corporation and its c e o because diem intentionally marketed jobs to u s citizens to work in the us pre employment and induce those citizens into a contract with the bogus equity package through his sham swiss entity for the sole purpose of avoiding accountability in the united states i'd like to simplify the issues before the court today as follows critical evidence that the district court did not weigh or even consider the applebee's than the district court's determination that his engaged in performing governmental functions which not even joe or corporation or the c e o contend and that the commercial activities exception and the toward exception apply preventing johore corporation from availing itself of foreign even mention as this court is made clear in o'brien versus holy see either the district court must review the jurisdictional challenge as a facial attack in which the a variance must be accepted as true or as a factual attack in which the district court must weigh the evidence before it because the district court did not accept as true complainants allegations and did not weigh or even consider the a critical piece of evidence or other evidence before it the district court erred this was a that is what the district court contended but that's not what was or take you waited by joe you don't agree it should have done that no i don't your honor but but that johore corporation can't have its cake and eat it too it can't say i don't accept the issues involving foreign sovereign immunity are subject to do novo review and interestingly enough the cases cited by opposing counsel are not involving the foreign sovereign immunity act they involve federal then submit if that is what the court is going to undertake that because not all the evidence was considered that clear error did was committed that in order for the court the district court to make that the factual finding that they have to consider all the evidence if the district court is going to undertake a factual finding it must discuss and weigh the evidence before it and it wasn't just the affidavit of steve that was not taken into account it was multiple different pieces of evidence that the court also did not mention or way in its opinion including photographs of christine and other johore corporation employees who require two u s employees to travel to malaysia to obtain  employee training on boarding an orientation and were then sent back into the united states to perform these commercial activities for and on behalf of johore corp so i would submit that there is there is so much evidence that was not a waiter considered that to address absolutely your honor think of the question mr zermatt i was it was worked in the capacity of a financial officer with the organization and he was one of the individuals that was required to travel from the united states to malaysia to receive this training and orientation from to see him the c e o of johor corporation and then went back to the united states he also had day to day interaction with johor corporation and received direction management and other information from malaysia in regards to the commercial activities that were undertaken in the united states foreign on behalf of johore corp so it and because a myself was not required to travel because i was part of the nd wave of u s employees we relied and secondhand information not withstanding the fact that i myself had direct communication with johor corporation secretary indicating that she didn't know anything about johor corporation's activities in the united states there is a question of fact that exist as to whether to see him as c e o of johor corporation was properly making joe or corporation aware of their activities in the united an issue of fact related to that and the entire purpose of the foreign sovereign immunity act is it is is not to preclude people from seeking redress in fact it's specifically narrowly tailored to officials acting in their governmental capacity and engaging in a governmental function there is no allegation whatsoever  it by the by by johor corporation or is theme that they were engaged in governmental function in fact i think the district court opinion goes so far as to say that they were in fact engaged in a governmental function based upon the very language of the your honor i am requesting that your honor declare that the that the defendant apple e's are not entitled to immunity under the foreign sovereign immunity act and that there is jurisdiction over seem as well it at that's what private company engaged in commercial activity they are a global organisation operating all over the world including in the united states and this elaborate entity scheme was defendants to show your ice i believe the shifting of the burden is an important point and i think that the initial burden is on johor corporation to establish that it's in title two immunity but that's presupposes that there are a governmental they're engaging governmental activities and they're not if johor corporation is able to establish that they're entitled to the immunity then it shifts back to functions or are activities and it's important to note i think that joel corporation was never itself claiming that there were involved in governmental activities in fact they're only argument was that they were operating in the u s and that they didn't help privity have an employment contract with a pal and both of those arguments fail and the reason why both those arguments fail is because they were operating in the united states requiring u employees to travel to malaysia get training in orientation and travel back to the us and then correspond with them in fact your honour's appellate received work directly from malaysia johor corporation on a number of occasions work that was performed as referenced i'm johor corporations website as part of their corporate structure the distinction that they're trying to make is that ok you know we have a piece of paper saying that they're just going to entities well it's how they behave it's not just what the affirmed it's really commendable given what a district court a supposed to do in a situation like this the district court judge leland recognized that it's the district courts and at the onset of the case to assess its own subject matter jurisdiction the district court has that obligation to do that issues of fact don't go to juries or fact finders even in the case of a trial court judge the judge must do this in the st instance and judge clearly and here was careful  that thank you thank you judge i frankly don't accept that he didn't consider it he didn't reference it in his written opinion but your question was dead on there is no principle or case that i'm aware of that says if a court doesn't specifically itemize every document a piece of paper or affidavit in their opinion that we must assume the they didn't consider it just the opposite when you look at this process here was extraordinary there was the discovery peer there were multiple status conferences including on the record we had a very detailed motion to compel process with a written motion to compel opinion there was extensive briefing put into the court in in the court's opinion granting our renewed motion to dismiss the court says i've reviewed the briefing that affidavit was attached to the briefing i think we must assume he did review it he was granular in his citations to the record both in the motion to compel opinion and in the motion to dismiss opinion there is no question that he got in the weeds here and he was entitled to do that he was entitled birds here persuasion production correct so under the foreign sovereign immunity sack the initial burden is on the  defendant to establish that the act applies that they are considered foreign states and we've done that in spades based upon record evidence then the burden shifts and then there is a presumption of immunity and holding on to that presumption is an important the the burden shifts to the plaintiffs to establish that an exception to that immunity applies so it does the burden mo i guess i'm just reflecting upon the words the courts have used which it's the defendant's burden in the st instance to establish immunity plaintiff's burden to establish an exception i suppose if there's an overall burden of persuasion on the defendant throughout that as well but i think i don't want some antics get in the way i want to be clear that it was our burden to establish that the act applies to joe horn and we did that in the burden was on an exception and judge found it that she did not so he was very patient is very critical in this process to he asked for additional information he did what he was supposed to do he did not simply rely on assumptions  assertions he got in the weeds and and in many times quite frankly looked at some of the assertions made by plaintiff and noted it didn't necessarily track with the record evidence that the plaintiff indicated so we clearly have a case of a a factual attack where the court was entitled to consider the evidence was thoughtful did so over a long period of time to written opinions that both relate and in fact i just want to know one other thing before i move on there's case into the global tech case the th circuit case that we've cited that it can be error for a district court judge not to resolve facts and this is an important distinction the courts the district court's role is not just to consider facts  or they're not just empowered to consider facts they're empowered to resolve factual disputes that the statute in the case law and subject matter jurisdiction jurisprudence over all presupposes that there may be factual disputes that need to be resolved and that's where a district court judge is uniquely powered in the instance of a subject matter jurisdiction to resolve facts for example in the tolliver versus nigeria case and this is tethered right in five itself just to show the logic of this twenty eight u s seas one thousand six hundred and eight is a provision of pfizer that talks about entering a default judgment obviously we don't have that situation here but determine if the claimant has a stablished by evidence satisfactory to the court so imagine that you've got only the plaintiff in the courtroom and even under those circumstances the district court need not just accept as true what they're being told they must satisfy himself so it's unfathomable that in an instance where the defendant does appear and does show up and does contest the facts that a court must just accept as true what the plaintiff is saying and this matters of course because as your honors well know of the burden we are dealing with a clearly erroneous standard for the factual determinations as to whether johor is a foreign state we are dealing with a factual clearly erroneous standard as to allison in courts start obviously with a presumption that corporations are separate and then they look for addition of ownership and control essential to try to determine are these one in the same for purposes of the particular analysis apparent subsidy or relationship but it's a very convoluted to say from looking at the record but but do you think there are circumstances even outside the context of a parent corporation and subsidiary under sort of derivative law theory analysis that would preclude any option for that but the courts are very clear that you start with ownership and we haven't even gotten past st base because there's no there's no that a court excluded evidence merely by not listing it and its opinion number two number three there has been no serious argument that the court misapplied the facts as as he found them to the law i think as a  ther to the derivative analysis piece i would identify for the court the anwar case which is a recent six circuit case talking about parent subsidiary relationships that is not a  case but that is a th circuit case that talks about how this analysis should work and we've got other case law that squarely says you apply that analysis in a fire situation and why wouldn't you because the concept of whether or not you p corporate veil isn't a five concept or construct that's a bedrock principle of how we view corporations and their relationships in this country if i had heard your question judge is that helpful ok so i'll move on just a couple other points because we talked about some of the disparate pieces of evidence that plaintive said well i wish this had been considered there's another really fundamental point here that is pfizer related  anchor your your review of all of this that's right in the statute and it says so she's arguing under the commercial exception statute in the toward exception which also doesn't apply the eck to the lawsuit itself the claims in the lawsuit must be based on the commercial activity that the plaintiff is relying on to establish jurisdiction it's got to be one in the same there's a textural component of that right in the statute and then the case law picks that up multiple cases cite that principle what does that mean that means if if you were to find hypothetically that that a foreign entity owned a piece of property in southern  california they have some connection to the united states and then you've got an employment dispute here and in dearborn michigan you can't use the ownership of a piece of property in southern california as your link to establish pfizer jurist an exception to pfizer jurisdiction over here york a lawsuit must be based upon the commercial activity that forms the exception to immunity itself we don't have that in this case when you think through these items opinion the district court did not mention the affidavit your honor in its in its written opinion there was a question from the bench about would that have mattered and i guess i'm indirectly answering that question as well which is which is  the district court say that the burden of persuasion was always a bone your client that's what the holy see case as you've said that numerous times you know you know i'm not  i'm looking at the judge's opinion i don't i don't recall whether he talked about burden of persuasion throughout but i'm certainly familiar with that point in the in the whole he said that's what the law is what the lower right so i think that's right your honor but i think that it's the plaintiff's burden is not really to identify an exception it's they've got to show the exception applies and the district court in the courts do drill into that and look at whether or corporation was engaged in commercial activity that you said that there was no connection between a commercial relationship in a way and why when we say it really really comes down to whether the people who were overseeing the point of on a day to day to support that there was actually a direction given that they were even involved at the even knew about her claim until after she left the company there's just no record upon which you can you can you could ever find that here like my time honor thank you for the opportunity to refute some of the comments and i know my time is limited here is a minute try to go through as quickly as possible the commercial activity that's related to the case and show where the nexus is that jo or corporation wants to exert exist islamic lobel dominance in the area of the logistics all over the world and to the extent that they wanted to accomplish that they decided to hire us employees a llant was terminated approximately two weeks after she refused to convert to islam ok that's the connection i thought it was clear but perhaps not the discovery period that took place in the lower court was exhaustedly long because the defendants refused to produce the discovery they did not comply with the court order discovery piercing the corporate veil is not necessary in his case and i think that the defendants are conflating the issues there is no need to pierce the corporate veil in fact the i think that what's clear from the record is that all facts were not taken in notice of supplemental authority and were permitted additional briefing opportunities that appellant was not afforded and then also not afforded oral argument to perhaps flesh out and discuss any issues that the district court may have had the district court issued its opinion i believe approximately a year after the last brief submission and so it's clear to me that there was not an evaluation nor was there equal opportunity for briefing  district court needs to consider all the evidence before it the affidavit of steve's or my if the defendant's didn't think that that was the dispositive or important affidavit they wouldn't have attempted to reach out to this gentleman after he issued that in the after that was filed with the court i think also important is the court's determination about immunity for the individual it he's not entitled to it statutorily so common law and that's an issue as judge murphy pointed out that's an important issue that has to be flushed out and because johore corporation was not engaged in governmental functions governmental activities and the district court specific we referenced that they were in gauged in governmental activity which was not even referenced by joe or corp i think with due respect the district court got it wrong and i think that those issues should be reversed and remanded for further for further discussion i also think that  the district court found did not say what i claimed that it that is is due to just authentic mental misunderstanding of of these issues the entity creation these thirteen entities that were created appellant didn't create johore corporation created those entities and the letter that's still her corporation it doesn't say the state of johore that the state of malaysia is this job or corporation and everyone in the within the organization knew that that letter was a directive to his agents where my u s employees when when when they found out u s employees and only u s employees were hired thank you thank you very much