77 F.3d 860

Kenneth BROWN and Elmira Brown, Plaintiffs-Appellees, International Paper Company, Intervenor-Plaintiff-Appellee, v. VALMET-APPLETON, et al., Defendants, Valmet Paper Machinery, Inc., Defendant-Appellant.

No. 94-60732.

United States Court of Appeals, Fifth Circuit.

March 18, 1996.

*861Michael Evan Jaffe, David L. Kelleher, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, Michael B. Wallace, Phelps, Dunbar, Jackson, MS, for Defendant-Appellant Valmet Paper Machinery, Inc.

Mark D. Lumpkin, Paul S. Minor, Monor & Guice, Biloxi, MS, for Plaintiffs-Appellees Kenneth Brown and Elmira Brown.

Karl R. Steinberger, Gina L. Bardwell, Colingo, Williams & Heidelberg, Pascagoula, MS, for Intervenor-Plaintiff-Appellee International Paper Co.

Before POLITZ, Chief Judge, and JONES and PARKER, Circuit Judges.

POLITZ, Chief Judge:

Valmet Paper Machinery, Inc. (VPI), a Finnish corporation, appeals the trial court’s denial of a claim of sovereign immunity as a *862defense to plaintiffs’ complaint. For the reasons assigned we affirm and remand.

Background

Kenneth Brown was employed by International Paper Company as an operator at the company’s Moss Point, Mississippi paper mill. On August 1, 1990, Brown suffered serious injury when his right hand and arm were pulled into a paper winder. He has undergone several surgical procedures for the reconstruction of his arm and allegedly is maimed for life.

On July 6, 1993, Brown and his wife filed the instant action against, inter alia, VPI which responded with a motion to dismiss for lack of subject matter jurisdiction, invoking the Foreign Sovereign Immunities Act of 1976 (FSIA), codified at 28 U.S.C. §§ 1602 et seq.1 In its motion, VPI averred that it was a wholly-owned subsidiary of Valmet Corporation, 70% of the stock of which is held by the Republic of Finland. As such, VPI claimed qualification as a foreign state under 28 U.S.C. § 16032 and concomitant entitlement to sovereign immunity under 28 U.S.C. § 1604.3 The district court denied this motion, applying the commercial activity exception to foreign sovereign immunity.4 VPI timely appealed.

Analysis

The interlocutory order denying VPI’s motion to dismiss, based upon a denial of sovereign immunity under the FSIA, is an appealable collateral order.5 We review de novo the district court’s legal conclusions concerning VPI’s immunity under the FSIA; we examine for clear error the factual findings upon which those conclusions are based.6

VPI first contends that the plaintiffs do not allege with sufficient particularity the jurisdictional facts required to overcome the presumption of immunity created by 28 U.S.C. § 1604.7 In considering this contention “we assume that we have truthful allegations before us though many of those allega*863tions are subject to dispute”8 and may, if appropriate, look to materials outside of the complaint to clarify disputed issues.9 The plaintiffs allege, and information derived from interrogatories and other discovery devices support, the proposition that VPI was involved in the production, distribution, and/or installation of the paper winder which caused Brown’s injuries.10 VPI has received fair notice of the activities upon which the subject matter jurisdiction of the district court is premised.11 This contention, therefore, is not persuasive.

VPI next challenges the merits of the district court’s decision denying immunity. In Aldy v. Valmet Paper Machinery,12 a panel of this court affirmed the denial of foreign sovereign immunity in a case involving facts essentially akin to those at bar. Finding any legal and factual variance between Aldy and the instant action irrelevant to today’s decision, we adopt the careful and comprehensive reasoning of our colleagues and affirm the trial court’s denial of immunity.

AFFIRMED and REMANDED for further proceedings consistent herewith.

Brown v. Valmet-Appleton
77 F.3d 860

Case Details

Name
Brown v. Valmet-Appleton
Decision Date
Mar 18, 1996
Citations

77 F.3d 860

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!