Defendant-appellant Petroleo Brasileiro, S.A. ("Petrobrás" or the "Company") appeals from an Order filed September 27, 2010, in the United States District Court for the Southern District of New York (Gardephe, J.), pursuant to which the court, in a single Memorandum Opinion and Order, denied Petrobrás' motion to dismiss, for lack of subject matter jurisdiction, the plaintiffs-appellees', Dennis Rogers and Kevin Burlew (collectively, the "plaintiffs"), separate actions to recover for breach of contract. The court based its subject matter jurisdiction determination on the commercial activities exception to foreign sovereign immunity as set forth in the Foreign Sovereign Immunities Act. 28 U.S.C. §§ 1330, 1332, 1391(f), 1441(d), 1602-11 (2006) ("FSIA"). The court also denied Petrobrás' motions to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6).
This appeal presents us principally with two issues arising under the FSIA. We must determine, as regards "clause two" of the commercial activities exception, whether the plaintiffs' claims are sufficiently "based upon" any act that Petrobrás performed in the United States that is "in connection with [Petrobrás'] commercial activity" in Brazil. Id. § 1605(a)(2). We also must decide, with respect to "clause three," whether Petrobrás' extraterritorial commercial acts caused a "direct effect" in the United States. Id. In both cases, Petrobrás contends that the District Court erred in finding the requirements of the exceptions to be satisfied and thus argues that the court lacked jurisdiction over the actions. For the reasons that follow, we hold that Petrobrás is immune under the FSIA and therefore reverse the Order of the District Court.
Miner '56, Roger J., "Rogers v. Petroleo Brasileiro, SA, 673 F. 3d 131 - Court of Appeals, 2nd Circuit 2012" (2012). Circuit Court Opinions. 126.
673 F.3d 131 (2012)
Dennis ROGERS, Kevin Burlew, Plaintiffs-Appellees, v. PETROLEO BRASILEIRO, S.A., Defendant-Appellant.
Docket Nos. 10-4047-cv(L), 10-4052-cv (Con).
United States Court of Appeals, Second Circuit.
Argued: November 8, 2011.
Decided: March 13, 2012.
New York Law School location; File #4102, Box #157