JAK SUKYAS and EDWARD SUKYAS v. ROMANIA and RADEF ROMANIA FILM

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAK SUKYAS and EDWARD SUKYAS,
Plaintiffs-Appellants,
v.
ROMANIA and RADEF ROMANIA FILM,
Defendants-Appellees.
No. 17-56557
D.C. No.
2:15-cv-01946-FMO-JC
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Fernando M. Olguin, District Judge, Presiding
Argued and Submitted March 4, 2019
Pasadena, California
Before: WARDLAW and BENNETT, Circuit Judges, and SESSIONS,** District
Judge.
Jak and Edward Sukyas (the Sukyas brothers) appeal the district court’s
grant of summary judgment in favor of Romania and RADEF România Film (an
instrumentality of the Romanian government) for lack of subject matter
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
FILED
MAR 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under the Foreign Sovereign Immunities Act (FSIA). We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court’s
conclusion that FSIA’s commercial activity exception to sovereign immunity does
not apply, 28 U.S.C. § 1605(a)(2), but reverse as to the expropriation exception, id.
§ 1605(a)(3).
1. The district court correctly concluded that the commercial activity
exception to sovereign immunity does not apply because the Sukyas brothers fail
to establish that Romania’s acts outside of the United States had a direct effect in
the United States.1 28 U.S.C. § 1605(a)(2); see also Terenkian v. Republic of Iraq,
694 F.3d 1122, 1135 (9th Cir. 2012). The Sukyas brothers’ claims arise from the
Romanian government’s alleged expropriation of their family’s film company,
Cinegrafia Română (CIRO), disruption of CIRO’s business relationships with U.S.
companies, and continued operation of CIRO’s film business in Romania.
However, with no evidence that identifies any specific contractual relationships
1 The other requirements of the third clause of the commercial activity
exception are met. The commercial activity underlying the Sukyas brothers’ action
took place in Romania. Record evidence also shows that the Romanian
government’s alleged interference with Cinegrafia Română’s (CIRO) business
relations were “in connection with a commercial activity of the foreign state,” i.e.,
the Romanian government’s acquisition of CIRO in 1948 and continued use of
CIRO’s assets. 28 U.S.C. § 1605(a)(2). Romania’s alleged acts “are clearly . . . of
a kind in which a private party might engage.” Siderman de Blake v. Republic of
Argentina, 965 F.2d 699, 709 (9th Cir. 1992); see also 28 U.S.C. § 1603(d)
(defining “commercial activity” for FSIA purposes).

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(and resulting contractual duties) between CIRO and U.S. film companies at the
time CIRO was expropriated, the Sukyas brothers cannot show that Romania
disrupted or assumed specific business relationships CIRO had with U.S.
companies. Thus, they have presented no “direct connection” between Romania’s
conduct and any effect in the United States, much less demonstrated Romania’s
“failure . . . to perform in the United States [or] any other legally significant event
in this country.” Terenkian, 694 F.3d at 1135, 1138.
2. The district court incorrectly concluded that the expropriation exception
is inapplicable because the Sukyas brothers could not show that RADEF România
Film “is engaged in a commercial activity in the United States.” 28 U.S.C.
§ 1605(a)(3). In fact, by licensing U.S. films to screen in Romania, RADEF
România Film receives “profits and benefits . . . derived from U.S. sources,” thus
bringing the Sukyas brothers’ claims within the second commercial-activity nexus
clause of 28 U.S.C. § 1605(a)(3). Siderman de Blake v. Republic of Argentina, 965
F.2d 699, 709, 712 (9th Cir. 1992); see also Cassirer v. Kingdom of Spain, 616
F.3d 1019, 1032–34 (9th Cir. 2010) (en banc) (finding that an art foundation, an
instrumentality of Spain, “had many contacts with the United States,” including
“licensing reproductions of images,” which constituted commercial activity in the
United States under § 1605(a)(3)).
Because the Sukyas brothers have satisfied their burden of production that

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the expropriation exception applies, “jurisdiction exists unless the defendant
demonstrates by a preponderance of the evidence that the claimed exception does
not apply.” Packsys, S.A. de C.V. v. Exportadora de Sal, S.A. de C.V., 899 F.3d
1081, 1088 (9th Cir. 2018). Romania, however, presents no evidence refuting the
Sukyas brothers’ proof.
The district court did not address the other requirements of the expropriation
exception. Although the Sukyas brothers sufficiently allege that the rights in
issue—their ownership rights in CIRO’s assets, real estate, and business—are
property rights, we remand for the district court to decide in the first instance
whether CIRO “was indeed ‘taken in violation of international law.’” Bolivarian
Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 137 S. Ct. 1312,
1316, 1319 (2017); see also id. at 1316 (“[W]here jurisdictional questions turn
upon further factual development, the trial judge may take evidence and resolve
relevant factual disputes.”).
Costs are to be taxed against Romania and RADEF România Film.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.2
2 The Sukyas brothers’ motion to correct and supplement the record on
appeal (ECF No. 6) is DENIED. The Sukyas brothers’ motion for judicial notice
(ECF No. 33) is GRANTED.

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