                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-3753
                                      _____________

                  CYRIL RICHARDSON; MEAGHAN RICHARDSON

                                             v.

     RANDY DONOVAN; ATTORNEY GENERAL OF THE BRITISH VIRGIN
                          ISLANDS

                       Attorney General of the British Virgin Islands,

                                                                    Appellant
                                      _____________

                            On Appeal from the District Court
                           for the District of the Virgin Islands
                             (D.C. Civ. No. 3-08-cv-00144)
                          District Judge: Hon. Curtis V. Gómez
                                     ______________

                                   Argued May 16, 2016
                                     ______________

            Before: FUENTES, * VANASKIE, and RESTREPO, Circuit Judges.

                           (Opinion Filed: December 15, 2016)

Thomas F. Friedberg, Esq.         [ARGUED]
Law Offices of Friedberg & Bunge
610 West Ash Street
Suite 1400
San Diego, CA 92166
       Counsel for Plaintiffs-Appellees, Cyril Richardson and Meaghan Richardson

      *
          The Honorable Julio M. Fuentes assumed senior status on July 18, 2016.
Maria T. Hodge, Esq.              [ARGUED]
Mark D. Hodge, Esq.
Hodge & Hodge
1340 Taarneberg
St. Thomas, VI 00802
       Counsel for Defendant, the Attorney General of the British Virgin Islands

                                       _____________

                                         OPINION *
                                       _____________

VANASKIE, Circuit Judge.

       The Government of the British Virgin Islands (“BVI”) appeals the District Court’s

denial of its motion to dismiss Appellees’ complaint on the basis of the Foreign

Sovereign Immunities Act (“FISA”), 28 U.S.C. § 1602, et seq. Plaintiffs-Appellees Cyril

Richardson and Meaghan Richardson, filed suit against the BVI for injuries sustained

during a boating accident involving a BVI customs vessel. The BVI is not immune from

suit if the mishap occurred within the territorial waters of the United States. See 28

U.S.C. § 1605(a)(5) (no immunity to a foreign state in any case “in which money

damages are sought . . . for personal injury . . . occurring in the United States and caused

by the tortious act . . . of any official or employee of that foreign state while acting within

the scope of his office or employment . . . .”). The District Court, without conducting an

adversarial evidentiary hearing, but relying instead upon submissions made by the

Appellees during proceedings in which the BVI did not participate, ruled that the accident

occurred within the United States, thus removing the BVI’s immunity from suit in this

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                               2
case. We conclude that it was error to make this significant determination without

conducting an adversarial evidentiary hearing. Accordingly, we will vacate the District

Court’s Order denying BVI’s motion to dismiss and remand for further proceedings.

                                            I.

      Because we write primarily for the parties, our discussion of the facts is limited to

those necessary to decide this appeal. On December 1, 2007, Meaghan and Cyril

Richardson were passengers on a powerboat named the “Guilt Trip,” owned by Ryan

Uzenski. At approximately 9:15 p.m., the Guilt Trip was stopped by a BVI customs

vessel under the control of BVI customs officer Randy Donovan. Eventually, BVI

customs officers asked the Richardsons and the other occupants of the Guilt Trip to board

the customs vessel. All complied. As the captain of the customs vessel prepared to

depart the scene, however, the captain crashed the customs boat into the “Guilt Trip,”

injuring Meaghan Richardson. Following the accident, BVI customs officials took the

Richardsons and the other occupants of the Guilt Trip to the BVI and charged them with

illegally entering the BVI. Ultimately, the Richardsons pled guilty to unlawfully entering

the BVI.

      In November 2008, the Richardsons filed suit against the Attorney General of the

BVI and Donovan for injuries stemming from the accident, asserting that diversity

jurisdiction and maritime jurisdiction existed. (App. 110, 118.) After believing that they

had properly made service of process, and with no responsive pleading or entry of

appearance on behalf of the Defendants having been filed, the Richardsons moved for

entry of default. In July 2010, a Magistrate Judge determined that the Richardsons

                                            3
properly served the Defendants, but that the Richardsons had not established that the

accident occurred in United States waters. (App. 46-49.) Thereafter, the Richardsons

filed a second motion for entry of default along with an affidavit by Cyril Richardson

regarding the accident’s location. (App. 134-36.) In February of 2011, the Magistrate

Judge granted the motion for entry of default. (App. 50-51.)

       With default having been entered, the case proceeded to a bench trial before a

District Judge on August 29, 2011. Two years later, the District Judge issued an order

vacating the entry of default, finding that service of process on the BVI had not been

effected properly and that Donovan was not an appropriate party to the litigation. (App.

52-53, 82.) The District Judge, however, agreed with the Magistrate Judge that the

mishap had occurred “while [the Richardsons] were passengers on a boat in the territorial

waters of the United States Virgin Islands . . . ” (App. 66) In making this determination,

the District Judge relied upon evidence produced by the Richardsons during the August

29, 2011 bench trial.

       In October 2013, the Richardsons properly served the BVI. (App. 9.) On

November 22, 2013, the BVI moved to dismiss the action for lack of subject matter and

personal jurisdiction. The subject matter jurisdictional challenge was premised upon the

FSIA. The BVI presented records of the Richardsons’ conviction for illegal entry into

the BVI and asserted that the convictions conclusively established that the mishap did not

occur in U.S. territorial waters. The District Court, substantially relying upon the record

created during the bench trial held in 2011 and the Magistrate Judge’s findings, rejected

the BVI defense and affirmed its conclusion that the accident happened in the territorial

                                             4
waters of the U.S. Virgin Islands. In March 2015, the District Court denied the BVI’s

motion for reconsideration. The BVI timely filed this appeal.

                                             II.

       A foreign state is immune from suit unless an exception to immunity applies under

the FSIA. Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488 (1983). “The

FSIA thus provides the ‘sole basis’ for obtaining jurisdiction over a foreign sovereign in

the United States.” Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611 (1992).

One exception to immunity is the non-commercial tort exception, which applies in cases

“against a foreign state for personal injury . . . occurring in the United States and caused

by the tortious act or omission of that foreign state or of any official or employee of that

foreign state while acting within the scope of his office or employment.” 28 U.S.C. §

1605(a)(5) (emphasis added). We exercise plenary review over the District Court’s

determination that subject matter jurisdiction exists under the FSIA. 1 Fed. Ins. Co. v.

Richard I. Rubin & Co., 12 F.3d 1270, 1282 (3d Cir. 1993).

       We apply a burden-shifting framework to determine whether FSIA jurisdiction

exists. See id. at 1285. If the defendant shows that it is a “foreign state,” the defendant

presumptively has immunity. Id. The burden then shifts to the plaintiff to show that an

exception under the FSIA applies. Id. However, “the ultimate burden of proving


       1
          We have jurisdiction to hear this appeal pursuant to the collateral order doctrine.
Fed. Ins. Co.,12 F.3d at 1282; see also Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan,
115 F.3d 1020, 1025 (D.C. Cir. 1997) (“It is well-established that an appeal from a denial
of a motion to dismiss a complaint on the ground of sovereign immunity under the FSIA
satisfies the three requirements of the collateral order doctrine and may thus be brought
on an interlocutory basis.”).
                                              5
immunity from suit lies with the [foreign state].” Id.; see also City of New York v.

Permanent Mission of India to the United Nations, 446 F.3d 365, 369 (2d Cir. 2006),

aff’d and remanded, 551 U.S. 193 (2007) (“The party seeking to establish jurisdiction

bears the burden of producing evidence establishing that a specific exception to immunity

applies, but the foreign state then bears the ultimate burden of persuasion on this

question.”).

       The District Court made its conclusion that the accident occurred within U.S.

territory in a most unusual procedural context. It relied upon evidence presented ex parte

during a bench trial held to determine whether the Richardsons were entitled to a default

judgment. It also relied upon the Magistrate Judge’s finding that there was

“topographical corroboration . . . to establish that the alleged tort occurred in the United

States.” (App. 25, quoting the Magistrate Judge Order of February 7, 2011.) None of

this evidence was tested through the adversarial process.

       We have observed that, where the parties dispute a material fact regarding the

exercise of subject matter jurisdiction, “the court must conduct a plenary hearing on the

contested issues prior to determining jurisdiction.” McCann v. Newman Irrevocable

Trust, 458 F.3d 281, 290 (3d Cir. 2006). Here, the parties disputed the location of the

accident. Both sides presented substantial evidence on this dispositive fact. The

resolution of this factual dispute is not readily apparent. Under these circumstances, an

evidentiary hearing is required. Therefore, we remand this case for the District Court to

hold an evidentiary hearing regarding the location of the accident and to determine

whether FSIA jurisdiction exists. See Reiss v. Société Centrale Du Groupe Des

                                              6
Assurances Nationales, 235 F.3d 738, 748 (2d Cir. 2000) (“We think it essential for the

district court to afford the parties the opportunity to present evidentiary material at a

hearing on the question of FSIA jurisdiction.”); see also Mortimer Off Shore Servs., Ltd.

v. Fed. Republic of Germany, 615 F.3d 97, 105 (2d Cir. 2010) (“The district court should

make this [subject matter jurisdiction and immunity] determination recognizing that a

motion to dismiss based on an assertion of sovereign immunity has particular significance

because . . . [s]overeign immunity under the FSIA is immunity from suit, not just from

liability.” (internal quotation omitted)).

                                             III.

       For the foregoing reasons, we vacate and remand this case to the District Court to

conduct an evidentiary hearing.




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