OBB Personenverkehr AG v. Sachs - Oral Argument - October 05, 2015 Page 17

OBB Personenverkehr AG v. Sachs

Media for OBB Personenverkehr AG v. Sachs

Audio Transcription for Opinion Announcement - December 01, 2015 in OBB Personenverkehr AG v. Sachs

Audio Transcription for Oral Argument - October 05, 2015 in OBB Personenverkehr AG v. Sachs

Jeffrey L. Fisher:

If they weren't selling tickets, it wouldn't even be commercial to begin with.

So it would be a highly odd holding to say that the one thing that makes this commercial is what prevents it from being brought in the United States.

Ruth Bader Ginsburg:

What makes it commercial is it's a railroad doing the same thing a private railroad would do.

It's in -- its business is operating a railroad.

Jeffrey L. Fisher:

That's right, Justice Ginsburg. And if you want us to ask the question in terms of whether a private company would be subject to jurisdiction under the same settings here, at least all you have to hold is that OBB should be in the same shoes as a private company. Now, we say in our brief and in the Gibson brief in more detail, why due process wouldn't stand in the way of jurisdiction there.

But if you have any doubt about that, you can note that OBB has made a personal jurisdiction argument in the district court that the district court never reached.

And so that is available on remand. The only thing before this Court is sovereign immunity and whether OBB is entitled to sovereign immunity for commercial acts in this country and the teeth of a congressional statute that says in the declaration of purpose in Section 1602 that foreign states doing commercial activities in this country should not be entitled to sovereign immunity. And then in Section 1606 says: What we want to do is --

Stephen G. Breyer:

And we say, look, did -- they're -- your exact words.

Jeffrey L. Fisher:

Pardon me?

Stephen G. Breyer:

Are they liable for activity that took place in this country? They are liable for the breach of the contract.

The breach of the contract took place in Austria.

Jeffrey L. Fisher:

No.

Stephen G. Breyer:

End of case.

Jeffrey L. Fisher:

No.

Stephen G. Breyer:

Why not?

Jeffrey L. Fisher:

Because -- because what the definition of in the United States, Justice Breyer, and this is sub (D) of 1603(c), says that -- I'm sorry, it's sub -- sub (E) of 1603(c) says that "in the United States" is defined as substantial contact with the United States.

And so that can occur in whole or in part in this country, and in part -- I'm sorry, in part includes the ticket sale.

John G. Roberts, Jr.:

Thank you, counsel. Mr. Basombrio, you have three minutes remaining.

Juan C. Basombrio:

Thank you, Mr. Chief Justice, and may it please the Court: Much of our discussion today has been in separating the torts from the contractual claims here in this case, implied warranty claims.

Let me tell you why I believe it's a bad idea to split claims on causes of action.

This Court decided recently a case called Pimentel in which the Republic of the Philippines had sovereign immunity.

But there were also a number of other defendants that did not enjoy sovereign immunity. And this Court, taking into consideration important issues such as international comity, decided that under Rule 19, the entire lawsuit had to be dismissed, including as to nonsovereign entities, in order to give full effect to the sovereign immunity of the Republic of the Philippines. In light of that holding, it would make little sense that when the defendant has the right to invoke immunity, that we would split the causes of action so that some of them would proceed in Austria and some of them would proceed in the United States.

Samuel A. Alito, Jr.:

Are you suggesting the based-upon determination is not done on a claim-by-claim basis, it's -- you look at the entire complaint?

Juan C. Basombrio:

That's why --

Samuel A. Alito, Jr.:

Find the gravamen of the entire complaint?

Juan C. Basombrio:

Yes, exactly, Your Honor. And the circuit courts and the State courts have all understood what gravamen means.

They know what it means.

And if we just took anybody off the street here and we asked them, why is the Respondent suing, each person would say, because she was injured in a terrible accident in Austria.

Samuel A. Alito, Jr.:

Well, what if the only claim were the breach of warranty claim?

Juan C. Basombrio:

Then we would have to ask where did the breach occur.