Mady Schubarth v. Federal Republic of Germany , 891 F.3d 392 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 12, 2017 Decided June 1, 2018
No. 17-7004
MADY MARIELUISE SCHUBARTH,
APPELLANT
v.
FEDERAL REPUBLIC OF GERMANY AND BVVG
BODENVERWERTUNGS- UND -VERWALTUNGS GMBH,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-02140)
Mark N. Bravin argued the cause for appellant. With him
on the briefs was Alexandra A.K. Meise.
Jeffrey Harris argued the cause for appellees. With him
on the brief was Walter E. Diercks.
Before: GRIFFITH, KAVANAUGH, and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: This action arises from Mady
Marieluise Schubarth’s pursuit of compensation for land (“the
2
Estate”) allegedly seized from her family at the beginning of
the Cold War. After achieving a partial award through
restitution processes in the Federal Republic of Germany
(“Germany”), where the Estate is located, Schubarth pressed
her claim here. Her complaint asserts that the denial of full
compensation for the Estate violated the bilateral Treaty of
Friendship, Commerce and Navigation between the United
States and the Federal Republic of Germany, Oct. 29, 1954, 7
U.S.T. 1839, T.I.A.S. No. 3593 (hereinafter the “FCN Treaty”),
both independently and as incorporated into German domestic
law.
The question before us is whether U.S. courts may
exercise subject matter jurisdiction over this case under the
Foreign Sovereign Immunities Act (“FSIA”). The District
Court concluded Schubarth’s complaint did not sufficiently
plead that either defendant, Germany itself or the German state-
owned corporation that allegedly markets and manages the
Estate (“BVVG”), was engaged in “commercial activity in the
United States” under the FSIA’s expropriation exception. 28
U.S.C. § 1605(a)(3). For the same reason, the District Court
held that Germany had not waived its sovereign immunity
when enacting the FCN Treaty.
We affirm as to Germany and reverse as to BVVG.
Following our holding in de Csepel v. Republic of Hungary, a
foreign state is immune to claims for the expropriation of
property not present in the United States, and Schubarth does
not dispute that the Estate is located abroad or that Germany is
the foreign state itself. See 859 F.3d 1094, 1107 (D.C. Cir.
2017). Therefore, the District Court properly concluded U.S.
courts cannot exercise subject matter jurisdiction over
Schubarth’s claims against Germany pursuant to the FSIA’s
expropriation exception.
3
BVVG is a different matter. Although the question is
close, reading the complaint’s factual allegations together and
construing all reasonable inferences in Schubarth’s favor, it is
plausible that BVVG “is engaged in a commercial activity in
the United States,” including ongoing sales and marketing of
previously expropriated land such as the Estate. 28 U.S.C.
§ 1605(a)(3). We need not reach whether, in a different case,
allegations of marketing alone would constitute “commercial
activity” under the FSIA. We leave for the District Court to
consider in the first instance whether BVVG is properly
considered an “agency or instrumentality” of Germany rather
than the state itself.
I.
A.
The following facts are taken from the complaint and
assumed true on review of Defendants’ motion to dismiss.
Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d
82, 93 (D.C. Cir. 2002). Schubarth is a U.S. citizen and
California resident who alleges she inherited over 500 acres of
German agricultural land from her parents in 1973. At that
time, the Estate was located in the German Democratic
Republic (“East Germany”), a satellite state of the Soviet
Union divided from the then-Federal Republic of Germany
(“West Germany”) at the end of World War II. Beginning in
1945, the Soviet occupying authorities and, subsequently, the
East German government expropriated or collectivized most
4
privately held real property in East Germany, including the
Estate.
In 1956, the United States and West Germany entered into
the FCN Treaty, which in relevant part provides:
Property of nationals and companies of either
Party shall receive the most constant protection
and security within the territories of the other
Party. . . . Property of nationals and companies
of either Party shall not be taken within the
territories of the other Party, except for the
public benefit and in accordance with due
process of law, nor shall it be taken without just
compensation. Such compensation shall
represent the equivalent of the property taken
and shall be made in an effectively realizable
form and without unnecessary delay. Adequate
provision shall have been made at latest by the
time of the taking for the determination and the
giving of the compensation.
FCN Treaty, art. V, ¶¶ 1, 4. According to the complaint, a 1957
German federal court decision held that the FCN Treaty was
incorporated into German domestic law and required a U.S.
national to be compensated with no less than fair market value
for property taken by the West German government. J.A. 6-7.
Schubarth became a U.S. citizen, and thereby lost her previous
German citizenship, in 1963.
Following the 1990 reunification of East and West
Germany, the German government faced the challenges of re-
privatizing East German property and of resolving competing
claims to expropriated property from prior owners and current
occupants. It established the Treuhandanstalt (the “Trust
5
Agency”) to oversee conversion of the former East German
communist system into a market economy, including by selling
state-owned enterprises and property. The Trust Agency
maintained an office in New York City to market and sell
expropriated properties, including the Estate, in the United
States and around the world. J.A. 5. Pursuant to its marketing
efforts, the Trust Agency made $1.65 billion in sales in the
United States. Id.
The Trust Agency closed in 1994. Its responsibilities were
transferred to three successor agencies, including defendant
BVVG, which took on the Trust Agency’s role of managing,
marketing, and selling expropriated agricultural and forest
lands. J.A. 2, 5. In addition, after the Trust Agency closed its
New York office, it “pursued marketing efforts over the
Internet.” J.A. 5. “Portions of the [] Estate were sold by the
Trust Agency, and later by the BVVG as successor to the Trust
Agency, to private investors in Germany and elsewhere.” Id.
The complaint describes BVVG’s role as successor to the Trust
Agency as follows:
The BVVG is a German state-owned entity
founded by statute in 1991. It is responsible,
inter alia, for the management, marketing and
sale of expropriated properties located in the
former [East Germany]. Specifically, the
BVVG manages and privatizes agricultural and
forest lands seized by East Germany in the
German state[] of . . . Thuringia. . . . The BVVG
provides information about the expropriated
properties it controls to potential buyers,
including lease and purchase prices, and other
commercial terms. Its predecessor, the Trust
Agency, carried out these commercial activities,
inter alia, with an office and staff in the United
6
States. Subsequently, the BVVG has continued
these activities by posting links to such
information on its website.
J.A. 2-3. According to the complaint, “[w]hen the BVVG
succeeded to the Trust Agency’s responsibilities concerning
agricultural and forest lands in the early to mid-1990s, it
adopted and continued the Trust Agency’s marketing efforts.
Those marketing efforts . . . continue to the present day.” J.A.
5. From 1992 through 2008, “BVVG and its predecessor, the
Trust Agency, collected at least €3.5 billion from successful
land marketing and sales.” J.A. 3.
In 1991, Schubarth applied to the German State Agency
for Open Property Issues in the State of Thuringia (the
“Thuringia State Agency”), where the Estate was located, for
restitution of the property. In 1992, the Thuringia State Agency
granted restitution of a house on the Estate and some
surrounding land, but denied Schubarth’s claim as to the
remainder of the Estate. The complaint claims this “constituted
an expropriation of her property by the new, unified Federal
Republic of Germany,” and that Schubarth’s American
citizenship entitled her to compensation “represent[ing] the
equivalent of the property taken” under the FCN Treaty. J.A.
5-6.
In 1994, Germany enacted the “Compensation Act,”
providing a process by which owners of expropriated property
whose restitution claims had been denied could apply for some
additional compensation. Schubarth so applied in 1995 and
claimed she was entitled to 100% of the Estate’s fair market
value as of the date of the alleged expropriation. Her
application argued the FCN Treaty had been adopted as
domestic German law and, therefore, entitled her to full
compensation for the entire value of the Estate. The
7
application remained pending before the Thuringia State
Agency, without a decision, for nineteen years.
Almost two decades after Schubarth submitted her
application, in February 2014, the Thuringia State Agency
issued a proposed decision under the Compensation Act
recognizing Schubarth as owner of at least some of the Estate,
acknowledging that the Estate had been expropriated, and
proposing a €35,279 compensation award. J.A. 7. Schubarth
believed this was far less than the amount to which she was
entitled. In November 2014, Schubarth requested that the
Thuringia State Agency apply to Germany’s Ministry of
Finance for an opinion on the applicability of the FCN Treaty
to her claim. Several days later, the Thuringia State Agency
issued a final administrative decision affirming its February
2014 proposed decision without discussing the FCN Treaty.
According to the complaint, this final decision “admits, among
other things, that Mrs. Schubarth was the owner of the [] Estate,
that the [] Estate was expropriated, and that Mrs. Schubarth is
entitled to compensation payable by Germany.” J.A. 8.
B.
Schubarth filed this action in December 2014,
approximately one month after the Thuringia State Agency
issued its final administrative decision. Defendants moved to
dismiss for want of subject matter jurisdiction under the FSIA
and for failure to state a claim under Rule 12(b)(6).1
1
Defendants also moved to dismiss for want of personal jurisdiction. Under
the FSIA, personal jurisdiction exists where (1) subject matter jurisdiction
has been satisfied, and (2) proper service has been effected. 28 U.S.C.
§ 1330(b); I.T. Consultants, Inc. v. Republic of Pakistan, 351 F.3d 1184,
1191 (D.C. Cir. 2003). Defendants concede they were properly served;
thus, personal jurisdiction turns on the satisfaction of an FSIA exception.
8
Defendants argued, among other things, that Schubarth had not
pleaded facts sufficient to show BVVG was engaged in
“commercial activity in the United States” under 28 U.S.C.
§ 1605(a)(3).
The District Court granted Defendants’ motion to dismiss
for want of subject matter jurisdiction without conducting
jurisdictional discovery.2 Schubarth v. Federal Republic of
Germany, 220 F. Supp. 3d 111 (D.D.C. 2016). The court found
Schubarth’s allegation that BVVG’s predecessor, the Trust
Agency, maintained an office in New York in the early 1990s
insufficient because courts “have looked for evidence of recent
or ongoing transactions” in the United States to support
jurisdiction under the FSIA. Id. at 115. The District Court then
considered Schubarth’s allegations that the Trust Agency
“‘pursued marketing efforts over the Internet,’” “that BVVG
later ‘adopted and continued those marketing efforts . . . to the
present day,’” and that “[t]hose efforts include ‘posting links to
. . . information [about expropriated properties available for
lease or sale] on its website.’” Id. (second alteration in
original). The District Court concluded these facts did not
sufficiently “link[] BVVG’s commercial activity to the United
States” because Schubarth had not alleged “at least one alleged
commercial transaction or solicitation that was indisputably
tied to the United States.” Id. at 115-16. Therefore, the District
Court held, it did not have jurisdiction because Schubarth had
2
Schubarth did not request jurisdictional discovery prior to the District
Court’s order granting Defendants’ motion to dismiss. Schubarth included
a request for jurisdictional discovery in her motion for reconsideration,
which the District Court denied because “such discovery is warranted only
where a ‘defendant has . . . challenged the factual basis of the court’s
jurisdiction.’” Mem. Op. & Order Denying Motion for Reconsideration,
ECF No. 41, at 2-3 (quoting Phoenix Consulting Inc. v. Republic of Angola,
216 F.3d 36, 40 (D.C. Cir. 2000)) (alterations omitted).
9
not pleaded sufficient facts to show “commercial activity”
under § 1605(a)(3).3 Schubarth timely appealed.
III.
A.
This Court reviews de novo a district court’s dismissal for
lack of subject matter jurisdiction under the FSIA. Princz v.
Federal Republic of Germany, 26 F.3d 1166, 1169 (D.C. Cir.
1994). “When reviewing a plaintiff’s unchallenged factual
allegations to determine whether they are sufficient to deprive
a . . . defendant of sovereign immunity, we assume those
allegations to be true.” Price, 294 F.3d at 93. “Thus, where
the defendant contests only the legal sufficiency of plaintiff’s
jurisdictional claims, the standard is similar to that of Rule
12(b)(6), under which dismissal is warranted if no plausible
inferences can be drawn from the facts alleged that, if proven,
3
For the same reason, the opinion below concluded Schubarth did not meet
the requirements for the FSIA waiver exception, which Schubarth argued
was applicable under the FCN Treaty’s provision that no agency or
instrumentality of either country “engage[d] in commercial, industrial,
shipping or other business activities within the territories” of the other may
claim “immunity [from] suit, execution of judgment or other liability to
which privately owned and controlled enterprises are subject therein.” FCN
Treaty, art. XVIII, ¶ 2; see also 28 U.S.C. § 1605(a)(1) (withdrawing
sovereign immunity in any case “in which the foreign state has waived its
immunity either explicitly or by implication”). In addition, because the
District Court concluded the complaint did not sufficiently plead
commercial activity in the United States, it did not reach Defendants’
argument that BVVG also qualifies as a “foreign state” due to BVVG’s role
in privatizing property in post-communist East Germany. We leave both
issues to the District Court to consider in the first instance if necessary.
10
would provide grounds for relief.” Id. A “defendant bears the
burden of proving” sovereign immunity, including that “the
plaintiff’s allegations do not bring its case within a statutory
exemption to immunity.” Phoenix Consulting, 216 F.3d at 40.
B.
Federal courts may exercise jurisdiction over claims
against a foreign state or its agencies and instrumentalities only
pursuant to the FSIA, which establishes a default rule of
foreign sovereign immunity. 28 U.S.C. § 1604; Princz, 26 F.3d
at 105. “The Supreme Court has consistently held that the
FSIA’s enumerated exceptions provide the only path to
jurisdiction over foreign states in U.S. courts.” Belhas v.
Ya’alon, 515 F.3d 1279, 1283 (D.C. Cir. 2008).
Schubarth asserts her claim falls within the FSIA’s
“expropriation exception,” which provides:
(a) A foreign state shall not be immune from
the jurisdiction of courts of the United States or
of the States in any case –
...
(3) in which rights in property taken in
violation of international law are in issue and
that property or any property exchanged for
such property is present in the United States in
connection with a commercial activity carried
on in the United States by the foreign state; or
that property or any property exchanged for
such property is owned or operated by an
agency or instrumentality of the foreign state
11
and that agency or instrumentality is engaged in
a commercial activity in the United States.
28 U.S.C. § 1605(a)(3). “For the exception to apply, therefore,
the court must find that: (1) rights in property are at issue; (2)
those rights were taken in violation of international law; and
(3) a jurisdictional nexus exists between the expropriation and
the United States.” Nemariam v. Federal Democratic Republic
of Ethiopia, 491 F.3d 470, 475 (D.C. Cir. 2007) (quotation
marks and alteration omitted). The FSIA defines “commercial
activity” as “either a regular course of commercial conduct or
a particular commercial transaction or act.” 28 U.S.C.
§ 1603(d).
A plaintiff must make more than a nonfrivolous showing
that FSIA’s expropriation exception applies. Bolivarian
Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co.,
137 S. Ct. 1312, 1316 (2017). However, “where jurisdictional
questions turn upon further factual development, the trial judge
may take evidence and resolve relevant factual disputes.” Id.
IV.
A.
We conclude Schubarth’s factual allegations of BVVG’s
commercial activity in the United States are sufficient to
survive a motion to dismiss at the pleading stage. The District
Court observed that “[c]ourts assessing the FSIA’s commercial
activity requirement [] have looked for evidence of recent or
ongoing transactions.” Schubarth, 220 F. Supp. 3d at 115
(citing Agudas Chasidei Chabad v. Russian Federation, 528
F.3d 934, 948 (D.C. Cir. 2008); Abelesz v. Magyar Nemzeti
Bank, 692 F.3d 661, 693 (7th Cir. 2012); Altmann v. Republic
of Austria, 317 F.3d 954, 961, 969 & n.5 (9th Cir. 2002)). From
12
these precedents the District Court derived a requirement that
a defendant’s commercial activity must be ongoing, or must
have ceased only recently, at the time a complaint is filed.4 We
do not decide whether the FSIA’s expropriation exception
always requires contemporaneous or recent commercial
activity, nor do we delve into how recent such activity must be,
because we conclude Schubarth adequately pleaded ongoing
sales and marketing of expropriated land by BVVG in the
United States as of 2014, when she filed her complaint.
The District Court reached a different conclusion after
considering the allegation that the Trust Agency “maintained a
New York office ‘in the early 1990s’ to market and sell
properties, and that those marketing efforts resulted in a large
volume of sales.” Schubarth, 220 F. Supp. 3d at 115. This was
insufficient to plead ongoing commercial activity by BVVG,
the District Court reasoned, because “the activities of a
predecessor entity occurring roughly two decades prior to the
filing of the instant complaint do not reveal whether BVVG is
engaged presently – or has been engaged recently – in
commercial activity in the United States.” Id. (emphasis and
quotation marks omitted).
True, the Trust Agency closed its New York office
sometime before 1994, twenty years before the filing of this
action.5 But a plaintiff need not show sufficient “commercial
4
This interpretation is supported by the FSIA’s plain text, which employs
the present tense: Sovereign immunity may be abrogated if the “agency or
instrumentality is engaged in a commercial activity in the United States.”
28 U.S.C. § 1605(a)(3) (emphasis added); see United States v. Wilson, 503
U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in
construing statutes.”).
5
We note that nineteen of those years passed while Schubarth awaited a
decision from the Thuringia State Agency on her restitution application.
13
activity in the United States” independently with each fact she
alleges. The Trust Agency’s operation of a New York office
in the early 1990s must be evaluated in the context of the
complaint’s other allegations, including that “[w]hen the
BVVG succeeded to the Trust Agency’s responsibilities
concerning agricultural and forest lands in the early to mid-
1990s, it adopted and continued the Trust Agency’s marketing
efforts,” which “continue to the present day.” J.A. 5. This must
also be read together with the allegation that the Trust Agency
made $1.65 billion in U.S. sales, which strengthens
Schubarth’s allegation that the Trust Agency’s successor
would continue these profitable land sales once it took over the
Trust Agency’s responsibilities. With all of these facts taken
as true at this stage, it is reasonable to infer that the successor
There is no indication that Schubarth did not diligently pursue and exhaust
her remedies in Germany, or that she bears any responsibility for the
agency’s delay that contributed to the two-decade temporal distance
between the New York office’s closure and the filing of this suit. Schubarth
therefore argues that the District Court’s interpretation of § 1605(a)(3) as
requiring commercial activity contemporaneous to the filing of suit in this
country, rather than contemporaneous with the alleged expropriation, would
work inequity and injustice in this case. Because Schubarth’s complaint
adequately alleges continuing commercial activity by BVVG in the United
States through the filing of her complaint, we need not consider whether a
foreign sovereign may successfully defeat jurisdiction under the
expropriation exception by delaying exhaustion of a plaintiff’s remedies
under its own laws. Cf. Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21
(2004) (Amicus curiae argues “that before asserting a claim in a foreign
forum, the claimant must have exhausted any remedies available in the
domestic legal system. . . . We would certainly consider [an exhaustion]
requirement in an appropriate case.”); Republic of Austria v. Altmann, 541
U.S. 677, 714 (2004) (“[A] plaintiff may have to show an absence of
remedies in the foreign country sufficient to compensate for any taking [to
invoke the FSIA’s expropriation exception].”) (Breyer, J., concurring).
14
to such a robust sales operation would continue marketing and
selling to U.S. buyers.
The complaint also alleges that “[b]etween 1992 and 2008,
BVVG and its predecessor, the Trust Agency, collected at least
€3.5 billion from successful land marketing and sales,” J.A. 3;
and that agencies or instrumentalities of Germany “have
engaged, and continue to engage, in . . . the sales marketing of
Mrs. Schubarth’s estate to potential buyers in the United
States,” J.A. 1. Because defendants chose not to dispute these
facts when moving to dismiss, they must be assumed true and
all reasonable inferences must be drawn in Schubarth’s favor.
Price, 294 F.3d at 93. If BVVG made billions in land sales
through 2008, and if BVVG’s efforts included “sales
marketing” of the Estate itself “in the United States,” J.A.1, it
is at least plausible that, as Schubarth alleges, Trust Agency’s
sales and marketing efforts in the United States “continue
through the present day” via its successor, BVVG. See Simon
v. Republic of Hungary, 812 F.3d 127, 147 (D.C. Cir. 2016) (A
defendant is “entitled to a dismissal for failure to establish
jurisdiction only if ‘no plausible inferences can be drawn from
the facts alleged that, if proven,’ would satisfy the
expropriation exception’s nexus requirements.” (quoting Price,
294 F.3d at 93)). We therefore conclude that Schubarth has
adequately alleged ongoing commercial activity in the United
States on these undisputed facts.
Schubarth bolsters her argument in support of our
jurisdiction with allegations that “the Trust Agency pursued
marketing efforts over the Internet,” and that BVVG “adopted
and continued [those] marketing efforts . . . to the present day’”
by “posting links to . . . information [about expropriated
properties available for lease or sale] on its website.” J.A. 5, 3.
If we had to decide whether online marketing in English, alone,
constitutes commercial activity in the United States, we might
15
be inclined to agree with the District Court. But Schubarth’s
complaint does not present this question. Like the allegations
regarding the Trust Agency’s New York office, the allegations
of BVVG’s online marketing are pleaded in the context of the
rest of the complaint. Again, we must draw reasonable
inferences in Schubarth’s favor on this motion to dismiss,
where the complaint’s factual allegations – including that
BVVG was marketing and selling expropriated land in the
United States after it succeeded to the Trust Agency’s
responsibilities – are undisputed. Thus, the allegation that
BVVG continued the Trust Agency’s online marketing
reasonably explains how BVVG continued the Trust Agency’s
efforts to sell expropriated land in this country after closing the
New York office.
We emphasize that our decision applies the standard of
review on a motion to dismiss under the FSIA where
Defendants have not disputed any facts in the complaint. We
must assume the truth of Schubarth’s allegations, make all
reasonable inferences in her favor, and properly place the
ultimate burden of proof with the Defendants. See Price, 294
F.3d at 93. Under this standard, we conclude Schubarth has
alleged sufficient facts to make it plausible that BVVG
continues the profitable commercial operations of the Trust
Agency, including marketing and sales of expropriated
property in the United States. Further factual development may
reveal these allegations to be false or unsupportable, but for
now they must be presumed true and construed liberally. Id.;
see also Helmerich & Payne Int’l Drilling Co., 137 S. Ct. at
1316 (“[W]here jurisdictional questions turn upon further
factual development, the trial judge may take evidence and
resolve relevant factual disputes.”); Gibson v. Republic of
Ireland, 682 F.2d 1022, 1026 (D.C. Cir. 1982) (“[D]ismissal
[is] at least premature in light of the dearth of fact-finding done
by the district court thus far. Further fact-finding by the district
16
court . . . may yet render dismissal proper.”). We therefore
conclude Schubarth’s claims against BVVG survive
Defendants’ motion to dismiss for want of subject matter
jurisdiction at this stage.6
B.
Schubarth also seeks to abrogate defendant Germany’s
sovereign immunity under the FSIA’s expropriation exception.
The District Court properly concluded that this action cannot
be maintained against Germany because, under the intervening
authority of our decision de Csepel, a foreign state itself does
not lose immunity under the expropriation exception unless the
allegedly expropriated property is located in the United States.
See 859 F.3d at 1107 (“A foreign state loses its immunity if the
claim against it satisfies the exception by way of the first clause
of the commercial-activity nexus requirement; by contrast, an
agency or instrumentality loses its immunity if the claim
against it satisfies the exception by way of the second clause.”);
28 U.S.C. § 1605(a)(3) (Jurisdiction exists under clause one
when expropriated property “is present in the United States in
connection with a commercial activity carried on in the United
States by the foreign state[.]”). As there is no dispute that the
Estate or any property exchanged for it are located outside this
country, the expropriation exception does not apply to
Germany.7
6
In light of this conclusion, we need not reach Schubarth’s alternative
argument that Germany waived BVVG’s immunity in signing the FCN
Treaty.
7
Schubarth argues for the first time in her reply brief that she should have
the opportunity to show jurisdiction over Germany because, she asserts,
BVVG is its alter ego. Regardless of the merits of this argument, Schubarth
forfeited it by failing to present it to the District Court. See United States v.
17
***
For the foregoing reasons, we affirm in part, reverse in
part, and remand for further proceedings consistent with this
opinion.8
Stover, 329 F.3d 859, 872 (D.C. Cir. 2003) (arguments not presented to the
district court “cannot be considered for the first time on appeal”).
8
After the District Court granted the motion to dismiss, Schubarth moved
to alter the judgment under Rule 59 and for relief from judgment under Rule
60. She also submitted “newly found” evidence of a contract between
BVVG and a U.S.-based company as well as a presentation by BVVG staff
at a conference in Washington, D.C. The District Court denied both
motions and refused to consider the new evidence because it could have
been raised previously. In light of our reversal of the District Court’s
holding as to BVVG’s commercial activity in the United States, we need
not address these additional motions.