If someone buys a Eurail pass online in the U.S. and then gets injured on a train in Austria, does he or she have the legal right to sue overseas entities in U.S. courts?
That question was at the heart of a federal case that wended its way to the U.S. Supreme Court last year and resulted in a big win for an Orange County lawyer.
The watershed case for Juan Basombrio, a partner with Dorsey & Whitney LLP in Costa Mesa, illustrates the international reach of the Orange County legal scene, he said.
“I think if you ask most lawyers in New York or Washington, D.C.—even in L.A.—if they thought this sort of thing was possible, people would say, ‘No way! That’s not the kind of litigation that is conducted from OC,’” said Basombrio, who has extensive experience representing foreign national governments in Latin America, Europe and Africa.
The case appears to be over with the Supreme Court decision, though back-and-forth volleys are still echoing in the halls of the Ninth Circuit Court of Appeal. The attorney for the plaintiff apparently isn’t satisfied that it’s wrapped up and has asked the Ninth Circuit to take another look.
The original case was filed in federal court in the Northern District by Berkeley resident Carol Sachs. She sued the Republic of Austria and OBB Personenverkehr AG, its national railway, after she was injured while boarding one of its trains in 2007. The injury resulted in both of her legs being amputated above the knee, according to her lawsuit, which alleged personal injuries based on negligence and defective railway property.
The Republic of Austria and OBB hired Basombrio at the outset of the case. He moved to dismiss the lawsuit without addressing the merits of the case, basing his argument on the immunity of Austria and its national railway under the Foreign Sovereign Immunities Act. He said FSIA entitles foreign countries and their agencies to blanket immunity and that U.S. courts therefore didn’t have jurisdiction to hear the case.
The plaintiff was represented by Geoffrey Becker of Becker & Becker in Lafayette, Calif. Becker said he couldn’t comment on the case because of the request he made this month of the Ninth Circuit.
Basombrio said Becker argued his client’s purchase of the ticket in the U.S., as commercial activity, qualified as an exception to FSIA.
The federal judge ruled in favor of Austria and its railway, deciding that both had immunity and that the commercial activity exception didn’t apply. Becker then filed an appeal against the railway, so the lawsuit proceeded to the Ninth Circuit.
Then things got really interesting.
First, a three-judge Ninth Circuit panel heard the case. The panel split, with two in favor of OBB and one against. Then Becker petitioned the Ninth Circuit to rehear the case en banc, which meant that all 11 judges would hear the case. That step was very unusual, Basombrio said, though the Ninth Circuit agreed to rehear the case in that fashion and ended up reversing the district court’s decision.
At that point, OBB had to carefully consider whether to petition the Supreme Court to accept the case for review, since the chances of the high court taking any case are “astronomically low,” Basombrio said.
He decided to test the waters, discussing the case with other foreign governments to see if they would support it by filing amici curiae, known as friend of the court briefs. The Kingdom of the Netherlands and the Swiss Confederation agreed to do so, Basombrio said.
Then he discussed the case with the International Rail Transport Committee, an association of more than 200 European railway and shipping companies. The committee was concerned that if the decision wasn’t reversed, their member railways might be forced to stop selling Eurail passes in the U.S., Basombrio said.
He and his client, armed with that information and support, decided they should soldier on and request that the Supreme Court hear the case.
“We believed we were on the right side of the argument,” Basombrio said.
The court, after a few more twists and turns, ultimately decided to hear it. That was last January. Basombrio remembers the day vividly because he was doing the mundane chore of buying new tires in Laguna Beach when he got the call from the Supreme Court merits clerk.
“My cell phone rung,” he said. “It said SCOTUS (Supreme Court of the U.S.). To any litigator, that’s a momentous occasion. I had my momentous occasion sitting at the Goodyear. From that moment on, my world changed, because a Supreme Court case is like nothing else.”
Basombrio prepared extensively by holding moot courts, conducting an exhaustive analysis of legal authority on the matter, and reviewing what Supreme Court justices had said and written on the subject, including Justice Stephen Breyer’s recently released book on international law.
Nine months later, the case was the first heard in the 2015-2016 term. The attorneys for each side had about 25 minutes to present oral arguments.
Basombrio had never argued a case before the Supreme Court but said he felt confident going into the hearing based on his thorough preparation and his client’s confidence in him. He said he was duly impressed with the justices’ preparation and knowledge of the facts and law, as well as their questions.
The unanimous decision came down on Dec. 1 in favor of Basombrio’s client and hinged on the accident’s location, which the court said placed the case’s jurisdiction squarely in Austria, thereby negating Sachs’ attempt to sue in the U.S.
Writing for the court, Chief Justice John Roberts asserted that the claim should have been filed in Austria, where the injury occurred.
“The purchase of the ticket entitles her to nothing,” Basombrio said. “Without the accident, there is no case. So it is that simple.”
The Supreme Court showed respect for international law with its decision, Basombrio said.
Meanwhile, the win was a coup for his firm and elevates the legal activity originating in Orange County, he said.
“The day came that a law firm located in OC can be at the center of a big-time national dispute that went to the Supreme Court,” he said. “We’re hoping that those opportunities continue to grow for the legal business community here in OC.”
Becker, the plaintiff’s attorney, apparently is trying one last resort for his client. On Jan. 7, he submitted a letter to the Ninth Circuit, asking the court to order a briefing on whether jurisdiction does in fact exist in U.S. courts based on Austria’s national railway operating as a “commercial enterprise,” according to the letter he filed. He maintains the district court never addressed that issue.
Basombrio filed his response the following day, saying that any further action by the Ninth Circuit “would be a direct violation of the Supreme Court’s final judgment holding that (the railway) has sovereign immunity … and that U.S. courts lack jurisdiction.” He said the request must be rejected.
