   17-3983
   Williams v. Romarm, 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 ASUMMARY ORDER@).     A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals
   for the Second Circuit, held at the Thurgood Marshall United
   States Courthouse, 40 Foley Square, in the City of New York,
   on the 20th day of September, two thousand eighteen.

   PRESENT:
            JON O. NEWMAN,
            DENNIS JACOBS,
            ROSEMARY S. POOLER,
                 Circuit Judges.
   _____________________________________
   NORMAN WILLIAMS, 5802 DADE STREET
   CAPITOL HEIGHTS, MD 20743 AS LEGAL
   REPRESENTATIVE OF J.H., DIANE
   HOWE, 1331 ALABAMA AVENUE, SE
   WASHINGTON, DC 20035 AS LEGAL
   REPRESENTATIVE OF J.H, JAMEL
   BLAKELEY, WASHINGTON, D.C., AND
   KEVIN ATTAWAY, WASHINGTON, D.C.,

             Plaintiffs–Appellants,

             -v.-                                              17-3983

   ROMARM, S.A., BD. TIMISORA NR. 5B,
   SECTOR BUCHAREST ROMANIA 061301,

             Defendant-Appellee.
   __________________________________
FOR PLAINTIFFS-APPELLANTS:   Daniel Wemhoff, Law Office of
                             Daniel Wemhoff, Arlington, VA.
                             With Daniel Arshack, Arshack,
                             Hajek & Lehman, New York, NY,
                             on the brief.

FOR DEFENDANT–APPELLEE:      Jeffrey M. Malsch (with Anthony
                             M. Pisciotti and Danny C.
                             Lallis, on the brief), Pisciotti
                             Malsch, White Plains, NY.

     Appeal from a judgment of the United States District
Court for the District of Vermont (Reiss, Ch.J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is
AFFIRMED.

     Three shooting victims sue the gun manufacturer under a
strict liability law enacted by the District of Columbia;
and they appeal from an order of the United States District
Court for the District of Vermont (Reiss, Ch.J.) dismissing
their action for lack of subject matter jurisdiction. The
district court held that the defendant, Romarm, which is
wholly owned by the Romanian government, was immune from
suit under the Federal Sovereign Immunities Act (“FSIA”).
The plaintiffs also appeal from a subsequent order denying
their motion pursuant to Federal Rule of Civil Procedure 59
to alter or amend the judgment. We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented for review.

     In two separate shootings in the District of Columbia,
J.H. was killed, and Jamel Blakeley and Kevin Attaway
sustained serious injuries. The firearm used in the
shootings was manufactured by the defendant, Romarm, in
Romania in the 1970s, and was sold to a dealer in 2006,
which imported it to Vermont, whence it was sold to dealers
in Ohio and Maryland, and then to an unidentified
purchaser. The shootings took place in March 2010. The
Amended Complaint does not allege how the firearm ended up
in the District of Columbia in 2010 or who used it to shoot
the plaintiffs.

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     J.H. (by his legal representatives), Blakeley, and
Attaway brought claims pursuant to the District of Columbia
Strict Liability Act:

         Any manufacturer, importer, or dealer of an
         assault weapon or machine gun shall be held
         strictly liable in tort, without regard to fault
         or proof of defect, for all direct and
         consequential damages that arise from bodily
         injury or death if the bodily injury or death
         proximately results from the discharge of the
         assault weapon or machine gun in the District of
         Columbia.

D.C. Code § 7-2551.02. The plaintiffs’ claim is that
Romarm is strictly liable for any damages caused to them by
the shooting because Romarm manufactured the firearm that
was used in the shooting and caused their injuries.

     Romarm asserts immunity from suit because it qualifies
as a foreign state under the FSIA and no exception is
applicable in this case. The FSIA “provides the sole basis
for obtaining jurisdiction over a foreign state in federal
court.” Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 439 (1989). “Under the Act, a foreign state
is presumptively immune from the jurisdiction of United
States courts; unless a specified exception applies, a
federal court lacks subject-matter jurisdiction over a
claim against a foreign state.” Saudi Arabia v. Nelson, 507
U.S. 349, 355 (1993).

     It is undisputed that Romarm qualifies as   a foreign
state and is therefore immune from suit unless   an exception
applies under the FSIA. The plaintiffs invoke    the third
clause of the commercial-activity exception in   the FSIA:

         A foreign state shall not be immune from the
         jurisdiction of courts of the United States or of
         the States in any case . . . in which the action
         is based . . . upon an act outside the territory
         of the United States in connection with a

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         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).

     A “direct effect” under this clause must “follow[] as
an immediate consequence of the defendant’s . . .
activity.” Atlantica Holdings v. Sovereign Wealth Fund
Samruk-Kazyna JSC, 813 F.3d 98, 108 (2d Cir. 2016)
(internal quotation marks omitted). A consequence is
“immediate” if there is no “intervening element” between
the defendant’s activity and the effect of that activity.
Guirlando v. T.C. Ziraat Bankasi A.S., 602 F.3d 69, 74 (2d
Cir. 2010). An effect “need not be either substantial or
foreseeable;” but “[t]he requisite immediacy is lacking
where the alleged effect depends crucially on variables
independent of the conduct of the foreign state.” Id. at
74-75 (internal quotation marks omitted). As the district
court concluded, the plaintiffs have not demonstrated that
their injuries followed as a direct effect of commercial
activities by Romarm, namely, manufacture of the firearm.

     After manufacture by Romarm in the 1970s, the firearm
was imported from Romania into Vermont in 2006, where it
was then sold to a Federal Firearm Licensee (“FFL”) dealer
in Ohio, which sold the firearm to another FFL dealer in
Maryland, which re-sold it. The firearm ultimately ended
up in the District of Columbia--though the plaintiffs do
not allege how this happened--where it was used by an
unidentified person to shoot J.H., Attaway, and Blakeley.
The plaintiffs do not allege that any of these transactions
were unlawful.

     In any event, the use of the firearm to inflict harm by
an unidentified person (or persons) is an intervening act
and constitutes a “variable[] independent of the conduct of
the foreign state.” Guirlando, 602 F.3d at 75 (internal
quotation marks omitted). Given that a third party used
the firearm illegally to shoot the plaintiffs, the damages
they suffered cannot be said to be the “immediate

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consequence” of Romarm’s commercial activity. See Virtual
Countries, Inc. v. Republic of South Africa, 300 F.3d 230,
237-38 (2d Cir. 2002) (finding that there was no direct
effect where the alleged injury would not have occurred but
for the actions of various third parties).

     “[A] determination [that a tort’s locus is the United
States] will ordinarily be sufficient, if not invariably
necessary, to confer FSIA jurisdiction under our
precedents.” Atlantica Holdings, 813 F.3d at 109 (emphasis
added). However, “the mere fact that a foreign state’s
commercial activity outside of the United States caused
physical or financial injury to a United States citizen is
not itself sufficient to constitute a direct effect in the
United States.” Guirlando, 602 F.3d at 78. Where, as
here, it is clear that the plaintiffs’ injury was not the
direct effect of the defendant’s commercial activities, the
FSIA does not confer jurisdiction over the suit even though
the plaintiffs were injured in the United States.

     The plaintiffs’ likening of this case to cases
involving defective products is misplaced. In those cases,
the defective manufacturing of the product had a direct
effect in the United States because the product defect was
the actual cause of the injury. See, e.g., Vermeulen v.
Renault, U.S.A., Inc., 985 F.2d 1534, 1545 (11th Cir. 1993)
(holding that a complaint that alleged that the plaintiff
suffered injuries in an automobile accident as a result of
the defendant’s negligent design and manufacture of the
vehicle satisfied the direct effect test).   Here, there is
no allegation that Romarm was negligent, or that the
firearm was defective. Plaintiffs allege that they were
injured by the use of the product by an intervening actor,
not by the manufacture.

     On appeal, the plaintiffs also argue that subject
matter jurisdiction exists under the first clause of the
commercial-activity exception. See 28 U.S.C. § 1605(a)(2).
But that argument was not raised by the plaintiffs below in
their opposition to Romarm’s motion to dismiss and
therefore was waived. See Millea v. Metro-N. R.R. Co., 658

                             5
F.3d 154, 163 (2d Cir. 2011). While the plaintiffs raised
this argument in a Rule 59 motion before the district court
after Romarm’s motion to dismiss was granted, the district
court ruled that the plaintiffs had no justification for
failing to raise the argument earlier. And, in any event,
“[g]enerally, we will not consider an argument on appeal
that was raised for the first time below in a motion for
reconsideration.” Sompo Japan Ins. Co. of Am. v. Norfolk
S. Ry. Co., 762 F.3d 165, 188 (2d Cir. 2014) (internal
quotation marks omitted).

     We conclude that the plaintiffs’ Rule 59 motion was
properly denied. We review the district court’s decision
to deny reconsideration for abuse of discretion. Analytical
Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d
Cir. 2012). The motion for reconsideration merely
reiterated earlier arguments without “point[ing] to
controlling decisions or data that the court overlooked”
and raised new arguments that could have been raised in the
opposition to the motion to dismiss. Id. (internal
quotation marks omitted). The court therefore acted within
its discretion when it denied the motion.

     We have considered the plaintiffs’ remaining arguments
and find them to be without merit. For the foregoing
reasons, we AFFIRM the judgment of the district court.

                  FOR THE COURT:
                  Catherine O’Hagan Wolfe, Clerk of Court




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