     12-2891-cv
     Skanga Energy & Marine Ltd. v. Petróleos de Venezuela S.A.

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS
     PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
     DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
     TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 10th day of April, two thousand thirteen.
 4
 5   PRESENT:
 6              BARRINGTON D. PARKER,
 7              RAYMOND J. LOHIER, JR.,
 8              SUSAN L. CARNEY,
 9                    Circuit Judges.
10   _____________________________________________
11
12   SKANGA ENERGY & MARINE LIMITED,
13                            Plaintiff-Appellee,
14
15                   v.
16
17   PETROLEOS DE VENEZUELA S.A.,                                          12-2891-cv
18
19                            Defendant-Appellant,
20
21   AREVENCA S.A., JAVIER GONZALEZ
22   ALVAREZ,
23
24                    Defendants.
25   _____________________________________________
26
27
 1   FOR APPELLANT:                                    LAWRENCE H. MARTIN (Ronald E. M.
 2                                                     Goodman and Vivek H. Krishnamurthy,
 3                                                     on the brief), Foley Hoag LLP,
 4                                                     Washington D.C.; Marjorie Berman,
 5                                                     Krantz & Berman LLP, New York, NY,
 6                                                     on the brief.
 7
 8   FOR APPELLEE:                                     ANNETTE G. HASAPIDIS, Law Offices of
 9                                                     Annette G. Hasapidis, South Salem, NY;
10                                                     Olufemi G. Salu, Salu & Salu Law Firm,
11                                                     PLLC, Southaven, MS, on the brief.
12
13          Appeal from a judgment of the United States District Court for the Southern District

14   of New York (Denise Cote, Judge).

15          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

16   AND DECREED that the judgment of the District Court is AFFIRMED.

17          Appellant Petróleos de Venezuela, S.A. (“PDVSA”), a corporation owned by the

18   Venezuelan government, appeals from the District Court’s judgment entered June 21,

19   2012. On appeal, PDVSA argues that the District Court erred in determining that it had

20   subject matter jurisdiction because the “commercial activities exception” to the Foreign

21   Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605(a)(2), does not apply. We assume

22   the parties’ familiarity with the facts and record of the prior proceedings, to which we refer

23   only as necessary to explain our decision to affirm.

24           “The standard of review applicable to district court decisions regarding subject

25   matter jurisdiction under the FSIA is clear error for factual findings and de novo for legal

26   conclusions.” Robinson v. Gov’t of Malaysia, 269 F.3d 133, 138 (2d Cir. 2001)



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 1   (quotation marks omitted); see USAA Cas. Ins. Co. v. Permanent Mission of the Republic

 2   of Namibia, 681 F.3d 103, 107 (2d Cir. 2012).

 3          Where a plaintiff seeks to sue a foreign sovereign in the United States under the

 4   FSIA, “the plaintiff has the burden of going forward with evidence showing that, under

 5   exceptions to the FSIA, immunity should not be granted.” Rogers v. Petroleo Brasileiro,

 6   S.A., 673 F.3d 131, 136 (2d Cir. 2012) (quotation marks omitted).

 7          [I]n assessing whether a plaintiff has sufficiently alleged or proffered
 8          evidence to support jurisdiction under the FSIA, a district court must review
 9          the allegations in the complaint, the undisputed facts, if any, placed before it
10          by the parties, and – if the plaintiff comes forward with sufficient evidence to
11          carry its burden of production on this issue – resolve disputed issues of fact,
12          with the defendant foreign sovereign shouldering the burden of persuasion.
13
14   Robinson, 269 F.3d at 141.
15
16          The parties primarily dispute (1) whether an actual authority agency relationship

17   existed between Arevenca S.A. and PDVSA, and (2) whether PDVSA’s alleged

18   commercial activities can be said to have caused a direct effect in the United States to

19   satisfy 28 U.S.C. § 1605(a)(2).

20          With respect to agency the District Court concluded that the plaintiff-appellee,

21   Skanga Energy & Marine Limited (“Skanga”), “carried its burden of pleading that an

22   agency relationship existed” by providing “circumstantial evidence at the pleading stage to

23   establish a reasonable inference of a PDVSA agency relationship with Arevenca.” We

24   agree that Skanga carried its burden of establishing an agency relationship through its

25   allegations about Enrique Arrundell’s statements and activities and the transaction


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 1   documents – including a bill of lading for the purported diesel shipment – bearing

 2   PDVSA’s logo. PDVSA, on the other hand, failed to submit any evidence indicating that

 3   Arevenca lacked authority to act on PDVSA’s behalf. As a result, there was no “factual

 4   dispute,” Robinson, 269 F.3d at 141, for the District Court to resolve as to whether an

 5   agency relationship existed, see Virtual Countries, Inc. v. Republic of South Africa, 300

 6   F.3d 230, 241 (2d Cir. 2002). Accordingly, the District Court properly concluded that

 7   PDVSA failed to meet its burden of demonstrating that the commercial activities exception

 8   does not apply.

 9          For substantially the reasons stated by the District Court in its opinion and order

10   entered June 21, 2012, we also agree that, based on the undisputed allegations in Skanga’s

11   complaint, “PDVSA’s activities caused a direct effect in the United States.”

12          We have considered PDVSA’s remaining arguments and conclude that they are

13   without merit. For the foregoing reasons, the judgment of the District Court is

14   AFFIRMED.

15                                             FOR THE COURT:
16                                             Catherine O’Hagan Wolfe, Clerk
17




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