judge wilkins because the district court didn't enter summary why can't you say that the district court improperly found something to be undisputed well as i that was actually disputed as i understand the immunity case law on an interlocutory appeal with respect to immunity and this comes from the qualified immunity side

[00:30:56] Speaker 04:
It is improper to raise an interlocutory appeal, where the only issue you're raising is essentially the genuineness of a dispute of material fact, or whether the actual factual lay of the land in the district court supports the factual findings that the district court is related in its opinion.

[00:31:12] Speaker 04:
That's what you can't do on an interlocutory.

[00:31:16] Speaker 04:
And only do that after the trial on the merits?

[00:31:20] Speaker 04:
You can do it after the trial on the merits, though, as the Supreme Court says.

[00:31:22] Speaker 04:
It's not summary judgment anymore.

[00:31:23] Speaker 04:
You're just arguing about the trial record.

[00:31:26] Speaker 04:
um so you know but so that and second the reason we're not challenging a hypothetical grant of summary judgment is because the district court didn't grant summary there was no grant of summary judgment from the trial court so there would be no basis for us to say that oh summary judgment was inappropriate so so so i'm trying to understand what you are saying the plaintiffs here should have done

[00:31:50] Speaker 05:
They should have said, Judge, we ask you to find summary judgment in our favor on the issue of subject matter jurisdiction.

[00:32:01] Speaker 04:
Yes.

[00:32:02] Speaker 04:
And if the district court had entered that, then I think I might be in a different position.

[00:32:06] Speaker 04:
And I'd have to think about whether and how I could appeal that.

[00:32:09] Speaker 04:
But on the record, as we have it today and under the procedural posture as we have it today, there was no grant of summary judgment, only the denial of the Petrobrasis.

[00:32:18] Speaker 03:
Why should we

[00:32:20] Speaker 03:
In order to address this issue, we have to make a disfavored discretionary decision to exercise dependent appellate jurisdiction, right?

[00:32:34] Speaker 03:
Why should we do that where

[00:32:38] Speaker 03:
I find it a little bit unclear exactly what the district court did.

[00:32:44] Speaker 03:
I find it very unclear whether you teed up this issue for the district court to say definitively resolve jurisdiction first before you get into the merits.

[00:32:57] Speaker 03:
And we're having this interesting academic debate about a partial summary judgment that can't

[00:33:07] Speaker 03:
affect your client until entry of final judgment.

[00:33:12] Speaker 03:
So why don't we just leave it leave it to be worked out on remand.

[00:33:17] Speaker 03:
You go back to the district court and say, Judge, the immunity issue is still open.

[00:33:22] Speaker 03:
We want a trial on whatever jurisdictional facts you want to trial on.

[00:33:28] Speaker 03:
And if he

[00:33:30] Speaker 03:
If he grants you a trial problem solved, if he doesn't, you maybe have a procedural argument about he cut you off too soon based on denial of summary judgment.

[00:33:42] Speaker 03:
But it just gets worked out in a little more concrete way.

[00:33:48] Speaker 04:
Well, I think you should reach out and take a Judge Katz's for two reasons.

[00:33:50] Speaker 04:
First of all is the respect that the United States gives to foreign sovereigns and its immunity in the United States courts.

[00:33:56] Speaker 04:
And the second is because I think the district courts could use guidance on this

[00:34:00] Speaker 04:
Obviously, Judge Mehta is an excellent district judge.

[00:34:04] Speaker 04:
And so if it could help and provide guidance to the district courts in the circuit to clarify the order of battle when it comes to these particular issues, I think that would be of great benefit to the district.

[00:34:14] Speaker 05:
But when did you ever ask Judge Mehta to make a final order or judgment on subject matter jurisdiction before proceeding to the merits?

[00:34:29] Speaker 04:
I don't have a citation for that, Judge Wilkins.

[00:34:31] Speaker 04:
I do not.

[00:34:32] Speaker 05:
Well, you didn't.

[00:34:33] Speaker 05:
Affirmatively didn't do that because you moved for summary judgment below on the merits.

[00:34:39] Speaker 05:
We did.

[00:34:40] Speaker 05:
You asked Judge Mata to reach the merits without asking him.

[00:34:45] Speaker 05:
to make a final ruling on jurisdiction.

[00:34:49] Speaker 05:
You didn't say, well, we're renewing our 12B1 motion here because we think that there's no jurisdiction and we only want you to resolve that at this time, right?

[00:35:00] Speaker 05:
That's not what you did.

[00:35:01] Speaker 04:
That's right.

[00:35:01] Speaker 04:
We moved for summary judgment on everything together.

[00:35:03] Speaker 05:
And all fact discovery has happened.

[00:35:06] Speaker 05:
That's correct.

[00:35:06] Speaker 05:
It's closed, right?

[00:35:07] Speaker 05:
That's correct.

[00:35:08] Speaker 05:
On the merits.

[00:35:08] Speaker 05:
That's correct.

[00:35:10] Speaker 05:
So how are you prejudiced at all

[00:35:15] Speaker 05:
by Judge Maeda, if Judge Maeda thinks at this point, we've had all the discovery.

[00:35:21] Speaker 05:
I don't think that there are any dispute of fact on the operative material facts relating to just discovery to go ahead and find that there is jurisdiction.

[00:35:33] Speaker 05:
How does that prejudice you?

[00:35:35] Speaker 04:
I don't necessarily think it's a question of prejudice, Judge Wilkins, but rather the sort of core principle that we can't reach merits before jurisdiction, even if we think the merits are completely clear, or even if we think the merits are undisputed.

[00:35:47] Speaker 05:
I mean, I don't understand how any of that is consistent with rule one, rule one of federal rules of civil procedure, which essentially says that the rules are supposed to be construed for the speedy, just, and inexpensive determination of every case.

[00:36:01] Speaker 04:
But I think I mean, I think it gets back to Steel Co, which comes back, you know, when the Supreme Court laid out this order of operations that said, look, even if you think you got really, really easy merits, sometimes you have to do hard, hard, hard jurisdiction ahead of it because of it really comes back to the immunity cases, which

[00:36:19] Speaker 03:
I mean, they sort of help you because they give you a pretty bright line rule that you can insist on litigating jurisdiction first.

[00:36:28] Speaker 03:
That's right.

[00:36:30] Speaker 03:
But they hurt you because the immunity is waivable or forfeitable.

[00:36:39] Speaker 03:
But we've always assert our immunity from the job.

[00:36:42] Speaker 03:
This is not like subject matter jurisdiction in the sense you can choose to litigate

[00:36:47] Speaker 04:
That's true.

[00:36:48] Speaker 03:
I mean, if we never raise immunity, certainly it's not.

[00:36:50] Speaker 03:
You didn't raise the sequencing issue.

[00:36:54] Speaker 03:
You litigated the merits and the immunity on parallel tracks on summary judgment.

[00:37:01] Speaker 03:
That's great.

[00:37:02] Speaker 03:
And you just said like the one thing

[00:37:06] Speaker 03:
the judge couldn't do is enter summary judgment against you and you based on the outstanding immunity issue.

[00:37:16] Speaker 03:
And I looked at your district court papers.

[00:37:19] Speaker 03:
I mean, it's that idea sort of there, but it's pretty fleeting and it's no separate discussion of the immunity sequencing issues.

[00:37:31] Speaker 04:
But I mean, I think with respect to waiver, of course, it's a settled rule that it's not, it's not the citations we give.

[00:37:37] Speaker 04:
It's not even sort of the fulsomeness with it.

[00:37:39] Speaker 04:
It's have we presented the issue, perhaps more clearly.

[00:37:42] Speaker 04:
And of course, the issue became clearer once we had the resolution from the district court.

[00:37:46] Speaker 04:
Unless the court has further questions.

[00:37:50] Speaker 01:
Thank you.