Vinum Tokaj International, LLC v. Grand Tokaj Zrt , 668 F. App'x 790 ( 2016 )

FILED
NOT FOR PUBLICATION
SEP 07 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINUM TOKAJ INTERNATIONAL, No. 15-55822
LLC, a California LLC,
D.C. No.
Plaintiff-Appellee, 8:14-cv-01509-AG-AN
v.
MEMORANDUM*
GRAND TOKAJ ZRT, an entity organized
under the laws of the Republic of Hungary,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted September 2, 2016**
Pasadena, California
Before: SILVERMAN, IKUTA, and WATFORD, Circuit Judges.
Grand Tokaj Zrt appeals the district court’s order denying its motion to
dismiss under the Foreign Sovereign Immunities Act. See 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§§ 1602–1611. We have jurisdiction over the district court’s denial of the motion
to dismiss under the collateral order doctrine. Gupta v. Thai Airways Int’l, Ltd.,
487 F.3d 759, 763 (9th Cir. 2007).
The district court did not err in rejecting GTZ’s argument that Dr. Istvan
Kiss, the Chief Executive Officer of GTZ, lacked actual authority to execute the
marketing and distribution agreement with VTI on behalf of GTZ. Eniko Kiraly’s
conclusory and unsupported statement that no significant agreement was valid until
approved by the GTZ Board of Directors and supervising body failed to establish
Kiss’s lack of actual authority by a preponderance of the evidence, given VTI’s
submission of Dr. Kovacs Kond’s supplemental declaration, the Hungarian
certified copy of the GTZ’s register showing that GTZ’s chief executive officer
could bind the company, and Attila Balla’s supplemental declaration regarding his
interactions with the GTZ Board. Nor did the district court err in relying on VTI’s
evidence: GTZ waived any objection to the timeliness of its admission, see In re
Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010), and the
district court did not abuse its discretion in ruling that Balla’s testimony was
admissible non-hearsay, see Fed. R. Evid. 801(d)(2). Likewise, the district court
did not err in concluding that Balla’s testimony authenticated the marketing and
distribution agreement. See Fed. R. Evid. 901(b)(1).
2
Because GTZ failed to carry its burden of showing that Kiss lacked actual
authority, the district court did not err in concluding that the “waiver” and
“commercial activity” exceptions to immunity under the Foreign Sovereign
Immunities Act were applicable. See 28 U.S.C. § 1605(a)(1)–(2); see also
Randolph v. Budget Rent-A-Car, 97 F.3d 319, 324 (9th Cir. 1996).
AFFIRMED.
3