                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                      April 13, 2006

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 05-20434
                            Summary Calendar
                        _______________________

                             KEVIN L. EVANS,

                                                     Plaintiff-Appellant,

                                  versus

                   PETROLEOS MEXICANOS (PEMEX) and
                PEMEX EXPLORACION y PRODUCCION (PEP),

                                                    Defendants-Appellees.

_________________________________________________________________

           Appeal from the United States District Court
       For the Southern District of Texas, Houston Division
                           No. H-04-1510
 ________________________________________________________________
Before JONES, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

           Kevin Evans brings this appeal, challenging the district

court’s dismissal of his suit against Appellees Petroleos Mexicanos

(“PEMEX”) and PEMEX Exploracion y Produccion (“PEP”).            Because we

conclude that Evans waived his argument that PEMEX and PEP are not

agencies of the Mexican Government and that Evans has failed to

sufficiently allege facts that would support an exception to the



     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et

seq., we AFFIRM.

                                I.    Background

           This case stems from an injury Evans suffered in 2003

while working on an oil platform in the territorial waters of

Mexico. At the time of his injury, Evans, an American citizen, was

employed as a supervisor for Cia. Tesco Corporation (“Tesco”), a

Mexican corporation headquartered in Mexico City.                       Tesco had

contracted with PEP to refurbish an oil platform owned by PEP, and

Evans was one of the workers on the project.                While attempting to

setup a fiberglass ladder, Evans stepped into an exposed hole in

the   platform    and   fell;   he    alleges     that    he   suffered    severe,

permanent,    and   disabling    injuries        as   a   result   of   Appellees’

negligence.

           Evans sued PEMEX and PEP1 for damages in the Southern

District   of    Texas.    The       Appellees    responded     that    they   were

decentralized public entities of the Mexican Government and were

entitled to sovereign immunity under FSIA; Evans had asserted in

his original complaint that jurisdiction was proper under the

“commercial activities” exception to FSIA. 28 U.S.C. § 1605(a)(2).

The Appellees then moved to dismiss Evans’s complaint pursuant to



      1
             PEP is a subsidiary of PEMEX.

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FED. R. CIV. P. 12(b)(1) and 12(b)(2) for lack of subject matter and

personal jurisdiction, respectively. The district court found that

PEMEX and PEP were agencies of the Mexican government within the

meaning of FSIA and that Evans had not alleged or otherwise

explained how the “commercial activities” exception to FSIA would

apply to his case; as a result, the court dismissed Evans’s case.

Evans brought this timely appeal, which may be heard pursuant to 28

U.S.C. § 1291.

                          II.   Discussion

          This court reviews a district court’s dismissal for lack

of FSIA jurisdiction de novo.      United States v. Moats, 961 F.2d

1198, 1205 (5th Cir. 1992).     The FSIA provides the sole source of

subject matter jurisdiction in suits against a foreign state.

Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,

434-39, 109 S. Ct. 683, 688-91 (1989).        As a general matter,

foreign states and their agencies are immune from the jurisdiction

of courts in the United States.   28 U.S.C. § 1604; see also Byrd v.

Corp. Forestal y Indus. de Olancho S.A., 182 F.3d 380, 388 (5th

Cir. 1999).   However, 28 U.S.C. §§ 1605-07 provide exceptions that

allow the American courts to exercise jurisdiction over foreign

states.

          Evans first argues that PEMEX and PEP are not agencies of

the Mexican Government, and are therefore not entitled to FSIA

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protection.     In its opinion, the district court noted that there

was “no dispute in this case that Defendants are agencies of the

Mexican government within the meaning of” FSIA.        (Dist. Ct. Op. 1).

This is because in his first amended complaint, Evans conceded that

PEMEX and PEP were “decentralized public entities of the Mexican

Government.”    (Appellee Record Excerpts at 41).        Further, in his

reply to Appellees’ motion to dismiss, Evans did not change his

position on Appellees’ status; instead, he asserted that he needed

to conduct further discovery to develop his claims.           For the first

time on appeal, Evans now asserts that the Appellees, particularly

PEP, ceased being instrumentalities of the Mexican Government

following   a   restructuring   in   1992.   Barring    the    “absence   of

exceptional circumstances which would result in a miscarriage of

justice, a condition not present here, questions not presented to

the trial court will not be considered on appeal.”            C.F. Dahlberg

& Co. v. Chevron U.S.A., Inc., 836 F.2d 915, 920 (5th Cir.

1988)(citing D.H. Overmyer Co. v. Loflin, 440 F.2d 1213, 1215 (5th

Cir. 1971)).    Evans has waived this argument, and this court will

not consider his claims that PEMEX and PEP are no longer agencies

of the Mexican Government.

            Next, there is the issue of whether Evans adequately

pleaded an exception to FSIA.        Under FSIA, an American court can

only exercise jurisdiction over a foreign sovereign where an

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exception to sovereign immunity applies.                  Evans claims that an

exception to sovereign immunity exists in this case pursuant to 28

U.S.C. § 1605(a)(2), the “commercial activities” exception to FSIA.

28 U.S.C. § 1605(a)(2) states that a sovereign is not immune to the

jurisdiction of the United States Courts where:


     the action is based upon a commercial activity carried on
     in the United States by the foreign state; or upon an act
     performed in the United States in connection with a
     commercial activity of the foreign state elsewhere; or
     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.

           In    order   to     successfully      invoke       one    of   the   three

“commercial     activities”      exceptions      to    FSIA,    a    plaintiff    must

demonstrate the “jurisdictional nexus necessary to support subject

matter jurisdiction in this country.”                 Arriba, Ltd. v. Petroleos

Mexicanos, 962 F.2d 528, 533 (5th Cir. 1992).                        Generalized and

conclusory allegations that the § 1605(a)(2) exceptions apply are

not sufficient to establish a jurisdictional nexus.

           Although      both    PEMEX     and   PEP     carry       out   commercial

activities in the United States, Evans’s cause of action is based

upon a tort that occurred in Mexico, as part of one Mexican

corporation providing services to another.                Thus, the first prong

of § 1605(a)(2) cannot be met based upon the facts alleged in

Evans’s   complaint.       The    second,      “in    connection       with,”    prong

                                         -5-
requires that “the plaintiff’s action . . . be based upon the ‘act

performed in the United States in connection with a commercial

activity of the foreign state elsewhere.’ Thus, [a] material

connection . . . must exist between the plaintiff’s cause of action

and the act performed in the United States.”            Stena Rederi AB v.

Comision de Contratos, 923 F.2d 380, 388 (5th Cir. 1991)(quoting 28

U.S.C. § 1605(a)(2)).      Even accepting as true Evans’s claim that an

American-made “iron rough neck” was to be installed for PEP at the

site of his injury, this fact alone is insufficiently connected to

Evans’s fall, which was allegedly caused by the negligence of

Appellees.    Finally, the “direct effect” prong only applies to

“foreign conduct that causes a ‘substantial’ and ‘direct and

foreseeable’ effect in the United States.             Id. at 390 (quoting

Zernicek v. Brown & Root, Inc., 826 F.2d 415, 417-18 (5th Cir.

1987)).     Accepting Evans’s allegations as true, he still comes

nowhere near alleging conduct that could cause a “substantial” and

“direct and foreseeable” effect in the United States.

            Evans argues that he should be allowed to proceed with

discovery.    In so arguing, he fails to appreciate the broad scope

of   protections   that    sovereign    immunity     affords    a   defendant.

Sovereign    immunity     comprises    more   than    just     immunity   from

liability; rather, it is “an immunity from the burdens of becoming

involved in any part of the litigation process.”             Moats, 961 F.2d

                                      -6-
at 1203.    As the facts alleged by Evans are insufficient to support

a § 1605(a)(2) exception to FSIA, Evans is not entitled to burden

Appellees with the lengthy and costly process of discovery to build

his case.    As such, the district court did not err in dismissing

Evans’s claims for lack of jurisdiction.

                           III.   Conclusion

            Evans waived his argument that PEMEX and PEP were not

agencies of the Mexican Government, and he otherwise fails to

provide any specific allegations that an exception to FSIA applies

to his case.     Therefore, the decision of the district court is

AFFIRMED.




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