The EC is a “separate legal person, corporate or otherwise” (28 U.S.C. § 1603(b)(1)); Reynolds American does not challenge the EC’s status as a separate legal person. The EC “is an organ of a foreign state” (28 U.S.C. § 1603(b)(2)); Reynolds American does not contest that the EC is an “organ” and, indeed, concedes that the EC is an agency or instrumentality of “its twenty-seven Member States collectively.” (See D. Supp. Mem.

No. 1 at ¶ 7. See also 28 U.S.C. § 1603(a) and (b). Case3:14-cv-01225-SI Document25 Filed05/05/14 Page17 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NFC TECHNOLOGY, LLC’S MOTION TO DISMISS 13 Case No. 3:14-cv-01225-SI M C K O O L S M IT H H E N N IG A N A P R O F E S S IO N A L C O R P O R A T IO N • A T T O R N E Y S D A L L A S , T E X A S 28 U.S.C. § 1391(b).

at 138 n.7. “[A]ctivity” broadly includes “either a regular course of commercial conduct or a particular commercial transaction or act,” 28 U.S.C. § 1603(d) (emphasis added). Thus, any limitations placed on the meaning of “act” by Rogers or Guirlando cannot remove the nexus between Plaintiffs’ claims and the United States in this case for purposes of the first clause.

Under Section 1603(a) of the FSIA (28 U.S.C. §1603(a)), a “‘foreign state’. . .includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). Under 28 U.S.C. Section 1603(b), “[a]n ‘agency or instrumentality of a foreign state’” includes “a separate legal person, corporate or otherwise,” that is an “organ of a foreign or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof” and is not a U.S. citizen or organized under a third country’s laws. 3.

Case No. 3:08-mc-80030-JSW [PROPOSED] ORDER WHEREAS, this matter having come to be heard on non-party The Export-Import Bank of Korea's ("KEXIM's") opposition to plaintiffs' Motion for Assignment of Rights Pursuant to C.C.P. § 708.510(a) and F.R.C.P. 69(a) (the "Motion"); and WHEREAS, the Court finds that KEXIM: (a) is a "foreign state" as that term is defined in the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1603(a) (2006); and (b) enjoys sovereign immunity under the FSIA, 28 U.S.C. § 1604; Case 3:08-mc-80030-JSW Document 61-5 Filed 06/09/2008 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROPOSED ORDER OF THE IMPORT EXPORT BANK OF KOREA REGARDING PLAINTIFFS' MOTION FOR ASSIGNMENT OF RIGHTS CASE NO. 3:08-MC-80030-JSW LA1 - 119743.01 IT IS HEREBY ORDERED that the Motion is DENIED with regard to KEXIM; and IT IS FURTHER ORDERED that KEXIM, as an agency or instrumentality of a foreign sovereign, is exempt from the jurisdiction of this Court and shall not be required to participate in this matter.

Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993) (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989)). Under the FSIA, a “foreign state,” which is defined to include “an agency or instrumentality of the foreign state,” 28 U.S.C. § 1603(a), has “presumptive immunity from suits in federal courts, absent a demonstration by the plaintiff that the claim falls within a statutory exception to immunity.” Ezeiruaku v. Bull, 617 F. App’x 179, 181 (3d Cir. 2015) (citing 28 U.S.C. § 1604).

Under that statute, an “agency or instrumentality of a foreign state” is an entity: (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country. 28 U.S.C. § 1603(b). Before it can subject France Brevets to the jurisdiction of this Court, NXP USA must show that France Brevets is either an “organ of a foreign state or political subdivision” or that a majority of its shares or other ownership interest is owned by a foreign state or political subdivision.

Defendants contend that federal jurisdiction exists under the FSIA because RBS Group is majority-owned by the U.K. government. Removal Notice ¶¶ 24, 30; see 28 U.S.C. 1603(a) Case 1:13-cv-04018-NRB Document 38 Filed 07/11/13 Page 22 of 31 18 (defining “foreign state” to include “instrumentalities”); 28 U.S.C. § 1603(b) (defining “instrumentalities” to include an entity a majority of whose shares are “owned by a foreign state”). But RBS Group is no longer a defendant in this case.

Moreover, for purposesofestablishing physical presence outside the United States, it is well-established that a Mexican consulateis a “foreign state” (see Gerritsen v. De La Madrid Hurtado(9th Cir. 1987) 819 F.2d 1511, 1517; 28 U.S.C. § 1603(a) and (b)). In contrast, the federal statute also defines “United States” as “all territory and waters, continentalor insular, subject to the jurisdiction of the United States” (28 U.S.C. § 1603(c)). Thus, we may conclude from a reading of the language ofthe statute that consulate territory is not within the jurisdiction of the United States because as a “foreign state” the Mexican consulate is notterritory within the jurisdiction of the United States.

See Dole Food Co. v. Patrickson, 538 U.S. 468, 474 (2003) (citing to 28 U.S.C. § 1603(b)(2)). Here, at the time that Semtek was introduced to Merkuriy in late 1992, Merkuriy was not owned in any part by the Russian Federation or any of its political subdivisions because NPO PM had been required to divest itself of its 13.95% ownership share in Merkuriy by virtue of the July 1, 1992 presidential edict forbidding national enterprises from trade company investment, and, in any event, NPO PM never owned the majority of the shares of Merkuriy.