19‐236
Broidy Capital v. Benomar


                   United States Court of Appeals
                            for the Second Circuit
                                _______________

                               AUGUST TERM, 2019

           (Argued: October 23, 2019          Decided: December 6, 2019)

                                Docket No. 19‐236

                                _______________

                 BROIDY CAPITAL MANAGEMENT LLC, ELLIOTT BROIDY,

                               Plaintiffs‐Appellants,

                                       —v.—

                                JAMAL BENOMAR,

                               Defendant‐Appellee.
                               _______________

       Before: KATZMANN, Chief Judge, CHIN AND DRONEY, Circuit Judges.

                                _______________

       Plaintiffs Elliott Broidy and Broidy Capital Management LLC appeal from
a judgment of the United States District Court for the Southern District of New
York (Seibel, J.) granting defendant Jamal Benomar’s motion to dismiss for lack
of subject matter jurisdiction. The district court concluded that Benomar
possessed diplomatic immunity from suit under the Vienna Convention on
Diplomatic Relations (“VCDR”), Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95.
We agree. Plaintiffs bear the burden of establishing jurisdiction, here by
establishing by a preponderance of the evidence that an exception to diplomatic
immunity applies. Plaintiffs argue that their suit can proceed pursuant to the
commercial activity exception to diplomatic immunity, which permits suits
“relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.” VCDR art. 31(1)(c).
However, plaintiffs failed to meet their burden of proof to establish that the
exception applied by presenting evidence to support their allegations that
Benomar engaged in such activity. Plaintiffs also argue that the district court
abused its discretion in denying jurisdictional discovery and leave to amend.
However, plaintiffs failed to request jurisdictional discovery as directed by the
district court, and amendment would be futile because plaintiffs’ proposed
amended complaint did not cure the original complaint’s jurisdictional
deficiencies. Accordingly, we AFFIRM the judgment of the district court.
                                  _______________

            SHANNEN W. COFFIN (Filiberto Agusti, Linda C. Bailey, on the brief),
                Steptoe & Johnson LLP, Washington, D.C., for Plaintiffs‐
                Appellants.

            ABBE DAVID LOWELL (Eric W. Bloom, on the brief), Winston & Strawn
                 LLP, Washington, D.C., for Defendant‐Appellee.

            MARTIN TOTARO, Attorney, Appellate Staff Civil Division, U.S.
                 Department of Justice (Marik A. String, Acting Legal Adviser,
                 U.S. Department of State, Joseph H. Hunt, Assistant Attorney
                 General, Sharon Swingle, Attorney, Appellate Staff Civil
                 Division, U.S. Department of Justice, on the brief), for the
                 United States, Amicus Curiae.

                               _______________

      KATZMANN, Chief Judge:

      This case calls on us to determine who bears the burden of establishing

jurisdiction pursuant to an exception to diplomatic immunity under the Vienna

Convention on Diplomatic Relations (“VCDR” or the “Vienna Convention”),



                                            2
Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, where a defendant has

demonstrated diplomatic status. Plaintiffs Elliott Broidy and Broidy Capital

Management LLC appeal from a judgment of the United States District Court for

the Southern District of New York (Seibel, J.) dismissing their suit against Jamal

Benomar, a Moroccan diplomat, for lack of subject matter jurisdiction. On appeal,

plaintiffs challenge the district court’s conclusion that Benomar possessed

diplomatic immunity from suit under the Vienna Convention, and argue that the

district court erred in imposing on plaintiffs the burden of establishing

jurisdiction by showing that their suit could proceed under one of the VCDR’s

exceptions to diplomatic immunity. Plaintiffs also contend that the district court

abused its discretion in denying jurisdictional discovery and leave to amend the

complaint. For the reasons below, we hold that, where a defendant has

demonstrated diplomatic status, plaintiffs bear the burden of proving by a

preponderance of the evidence that an exception to diplomatic immunity applies

and that jurisdiction exists. The plaintiffs having failed to meet that burden, we

AFFIRM the judgment of the district court.




                                             3
                                    BACKGROUND

      Elliott Broidy is the chief executive officer and chairman of Broidy Capital

Management LLC. Until early 2018, he served as the Deputy Finance Chair of the

Republican National Committee. In late 2017 and early 2018, Broidy’s computer

systems were hacked, and trade secrets and personal information were stolen.

Materials stolen in the hack were organized thematically and then disseminated

to U.S. media outlets. Broidy alleges that the state of Qatar, believing Broidy to

be an influential detractor responsible for President Trump’s public criticism of

Qatar in June 2017, engineered the cyberattack in order to discredit Broidy and

curtail his influence.

      Broidy subsequently filed several lawsuits seeking to hold Qatar and

various alleged Qatari agents accountable for the hack. See Broidy Capital Mgmt.,

LLC et al. v. State of Qatar et al., No. 2:18‐cv‐02421‐JFW‐E (C.D. Cal.) (the

“California Action”); Broidy Capital Mgmt., LLC et al. v. Muzin et al., No. 1:19‐cv‐

00150‐DLF (D.D.C.). On July 23, 2018, Broidy filed suit in the United States

District Court for the Southern District of New York against Jamal Benomar, a

Moroccan native and dual Moroccan‐U.K. citizen who served as a high‐ranking

diplomat with the United Nations (“U.N.”) for twenty‐four years before stepping




                                              4
down as the U.N. Under‐Secretary‐General for Conflict Prevention on July 1,

2017. Broidy alleged that Benomar had served as a secret Qatari agent since at

least 2017 and that Benomar had been paid by Qatar to participate in the alleged

Qatari hacking scheme. According to the complaint, Benomar engaged in

commercial activity when he purportedly participated in reviewing and

organizing the hacked materials and planning their dissemination to the media,

and he engaged in increased contacts with other participants in the conspiracy

prior to, during, and after the hack and media distribution of hacked materials.1

      Prior to the first in‐court conference in the case, Benomar filed a letter

stating that he was currently a Moroccan diplomat and that he intended to move

to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for

lack of subject matter jurisdiction due to diplomatic immunity. In a subsequent

declaration, Benomar represented that he had served as a diplomat with the

Moroccan Permanent Mission to the United Nations (“Moroccan Mission”) since

November 1, 2017. However, he acknowledged that the Moroccan Permanent

Mission had not begun the process of seeking U.S. diplomatic credentials for him




      1 Plaintiffs allege both federal question jurisdiction and diversity of
citizenship jurisdiction, and alleged violations of the “Defend Trade Secrets Act,”
18 U.S.C. § 1836 et seq., and state law causes of action.

                                             5
until after Broidy’s complaint was filed in July 2018. Accordingly, the United

States had not made a determination as to Benomar’s diplomatic immunity when

the complaint was filed.

      While briefing was pending on Benomar’s motion to dismiss, the U.S.

Department of State confirmed that the U.S. Mission to the United Nations (“U.S.

Mission”) had registered Benomar with full diplomatic privileges and

immunities as of November 13, 2018. Plaintiffs acknowledged the State

Department’s determination but argued that their case could nevertheless

proceed because it arose out of commercial or professional activity (Benomar’s

alleged paid work for Qatar) excepted from diplomatic immunity under the

VCDR.

      The district court rejected this argument, finding that Benomar was

entitled to diplomatic immunity and granting his motion to dismiss for lack of

subject matter jurisdiction. The district court denied both plaintiffs’ request for

jurisdictional discovery and plaintiffs’ request, made for the first time after the

district court had granted the motion to dismiss, to provide the court with a

request for the production of specific documents relevant to jurisdictional

discovery. In rejecting the latter request, the court explained that it had




                                             6
previously instructed plaintiffs to make any specific jurisdictional discovery

requests in their opposition to the motion to dismiss and that plaintiffs had failed

to do so. The district court also denied plaintiffs’ motion for leave to amend the

complaint as futile because the proposed amended complaint would also have

been subject to dismissal for lack of subject matter jurisdiction. This appeal

timely followed.

                                    DISCUSSION

I.    The district court properly dismissed the complaint for lack of subject
      matter jurisdiction

      A.     Standard of review

      We review de novo a district court’s legal conclusions granting or denying

immunity and its dismissal of a claim for lack of subject matter jurisdiction. Brzak

v. United Nations, 597 F.3d 107, 110–11 (2d Cir. 2010). We also “review de novo a

district court’s interpretation of a treaty such as the Vienna Convention.” Swarna

v. Al‐Awadi, 622 F.3d 123, 132 (2d Cir. 2010). 2

      “[T]he district court can refer to evidence outside the pleadings” when

resolving a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1).




      2 Unless otherwise noted, when quoting cases, all internal quotation marks,
citations, and alterations are omitted.

                                              7
Luckett v. Bure, 290 F.3d 493, 496–97 (2d Cir. 2002). “[E]videntiary matter[s] may

be presented by affidavit or otherwise.” Kamen v. Am. Tel. & Tel. Co., 791 F.2d

1006, 1011 (2d Cir. 1986). “On appeal from a dismissal under Rule 12(b)(1), we

review the court’s factual findings for clear error….” Cortlandt St. Recovery Corp.

v. Hellas Telecomm., S.à.r.l., 790 F.3d 411, 417 (2d Cir. 2015).

      B.     Treaty and statutory framework

      Diplomatic immunity in the United States is governed by the Vienna

Convention on Diplomatic Relations, which was ratified by the United States in

1972. The Vienna Convention primarily “codified longstanding principles of

customary international law with respect to diplomatic relations.” 767 Third Ave.

Assocs. v. Permanent Mission of Republic of Zaire to United Nations, 988 F.2d 295, 300

(2d Cir. 1993). However, it also modernized the law of diplomatic immunity in

accordance with the prevailing functional view of diplomatic immunity as

intended “not to benefit individuals but to ensure the efficient performance of

the functions of diplomatic missions as representing States.” VCDR pmbl.; see

Diplomatic Law: Commentary on the Vienna Convention on Diplomatic

Relations 4‐5 (Eileen Denza ed., 4th ed. 2016). Accordingly, the VCDR reserves

the broadest immunity for those most integral to the diplomatic mission, active




                                               8
“diplomatic agents,” defined to include “the head of the mission or a member of

the diplomatic staff of the mission.”3 VCDR art. 1(e). Diplomatic agents are

entitled to complete immunity from the criminal jurisdiction of the receiving

State. Id. art. 31(1). A diplomatic agent is also entitled to immunity from the civil

and administrative jurisdiction of the receiving State, with exceptions for three

categories of cases:

      (a) A real action relating to private immovable property situated in
          the territory of the receiving State, unless he holds it on behalf of
          the sending State for the purposes of the mission;

      (b) An action relating to succession in which the diplomatic agent is
          involved as executor, administrator, heir or legatee as a private
          person and not on behalf of the sending State;

      (c) An action relating to any professional or commercial activity
          exercised by the diplomatic agent in the receiving State outside his
          official functions.

Id.

      “In interpreting a treaty, it is well established that we begin with the text of

the treaty and the context in which the written words are used.” Swarna, 622 F.3d




      3 “The ‘head of the mission’ is the person charged by the sending State
with the duty of acting in that capacity . . . .” VCDR art. 1(a). “The ‘members of
the diplomatic staff’ are the members of the staff of the mission having
diplomatic rank . . . .” Id. art. 1(d).

                                             9
at 132. Where the text is “difficult or ambiguous,” we may both employ “general

rules of construction” and “look beyond the written words to the history of the

treaty, the negotiations, and the practical construction adopted by the parties.” E.

Airlines, Inc. v. Floyd, 499 U.S. 530, 535 (1991); see also Medellin v. Texas, 552 U.S.

491, 507 (2008) (“Because a treaty ratified by the United States is an agreement

among sovereign powers, we have also considered as aids to its interpretation

the negotiation and drafting history of the treaty as well as the postratification

understanding of signatory nations.”). In addition, “although not conclusive, the

meaning attributed to treaty provisions by the Government agencies charged

with their negotiation and enforcement is entitled to great weight.” United States

v. Stuart, 489 U.S. 353, 369 (1989); see also Medellin, 552 U.S. at 513 (“It is . . . well

settled that the United States’ interpretation of a treaty is entitled to great

weight.”).

       The Diplomatic Relations Act (“DRA”) incorporated the VCDR into U.S.

law and repealed contradictory earlier legislation. Pub. L. No. 95‐393, 92 Stat. 808

(1978) (codified at 22 U.S.C. §§ 254a‐e, 28 U.S.C. § 1364). The DRA makes clear

that a district court must dismiss “[a]ny action or proceeding brought against an

individual who is entitled to immunity with respect to such action or proceeding




                                                10
under the Vienna Convention.” 22 U.S.C. § 254d. While not altering or

augmenting the VCDR’s substantive provisions, the DRA provides certain

procedural clarifications as to how diplomatic immunity may be established and

asserted, including that, when a lawsuit is filed against someone who claims the

protection of diplomatic immunity, “[s]uch immunity may be established upon

motion or suggestion by or on behalf of the individual, or as otherwise permitted

by law or applicable rules of procedure.” Id.

      C.     Plaintiffs bear the burden of establishing jurisdiction

      Generally, the plaintiff, as the party asserting subject matter jurisdiction,

has the burden of proving that it exists by a preponderance of the evidence. See

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Diplomatic immunity is

a matter of subject matter jurisdiction. See Brzak, 597 F.3d at 110‐11; Tachiona v.

United States, 386 F.3d 205, 209, 215 (2d Cir. 2004). Accordingly, where the

defendant has demonstrated diplomatic status, it would seem to follow that the

plaintiff must prove by a preponderance of the evidence that an exception to

diplomatic immunity applies.4




      4 Courts in this circuit have consistently required the plaintiff to prove
jurisdiction by a preponderance of the evidence where VCDR immunity is
claimed, at least where courts explicitly state what burden of proof is being

                                             11
      Plaintiffs argue, however, that courts should instead require defendants

with diplomatic immunity to bear the ultimate burden of persuasion in proving

that no exception to diplomatic immunity applies. Plaintiffs rely on a line of

cases interpreting the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.

§§ 1330, 1602‐11, which governs the jurisdiction of courts in suits brought against

foreign states and their agents and instrumentalities. Certain courts, including

this one, have applied a unique “burden‐shifting framework” in determining

jurisdiction where there is a claim of foreign sovereign immunity. See, e.g., Virtual

Countries, Inc. v. Republic of S. Afr., 300 F.3d 230, 242 (2d Cir. 2002); Phoenix

Consulting Inc. v. Republic of Angl., 216 F.3d 36, 40 (D.C. Cir. 2000); Forsythe v.

Saudi Arabian Airlines Corp., 885 F.2d 285, 289 n.6 (5th Cir. 1989) (per curiam).

Under the burden‐shifting approach, “[o]nce the defendant presents prima facie

evidence that it is a foreign sovereign, the burden falls on the plaintiff to establish

by a preponderance of the evidence that an exception under the FSIA permits

jurisdiction over the foreign sovereign.” Swarna, 622 F.3d at 143. If the plaintiff




applied. See, e.g., Koumoin v. Ban Ki‐Moon, No. 16‐cv‐2111 (AJN), 2016 U.S. Dist.
LEXIS 172953, at *9 (S.D.N.Y. Dec. 14, 2016); Hilt Constr. & Mgmt. Corp. v.
Permanent Mission of Chad to the United Nations, No. 15‐cv‐8693 (VB), 2016 U.S.
Dist. LEXIS 77959, at *3 (S.D.N.Y. June 15, 2016); Devi v. Silva, 861 F. Supp. 2d 135,
139 (S.D.N.Y. 2012); Baoanan v. Baja, 627 F. Supp. 2d 155, 160 (S.D.N.Y. 2009).

                                              12
meets this burden, the defendant claiming FSIA immunity “then bears the

ultimate burden of persuasion that the FSIA exception does not apply.” Id. The

burden‐shifting approach appears to come directly from the FSIA’s legislative

history. 5 The United States argues as amicus that this statement in the legislative

history was in error and is inconsistent with the text of the FSIA.

      Regardless of whether the burden‐shifting approach is appropriate as

applied to the FSIA, there is no justification for extending it to VCDR immunity.

The FSIA, as a statute that was enacted after the VCDR and was not intended to

affect diplomatic immunity under the VCDR, is generally inappropriate for use

“as an interpretive guide for the Vienna Convention.” Tabion v. Mufti, 73 F.3d

535, 538 n.7 (4th Cir. 1996); see 767 Third Ave., 988 F.2d at 297 (“[T]he diplomatic

and consular immunities of foreign states recognized under various treaties

remain unaltered by the [FSIA].”). Moreover, the VCDR and DRA do not share




      5  See H.R. Rep. No. 94‐1487, at 17 (1976), as reprinted in 1976 U.S.C.C.A.N.
6604, 6616 (“Once the foreign state has produced such prima facie evidence of
immunity, the burden of going forward would shift to the plaintiff to produce
evidence establishing that the foreign state is not entitled to immunity. The
ultimate burden of proving immunity would rest with the foreign state.”); Gould,
Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445, 451 (6th Cir. 1988) (citing this
legislative history as the source of the burden‐shifting approach).



                                             13
the unique legislative history that has been used to justify the burden‐shifting

approach as applied to the FSIA.

      The DRA’s legislative history, in contrast to the FSIA’s, includes specific

disclaimers of any intention to impose special proceedings on the courts where

diplomatic immunity is claimed. See S. Rep. No. 95‐958, at 5 (1978) (noting that a

prior version of the bill that would be enacted as the DRA had been revised

because that version “might be read to impose on the courts a new special

motion procedure in immunity cases”). The DRA, as enacted, strongly suggests

that the usual rules should be applied in assessing jurisdiction where diplomatic

immunity is claimed. See 22 U.S.C. § 254d (“[I]mmunity may be established upon

motion or suggestion . . . or as otherwise permitted by law or applicable rules of

procedure.”) (emphasis added). And courts regularly require plaintiffs to bear the

burden of establishing jurisdiction where other types of immunity are claimed.6




      6  Plaintiffs point out that some courts have applied the FSIA burden‐
shifting standard where common law foreign official immunity is claimed.
However, the case plaintiffs identify that does so relies on FSIA case law without
discussing why the FSIA standard should apply in the common law foreign
official immunity context. See Lewis v. Mutond, 918 F.3d 142, 145 (D.C. Cir. 2019).
It is not clear that it is correct to use the FSIA’s standard in this context, as
common law foreign official immunity is distinct from FSIA immunity and
predates the FSIA. Samantar v. Yousuf, 560 U.S. 305, 323 (2010). Moreover, this
approach is not universally accepted. See, e.g., Rosenberg v. Pasha, 577 F. App’x 22,

                                               14
See, e.g., Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004) (per curiam); Makarova,

201 F.3d at 113; Garcia v. Akwesasne Hous. Auth., 268 F.3d 76, 84 (2d Cir. 2001).

      Accordingly, where a defendant has demonstrated diplomatic status, we

hold that plaintiffs bear the burden of proving by a preponderance of the

evidence that an exception to diplomatic immunity applies and that jurisdiction

therefore exists.7




23 (2d Cir. 2014) (summary order) (applying the usual rule that plaintiffs bear the
burden of proving jurisdiction by a preponderance of the evidence where
defendants move to dismiss under Rule 12(b)(1) based on common law foreign
official immunity).

      7  For the first time on appeal, plaintiffs also argue that the district court
erred in requiring plaintiffs to bear this burden of proof at the motion to dismiss
stage, rather than leaving the jurisdictional determination for trial after the
conclusion of discovery. As plaintiffs failed to raise this argument below or
otherwise object to the district court’s resolution of the jurisdictional question at
the motion to dismiss stage, the argument is waived. See Tannerite Sports, LLC v.
NBCUniversal News Grp., 864 F.3d 236, 252‐53 (2d Cir. 2017) (“It is a well‐
established general rule that an appellate court will not consider an issue raised
for the first time on appeal.”). Moreover, plaintiffs’ argument is entirely
meritless, as deferral of a jurisdictional issue until trial is an extremely “unusual
situation,” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 87 (2d Cir.
2013) (per curiam), appropriate only where “the overlap in the evidence is such
that fact‐finding on the jurisdictional issue will adjudicate factual issues required
by the Seventh Amendment to be resolved by a jury,” Alliance for Envtl. Renewal,
Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 (2d Cir. 2006). Here, the district
court did not need to resolve the ultimate merits question of Benomar’s liability
for plaintiffs’ alleged injuries in order to resolve the jurisdictional question of
whether Benomar had, while a diplomat, engaged in commercial or professional

                                             15
      D.     The commercial activity exception to diplomatic immunity does
             not apply to plaintiffs’ claims

      We next turn to the question of whether plaintiffs met their burden of

establishing that an exception to diplomatic immunity applies. Plaintiffs claim

that their suit can proceed pursuant to the commercial activity exception to

diplomatic immunity, which permits a diplomat to be sued in “[a]n action

relating to any professional or commercial activity exercised by the diplomatic

agent in the receiving State outside his official functions.” VCDR art. 31(1)(c).

While the precise contours of the phrase “professional or commercial activity,”

which is not defined in the VCDR, are unsettled, it is broadly understood to refer

to trade or business activity engaged in for personal profit. See Tabion v. Mufti, 73

F.3d 535, 537 (4th Cir. 1996). Plaintiffs contend that Benomar engaged in

commercial activity because of his alleged for‐profit work on the hack and smear

campaign in late 2017 and early 2018. The United States argues as amicus that the

complaint fails even to allege application of the commercial activity exception

because it alleges only conduct occurring before Benomar obtained status‐based

immunity, and, in the United States’ view, the commercial activity exception




conduct outside of his diplomatic role.



                                            16
does not apply to conduct before the diplomat obtained status‐based immunity.

However, we need not reach the question of when activity must occur to qualify

for the commercial activity exception or what type of activity qualifies because it

is clear from the record that plaintiffs failed to meet their burden of proving by a

preponderance of the evidence that Benomar at any time engaged in the alleged

smear campaign.

      Plaintiffs attached three documents to their opposition to the motion to

dismiss, only one of which, a transcript of a deposition of alleged Qatari agent

Joey Allaham, taken during discovery in the California action, was relevant to

corroborating their allegations of commercial activity. In the transcript segment

submitted, Allaham’s only statement relevant to Benomar was that he had at one

point considered suing Benomar over money that Qatar owed Allaham, but that

he decided not to after his lawyers advised him that suing Benomar would be a

“waste” of his money. Joint App’x at 249. In his reply brief in support of his

motion to dismiss, Benomar submitted additional pages from the Allaham

deposition transcript, in which Allaham specifically affirmed that he never

discussed the hack of Broidy’s emails with Benomar.




                                            17
      Plaintiffs supplied no other evidence in support of their allegations. The

complaint refers to phone records showing that Benomar was in regular

telephone contact with participants in the alleged hacking conspiracy at key

points close to the hack and media distribution. Plaintiffs did not, however,

attach any of these records, which they represent they obtained in discovery in

the California action, to their opposition to the motion to dismiss. Moreover,

record evidence is inconsistent with plaintiffs’ allegations concerning the nature

of these calls: Benomar submitted a declaration affirming that he had received no

renumeration from Qatar and that his communications with Qatari

representatives were in furtherance of his diplomatic duties for Morocco.

      Reviewing this evidence, the district court rightly concluded that plaintiffs

had failed to meet their burden of proving by a preponderance of the evidence

that Benomar had engaged in commercial or professional activity. Plaintiffs

submitted no evidence whatsoever that Benomar was engaged in the activity or

received the payments alleged, only a snippet of a deposition transcript that,

viewed in the context of the additional transcript pages submitted by Benomar, is

both unpersuasive and misleadingly out of context. As plaintiffs failed to

establish that the commercial activity exception to diplomatic immunity applied,




                                           18
we find that Benomar is entitled to diplomatic immunity under the terms of the

Vienna Convention, and plaintiffs’ claims against him were properly dismissed

for lack of subject matter jurisdiction.8

II.   The district court did not abuse its discretion in denying jurisdictional
      discovery

      Plaintiffs also argue that the district court erred in denying their request

for jurisdictional discovery. “We review a district court’s denial of jurisdictional

discovery for abuse of discretion . . . .” Arch Trading Corp. v. Republic of Ecuador,

839 F.3d 193, 206 (2d Cir. 2016). “A district court has wide latitude to determine

the scope of discovery.” Frontera Res. Azer. Corp. v. State Oil Co. of Azer. Republic,

582 F.3d 393, 401 (2d Cir. 2009). Moreover, “[t]he district court has considerable

latitude in devising the procedures it will follow to ferret out the facts pertinent

to jurisdiction.” Foremost‐McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438,

449 (D.C. Cir. 1990).

      Plaintiffs’ arguments ignore the fact that the district court offered plaintiffs

an opportunity to make specific jurisdictional discovery requests, and plaintiffs



      8 As we find that plaintiffs failed to establish that Benomar engaged in the
alleged smear campaign, we need not address the further questions of whether
the alleged activity itself would qualify as professional or commercial activity
under the VCDR or whether it occurred in the relevant time period for claiming
application of the exception.

                                              19
failed to do so. The district court clearly instructed plaintiffs to make any specific

discovery requests in their opposition to the motion to dismiss. However, instead

of making specific requests, plaintiffs merely stated in a summary paragraph at

the end of their opposition that they were entitled to discovery. Plaintiffs then

attempted to supply the district court with an actual request for production of

documents for the first time after the district court had denied their general

request for discovery and granted Benomar’s motion to dismiss. Plaintiffs’ own

failure to follow the district court’s procedures for seeking jurisdictional

discovery does not constitute grounds for reversal of the district court’s decision.

      Further, contrary to plaintiffs’ contentions otherwise, it was appropriate

for the district court to balance the need for jurisdictional discovery with the risk

of imposing discovery obligations on a diplomat who in fact possesses immunity

from the court’s jurisdiction—and, moreover, who generally “is not obliged to

give evidence as a witness” under the VCDR. VCDR art. 31(2). Like sovereign

immunity, diplomatic immunity protects the diplomatic mission “from the

expense, intrusiveness, and hassle of litigation.” Arch Trading, 839 F.3d at 206.

Achieving this goal requires that “a court must be circumspect in allowing

discovery before the plaintiff has established that the court has jurisdiction.” Id.




                                             20
In the FSIA context, this Court has described discovery as “warranted only to

verify allegations of specific facts crucial to an immunity determination” and

inappropriate where “plaintiffs do not yet know what they expect to find from

discovery” and advance only broad demands for discovery of the kind plaintiffs

advanced in their opposition to the motion to dismiss. Id. at 207 (affirming denial

of jurisdictional discovery where “plaintiffs did not specify . . . what discovery

they might seek”).

       Accordingly, the district court did not abuse its discretion in denying

plaintiffs jurisdictional discovery.

III.   The district court did not abuse its discretion in denying leave to amend
       the complaint

       Finally, plaintiffs argue that the district court abused its discretion in

denying leave to amend their complaint. “We review the district court’s denial of

leave to amend for abuse of discretion.” Kim v. Kimm, 884 F.3d 98, 105 (2d Cir.

2018). While, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure,

“leave to amend shall be freely given when justice so requires, it is within the

sound discretion of the district court to grant or deny leave to amend . . . for

good reason, including futility, bad faith, undue delay, or undue prejudice to the

opposing party.” Id.



                                              21
      Here, permitting plaintiffs to amend their complaint as requested would

have been futile. 9 Plaintiffs’ proposed amended complaint simply adds

conclusory allegations and legal arguments already either included in the

original complaint or presented to the district court in plaintiffs’ opposition to

the motion to dismiss. New allegations do not advance plaintiffs towards

meeting their burden of proof in establishing jurisdiction. See Filetech S.A. v.

France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998) (“[I]t was error for the district

court to accept the mere allegations of the complaint as a basis for finding subject

matter jurisdiction.”), overruled on other grounds by Lotes Co. v. Hon Hai Precision

Indus. Co., 753 F.3d 395, 398 (2d Cir. 2014). If plaintiffs had evidence to support

the new allegations relevant to jurisdiction, they could and should have

presented that evidence to the district court in their opposition to the motion to




      9 Plaintiffs’ primary argument on appeal that they should have been
permitted leave to amend rests on a mischaracterization of the record. Plaintiffs
argue they should have been permitted to amend because Benomar received
diplomatic status one day before they filed their opposition to the motion to
dismiss and they had no opportunity to address his new status. However,
plaintiffs were aware from before the first in‐court conference in the case that
Benomar planned to claim diplomatic immunity, and, even more to the point,
plaintiffs affirmatively stated in a letter following Benomar’s change of status
that they believed their opposition adequately addressed Benomar’s changed
diplomatic status and that no further briefing was required.

                                             22
dismiss, as the district court explicitly instructed plaintiffs to do when denying

their motion to amend the complaint prior to the motion to dismiss. Allowing

such a futile amendment would be particularly prejudicial where the defendant

is a diplomat who possesses treaty‐based immunity from suit. Therefore, as the

proposed amendments would not enable plaintiffs to establish jurisdiction and

would not affect the proper dismissal of the complaint, the district court did not

abuse its discretion in denying plaintiffs leave to amend.

                                 CONCLUSION

      For the reasons stated, we affirm the judgment of the district court.




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