216 F.3d 1119 (D.C. Cir. 2000), 99-7180, Rosemarie Marra and Marrecon Enter. v. Papandreou

Docket Nº:99-7180, 99-7191
Citation:216 F.3d 1119
Party Name:Rosemarie Marra and Marrecon Enterprises, S.A.,Appellants/Cross-Appellees v. Vaso Papandreou, et al.,Appellees/Cross-Appellants
Case Date:June 30, 2000
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1119

216 F.3d 1119 (D.C. Cir. 2000)

Rosemarie Marra and Marrecon Enterprises, S.A.,Appellants/Cross-Appellees

v.

Vaso Papandreou, et al.,Appellees/Cross-Appellants

Nos. 99-7180, 99-7191

United States Court of Appeals, District of Columbia Circuit

June 30, 2000

Argued May 5, 2000

Page 1120

Appeals from the United States District Court for the District of Columbia(96cv01535)

David G. Leitch argued the cause for appellants/crossappellees. With him on the briefs were John G. Roberts, Jr. and Catherine E. Stetson.

Joseph L. Barloon argued the cause for appellees/crossappellants. With him on the brief were Richard L. Brusca and Rachel Mariner.

Before: Silberman and Rogers, Circuit Judges, and Buckley, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge:

The district court dismissed Rosemarie Marra's breach of contract action against the Greek government, concluding that a forum-selection clause in the contract compelled her to sue in Greece. Marra appeals, arguing that the Greek government's actions officially "revoking" the contract as a whole bar it from relying on the forum-selection provision. We affirm.

I.

In 1994 the Greek Ministry of Tourism announced an international tender for licenses to operate ten casinos in specified locations throughout Greece. A group of investors, including appellant, formed a consortium that submitted a $44 million bid for a license to operate a casino in Flisvos, a location just outside of Athens. The consortium submitted the highest bid for the Flisvos site, and then-Minister of Tourism Dionyssis Livanos issued an official resolution granting the license to the consortium. The license gave the consortium the right to construct and operate a luxury casino complex in partnership with the Greek government, which would receive in exchange both an annual fee and a percentage of the casino's profits each year; after thirty years, ownership of the complex would pass from the consortium to the Greek government. The license also contained a forum selection clause which (according to the translation offered by Marra and accepted by the district court) provided as follows:

[A]ny dispute or disagreement between the State or the National Tourism Organization and the [consortium] arising from the application of this license, the interpretationor performance of its terms, the extent of the rights and obligations

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of the State and the holder of the license, and in general any matter that may occur concerning a license, shall be settled by the Greek courts.

Marra v. Papandreou, 59 F.Supp.2d 65, 76 (D.D.C. 1999) ("Papandreou II").

Shortly after the consortium secured the license, matters began to go awry. According to Marra, local political opposition against the construction of a casino at Flisvos developed, prompting Minister Livanos to resign and the Greek government to begin negotiations with the consortium towards relocating the planned casino complex to a different site near Athens. These political complexities were compounded when Prime Minister Andreas Papandreou resigned because of illness, and a new administration took office while relocation negotiations were underway. For reasons that are not entirely clear from the record, the new administration was unfavorably disposed to the consortium's project, and began exploring avenues for "recalling" the license. These efforts resulted in Minister Livanos's successor, appellee Vaso Papandreou, issuing a resolution identifying legal defects in the licensing process, and accordingly "revok[ing], from the time it came into effect" the Ministry of Tourism's earlier action granting the Flisvos license to Marra and her partners.

While most of the partners in the consortium began legal proceedings in Greece challenging the legality of the license revocation, Marra--who owned a nine percent interest in the consortium--pursued a different strategy. She sued in the district court, seeking $1.6 billion in damages from Vaso Papandreou and other Greek government entities ("the Greek government") for breach of contract and unlawful expropriation of property. The Greek government moved to dismiss Marra's claim, arguing, among several alternative grounds for dismissal, that it was immune from suit under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602-1611.Marra responded that the Greek government's attempts to secure American investment in its casinos brought it within the "commercial activity" exception to the FSIA. See id. at § 1605(a)(2). The district court permitted Marra limited jurisdictional discovery--including the right to depose senior Greek government officials--to determine whether the FSIA exception was applicable. The Greek government filed a petition for a writ of mandamus in this court, asking us to vacate the district court's discovery order.

We granted the Greek government's petition. See In re Papandreou, 139 F.3d 247 (D.C. Cir. 1998) ("Papandreou I").While we agreed with the district court that the information sought from the Greek officials was potentially relevant to determining the validity of the Greek government's FSIA defense, see id. at 252-53, we noted that a "district court authorizing discovery to determine whether [FSIA] immunity bars jurisdiction must proceed with circumspection, lest the evaluation of the immunity itself encroach unduly on the benefits the immunity was to ensure." Id. at 253. Since the Greek government had asserted several other defenses that were either "jurisdictional or ha[d] jurisdictional overtones," id. at 254, we directed the district court to consider such "alternative non-merits routes to dismissal" before reaching the FSIA issue. Id. at 256. We also observed that, if the district court were to dismiss Marra's suit on forum non conveniens grounds, any such dismissal "could not ... be subject to conditions, e.g., a condition that defendants promise to submit to the jurisdiction of another court." Id. at 256 n.6.

Following our decision in Papandreou I, the Greek government moved to dismiss Marra's complaint on the grounds that her suit was barred by the license's forum-selection clause, and that the District of Columbia was a forum non conveniens for Marra's action. Applying the standard set forth in The Bremen v. Zapata Off-Shore Oil Co., 407 U.S. 1 (1972), the district court concluded that the forum-selection provision was enforceable, and that its terms compelled

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Marra to file her suit in Greece. See Papandreou II, 59 F.Supp.2d at 77.The court also rejected Marra's argument that the Greek government's revocation of the Flisvos license "estopped" it from relying on a forum-selection clause within that license. The district court observed that Marra's position, if accepted, would "put[ ] the cart before the horse," requiring it to adjudicate the merits of the Greek government's substantive defense in order to determine whether the Greek government could rely on the forum-selection clause. Id. at 70. Accordingly, the district court dismissed Marra's suit, but added two conditions to the dismissal to ensure that its decision did not prejudice Marra's ability to refile her suit in Greece: the Greek government would have to waive any applicable statute of limitations if Marra filed suit in Greece within six months of the dismissal, and would have to appoint an agent in the United States to receive service of process in the suit. See id. at 77. Marra appeals the district court's dismissal of her case. The Greek government cross-appeals, arguing that the conditions imposed by the district court violated our mandate in Papandreou I.

II.

A.

We have a threshold question: did the district court have jurisdiction to dismiss the case based on the forum-selection clause? In Papandreou I we directed the district court to consider alternative defenses before adjudicating the Greek government's FSIA defense. But we recognized the district court's discretion to do so was limited by Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), in which the Supreme Court held that a federal court must establish its jurisdiction to hear a case before adjudicating its merits. We concluded that Steel Company compelled the district court to address only "non-merits routes to dismissal," Papandreou I, 139 F.3d at 256; see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999) (courts have discretion to "choose among threshold grounds for denying audience to a case on the merits"), and considered whether four alternative defenses advanced by the Greek government met that definition.We thought that three of these defenses--standing, personal jurisdiction, and forum non conveniens--were "jurisdictional" in the Steel Company sense, while the fourth--the Act of State doctrine--was not. See Papandreou I, 139 F.3d at 255-56.

So we now must decide whether the district court's disposition of the case on forum-selection clause grounds was such a "non-merits route to dismissal." To be sure, we did not state that the three threshold defenses discussed in Papandreou I were the only options available to the district court. But it could be argued that a forum-selection clause inquiry requires a court to make "an assumption of law-declaring power," id. at 255, in a manner that, for instance, a forum non conveniens inquiry does not. For while the validity of a forum-selection clause...

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