Juliana Lu v. Central Bank of Rep. of China , 610 F. App'x 674 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 28 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIANA LU, No. 13-56212
Plaintiff - Appellant, D.C. No. 2:12-cv-00317-JAK-RZ
v.
MEMORANDUM*
CENTRAL BANK OF REPUBLIC OF
CHINA (TAIWAN); REPUBLIC OF
CHINA (TAIWAN),
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted July 8, 2015
Pasadena, California
Before: W. FLETCHER, PAEZ, and BERZON, Circuit Judges.
Juliana Lu appeals the district court’s dismissal of her complaint for lack of
jurisdiction pursuant to the Federal Sovereign Immunities Act (“FSIA”), 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 1602, et seq., its denial of her motion to continue the hearing on Defendants’
motion to dismiss, and its denial of her request for leave to amend her pleadings.
1. Lu’s allegations do not establish that Defendants’ actions outside the
United States had a direct effect in the United States for purposes of the
commercial activity exception to FSIA, 28 U.S.C. § 1605(a)(2). See Republic of
Argentina v. Weltover, Inc., 504 U.S. 607, 618–19 (1992). Lu sought to redeem
two bonds in Taiwan, not in the United States. The bonds did not require
performance—i.e., payment of the bonds—in the United States. See Adler v.
Republic of Nigeria, 107 F.3d 720, 727 (9th Cir. 1997); Meadows v. Dominican
Republic, 817 F.2d 517, 523 (9th Cir. 1987); cf. United World Trade v.
Mangyshlakneft Oil Prod. Ass’n, 33 F.3d 1232, 1238–39 (10th Cir. 1997).
Moreover, Lu’s allegation that the bonds she sought to redeem were so valuable as
to require Defendants to access gold in the United States to redeem them is
implausible, given that she sought to redeem only two bonds. See Terenkian v.
Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012).
2. The district court also lacked jurisdiction under the first two prongs of the
commercial activity exception. See 28 U.S.C. § 1605(a)(2). The only connections
Lu asserts to the United States are that she lives here and that Taiwan stores gold
here. Lu’s breach of contract and conversion claims are thus not “based upon”
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commercial activity undertaken in the United States, nor are her causes of action
“based upon” an act performed in the United States. See id.; Saudi Arabia v.
Nelson, 507 U.S. 349, 357 (1993).
3. Lu also did not adequately allege that the district court had jurisdiction
over her suit pursuant to the expropriations exception to FSIA, 18 U.S.C. §
1605(a)(3). The only reasonable inference to be drawn from her complaint is that
her grandparents were citizens of Taiwan at the time the alleged taking occurred.
As the United States recognized the Republic of China (Taiwan) as the sovereign
in Taiwan at the time, her grandparents’ citizenship triggers the domestic takings
caveat to the expropriations exception, barring jurisdiction here. Siderman de
Blake v. Republic of Argentina, 965 F.2d 699, 711 (9th Cir. 1992). And the court
will not foray into the purview of the executive, Zivotofsky ex rel. Zivotofsky v.
Kerry, 135 S. Ct. 2076, 2083–94 (2015), and consider a political question, Mingtai
Fire & Marine Ins. Co. v. United Parcel Serv., 177 F.3d 1142, 1144–47 (9th Cir.
1999), to evaluate whether, contrary to the view of the executive branch, the
Republic of China (Taiwan) was not the sovereign of the island of Taiwan in 1949,
see N.Y. Chinese TV Programs, Inc. v. U.E. Enters., Inc., 954 F.2d 847, 849–50
(2d Cir. 1992).
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4. The district court did not abuse its discretion in denying Lu’s motion for
a continuance to conduct jurisdictional discovery. Defendants’ motion to dismiss
mounted a facial attack on Lu’s jurisdictional allegations, so further discovery was
not relevant to the motion. See Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987);
Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987).
Further, the discovery Lu sought would not have cured the jurisdictional
deficiencies in her complaint. See Am. W. Airlines v. GPA Grp., 877 F.2d 793,
800–01 (9th Cir. 1989) (citing Well Fargo & Co. v. Wells Fargo Express Co., 556
F.2d 406, 431 n.24 (9th Cir. 1977)).
5. Similarly, the district court did not abuse its discretion in denying Lu
leave to file a fifth amended complaint. On several previous occasions, the district
court had granted Lu leave to amend her complaint. See Dumas v. Kipp, 90 F.3d
386, 393 (9th Cir. 1996). Lu’s inability to gather foundational facts in the nearly
year-and-a-half life of the case indicated undue delay on her part. See Desertrain
v. City of L.A., 754 F.3d 1147, 1154 (9th Cir. 2014) (citing Johnson v. Buckley, 356
F.3d 1067, 1077 (9th Cir. 2004)). And any further amendment would likely be
futile, see Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir.
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2009), given that the suggested amendments do not go to the identified defects in
her jurisdictional allegations.
AFFIRMED.
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