DAMON J. KEITH, Circuit Judge.
Plaintiff Troy Rote injured his right hand when a round exploded as he loaded a rifle at a residence in Sunbury, Ohio. The round that exploded was allegedly manufactured by Defendant Fabrica Militar Fray Luis Beltran a/k/a Dirección General Fabricaciones Militares ("DGFM"). Rote and his wife (collectively, "Plaintiffs") filed this negligence and products-liability suit against several defendants, including DGFM.
DGFM moved to dismiss the Third Amended Complaint (or, "Complaint") for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). In support of its motion, DGFM argued that, as an instrumentality of the Republic of Argentina, it is immune from suit under the Foreign Sovereign Immunities Act ("FSIA" or "Act"), 28 U.S.C. § 1602 et seq. In response, Plaintiffs argue that the "commercial activity" exception to the Act applies, and hence, DGFM is not immune. The district court denied the 12(b)(1) motion and DGFM appeals. For the reasons set forth below, we AFFIRM the district court's decision denying the motion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Plaintiffs' Allegations in the Complaint.
For purposes of reviewing DGFM's Rule 12(b)(1) motion, we take note of the following relevant allegations in the Complaint:
Troy Rote was invited to Gary and Judith Buyer's house, located in Sunbury, Ohio. (Third Am. Compl. ¶¶ 21-22.) On or about September 10, 2011, Rote, along with twelve to fifteen other guests, arrived at the Buyers' home. (Id. ¶ 21.) One of those guests, Edward Grimm, brought a rifle, consisting of a ".50 caliber upper and AR-15 lower receiver," as well as some ammunition. (Id. ¶ 23.) Grimm assembled the 0.50 caliber upper receiver and the lower receiver at the residence. (Id. ¶ 24.)
Plaintiffs allege that DGFM "designed, manufactured, and sold and/or otherwise introduced into the stream of commerce" the ammunition. (Id. ¶ 62.) Plaintiffs also allege that DGFM's wrongful acts consisted of defectively designing and manufacturing the rounds to have a "protruding primer." (See id. ¶ 106.) Plaintiffs further allege that DGFM failed to provide adequate warnings about the dangerous condition posed by this protruding primer. (Id. ¶¶ 90-93.)
Plaintiffs assert the following claims against DGFM: (1) product liability under Ohio Rev.Code Ann. §§ 2307.74, 2307.75, and 2307.77; (2) supplier liability under Ohio Rev.Code Ann. § 2307.78; and (3) loss of consortium.
B. District court decision.
DGFM moved to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), arguing that, as an instrumentality of the Republic of Argentina, it is immune from suit under the Act. The district court denied the motion. Rote v. Zel Custom Mfg., No. 2:13-cv-1189, 2015 WL 570973, at *10 (S.D.Ohio Feb. 11, 2015). In support of its ruling, the court held that the design and manufacture of the ammunition qualified as "commercial activity." Id. at *6-7. The court also noted that DGFM's actions caused a "direct effect" in the United States. Id. at *10. Thus, the commercial-activity exception to the FSIA applied and DGFM was not immune from suit. Id. at *1. DGFM timely appealed.
II. STANDARD OF REVIEW
An order denying a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) is reviewed de novo. Westfield v. Fed. Republic of Germany, 633 F.3d 409, 413 (6th Cir.2011). Rule 12(b)(1) motions "come in two varieties: a facial attack or a factual attack." O'Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir.2009) (citation and quotation marks omitted). A facial attack—like the one DGFM mounts here—"questions merely the sufficiency of the pleading." Id. (citation and quotation marks omitted). In reviewing the facial attack, courts must accept all allegations as true, id., and when reviewing the complaint, we look for a "short and plain statement of the grounds for the court's jurisdiction." Fed. R.Civ.P. 8(a); see also Owens v. Republic of Sudan, 531 F.3d 884, 894-95 (D.C.Cir. 2008). "[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." O'Bryan, 556 F.3d at 376 (citation omitted). If the allegations in the Complaint establish federal claims, the exercise of subject-matter jurisdiction is proper. Id.
A. Statutory framework: FSIA and its exceptions.
The FSIA provides the "sole basis" for the exercise of jurisdiction over a foreign
Plaintiffs contend that the following clause of the exception, which is split into three elements, applies in this case:
28 U.S.C. § 1605(a)(2). (See Appellee Br. 11.). The statute defines "commercial activity" as follows:
28 U.S.C. § 1603(d).
B. This appeal.
This court has jurisdiction over this appeal because an order denying a motion to dismiss under 28 U.S.C. § 1604 is immediately appealable under 28 U.S.C. § 1291. O'Bryan, 556 F.3d at 372.
Three issues are relevant on appeal: (1) whether the design and manufacture of a product constitutes a "commercial activity" under the FSIA; (2) whether a court must find that a foreign state has minimum contacts with the United States in order to conclude that the state's acts have a direct effect here; and (3) whether the Complaint lacks a short and plain statement of jurisdiction in violation of Federal Rule of Civil Procedure 8(a)(1).
1. The design and manufacture of the ammunition qualifies as a "commercial activity."
When we ascertain the applicability of the commercial-activity exception,
Under O'Bryan's first limitation, we conclude that the design and manufacture of a product is the type of activity "in which private individuals engage." O'Bryan, 556 F.3d at 379. Our sibling circuits have reached the same conclusion. See Aldy on Behalf of Aldy v. Valmet Paper Mach., 74 F.3d 72, 76 (5th Cir.1996); Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1544 (11th Cir.1993). For example, in Aldy, the Finland-based defendant manufacturer moved for summary judgment, arguing in part that it was immune under the FSIA. 74 F.3d at 74. The trial court denied the motion, and the Fifth Circuit affirmed the denial. Id. at 74-76. In that case, the plaintiff alleged that the manufacturer was in the "business of designing and manufacturing paper machines in Finland." Id. at 75. As part of their wrongful-death lawsuit, the plaintiffs claimed that the defendant's negligent design of those machines caused the death of two individuals. Id. at 73-74. The Fifth Circuit concluded that "the plaintiffs' suits appear to be classic design and manufacturing defect suits, which the third clause of the commercial activities exception is broad enough to cover." Id. at 75; see also Vermeulen, 985 F.2d at 1544 (holding that the defendant's design and manufacture of vehicles "unquestionably were acts connected to a commercial activity"); see generally Lyon v. Agusta S.P.A., 252 F.3d 1078, 1082 (9th Cir.2001) (noting the parties' agreement that the design, manufacture, and sale of an aircraft were "in connection with a commercial activity"); Peré v. Nuovo Pignone, Inc., 150 F.3d 477, 481 (5th Cir.1998) (stating that the "[t]he district court correctly found that the commercial activity upon which the plaintiff's cause of action was based was the design and manufacture of turbine systems."). We agree with the sound reasoning of our sibling circuits and find no reason to depart from their conclusions here.
Second, a review of the Complaint does not reveal a "semantic ploy" by Plaintiffs to recast a governmental activity to be "commercial" in nature. O'Bryan, 556 F.3d at 380. Indeed, the type of the activity at issue here is far from analogous to the type of activity that courts have described as "sovereign" in nature. See, e.g., Weltover, 504 U.S. at 614, 112 S.Ct. 2160 ("[A] foreign government's issuance of regulations limiting foreign currency exchange is a sovereign activity, because such authoritative control of commerce cannot be exercised by a private party."); see also Saudi Arabia v. Nelson, 507 U.S. 349, 361-63, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) (holding that the abuse of police power was sovereign in nature and so the Saudi Arabian government was immune);
DGFM offers a different reading of the exception altogether. Although it does not clearly explain its position, we understand it to be as follows: the third clause of the commercial-activity exception comprises three elements. See Section III.A, supra. The first element—the wrongful act outside the United States—is the negligent design and manufacture of the ammunition, which DGFM arguably concedes is met here. (Reply Br. 5.) But DGFM argues that the second element—the wrongful act's connection with a commercial activity—is not met here. (Id.) DGFM contends that Plaintiffs cannot rely on the design and manufacture of ammunition to satisfy both elements, which are "separate and distinct," and argues that commercial activity must consist of either the marketing, sale, or distribution of the ammunition rather than mere design or manufacture. (Id.; Appellant Br. 11.) In support of these propositions, DGFM cites, among other cases, Vermeulen, which expressed that "[t]he sale of merchandise is a quintessential commercial activity." 985 F.2d at 1544.
DGFM's reading of the statute and case law is strained. Granted, in Lyon and Vermeulen, the Ninth and Eleventh Circuits, respectively, referred to the defendants' sale of defective products when determining if the exception applied. Vermeulen, 985 F.2d at 1544; Lyon, 252 F.3d at 1082. In Vermeulen, for instance, the court noted that the defendant designed and built the automobiles for sale "throughout the world," and that these sales constituted "quintessential commercial activity." Vermeulen, 985 F.2d at 1544. While we agree that the sale of goods qualifies as "quintessential commercial activity," it does not follow that the sale of goods is a necessary predicate to a finding that an activity is "commercial" in nature. In Aldy, the Fifth Circuit did not rely on the defendant's sale of the paper machines to conclude that the defendant engaged in commercial activity; the court merely relied on the design and manufacture of the paper machines to reach that conclusion. Aldy, 74 F.3d at 75. So, we do not—and cannot—read those cases to conclude that a defective product must be marketed, sold, or otherwise distributed for the commercial-activity exception to apply. To be sure, and as discussed further below, we have previously cautioned courts not to read "unexpressed requirements" into the FSIA. See Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 818 (6th Cir.2002), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010).
At oral argument, DGFM's counsel noted that one of the unintended consequences of war is that ammunition and
We are not persuaded by this argument. Both the Supreme Court and this court have followed Congress' mandate to look to the "nature" of the act, and not the "purpose" behind it. Weltover, 504 U.S. at 614, 112 S.Ct. 2160; O'Bryan, 556 F.3d at 378-79; accord 28 U.S.C. § 1603(d). Accordingly, whether the ammunition was used or intended for military purposes is of no consequence. See, e.g., Weltover, 504 U.S. at 614-15, 112 S.Ct. 2160 ("[A] contract to buy army boots or even bullets is a `commercial' activity because private companies can similarly use sales contracts to buy goods"); McDonnell Douglas Corp. v. Islamic Republic of Iran, 758 F.2d 341, 349 (8th Cir.1985) ("[A] contract by a foreign government to buy equipment for its armed services constitutes a commercial activity to which sovereign immunity does not apply."). What matters is that DGFM acted like a private market participant when it designed and manufactured the allegedly defective product; and DGFM does not assert that only governmental actors manufacture and design ammunition. If we give any weight to the fact that the ammunition was manufactured for military purposes, we would in effect flout Congress and the Supreme Court's express instruction that courts must look to the nature of the wrongful activity rather than its purpose.
Accordingly, we conclude that DGFM's alleged negligent design and manufacture of the defective ammunition qualifies as a "commercial activity" for purposes of the FSIA. This conclusion, however, does not end our inquiry. For the commercial-activity exception to apply, the activity must also have a "direct effect" in the United States. See 28 U.S.C. § 1605(a)(2).
2. Plaintiffs have adequately alleged that DGFM's acts had a "direct effect" in the United States.
DGFM argues that that a foreign state's wrongful act will have a direct effect only if the foreign state's contacts with the United States are "substantial," (Appellant Br. 16.) (quoting Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 490, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983)), or if the foreign state has "contacts, ties, and relations" with the United States, (Appellant Br. 18) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). DGFM argues that for subject-matter jurisdiction to exist under the FSIA, a court must conduct a "minimum contacts" inquiry under International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In other words, DGFM asserts that subject-matter jurisdiction is only proper if personal jurisdiction over the foreign state complies with the Due Process Clause of the Fifth Amendment. (Appellant Br. 17.) In support of this reading, DGFM relies on the legislative history of the FSIA, which states that the "requirements of minimum jurisdictional contacts and adequate notice are embodied in . . . [28 U.S.C. § 1330(b), FSIA's long-arm statute]." H.R.Rep. No. 94-1487
As an initial matter, we must determine if this argument is waived because DGFM did not raise it before the district court. See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 614-15 (6th Cir.2014) (discussing general rule that arguments not raised at the district court level are not considered on appeal). Because DGFM's motion contested the district court's exercise of subject-matter jurisdiction in general, we conclude that failure to raise the argument below does not compel a finding of waiver. See Clinton v. City of New York, 524 U.S. 417, 428, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) ("Because the argument poses a jurisdictional question (although not one of constitutional magnitude), it is not waived by the failure to raise it in the District Court."); Static Control Components, Inc. v. Lexmark Int'l, Inc., 697 F.3d 387, 408 n. 8 (6th Cir.2012) (holding that a standing argument not raised at the district court level could not be waived because it related to a "jurisdictional requirement"). More critically, "we have an independent duty to inquire sua sponte whenever a doubt arises as to the existence of federal question jurisdiction." Ky. Press Ass'n, Inc. v. Kentucky, 454 F.3d 505, 508 (6th Cir.2006) (internal quotation marks and citation omitted). In keeping with that duty, we now address DGFM's argument.
b. Incorporation of "minimum contacts" test.
To determine whether the "direct effect" element incorporates the "minimum contacts" test, we start with the plain language of the statute. See Brilliance Audio, Inc. v. Haights Cross Comm'ns, Inc., 474 F.3d 365, 371 (6th Cir.2007) ("As with any question of statutory interpretation, we must first look to the language of the statute itself."); In re Comshare Inc. Sec. Litig., 183 F.3d 542, 549 (6th Cir.1999) ("When interpreting a statute, we must begin with its plain language . . . ."). "If the language of the statute is clear, then the inquiry is complete, and the court should look no further." Brilliance, 474 F.3d at 371 (citations omitted). "Only if the statute is inescapably ambiguous should a court look to other persuasive authority"—such as legislative history—"in an attempt to discern legislative meaning." Id. (citation and internal quotation marks omitted); see also In re Danny's Markets, Inc., 266 F.3d 523, 525 (6th Cir. 2001) ("When . . . a statutory term is ambiguous, it is our duty to examine the legislative history in order to render an interpretation that gives effect to Congress's intent.") (citation and internal quotation marks omitted).
Here, the phrase "an act [that] causes a direct effect in the United States" is not ambiguous. See 28 U.S.C. § 1605(a)(2). The operative words are "direct effect." Although the statute does not define these terms, we must give them their ordinary meaning if possible. See Weltover, 504 U.S. at 618, 112 S.Ct. 2160 ("[A]n effect is `direct' if it follows `as an immediate consequence of the defendant's. . . activity.'") (citation omitted). Because we can give these words their ordinary meaning without any resulting ambiguity, resort to legislative history is not necessary. See Lockhart v. Napolitano, 573 F.3d 251, 258, 262 (6th Cir.2009) (reasoning that resort to legislative history was unnecessary where the undefined term
Our approach today is consistent with the Supreme Court's approach in Weltover. There, the question was whether the "direct effect" element was met. Weltover, 504 U.S. at 617, 112 S.Ct. 2160. The defendant in that case argued that the effect must be both "substantial" and "foreseeable" in order for a court to conclude that it is "direct."
This approach makes even more sense if we consider how courts have interpreted the "direct effect" element. Indeed, the scope of this element has been the subject of much litigation. For example, must an act be "legally significant" in order for it to have a "direct effect" (Keller)? No. Must the effect be "substantial" and "foreseeable" in order to be considered "direct" (Weltover)? No. Had this court or the Supreme Court answered these questions in the affirmative, we would have given courts free rein to read into the statute requirement upon requirement to no end in sight, widening the gulf between the statute as enacted and the statute as interpreted. In holding that the "direct effect" requirement does not incorporate the "minimum contacts" test, this court avoids this danger altogether.
At best, what DGFM advances here is a personal-jurisdiction argument disguised as one sounding in subject-matter jurisdiction. To the extent that DGFM asserts a personal jurisdiction defense, that defense is not properly before this court because DGFM never moved for dismissal for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) in the district court. Hayward, 759 F.3d at 614-15. Further, allowing foreign instrumentalities to make their arguments about minimum contacts that are relevant to a
In reaching our conclusion that the "direct effect" element does not incorporate the "minimum contacts" test, we acknowledge that the Ninth Circuit has adopted DGFM's reading. Corzo v. Banco Cent. de Reserva del Peru, 243 F.3d 519, 525-26 (9th Cir.2001) (engaging in "minimum contacts" analysis to conclude that activity had no "direct effect") (citing Sec. Pac. Nat'l Bank v. Derderian, 872 F.2d 281, 286-287 (9th Cir.1989)).
c. Direct effect in product-liability cases.
Having concluded that the "direct effect" element does not incorporate the
In some contexts, "[c]ourts have struggled to announce objective standards and clear rules for determining what does and does not qualify as a direct effect in the United States." Westfield, 633 F.3d at 414. Yet, in the context of product-liability cases, courts have routinely held that an injury caused by an allegedly defective product meets the "direct effect" element. Vermeulen, 985 F.2d at 1545; Lyon, 252 F.3d at 1083; Aldy, 74 F.3d at 75. In Vermeulen, for example, the plaintiff suffered injuries in a car accident as a result of the defective design and manufacture of the car. Vermeulen, 985 F.2d at 1537. The court expressed that it could "hardly imagine a more immediate consequence of the defendant's activity." Id. at 1545.
Applying the reasoning of Vermeulen and Lyon here, this court notes that Rote alleges that he was injured as a result of the defective ammunition manufactured by DGFM. (See, e.g., Third Am. Compl. ¶ 34 (alleging that the round that exploded came from a box of ammunition identifying manufacturer as DGFM); ¶¶ 90-92 (describing defects affecting the ammunition and DGFM's wrongful acts); ¶¶ 35-37 (describing physical, emotional, and economic injuries sustained by Rote)). Thus, we hold that the "direct effect" requirement was met here, and the exercise of subject-matter jurisdiction is proper under the FSIA's commercial-activity exception.
3. DGFM fails to demonstrate that the Complaint otherwise lacks a plain and short statement of jurisdiction.
DGFM advances other arguments in support of its Rule 12(b)(1) motion. As shown below, none of these is availing.
First of all, DGFM contends that Plaintiffs were required to "mention" which exception to the FSIA applied, and that failure to do so was "fatal." (Appellant Br. at 8, 10.) That is not the case. AmSouth Bank v. Dale, 386 F.3d 763, 779 (6th Cir.2004) ("Affirmative pleading of the precise statutory basis for federal subject
Next, DGFM implies that our jurisdictional review of Plaintiffs' allegations related to the commercial-activity exception is confined to the section of the Complaint entitled "Jurisdiction and Venue," which fails to demonstrate that the exercise of jurisdiction is proper.
For the reasons set forth above, this court
HELENE N. WHITE, Circuit Judge, concurring.
I join in the affirmance but write separately to address the House Report relied on by DGFM and the Ninth Circuit in concluding that the subject-matter inquiry subsumes the personal-jurisdiction/minimum-contacts inquiry. The House Report states:
H.R. Rep. 94-1487, at 13-14 (1976) (footnotes omitted).
This subsection of the House Report explains the intent behind the FSIA's long-arm statute—which permits the district courts to exercise personal jurisdiction over a foreign sovereign whenever the federal courts have subject-matter jurisdiction over a claim and the sovereign has been properly served, 28 U.S.C. § 1330
The House Report supports our conclusion that Congress intended that district courts exercise personal jurisdiction over a properly served foreign sovereign that performed an act outside the United States in connection with a commercial activity if that act caused a direct effect in the United States. It is a separate question whether Congress was correct in its assumption that this connection satisfies due-process requirements. If there is a minimum-contacts requirement for foreign sovereigns—a question the Supreme Court has left open, see Republic of Argentina v. Weltover, 504 U.S. 607, 619, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992)—that issue is properly raised in a challenge to the district court's personal jurisdiction over the foreign sovereign, not its subject-matter jurisdiction over the claim, and a factual record would need to be developed accordingly. See Rein v. Socialist People's Libyan Arab Jamahiriya, 162 F.3d 748, 760 n. 8 (2d Cir.1998) (noting it is "possible that a foreign sovereign could be subject to subject matter jurisdiction under the commercial activities exception without being within the personal jurisdiction of an American court").
Thus, I agree that the direct-effect requirement does not incorporate a minimum-contacts/due-process analysis.