Lyon v. Agusta S.P.A.
| Decision Date | 09 July 2001 |
| Docket Number | PLAINTIFFS-APPELLANTS,No. 99-56011,No. 99-55987,DEFENDANT-COUNTER-CLAIM-3RD-PARTY-PLAINTIFFS-APPELLEE,PLAINTIFF-COUNTER-DEFENDANT-CROSS-DEFENDANTS-APPELLANTS-CROSS-APPELLEES,PLAINTIFFS-APPELLANTS-CROSS-APPELLEES,DEFENDANTS-APPELLEES-CROSS-APPELLANTS,PLAINTIFF-COUNTER-DEFENDANT-CROSS-DEFENDANTS-APPELLANTS,DEFENDANT-COUNTER-CLAIM-3RD-PARTY-PLAINTIFFS-APPELLEES-CROSS-APPELLANT,DEFENDANTS-APPELLEE,AND,No. 99-56010,No. 99-55986,99-55986,99-55987,99-56010,99-56011 |
| Citation | 252 F.3d 1078 |
| Parties | (9th Cir. 2001) KATHY LYON, AN INDIVIDUAL AND AS GUARDIAN AD LITEM FOR AARON J. LYON; & TARA JEAN LYON; AARON J. LYON, BY AND THROUGH HIS GUARDIAN AD LITEM KATHY LYON; TARA JEAN LYON, BY AND THROUGH HER GUARDIAN AD LITEM KATHY LYON; DAVID LYON, BY AND THROUGH ITS PERSONAL REPRESENTATIVE KATHY LYON,, v. AGUSTA S.P.A.; SIAI MARCHETTI CORPORATION; SESTO CALENDE WORKS OF AGUSTA; AGUSTA AEROSPACE CORPORATION,UNITED STATES OF AMERICA, INTERVENOR. KATHY LYON, AN INDIVIDUAL AND AS GUARDIAN AD LITEM FOR AARON JEAN LYON; & TARA JEAN LYON AARON J. LYON, BY AND THROUGH HIS GUARDIAN AD LITEM KATHY LYON; TARA JEAN LYON, BY AND THROUGH HER GUARDIAN AD LITEM KATHY LYON; DAVID LYON, BY AND THROUGH ITS PERSONAL REPRESENTATIVE KATHY LYON,-CROSS-APPELLEES, v. AGUSTA S.P.A.; SIAI MARCHETTI CORPORATION; AGUSTA AEROSPACE CORPORATION; SESTO CALENDE WORKS OF AGUSTA,UNITED STATES OF AMERICA, INTERVENOR. BELINDA POLLACK, INDIVIDUALLY; HANNA MARIE POLLACK, BY AND THROUGH HER GUARDIAN AD LITEM, BELINDA POLLACK; RENEE STEVEN POLLACK, BY AND THROUGH HER GUARDIAN AD LITEM, BELINDA POLLACK; ESTATE OF STEVEN S. POLLACK, BY AND THROUGH ITS PERSONAL REPRESENTATIVE, BELINDA POLLACK,, v. AGUSTA, S.P.A.; SIAI MARCHETTI CORPORATION,UNITED STATES OF AMERICA, INTERVENOR. BELINDA POLLACK, INDIVIDUALLY; HANNA MARIE POLLACK, BY AND THROUGH HER GUARDIAN AD LITEM, BELINDA POLLACK; RENEE STEVEN POLLACK, BY AND THROUGH HER GUARDIAN AD LITEM, BELINDA POLLACK; ESTATE OF STEVEN S. POLLACK, BY AND THROUGH ITS PERSONAL REPRESENTATIVE, BELINDA POLLACK,-CROSS-APPELLEES, v. AGUSTA, S.P.A.; SIAI MARCHETTI CORPORATION,,,,,,, |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stuart B. Esner, Esner & Chang, Los Angeles, California, for plaintiffs-appellants and cross-appellees Kathy Lyon, Aaron J. Lyon, et al. Ian Herzog, Law Offices of Ian Herzog, Santa Monica, California for plaintiffs-appellants and cross-appellees Belinda Pollack, Hanna Marie Pollack, et al.
Rudolph V. Pino, Jr., Pino & Associates, White Plains, New York, (argued); Keith G. Wileman, Lord, Bissell & Brook, Los Angeles, California, for the defendants-appellees, and cross-appellants. Michael S. Raab, Civil Division, Washington, D.C., for the United States as intervenor.
Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding D.C. No. CV-94-07769-CBM, D.C. No. CV-94-07769-CBM, D.C. No. CV-94-07770-CBM, D.C. No. CV-94-07770-CBM
Before: Harry Pregerson, Ferdinand F. Fernandez, and Susan P. Graber, Circuit Judges.
Opinion by Judge Fernandez
David Lyon, Steven Pollack and Roy Belzer were killed in the crash of an airplane. Kathy Lyon, et al., and Belinda Pollack, et al., survivors of David Lyon and Steven Pollack, respectively, (collectively Survivors) brought this action against Agusta S.P.A., Agusta Aerospace Corporation, Sesto Calende Works of Agusta, and Siai Marchetti Corporation. The Agusta entities are owners of Marchetti, which designed and manufactured the aircraft. Those entities and Marchetti are instrumentalities of the Republic of Italy. 1 Marchetti moved to dismiss the action on the basis that under the Foreign Sovereign Immunities Act of 1976 (the FSIA), the district court did not have jurisdiction over it. See 28 U.S.C. §§ 1604. It also moved to dismiss on the basis that the action was barred by the provisions of the General Aviation Revitalization Act of 1994 (GARA). See Pub. L. No. 103-298, 108 Stat. 1552 (1994) (provisions at 49 U.S.C. §§ 40101 notes). The district court denied the former motion and granted the latter. The Survivors and Marchetti appeal. We affirm.
On November 26, 1993, an airplane designed and manufactured by Marchetti and known as model F-260 crashed in Santa Monica, California. David Lyon and Steven Pollack were aboard, and both were killed in the accident. The airplane had originally been sold by Marchetti in December of 1970 to SA Sabena N.V. in Belgium and had, after intervening transfers, become the property of the owner of the craft at the time of the crash. The Survivors brought their action on November 15, 1994, but the effective date of GARA was August 17, 1994, and that Act declares that, absent certain defined exceptions, "no civil action . . . may be brought against the manufacturer . . . if the accident occurred" more than 18 years after the aircraft was delivered to the first purchaser or to a person in the business of selling aircraft. GARA §§§§ 2(a), 3(3). The Survivors asserted that the Act did not apply to them. They also asserted that Marchetti had failed to issue later warnings about an alleged problem with the aircraft, and that amounted to replacement of a component part, which would have started a new 18-year period running from the time of that failure. The district court held that GARA barred the actions.
We review de novo a district court's dismissal of a complaint for failure to state a claim. Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997). "A complaint should not be dismissed unless it appears beyond doubt that the Plaintiffs can prove no set of facts in support of their claim that would entitle them to relief." Id. We also review de novo the issue of whether a statute applies retrospectively. United States ex rel. Lindenthal v. Gen Dynamics Corp., 61 F.3d 1402, 1406-07 (9th Cir. 1995). In addition, the existence of subject matter jurisdiction under the FSIA is a question of law, which we review de novo. Phaneuf v. Republic of Indonesia , 106 F.3d 302, 304-05 (9th Cir. 1997). Finally, we review the district court's denial of a Federal Rule of Civil Procedure 60(b) motion for an abuse of discretion. Civic Ctr. Square, Inc. v. Ford (In re Roxford Foods, Inc.), 12 F.3d 875, 879 (9th Cir. 1993).
Before proceeding any further, we must determine whether we have jurisdiction over this action in light of the fact that Marchetti is an instrumentality of the Republic of Italy.2 There can be no dispute about the general rule that"a foreign state shall be immune from the jurisdiction of the courts of the United States." 28 U.S.C. §§ 1604. Of course, there are exceptions to that, id., and one of them is that there shall not be immunity in a case "in which the action is based . . . 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." 28 U.S.C. §§ 1605(a)(2).
The parties do agree that Marchetti's acts of designing, manufacturing and selling the F-260 were "in connection with a commercial activity" and that the activity was"outside the territory of the United States." What is in dispute is whether that activity caused "a direct effect in the United States," and it is that rather enigmatic proposition that we must construe. The Supreme Court has unraveled the enigma to some extent.
In Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 112 S. Ct. 2160, 119 L. Ed. 2d 394 (1992), the Court was faced with a situation where Argentina had issued certain bonds payable in United States dollars, with payment, at the election of the creditor, to be made on the New York market. Id. at 609-10, 112 S. Ct. at 2163-64. When the bonds matured, Argentina did not pay them, and an action was commenced against it in the United States District Court for the Southern District of New York. Pursuant to the FSIA, Argentina moved to dismiss for lack of jurisdiction, but that motion was denied. Id. at 610, 112 S. Ct. at 2164. The Court began by rejecting the notion that in order for an effect to be direct, it must be substantial or foreseeable. Id. at 618, 112 S. Ct. at 2168. Rather, said the Court, "an effect is `direct' if it follows `as an immediate consequence of the defendant's . . . activity.' " Id. (citation omitted). The Court, thus, explicated the text with an oracular pronouncement of its own. It had little trouble in applying that to the case before it, where Argentina had actually contracted to make payments in the United States. Id. at 618-19, 112 S. Ct. at 2168-69. Its application here is not quite as obvious.
Because of that, Marchetti seizes on a case in which a district court held that the FSIA exception did not apply to the crash of a helicopter in Colorado. Four Corners Helicopters, Inc. v. Turbomeca S.A., 677 F. Supp. 1096, 1097 (D. Colo. 1988). That craft was manufactured, at least in part, by an instrumentality of France and was sold in that country. Id. at 1098. The helicopter finally found its way into the United States many years later. The court, which did not have the benefit of Weltover, ruled that in order to have a direct effect here "[t]he injury suffered by the plaintiff must be `a substantial, foreseeable and immediate causal result of an act of the defendant outside the United States in connection with [defendant's] commercial activity elsewhere.' " Id. at 1101 (citation omitted). But that is exactly what the Supreme Court said the effect need not be. Again, it need only be an "immediate consequence" of the defendant's activity. Thus, Marchetti's reliance on Four Corners is misplaced. See Adler v. Fed. Republic of Nigeria, 219 F.3d 869, 876 (9th Cir. 2000); see also Corzo v. Banco Cent. de Reserva del Peru, 243 F.3d 519, 525-26 (9th Cir. 2001...
To continue reading
Request your trial
-
Burton v. Twin Commander Aircraft Llc
...enacted to address “enormous product liability costs” the tort system had led to in the general aviation industry, Lyon v. Agusta SPA, 252 F.3d 1078, 1084 (9th Cir.2001), that led to “a serious decline in the manufacture and sale of general aviation aircraft by United States companies.” H.R......
-
Terenkian v. Republic of Iraq
...act breaks “the chain of causation leading from the asserted wrongful act to its impact in the United States.” Lyon v. Agusta S.P.A., 252 F.3d 1078, 1083 (9th Cir.2001); see also id. at 1083 n. 3 (holding that the relevant meaning of “immediate” in this context is “ ‘acting or being without......
-
Barnes v. Chase Home Fin., LLC
...rights and benefits completely extinguish the right previously—created, courts are deprived of jurisdiction. Lyon v. Agusta S.P.A., 252 F.3d 1078, 1084–85 (9th Cir.2001). * * * Nor do the facts that the Bank's servicing agent, Countrywide, was served within the “extended” three-year resciss......
-
Fireman's Fund Ins. Co. v. Plant Insulation Co. (In re Plant Insulation Co.), C 12–01887 RS.
...to preexisting rights. This statement is unobjectionable in the context of traditional contract rights ...”); Lyon v. Agusta S.P.A., 252 F.3d 1078, 1085–86 (9th Cir.2001) (quoting Grimesy v. Huff, 876 F.2d 738, 743–44 (9th Cir.1989)) (“a cause of action is a ‘species of property, a party's ......
-
Federalism in the twenty-first century: preemption in the field of air.
...Aircraft Co., 522 F.3d 948 (9th Cir. 2008); Robinson v. Hartzell Propeller, Inc., 454 F.3d 163 (3d Cir. 2006); Lyon v. Agusta SpA, 252 F.3d 1078 (9th Cir. 2001). (16) See 49 U.S.C. [section]41713(b)(1). (17) 49 U.S.C. App. [section]1506. (18) 49 U.S.C. [section]40120(c). (19) See Sikkelee v......