                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0051n.06

                                       Case No. 19-1206

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                               FILED
                                                                          Jan 24, 2020
NATALIE C. QANDAH,                                     )              DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellant,                            )
                                                       )   ON APPEAL FROM THE UNITED
v.                                                     )   STATES DISTRICT COURT FOR
                                                       )   THE EASTERN DISTRICT OF
JOHOR CORPORATION and YB DATO                          )   MICHIGAN
KAMARUZZAMAN BIN ABU KASSIM,                           )
                                                       )
       Defendants-Appellees.                           )




BEFORE: COLE, Chief Judge; SILER and MURPHY, Circuit Judges.

       SILER, Circuit Judge. Natalie Qandah contends that she has been the victim of an intricate

corporate shell game that has allowed Johor Corporation (JCorp) and its CEO, YB Dato

Kamaruzzaman Bin Abu Kassim, to escape liability for the harm that they and their agents caused

her. After a limited discovery period, the district court granted Defendants’ motion to dismiss,

finding that JCorp was entitled to immunity under the Foreign Sovereign Immunities Act (FSIA)

and Kassim was entitled to immunity as well. Notably, the district court held that Qandah failed

to prove that the corporate malfeasance at issue was attributable to JCorp and Kassim.

       However, there is a flaw in the district court’s immunity analysis. Under the FSIA, there

is a unique burden-shifting framework. Initially, the burden of proof is on the party seeking

immunity to establish that it is a foreign state. O’Bryan v. Holy See, 556 F.3d 361, 376 (6th Cir.
Case No. 19-1206, Qandah v. Johor Corp. et al.


2009). If that party succeeds, the burden of production shifts to the party opposing immunity to

establish that one of the FSIA exceptions apply. Id. Nevertheless, the burden of persuasion

remains with the party seeking immunity throughout the process. Id. The district court erred when

it placed the burden of persuasion, not just the burden of production, on Qandah to prove that one

of the FSIA exceptions applied. Therefore, we REVERSE the district court’s grant of immunity

and REMAND the case so that the district court may reweigh the evidence under the proper legal

standard.

                        FACTUAL AND PROCEDURAL HISTORY

       Plaintiff Qandah is an attorney licensed in the State of Michigan. Defendant JCorp is a

business entity that was created by the legislature of the state of Johor, Malaysia. JCorp began as

a corporation by managing palm oil estates and expanded into sectors including specialist

healthcare, foods and restaurants services, property development, and hospitality. Defendant

Kassim is a resident of Malaysia and president and CEO of JCorp.

       This dispute arose out of Qandah’s employment with WLC SA (WLC), a nonparty. The

Global Coalition for Efficient Logistics (GCEL) advertised for an in-house attorney for either its

Michigan, or Washington, D.C., office. Qandah applied for the position; was interviewed by

various people, including Greg Bird and Samuel Salloum;1 and was eventually offered the position

of manager of legal and associate general counsel of GCEL in the Michigan office. In that role,

she would report to two other attorneys employed by GCEL, Jennifer Chloe Groves and Kathlyn

Scott. However, the signatory party to Qandah’s employment contract was WLC, not GCEL.2


       1
         According to Qandah, Salloum was the co-chairman of GCEL. It is unclear what Bird’s
role was, but in an email, he identified himself as “Deputy Secretary General.”
       2
        There is significant disagreement among the parties regarding the business relationships
between the various entities involved in this case. According to Defendants, during Qandah’s
employment with WLC, her employer was a Swiss-based subsidiary of the Ireland-based World
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Qandah asserts that at the time she accepted the job, Bird and Salloum promised that her salary

would double within six months and that she would immediately receive vested equity in WLC.3

       Qandah officially commenced her employment in August 2013. She alleges that while

with WLC, she performed legal work for GCEL, WLC, World Logistics Council, WLC Americas,

LLC, Asia Logistics Council, the Asia Economic Development Fund, JCorp, and Kassim, among

others. Qandah also asserts that during her employment with WLC, Bird and Salloum subjected

her to abusive conduct. Specifically, Qandah, a Christian, avers that Salloum refused to allow her

to take time off for Christian holidays, despite his willingness to allow others to miss work for

Islamic holidays. Further, according to Qandah, Salloum’s brother, while temporarily at the

Dearborn office, attempted to convert her by advising her of the inferiority of Christianity to Islam.

Qandah states that she was terminated in May 2014, only two weeks after refusing to convert to

Islam. After her termination, Qandah contends that Salloum withheld her last paycheck for four

to six months because she is a woman and he enjoyed having power over her. Additionally, she

charges that Bird and Salloum subjected her to other verbal threats and abusive treatment

throughout her employment with WLC on the basis of her gender and Christian faith.

       Following her firing, Qandah informed JCorp and Kassim, among others, that she planned

to file a lawsuit in the United States. Subsequently, Qandah alleges that JCorp, through its agents,

hired an attorney to file a grievance against her with the Michigan Attorney Grievance

Commission (MAGC). After the MAGC declined to investigate the matter, the Michigan Supreme



Logistics Council Ltd., which owns 20% of Asia Logistics Council (ALC). The other 80% of
ALC was owned by Johor Logistics SDN BHD. JCorp owns 49% of Johor Logistics, and the other
51% is owned by Johor Paper SDN BHD, which is a wholly owned subsidiary of JCorp.
Additionally, ALC is one of the four regional councils of GCEL, a Swiss-based nonprofit
public/private partnership. According to Qandah and Steve Szirmai, the former director of finance
for GCEL, all of the above-referenced organizations are owned and controlled by JCorp.
       3
           Qandah states that WLC failed to deliver on each of these promises.
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Court affirmed the MAGC’s decision not to investigate, but the appeal to the Michigan Supreme

Court made the grievance a public record.

        Qandah subsequently filed a lawsuit against JCorp and Kassim in the United States District

Court for the Eastern District of Michigan, asserting fraud in the inducement, employment

discrimination under federal and state law, and intentional infliction of emotional distress (IIED).4

Following a long and contentious period of jurisdictional discovery, the district court granted

Defendants’ motion to dismiss. It held that JCorp was a foreign state under the FSIA and none of

the exceptions to the FSIA applied; thus, JCorp was entitled to FSIA immunity. Further, it held

that because the lawsuit sought liability against Kassim in his official capacity, it was an alternative

means of holding JCorp liable, so Kassim was also entitled to immunity. Accordingly, the district

court entered judgment in favor of JCorp and Kassim and dismissed the case.

                                    STANDARD OF REVIEW

        “A motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1) involves either a facial attack or a factual attack.” Glob. Tech., Inc. v. Yubei

(XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015). When reviewing a facial

attack, a district court must take the allegations in the complaint as true. Gentek Bldg. Prods., Inc.

v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). However, when a Rule 12(b)(1)

motion attacks a complaint’s factual predicate, the court does not presume the plaintiff’s factual

allegations to be true. Russell v. Lundergan-Grimes, 784 F.3d 1037, 1045 (6th Cir. 2015). Instead,

we accept the district court’s findings of fact unless they are clearly erroneous and review de novo

its legal conclusions regarding those facts. Glob. Tech., 807 F.3d at 810.



        4
         According to Qandah’s original complaint, she also pursued claims against WLC in a
Swiss proceeding, per the terms of her employment agreement. Qandah notes that the proceeding
has concluded, but the outcome is not clear from her pleadings.
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                                            DISCUSSION

           As a threshold matter, we must resolve the parties’ dispute regarding whether Defendants’

motion to dismiss was a facial attack or a factual attack on the complaint. The district court

explicitly stated that it was analyzing Defendants’ motion to dismiss as a factual attack.

Consequently, the district court was required to “weigh the conflicting evidence to arrive at the

factual predicate that subject-matter [jurisdiction] does or does not exist,” and had “wide discretion

to allow affidavits, documents, and even a limited evidentiary hearing to resolve jurisdictional

facts.” Gentek Bldg. Prods., 491 F.3d at 330. In the case before us, the district court weighed the

evidence and held that both JCorp and Kassim were entitled to immunity. On appeal, Qandah

challenges the district court’s determinations that JCorp is a foreign state entitled to immunity

under the FSIA and that Kassim is also entitled to immunity.

      I.      FSIA Immunity

           “Foreign states are generally immune from suit in United States courts.” Triple A Int’l,

Inc. v. Democratic Republic of Congo, 721 F.3d 415, 416 (6th Cir. 2013). If it applies, the FSIA

“is the sole basis for obtaining jurisdiction over a foreign state in federal court.” Samantar v.

Yousuf, 560 U.S. 305, 314 (2010) (internal quotation marks omitted). “Under the FSIA, a foreign

state is presumptively immune from suit unless a specific exception applies.” Permanent Mission

of India to the United Nations v. City of New York, 551 U.S. 193, 197 (2007). See also 28 U.S.C.

§ 1604. Thus, the FSIA creates a general grant of immunity, subject to the enumerated exceptions.

Glob. Tech., 807 F.3d at 810.

           Additionally, under the FSIA, there is a unique burden-shifting framework for the

immunity inquiry. The initial burden is on the party claiming FSIA immunity to establish a prima

facie case that it satisfies the FSIA’s definition of a foreign state. O’Bryan, 556 F.3d at 376. If



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that party establishes a prime facie case, the burden of production shifts to the party opposing FSIA

immunity to show an exception applies. Id. However, “[t]he party claiming immunity under [the]

FSIA retains the burden of persuasion throughout this process.” Id.

       Qandah first asserts that JCorp failed to establish a prima facie case that it satisfies the

FSIA’s definition of a foreign state. Next, Qandah contends that even if JCorp is a foreign state

under the FSIA, exceptions apply to bar immunity. Qandah identifies both the commercial and

tortious activity exceptions as applicable in this case.

       a.      Foreign State

       The relevant statutory provision that confers jurisdiction to a district court over a foreign

state is 28 U.S.C. § 1330.

       The district courts shall have original jurisdiction without regard to amount in
       controversy of any nonjury civil action against a foreign state as defined in section
       1603(a) of this title as to any claim for relief in personam with respect to which the
       foreign state is not entitled to immunity either under sections 1605-1607 of this title
       or under any applicable international agreement.

28 U.S.C. § 1330(a). A “foreign state” includes “a political subdivision of a foreign state or an

agency or instrumentality of a foreign state.” Id. § 1603(a). Section 1603(b) then defines an

“agency or instrumentality of a foreign state” as any entity that is (1) “a separate legal person,

corporate or otherwise”; (2) “which is an organ of a foreign state or political subdivision thereof,

or a majority of whose shares or other ownership interest is owned by a foreign state or political

subdivision thereof”; and (3) “which is neither a citizen of a State of the United States as defined

in section 1332(c) and (e) of this title, nor created under the laws of any third country.” Id.

§ 1603(b).

       Only the second element is disputed. The district court found that JCorp is an organ of the

state of Johor, Malaysia. Qandah contests that finding, arguing that JCorp must prove that it is


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wholly- or majority-owned by Malaysia. However, Qandah appears to be conflating the ownership

prong with the organ prong; these are two separate inquiries. See, e.g., EOTT Energy Operating

Ltd. P’ship v. Winterthur Swiss Ins. Co., 257 F.3d 992, 997 (9th Cir. 2001) (“Even though a

majority of Icarom’s shares are not directly held by Ireland, it is still possible for it to be an ‘organ’

of a foreign state as defined by § 1603(b)(2).”); Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d

841, 846 (5th Cir. 2000) (“Most cases have determined § 1603(b)(2) agency/instrumentality status

using the ‘ownership’, rather than the ‘organ’, prong.”).

        In considering whether an entity is an “organ of a foreign state,” various courts have applied

a list of factors. See Janvey v. Libyan Inv. Auth., 840 F.3d 248, 259 (5th Cir. 2016) (per curiam);

Filler v. Hanvit Bank, 378 F.3d 213, 217 (2d Cir. 2004); USX Corp. v. Adriatic Ins. Co., 345 F.3d

190, 209 (3d Cir. 2003); EIE Guam Corp. v. Long Term Credit Bank of Japan, Ltd., 322 F.3d 635,

640 (9th Cir. 2003). The factors most commonly used are: (1) “whether the foreign state created

the entity for a national purpose”; (2) “whether the foreign state actively supervises the entity”;

(3) “whether the foreign state requires the hiring of public employees and pays their salaries”;

(4) “whether the entity holds exclusive rights to some right in the [foreign] country”; and (5) “how

the entity is treated under foreign state law.” Filler, 378 F.3d at 217 (quoting Kelly, 213 F.3d at

846-47). See also Corporacion Mexicana de Servicios Maritimos, S.A. de C.V. v. M/T Respect,

89 F.3d 650, 655 (9th Cir. 1996). Nevertheless, while these factors aid in the determination of the

organ prong, there is no clear test. Janvey, 840 F.3d at 259. And Congress intended the terms

“organ” and “agency or instrumentality” to be read broadly. EIE Guam Corp., 322 F.3d at 640.

In examining the organ prong, the district court found that JCorp was created by a legislative

enactment of the state of Johor, employees of JCorp are public servants, JCorp performs a

governmental function, and JCorp’s finances are overseen and approved by the state of Johor. The



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evidence in the record supports the district court’s findings. First, the legislature of the state of

Johor created JCorp in May 1968. The legislative enactment tasked JCorp with the duty of

promoting, facilitating, stimulating, and undertaking land development in the state of Johor for the

purposes of agricultural, residential, industrial, mining, and commercial development. Further,

JCorp’s board is comprised of government officials and officials appointed by the ruler of

Malaysia, all JCorp’s employees are deemed to be public servants, and the Malaysian government

retained control over JCorp’s ability to invest and borrow money. Consequently, we affirm the

district court’s holding that JCorp is an organ of a foreign state under the FSIA.

       b.      Exceptions to the FSIA

       According to our precedents, with JCorp establishing that it is a foreign state for the

purposes of the FSIA, the burden of production shifts to Qandah to establish that one of the FSIA

exceptions applies to defeat immunity. See, e.g., O’Bryan, 556 F.3d at 376. Qandah identifies

two exceptions that apply here: (1) the commercial activity exception and (2) the tortious activity

exception. There are three potential avenues for the commercial activity exception to apply:

       [A foreign state is not immune from suit when it] is based [1] upon a commercial
       activity carried on in the United States by the foreign state; or [2] upon an act
       performed in the United States in connection with a commercial activity of the
       foreign state elsewhere; or [3] upon an act outside the territory of the United States
       in connection with a commercial activity of the foreign state elsewhere and that act
       causes a direct effect in the United States.

28 U.S.C. § 1605(a)(2). “Commercial activity” means “either a regular course of commercial

conduct or a particular commercial transaction or act.” Id. § 1603(d). The general rule is that

“when a foreign government acts, not as regulator of a market, but in the manner of a private player

within it, the foreign sovereign’s actions are ‘commercial’ within the meaning of the FSIA.”

Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992). Significantly, though, the

commercial activity relied upon by the plaintiff for jurisdictional purposes must also be the activity

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upon which the lawsuit is based; that is, there must be a connection between that activity and the

act complained of in the suit. O’Bryan, 556 F.3d at 378 (internal citation and quotation marks

omitted).

        As for the tortious activity exception, it applies where:

        there has been a tortious act (1) “occurring in the United States”; (2) “caused by [a]
        tortious act or omission”; (3) where the alleged acts or omissions were those of a
        “foreign state or of any official or employee of that foreign state”; and (4) those
        acts or omissions were done within the scope of tortfeasor’s employment.

Id. at 380-81 (quoting 28 U.S.C. § 1605(a)(5)). We have interpreted this requirement as mandating

that the entire tort occur in the United States. Id. at 381 (“[I]t seems most in keeping with both

Supreme Court precedent and the purposes of the FSIA to grant subject matter jurisdiction under

the tortious activity exception only to torts which were entirely committed within the United

States.”).

        Qandah’s theory of the case is that JCorp controlled her direct employer, WLC; her alleged

indirect employers; and the people who engaged in the conduct at issue in the lawsuit, Bird and

Salloum. She attempts to impute Bird’s and Salloum’s conduct to JCorp by arguing that they were

its agents. Qandah’s most consequential pieces of evidence in support of her assertions are her

own affidavit, an affidavit from Steve Szirmai, wire transfers amongst a number of business

entities, a letter from Kassim to Salloum, and an email from Kassim to Bird. Notably, Steve

Szirmai, the former director of finance for GCEL, corroborates Qandah’s claims that JCorp owned,

operated, and controlled WLC and GCEL, that Kassim directed the actions of Bird and Salloum,

and that based on the financial records he reviewed in his role as director of finance, the documents

purporting to show separation between WLC and JCorp are fictional.5 There is also circumstantial



        5
         Qandah also argues that the district court failed to consider Szirmai’s affidavit because it
did not discuss it in its order dismissing her case. Qandah requests that we remand the case to the
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evidence supporting Qandah’s claims. For example, the wire transfers show $7,500,000 being

directly transferred from JCorp to WLC between 2010 and 2011.

        The district court held that the commercial and tortious activity exceptions do not apply

because Qandah failed to prove a direct link between JCorp and Bird, Salloum, and WLC.

Specifically, the district court rejected Qandah’s evidence because it found it to be “as consistent

with a collaborative business relationship . . . as with an agency relationship.” However, the

district court’s analysis is troubling. It appears that the district court erred by placing both the

burden of production and persuasion on Qandah. This is significant because Qandah only had the

burden of production; JCorp had the burden of persuasion. See id. at 376. Consider the district

court’s analysis that Qandah’s evidence was as consistent with a business relationship as with an

agency relationship. It was not Qandah’s burden to definitively prove an agency relationship; she

did not have the burden of persuasion. See generally Dir., Office of Workers’ Comp. Programs,

Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 274 (1994) (“In the two decades after Hill,

our opinions consistently distinguished between burden of proof, which we defined as burden of

persuasion, and an alternative concept, which we increasingly referred to as the burden of

production or the burden of going forward with the evidence.”). If Qandah produced sufficient

evidence to satisfy her burden of production, it was JCorp’s burden to then prove by a

preponderance of the evidence that neither of the two exceptions applies. Accordingly, without

taking any view of the evidence as it relates to the exceptions to immunity, we reverse the district




district court and instruct it to consider all her evidence. However, “[t]he district court was not
obliged to recite and analyze individually each and every piece of evidence presented by the
parties.” Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1353 (11th Cir. 2005). While
the district court did not explicitly discuss the Szirmai affidavit, it did note that it had “review[ed]
the briefing,” of which the Szirmai affidavit was part. There is no indication that it failed to
consider the Szirmai affidavit.
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court’s grant of immunity to JCorp and remand the case to allow the district court to reweigh the

evidence under the proper legal standard and determine if the parties have met their respective

burdens.

     II.       Kassim’s Immunity

           We must also consider whether Kassim is entitled to immunity, as the district court held.

Immunity for foreign officials is generally not analyzed under the FSIA. Samantar, 560 U.S. at

324-25.        Instead, it is typically governed by common-law principles of foreign sovereign

immunity. Id. However, the Supreme Court has noted that some actions against foreign officials

in their official capacity should be treated as actions against the foreign state itself because the

state is the real party in interest. Id. at 325; see also Kentucky v. Graham, 473 U.S. 159, 166 (1985)

(“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the

entity. It is not a suit against the official personally, for the real party in interest is the entity”

(citation omitted)).

           The district court held that Qandah’s claims against Kassim are really claims against JCorp

itself. Thus, because it held that JCorp was immune, it held that Kassim too was immune. Since

we reverse the district court’s grant of immunity to JCorp, we must also reverse its grant of

immunity to Kassim.6




          Defendants also assert that we could affirm the district court’s dismissal of the case
           6

against them on the basis of personal jurisdiction. However, Qandah’s theory for personal
jurisdiction is based on the same rationale as her theory regarding the FSIA exceptions.
Consequently, we leave the issue to the district court for consideration in the first instance on
remand, if necessary after its immunity determination.
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                                      CONCLUSION

       Because the district court placed the burden of persuasion on the wrong party, we

REVERSE its order dismissing the case and REMAND for further proceedings consistent with

this opinion.




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