17-3983 

Williams v. Romarm, S.A.

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION 

TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED 

AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS 

COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT 

FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 

OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A 

PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY 

NOT REPRESENTED BY COUNSEL. 

 At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New York, 

on the 20th day of September, two thousand eighteen. 

PRESENT: 

JON O. NEWMAN, 

DENNIS JACOBS,

ROSEMARY S. POOLER,

Circuit Judges. 

_____________________________________ 

NORMAN WILLIAMS, 5802 DADE STREET 

CAPITOL HEIGHTS, MD 20743 AS LEGAL 

REPRESENTATIVE OF J.H., DIANE 

HOWE, 1331 ALABAMA AVENUE, SE 

WASHINGTON, DC 20035 AS LEGAL 

REPRESENTATIVE OF J.H, JAMEL 

BLAKELEY, WASHINGTON, D.C., AND 

KEVIN ATTAWAY, WASHINGTON, D.C., 

 Plaintiffs–Appellants, 

 -v.- 17-3983 

ROMARM, S.A., BD. TIMISORA NR. 5B, 

SECTOR BUCHAREST ROMANIA 061301, 

 Defendant-Appellee. 

__________________________________ 
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FOR PLAINTIFFS-APPELLANTS: Daniel Wemhoff, Law Office of 

Daniel Wemhoff, Arlington, VA. 

With Daniel Arshack, Arshack, 

Hajek & Lehman, New York, NY, 

on the brief.

FOR DEFENDANT–APPELLEE: Jeffrey M. Malsch (with Anthony 

M. Pisciotti and Danny C. 

Lallis, on the brief), Pisciotti 

Malsch, White Plains, NY. 

 

Appeal from a judgment of the United States District 

Court for the District of Vermont (Reiss, Ch.J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court is 

AFFIRMED. 

Three shooting victims sue the gun manufacturer under a 

strict liability law enacted by the District of Columbia; 

and they appeal from an order of the United States District 

Court for the District of Vermont (Reiss, Ch.J.) dismissing 

their action for lack of subject matter jurisdiction. The 

district court held that the defendant, Romarm, which is 

wholly owned by the Romanian government, was immune from 

suit under the Federal Sovereign Immunities Act (“FSIA”). 

The plaintiffs also appeal from a subsequent order denying 

their motion pursuant to Federal Rule of Civil Procedure 59 

to alter or amend the judgment. We assume the parties’ 

familiarity with the underlying facts, the procedural 

history, and the issues presented for review. 

In two separate shootings in the District of Columbia, 

J.H. was killed, and Jamel Blakeley and Kevin Attaway 

sustained serious injuries. The firearm used in the 

shootings was manufactured by the defendant, Romarm, in 

Romania in the 1970s, and was sold to a dealer in 2006, 

which imported it to Vermont, whence it was sold to dealers 

in Ohio and Maryland, and then to an unidentified 

purchaser. The shootings took place in March 2010. The 

Amended Complaint does not allege how the firearm ended up 

in the District of Columbia in 2010 or who used it to shoot 

the plaintiffs. 
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J.H. (by his legal representatives), Blakeley, and 

Attaway brought claims pursuant to the District of Columbia 

Strict Liability Act: 

Any manufacturer, importer, or dealer of an 

assault weapon or machine gun shall be held 

strictly liable in tort, without regard to fault 

or proof of defect, for all direct and 

consequential damages that arise from bodily 

injury or death if the bodily injury or death 

proximately results from the discharge of the 

assault weapon or machine gun in the District of 

Columbia. 

D.C. Code § 7-2551.02. The plaintiffs’ claim is that 

Romarm is strictly liable for any damages caused to them by 

the shooting because Romarm manufactured the firearm that 

was used in the shooting and caused their injuries. 

Romarm asserts immunity from suit because it qualifies 

as a foreign state under the FSIA and no exception is 

applicable in this case. The FSIA “provides the sole basis 

for obtaining jurisdiction over a foreign state in federal 

court.” Argentine Republic v. Amerada Hess Shipping Corp., 

488 U.S. 428, 439 (1989). “Under the Act, a foreign state 

is presumptively immune from the jurisdiction of United 

States courts; unless a specified exception applies, a 

federal court lacks subject-matter jurisdiction over a 

claim against a foreign state.” Saudi Arabia v. Nelson, 507 

U.S. 349, 355 (1993). 

It is undisputed that Romarm qualifies as a foreign 

state and is therefore immune from suit unless an exception 

applies under the FSIA. The plaintiffs invoke the third 

clause of the commercial-activity exception in the FSIA: 

A foreign state shall not be immune from the 

jurisdiction of courts of the United States or of 

the States in any case . . . in which the action 

is based . . . upon an act outside the territory 

of the United States in connection with a 
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commercial activity of the foreign state elsewhere 

and that act causes a direct effect in the United 

States. 

28 U.S.C. § 1605(a)(2). 

A “direct effect” under this clause must “follow[] as 

an immediate consequence of the defendant’s . . . 

activity.” Atlantica Holdings v. Sovereign Wealth Fund 

Samruk-Kazyna JSC, 813 F.3d 98, 108 (2d Cir. 2016) 

(internal quotation marks omitted). A consequence is 

“immediate” if there is no “intervening element” between 

the defendant’s activity and the effect of that activity. 

Guirlando v. T.C. Ziraat Bankasi A.S., 602 F.3d 69, 74 (2d 

Cir. 2010). An effect “need not be either substantial or 

foreseeable;” but “[t]he requisite immediacy is lacking 

where the alleged effect depends crucially on variables 

independent of the conduct of the foreign state.” Id. at 

74-75 (internal quotation marks omitted). As the district 

court concluded, the plaintiffs have not demonstrated that 

their injuries followed as a direct effect of commercial 

activities by Romarm, namely, manufacture of the firearm. 

After manufacture by Romarm in the 1970s, the firearm 

was imported from Romania into Vermont in 2006, where it 

was then sold to a Federal Firearm Licensee (“FFL”) dealer 

in Ohio, which sold the firearm to another FFL dealer in 

Maryland, which re-sold it. The firearm ultimately ended 

up in the District of Columbia--though the plaintiffs do 

not allege how this happened--where it was used by an 

unidentified person to shoot J.H., Attaway, and Blakeley. 

The plaintiffs do not allege that any of these transactions 

were unlawful. 

In any event, the use of the firearm to inflict harm by 

an unidentified person (or persons) is an intervening act 

and constitutes a “variable[] independent of the conduct of 

the foreign state.” Guirlando, 602 F.3d at 75 (internal 

quotation marks omitted). Given that a third party used 

the firearm illegally to shoot the plaintiffs, the damages 

they suffered cannot be said to be the “immediate 
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consequence” of Romarm’s commercial activity. See Virtual 

Countries, Inc. v. Republic of South Africa, 300 F.3d 230, 

237-38 (2d Cir. 2002) (finding that there was no direct 

effect where the alleged injury would not have occurred but 

for the actions of various third parties). 

 “[A] determination [that a tort’s locus is the United 

States] will ordinarily be sufficient, if not invariably 

necessary, to confer FSIA jurisdiction under our 

precedents.” Atlantica Holdings, 813 F.3d at 109 (emphasis 

added). However, “the mere fact that a foreign state’s 

commercial activity outside of the United States caused 

physical or financial injury to a United States citizen is 

not itself sufficient to constitute a direct effect in the 

United States.” Guirlando, 602 F.3d at 78. Where, as 

here, it is clear that the plaintiffs’ injury was not the 

direct effect of the defendant’s commercial activities, the 

FSIA does not confer jurisdiction over the suit even though 

the plaintiffs were injured in the United States. 

The plaintiffs’ likening of this case to cases 

involving defective products is misplaced. In those cases, 

the defective manufacturing of the product had a direct 

effect in the United States because the product defect was 

the actual cause of the injury. See, e.g., Vermeulen v. 

Renault, U.S.A., Inc., 985 F.2d 1534, 1545 (11th Cir. 1993) 

(holding that a complaint that alleged that the plaintiff 

suffered injuries in an automobile accident as a result of 

the defendant’s negligent design and manufacture of the 

vehicle satisfied the direct effect test). Here, there is 

no allegation that Romarm was negligent, or that the 

firearm was defective. Plaintiffs allege that they were 

injured by the use of the product by an intervening actor, 

not by the manufacture. 

On appeal, the plaintiffs also argue that subject 

matter jurisdiction exists under the first clause of the 

commercial-activity exception. See 28 U.S.C. § 1605(a)(2). 

But that argument was not raised by the plaintiffs below in 

their opposition to Romarm’s motion to dismiss and 

therefore was waived. See Millea v. Metro-N. R.R. Co., 658 
6 

F.3d 154, 163 (2d Cir. 2011). While the plaintiffs raised 

this argument in a Rule 59 motion before the district court 

after Romarm’s motion to dismiss was granted, the district 

court ruled that the plaintiffs had no justification for 

failing to raise the argument earlier. And, in any event, 

“[g]enerally, we will not consider an argument on appeal 

that was raised for the first time below in a motion for 

reconsideration.” Sompo Japan Ins. Co. of Am. v. Norfolk 

S. Ry. Co., 762 F.3d 165, 188 (2d Cir. 2014) (internal 

quotation marks omitted). 

We conclude that the plaintiffs’ Rule 59 motion was 

properly denied. We review the district court’s decision 

to deny reconsideration for abuse of discretion. Analytical 

Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d 

Cir. 2012). The motion for reconsideration merely 

reiterated earlier arguments without “point[ing] to 

controlling decisions or data that the court overlooked” 

and raised new arguments that could have been raised in the 

opposition to the motion to dismiss. Id. (internal 

quotation marks omitted). The court therefore acted within 

its discretion when it denied the motion. 

We have considered the plaintiffs’ remaining arguments 

and find them to be without merit. For the foregoing 

reasons, we AFFIRM the judgment of the district court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court