honour's this is a significant case it will help to establish the contours of federal jurisdiction over the commercial activities of foreign sovereigns acting in the united states given the fact that it's a relatively fact heavy appeal i wanted to highlight some of the facts to kind of put the issues in context your honor mr as boone was i am eyes representative in bolivia for approximately twenty years throughout that time period mr heigham garrity who was a well known as i am i as a regional manager for latin america was mr osborne's principal contact from one thousand nine hundred five through two thousand and eight mr gary was based in and provided support from miami which i am i had chosen in one thousand nine hundred five for its base of operations for latin america in one nine hundred ninety eight the bolivian government began an investigation into the sale of i in my products in bolivia despite a variety of legal obligations to participate in a peer i am i refused to participate in those proceedings they refused to respond  investigative subpoenas and other inquiries by the bolivian government the bolivian government turned to mr oz boon to defend i am i which he did at great personal expense and for us your honour's this is really the heart of the matter this is where the relationship broke down and this is really what caused damage to mr as boone was that whereas previously i am i had provided mr osborne with substantial support primarily through mr gary here in miami it suddenly withheld that support and it caused great damage that withholding of support caused great damage to mr osborne and resulted in my support you mean reimbursement of expenses no in fact your honor by support i mean dealing with the government in a post sale environment in this particular case there had been a sale of rifles to the bolivian government the government decided that it was going to previously yes what was that substantial support that you say happened previously ok mr gary was mr osborne's principal contact that i am i whenever he needed to communicate with i am i he did thro through mr gary in miami whenever he needed to speak with someone and i am i he he in person he would meet with mr gary so from our perspective all of the decisions based on what the parties had presented right and what are we going to mean when those factual decisions in part your honor we did not separately request a hearing we felt that the record well represented the facts from our perspective and we thought that the court could make a decision on that basis however something very interesting happened as you know the court issued two related orders in this proceeding one was the order granting renewed motion to dismiss and then later a later there was a correction of sorts in an order denying motion for relief in the order  basis of our motion for relief the principal matter in our motion for relief was something related to the f s i mistake which was that she hadn't considered six pages of of our argument in our presentation of facts relating to specific personal jurisdiction and i'm still confused as to why that happened in the original order the order granting renewed motion to dismiss the court came out and said plaintiffs has made no argument with regard to specific personal jurisdiction and of course we did we made six pages of argument with regard to specific personal jurisdiction and we laid out the facts that we believe we've supported our position but for whatever reason it appears that the judge lennart and the court missed that missed that argument and missed those facts that we introduced on specific personal jurisdiction and then the issue was compounded because  when she then went back and issued the order deny motion for relief instead of going back and looking at the facts a new under the f s i a she simply adopted in block quote the factual determinations that she had made in the original order granting renewed motion to dismiss which again we believe excluded or ignored all of our argument on one specific personal jurisdiction let me ask you this seems to me the heart of  and that the commercial activities based on based on the record evidence perhaps i can go through the the negotiations and the performance occurs in bolivia all right that is correct where was the contract wrong the contract i believe was drawn in bolivia what happened in the united states that would cause it this commercial exception to apply right so you're asking how specifically with respect to this contract so with regard to vis contract they provided support to mr us boone in bolivia whenever he had questions relating to the contract negotiation of the contract the implementation of the contract he turned to mr gary who was on who was in miami who operated out of miami and miami was chosen by i am on as its base of operations for latin america but get mr gary has a home office he also has an office that he states relates to his consultancy but he doesn't i am i don't rent space here that's i do not believe i am i appears on a a lease in miami that's correct but if you're if you're talking about whether i am i in gauges in the type of activities that a company would engage in the head they an office in miami they do in gauging all of those activities  it seems that there was a factual dispute as to how much mr gary was doing on behalf of i am i in miami but it also seems to me that the district court resolved that and said mr most the time to you know went to miami he would go for various things nothing specific to this contract so the district judge is making all these findings and i don't know i'm supposed to do it that i mean it seems to me that if there's a conflict and the district judge has to resolve the facts they were resolved and unless you can show that she totally refuse to look at your evidence then you've got what is is that your argument basically she didn't look at your evidence that's correct judge and  it is it's a very difficult thing to show i grant you but i will say you know that there is that chain of logic from her for whatever reason missing our argument on specific personal jurisdiction and all the facts that that contains creating a list of seventeen factual statements all of which can be traced back to the argument of the evidence presented by am i and then cutting and pasting that factual determination from the erroneous order granting renewed motion to dismiss into the order denying motion for relief we do believe that our facts have never been properly considered and if they were they would have revealed seven separate conflicts in the evidence presented between the evidence that we presented the evidence they present and it's our contention that under my quad there are seven of them  number one she determined that i am i never had any office in the united states no mention was made of the record evidence demonstrating that i am i chose miami as its base of operations but you just tell me they didn't have an office here well  number two what are you saying out of your evidence that you showed that she didn't acknowledge right ok number two that mr gary left i am i in one thousand nine hundred five in fact the record evidence demonstrates that mr kerry continued to act as i am i's regional manager for latin america through as he made time to do that as he paid to do that or was he just i don't know whether i don't know what the payment conventions were what i do know your honor is that he represented himself during that period of time as i am i's regional manager for latin america to customers in latin america and i am i also in its own documents recognized him during that time period as its regional delegate bristled at that characterization he said i'm not only a consultant i wasn't only a consultant he was i don't know what he was doing in the us in another part he's very clear that when he moved from bogota where he a regional manager for latin america to miami at that time period where they say during the time period they say he became a consultant his duties hadn't changed he was still acting as i am i was a regional manager for latin number three number three number four that meetings between mr osborne and mr gary in miami were for personal reasons or in connection with mr osborne's other businesses the court relied for that on the statement of mr gary the court did not mention  and i believe did not look at the statement of mr osborne which says exactly the opposite that he met with mr garrett there's a conflict and they haven't so the court can make a fact finding correct but under vermuelen your honor which evidentiary hearing is is conducted the court must construe it i'm sorry when no evidentiary hearing is conducted and there's a conflict in the evidence the court must construe all reasonable inferences in favor of the plane to you know that that's kind of  that may be the role and that may not be the role depending upon how far from you in controls but i have a problem in that ok if you don't ask for the hearing the judge is just going to decide on and she she decide on what you have and she has to make a factual findings that somebody doesn't tell her you have to have a hearing because of all reasonable inferences must be drawn in our favor and now i want an evidentiary hearing and i want to bring in these witnesses there what's the judge supposed to do and it's a difficult situation your honor i agree at the time that that this was argued at the time the renewed motion to dismiss was submitted and we responded we believe that the record  accurately represented our position with regard to the fact judge didn't buy it and so that's why i'm saying your main argument is she didn't pay attention to anything we said we didn't get a fair way she didn't pay us and there's no indication in the orders good in the supreme court they explained it pretty well in the tort case yes i'm not sure what for contracts case a menace that's it's and actually question certainly our position as i mentioned in the beginning of the presentation is that the grab them in here is the withdrawal of support from mr osborne in bolivia which caused him to have to defend at great personal expense for which he was he was never reimbursed oh the gravity men of your case even though the negotiations and the contract performance were basically in bolivia that the injury to you was that withdrawal of support that was the gravel men and that happened from miami that is that is our position do you fit that into the supreme court's a statement that all the elements have to be from the united states there seems to be a little hard with torts versus contra that's correct and there seems to be a little bit of tension there in the way that i read the the supreme court's opinion in that they were they were very clearly backing away from a an examination of the elements standard and instead saying we need to look at where the foundation of the grab them in of this case is but then they include this language to say you know all of the elements and i think ultimately that's  what it's there is a tension there i think if you grab them in a really shouldn't have to do with the elements it's really about you know where the center that where the damage lies where the boys fingers are pinched i supposes ok where did your client live throughout all of this in bolivia o'connor yes thank you particular conduct that constitutes the government of the suit in other words what is the core of the suit and if you look at the allegations pled by mr osborne as well as the evidence a deuced during discovery all of that as judged to be no noted occurred in bolivia and israel no contracts were signed in miami no damages arose in miami everything occurred abroad  and in fact no promises were made in miami counsel for mr as boone suggested that gerry provided support from miami to him through i am i but that's not what the allegations claim and that's not what the evidence showed in fact what the evidence shows is that jerry had no binding authority in miami to do anything and so all the negotiations all the decision making on behalf of i am my all the contracts that were signed and executed and negotiated occurred in israel the the core of the suit here which is that he is seeking reimbursement for his assists the assistance that he provided allegedly in the proceedings occurred in bolivia and in fact any promises that were made according to the complaint those promises were made when he visited israel so even the only thing that that osborne had pointed to previously in connecting miami or the united states to him or to i am i is the fact that as we all know is that there were six meetings over eighty twenty year period we don't know what those meetings were about we don't know when those meetings were held what we do know from the record is that the meetings were not held for the sole purpose of the so called meetings were not held for the sole purpose of having discussions and i am i dealing as they were purely incidental he had meetings in miami and he's in miami no evidence that over twenty years they communicated about these contracts there is no concrete evidence all we know is that there were meetings we don't know what those meetings exactly discussed and he said concrete evidence i wanted so many years he's working in bolivia and supposedly he's doing something with mr jerry there's no evidence of any telephone communications any e mails any discussions between the two of them over twenty years except for the six meetings right there the e mail communication  mostly as the record will show was mostly for involving i am i am bolivia bolivia and mr as boone i am i internally but the regardless of those discussions in miami which mr gerry testifies that are talking about the six this isn't a slash work meetings the six the six conversations that i think were incidental in miami where were and mr as we actually testifies that he you know he for instance would travel to miami en route elsewhere to israel for example and he yes he would dine with mr jerry and they had a very good friendship according to mr jerry twenty years i believe i'm quoting directly mr jerry said they had a very special relationship and so they talked about everything they talked about family they talked about work as most of us do and so but nothing nothing of legal import occurred in miami because all the authority and  knows this all the authority comes from israel not from miami and if i can direct your attention very very briefly to some of the testimony i passed through bolivia and the office in colombia in colombia where in fact the relationship between mr gerry mr as boone began the investigation began in ninety nine and that is when he was  working for i am i and he was supposedly helping out with the investigation and then you know in two thousand and two we have his he was helping put together the presentation for i m i for the maintenance on our project which to the bolivian government which bolivia ultimately accepted and then in two thousand and seven he went to israel to meet with i am my officials to discuss purportedly has his payment plan  but the the other point i want to make that's very important and this is something that judge racine i think you mentioned earlier is that there is no factual dispute in the  record everything that mr as boone points out in the briefing below is fully supported and can be reconciled so for example i think one of the things that we had i don't know that i said that i said that the district court resolve some factual disputes i mean they're saying mister jerry was their regional representative for bolivia and all of latin america operating out of miami and that he was overseeing these contracts and giving mister as boone support and you say no he was the sultan but he wasn't allowed to do anything on these contracts and i think but so i think there is conflicting evidence in the record i just think the district judge may have resolved it i don't know if she resolved it properly but it sounds like she attempted to resolve it i apologize for misspeaking what let me step back if if that's ok first when you are challenging subject matter jurisdiction the court is not constrained to accept the truthfulness of the allegations that of the party seeking jurisdiction last and then it has to go back for an evidentiary hearing i just don't know that that applies when nobody asks for one that's true and actually in vermillion that it that comes up in the person on jurisdiction contacts this n s i yes covering both personal and she sure sure that's why i'm a little confused as to whether you apply it i guess but what i think is important here your honor is that respectfully the purported conflicts in the evidence are really just legal conclude conclusions that mr as draws but that are not factually supported by the record for example the easiest one i think ok is i am i has an office in miami ok that is a legal assertion that he makes what the evidence shows is that in fact the the location that is identified in the allegations in the complaint belongs to a corporate office owned by mr jerry has nothing to do with i am i the the if there is no office presence in miami or in the united states and that's also supported by the and he works out of his home and he works and i says i'm the reason the representative operating out of miami worked on all of this well he didn't say that he did work for israel and he would he would travel for weeks at a time and he would just come home and sleep like most of us he would yes he would take work home with him but but this it was actually working or i thought i saw a reference that i am entirely clear he worked for i am my services usa which is a separate and distinct legal entity nothing nothing at all was alleged to have occurred with respect to i am usa i am i guess it has nothing to do with it but you know the important thing here to keep in mind too is that no negotiations no promises no contracts nothing occurred in miami and most you have is you know these meetings that occurred that were not solely soley held for that purpose it wasn't as if that said a meeting let's discuss this why don't you come down to miami and we can meet that never that never happened and his best evidence by the way is the affidavit he produced after the deposition was taken and the affidavit doesn't make any claims to the contrary it in fact it there's no discussion of any negotiations any contract signed nothing with respect to miami he he actually corroborates the notion that the meetings were incidental because he says i flew in twice to miami to then head out to israel which is what gerry says so you know there he never he never says to the contrary in other words there's no argument or allegation to that and by his own mission i mean the the contracts that were signed the reason why he's claiming relief is because of things that transpired in bolivia in israel nothing happened here no injuries arose here no damages and in fact he actually  eges that the injuries that he had it's one of the other gay sions occurred in bolivia that was something that was not argued there was no evidence produced to address that issue our position is that we have a form selection cos it's mandatory is presumptive representative agreement which by the way the complaint actually invokes in the book and it says litigation train the parties who should be in israel the form selection clause says yes israeli law governs and all courts to statue of limitations ran in israel we reserve we had we said that we reserved our right to raise that as a defense minister as boone provided no evidence to suggest that israel would be an the laws of the state of israel exclude excluding its conflict of laws rules the competent courts in israel shall have exclusive jurisdiction in all matters concerning the agreement and so just to kind of wrap up this thought to have a little bit of time so same page here is that mr as boone testified that l o the and himself are the same thing so he operates through elo and there's testimony to that point so as you're saying just to be know there are i did thank you your honors to address the issue alternative bases that were raised the contracts that i am i has put forth are very limited in their application they are specifically limited in their term  and none of these written contracts in fact to govern the time periods when first the galileo contract was negotiated in obtained by mr osborne or when he was negotiating the maintenance center project which is really all these all don't have a contract for that you did not even have a contract on the basis of an oral agreement between them so the written contract to do not apply in this case with regard to foreign non convenience relevant to our claims they were operating under all agreements your honor agreements i believe they wouldn't it wouldn't have been miami if that's your question it wouldn't have been miami if you'll remember the basis of this case is that the government of israel refused to participate in the investigative proceedings of the republic of bolivia if the government of israel is  willing to to even recognize and participate with the republic of bolivia it's our view that mr osborne is not very likely to get a fair hearing from the government of israel your time has