Gupta v. Thai Airways International, Ltd.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SUBIR GUPTA, 
Plaintiff-Appellee, No. 04-56389
v.
 D.C. No.
CV-04-00152-RT
THAI AIRWAYS INTERNATIONAL,
LTD., OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, Senior District Judge, Presiding

Argued October 25, 2006
Pasadena, California
Submitted May 30, 2007

Filed May 30, 2007

Before: Eugene E. Siler, Jr.,* A. Wallace Tashima, and
Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea;
Dissent by Judge Tashima

*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.

6451
 GUPTA v. THAI AIRWAYS INTERNATIONAL 6453

COUNSEL

Mark S. Priver, Ohashi & Priver, Pasadena, California, and
David A. Nelson, Nelson Law Firm, P.C., Pasadena, Califor-
nia, for the the defendant-appellant.
6454 GUPTA v. THAI AIRWAYS INTERNATIONAL
Luis E. Lopez, Lopez & Morris, LLP, Riverside, California,
for the plaintiff-appellee.

OPINION

BEA, Circuit Judge:

Thai Airways, International (“Thai Airways”) appeals from
the district court’s order denying Thai Airways’ motion to
dismiss for lack of subject matter jurisdiction pursuant to Fed.
R. Civ. P. 12(b)(1). Thai Airways claims the district court
erred in refusing to recognize the preclusive effect (“res judi-
cata”) of an earlier order dismissing, under the Foreign Sover-
eign Immunities Act (“FSIA” or “Act”), 28 U.S.C. §§ 1330,
1602 et seq., an identical action brought by Gupta. That Cali-
fornia order of dismissal was not appealed, and is now final.
We raised the issue of jurisdiction during oral argument sua
sponte and asked the parties to submit briefing on the discrete
issue whether this court has jurisdiction to consider the dis-
trict court’s holding that res judicata does not apply in this
case. We conclude that we have jurisdiction, and we reverse.

I.

Subir Gupta, Plaintiff-Appellee, was scheduled to fly from
Bangkok to Los Angeles. When Gupta attempted to board the
plane bound for Los Angeles, Thai Airways employees
refused to allow Gupta to board because they determined his
United States Visa was invalid. Gupta claims the employees
“subjected him to unwarranted accusations of fraud after [he]
presented a valid and current U.S. Visa.” Gupta was unable
to fly to Los Angeles on this date and claims he missed a
lucrative business meeting.

Gupta timely filed a complaint in California Superior
Court, Los Angeles County, alleging Thai Airways employees
 GUPTA v. THAI AIRWAYS INTERNATIONAL 6455
subjected him to unwarranted accusations of fraud regarding
his visa that led to professional business losses. Gupta’s com-
plaint alleged claims of (1) negligence; (2) respondeat supe-
rior liability; (3) negligent hiring, training, and/or retention of
unfit employee; (4) intentional infliction of emotional dis-
tress; (5) employer’s authorization of employee’s wrongful
conduct; (6) slander per se; and (7) intentional interference
with contractual relations.

Thai Airways successfully moved to dismiss for lack of
subject matter jurisdiction1 asserting it was a “foreign state”
under FSIA, and no exception to the FSIA was applicable.2
1
In California the typical method for raising lack of subject matter juris-
diction is by means of a demurrer. California Code of Civil Procedure
(“CCP”) § 430.30(a) (“When any ground for objection to a complaint . . .
appears on the face thereof . . . the objection on that ground may be taken
by a demurrer to the pleading.”). Motions to dismiss for lack of subject
matter jurisdiction, however, have been recognized in California case law.
See, e.g., Goodwine v. Superior Court, 63 Cal. 2d 481, 483-85 (1965); In
re Guardianship of Donaldson, 178 Cal. App. 3d 477, 484-85 (1986).
These motions have been described as “a substitute[ ] for general demur-
rer.” 5 Witkin, California Procedure, Pleading, § 956 (4th ed. 1997). The
fact that a motion to dismiss for lack of subject matter jurisdiction was
used in this case rather than a general demurrer does not affect the analysis
here because a general demurrer alleging the same facts would have been
sustained given Thai Airways’ immunity under the FSIA, and Gupta’s
failure to plead an exception to the FSIA. See id. (explaining that “any
procedural error in eliminating the complaint by motion rather than
demurrer is not prejudicial or reversible if a general demurrer could have
been properly sustained without leave to amend”).
2
United States courts, both federal and state, possess subject matter and
personal jurisdiction over a “foreign sovereign” only when an exception
to the FSIA applies. Compania Mexicana de Aviacion, S.A. v. U.S. Dist.
Ct., 859 F.2d 1354, 1358-59 (9th Cir. 1988) (per curiam). The California
Court of Appeal has explained that the FSIA “is the sole basis for obtain-
ing jurisdiction over a ‘foreign state’ ” in California state court. Bolkiah
v. Super. Ct., 74 Cal. App. 4th 984, 992 (1999). Thus, although Gupta’s
complaint alleged tortious action by Thai Airways—a subject matter over
which the superior court normally would have jurisdiction—the superior
court’s jurisdiction over Thai Airways depended on the applicability of an
exception to the FSIA.
6456 GUPTA v. THAI AIRWAYS INTERNATIONAL
The superior court rejected Gupta’s assertion that Thai Air-
ways had implicitly waived its immunity under 28 U.S.C.
§ 1605(a)(1) by communicating with Gupta regarding Gupta’s
suit and by not responding to the service of the complaint.
Consequently, the court held Thai Airways immune from suit
in United States courts in accordance with 28 U.S.C. § 1604
(“[A] foreign state shall be immune from the jurisdiction of
the courts of the United States and of the States . . . .”). Gupta
did not appeal the state court’s order dismissing the action.3
Rather, Gupta filed a complaint in federal district court in Jan-
uary 2004, alleging identical causes of action as those raised
in the dismissed state court complaint.

Thai Airways moved to dismiss Gupta’s federal case pursu-
ant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(3)
forum non conveniens. Regarding Rule 12(b)(1), Thai Air-
ways asserted that the issue of subject matter jurisdiction and
immunity under the FSIA was res judicata by virtue of the
state court’s prior determination of these issues. Thai Airways
also argued, without reliance on res judicata, that it was a for-
eign state and that no exception to the FSIA was applicable.

Thai Airways is 79% owned by the Ministry of Finance of the Kingdom
of Thailand. Under federal law, an entity whose controlling shares or
majority interest is owned by a foreign state or political subdivision is
itself a “foreign state.” 28 U.S.C. § 1603(b)(2). The FSIA provides that a
foreign state is immune from suit in state and federal court unless an
exception to the FSIA applies. Id. § 1604. Gupta has never contended Thai
Airways is not a “foreign state.”
3
The superior court’s order is final because Gupta neither amended the
complaint nor appealed the dismissal within the time allowed for such
actions. “An action is deemed to be pending from the time of its com-
mencement until its final determination upon appeal, or until the time for
appeal has passed . . . .” Cal. Civ. Proc. Code § 1049 (emphasis added).
Pursuant to the California Rules of Court, Gupta had 60 days to file a
notice of appeal. Cal. Rules of Court 8.104(a). Thus, when the 60 days
passed without a notice of appeal, the superior court’s order became final
on December 15, 2003.
 GUPTA v. THAI AIRWAYS INTERNATIONAL 6457
Gupta responded by asserting that Thai Airways is subject
to the jurisdiction of United State courts pursuant to the War-
saw Convention, which governs the international transporta-
tion of passengers and cargo. See Convention for the
Unification of Certain Rules Relating to International Trans-
portation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876
(1934), reprinted in note following 49 U.S.C. § 40105.4 Gupta
also argued that the forum was proper because the Warsaw
Convention allowed for suit “at the place of destination.”

In ruling on Thai Airways’ motion to dismiss, the district
court held that the prior state judgment did not bar re-
litigation of the claim in federal court. Nominally applying the
preclusion rules of California, the court explained that “a
court’s dismissal for lack of jurisdiction is not res judicata as
to the merits of the claim because it was not a judgment on
the merits.” Because the state court’s order dismissed
Gupta’s action for lack of subject matter jurisdiction based on
Thai Airways’ immunity under the FSIA, the court held it
“was not a judgment on the merits and has no preclusive
effect.”

Next the district court held that “[s]uits against foreign
states under the Warsaw Convention are excepted from FSIA
immunity.” On this basis, the district court then held that the
suit against Thai Airways, even though it is a foreign state-
owned carrier, was properly brought in United States federal
court. The Convention applied to this case, the district court
reasoned, because the act of embarking on an international
airline flight was sufficient to bring the incident within the
ambits of the Convention.
4
Gupta argued Articles 17 and 19 of the Warsaw Convention brought
Thai Airways within the jurisdiction of United States courts despite the
FSIA. Article 17 provides for carrier liability when physical injury occurs
on board the aircraft or in the course of embarking or disembarking the
aircraft. Article 19 provides for carrier liability for damage caused “by
delay in the carriage by air of passengers, luggage or goods.”
6458 GUPTA v. THAI AIRWAYS INTERNATIONAL
Finally the court explained that the forum was proper
because Article 28 of the Warsaw Convention allows for
actions brought before a court located in the place of the pas-
senger’s destination. Since Gupta was bound for Los Ange-
les, the district court held that forum is proper in federal
district court in California.

Thai Airways now appeals the district court’s order deny-
ing its motion to dismiss on grounds of Rule 12(b)(1). Thai
Airways argues that Gutpa’s action in federal court is barred
under principles of res judicata because the state court deter-
mined that Thai Airways is immune from suit in the United
States on the identical claims asserted in Gupta’s federal com-
plaint.

II.

Because this appeal is from an order denying a motion to
dismiss for lack of subject matter jurisdiction—an order
which ordinarily is not appealable—we must first determine
whether we have jurisdiction to consider Thai Airways’
appeal. See Savage v. Glendale Union High Sch., 343 F.3d
1036, 1040 (9th Cir. 2003) (stating that “the denial of a
motion to dismiss is ordinarily not a complete and final judg-
ment subject to appeal . . .”). Although the parties did not
raise the issue of jurisdiction, we have the obligation to con-
firm our jurisdiction sua sponte before determining whether
the California state court’s holding that Thai Airways is
immune from suit under the FSIA is res judicata in federal
court. WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th
Cir. 1997) (en banc) (“Although the parties did not raise the
question of our jurisdiction, we have raised it sua sponte, as
we must.”). We conclude that jurisdiction exists.

[1] The FSIA “is the exclusive source of subject matter
jurisdiction over all suits involving foreign states or their
instrumentalities.” Compania Mexicana de Aviacion, S.A. v.
U.S. Dist. Ct., 859 F.2d 1354, 1358 (9th Cir. 1988) (per
 GUPTA v. THAI AIRWAYS INTERNATIONAL 6459
curiam). Hence, only if one of the Act’s “specified exceptions
to sovereign immunity applies” may a court exercise subject
matter jurisdiction over a foreign sovereign. Verlinden B.V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 489 (1983).5

[2] Because jurisdiction over a foreign sovereign may be
exercised only by applicability of an exception to the FSIA,
we have long held that “an order denying immunity under the
FSIA is appealable under the collateral order doctrine.” Com-
pania Mexicana, 859 F.2d at 1358.6 “An interlocutory appeal
5
In Verlinden, the Supreme Court further explained:
The [FSIA] must be applied by the District Courts in every action
against a foreign sovereign, since subject matter jurisdiction in
any such action depends on the existence of one of the specified
exceptions to foreign sovereign immunity[.] At the threshold of
every action in a District Court against a foreign state, therefore,
the court must satisfy itself that one of the exceptions applies—
and in so doing it must apply the detailed federal law standards
set forth in the Act.
461 U.S. at 493-94.
6
In Compania Mexicana, as in this case, the district court denied a
motion to dismiss for want of jurisdiction on the basis of foreign sovereign
immunity. 859 F.2d at 1357. We explained that the collateral order doc-
trine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), con-
templates interlocutory review of a small class of “orders that conclu-
sively determine the disputed question, resolve an important issue com-
pletely separate from the merits of the action, and are effectively unre-
viewable on appeal from a final judgment.” Compania Mexicana, 859
F.2d at 1358. Orders dealing with foreign sovereign immunity fell within
this class of collateral orders, we reasoned, because like claims of absolute
or qualified immunity of a public official, foreign sovereign immunity “is
an immunity from suit rather than a mere defense to liability; it is effec-
tively lost if a case is erroneously permitted to go to trial.” Id. (emphasis
added) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). We also
noted that both the text of the FSIA and the legislative history of the Act
“support[ed] a prompt appellate determination of sovereign immunity.” Id.
Our later case law on the subject has only reaffirmed the holding of Com-
pania Mexicana. See Blaxland v. Commonwealth Dir. of Pub. Prosecu-
tions, 323 F.3d 1198, 1203 (9th Cir. 2003); Phaneuf v. Republic of
Indonesia, 106 F.3d 302, 304 (9th Cir. 1997).
6460 GUPTA v. THAI AIRWAYS INTERNATIONAL
insures that ‘a foreign state shall be immune from the jurisdic-
tion of the courts of the United States and of the States except
as provided [in the Act].’ ” Id. (alteration in the original)
(quoting 28 U.S.C. § 1604).7 Accordingly, we have jurisdic-
tion over the order denying Thai Airways’ Rule 12(b)(1)
motion.

We note that each of our sister circuits that has considered whether a
denial of a motion to dismiss on grounds of foreign sovereign immunity
is an appealable collateral order have unanimously held that it is. See Rux
v. Republic of Sudan, 461 F.3d 461, 466-67 (4th Cir. 2006); Southway v.
Cent. Bank of Nigeria, 198 F.3d 1210, 1214 (10th Cir. 1999); Rein v.
Socialist People’s Libyan Arab Jamahiriya, 162 F.3d 748, 755-56 (2d Cir.
1998); Hond. Aircraft Registry, Ltd. v. Gov’t of Hond., 129 F.3d 543, 545
(11th Cir. 1997); Fed. Ins. Co. v. Richard I. Rubin & Co., Inc., 12 F.3d
1270, 1279-82 (3d Cir. 1993); Stena Rederi AB v. Comision de Contratos,
923 F.2d 380, 385-86 (5th Cir. 1991); Foremost-McKessen, Inc. v. Islamic
Republic of Iran, 905 F.2d 438, 442-43 (D.C. Cir. 1990); Gould, Inc. v.
Pechiney Ugine Kuhlmann, 853 F.2d 445, 450-52 (6th Cir. 1988); Segni
v. Commercial Office of Spain, 816 F.2d 344, 346-47 (7th Cir. 1987).
7
We reject Gupta’s contention that the Supreme Court’s decision in Will
v. Hallock, 126 S. Ct. 952 (2006), disallows interlocutory review of ques-
tions of foreign sovereign immunity. The issue in Hallock dealt only with
“whether a refusal to apply the judgment bar of the Federal Tort Claims
Act is open to collateral appeal.” Id. at 956. In ruling such refusal does not
constitute an appealable collateral order, the Court stressed that the class
of collaterally appealable orders is “narrow and selective in its member-
ship.” Id. at 958. The Court listed orders that fall within this narrow class
and included orders denying absolute and qualified immunity in the list,
id.—orders we analogized to orders denying a foreign sovereign immunity
under FSIA in Compania Mexicana. 859 F.2d at 1358. The Court reiter-
ated the three factors to consider in determining whether an order is collat-
erally appealable: “ ‘[1] conclusively determine the disputed question, [2]
resolve an important issue completely separate from the merits of the
action, and [3] be effectively unreviewable on appeal from a final judg-
ment.’ ” Hallock, 126 S. Ct. at 957 (alteration in the original) (quoting
Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 144 (1993)). These are the precise factors we analyzed in Compania
Mexicana. 859 F.2d at 1358. In short, nothing in Hallock causes us to
question the reasoning of Compania Mexicana and our later case law that
holds orders denying a foreign sovereign immunity are immediately
appealable collateral orders.
 GUPTA v. THAI AIRWAYS INTERNATIONAL 6461
Thai Airways moved the district court to dismiss Gupta’s
action on two grounds: lack of subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1) and forum non conveniens
under Fed. R. Civ. P. 12(b)(3).8 In support of its motion to
dismiss under Rule 12(b)(1), Thai Airways briefed two
grounds for dismissal in the alternative: (1) the state court’s
decision already determined Thai Airways’ immunity under
FSIA and, under principles of res judicata, therefore pre-
cludes further review of the issue; and (2) Thai Airways is a
“foreign state” within the meaning of FSIA, and no FSIA
exception is applicable to confer the court jurisdiction. The
district court rejected both of Thai Airways’ arguments and
issued an order denying Thai Airways’ motion to dismiss for
lack of jurisdiction.

It is from this order that Thai Airways is appealing. Under
Compania Mexicana, we may review this order denying Thai
Airways immunity under the FSIA.9
8
Thai Airways does not appeal its claim of forum non conveniens. If it
had, we would have lacked jurisdiction to consider that claim. See Coyle
v. P.T. Garuda Indonesia, 363 F.3d 979, 984 (9th Cir. 2004).
9
The dissent faults our conclusion on the basis the Thai Airways’ res
judicata claim does not involve FSIA immunity. Were the issue of res
judicata fully divorced from the issue of FSIA immunity, we would agree
with the thoughtful and cogent dissent and dismiss for want of appellate
jurisdiction. However, we do not agree with the dissent’s premise, which
ignores that Thai Airways’ res judicata claim involves FSIA immunity;
indeed it is based in FSIA immunity and nothing else. As explained above,
Thai Airways is appealing from the district court’s order denying Thai
Airways FSIA immunity; we understand Thai Airways’ claim on appeal
to be that it is entitled to FSIA immunity because the state court’s decision
holding Thai Airways was so immune is res judicata in federal court:
A district court judgment dismissing an action for lack of subject
matter jurisdiction because of FSIA is determinative of the sover-
eign immunity question. Thus, a private party, who lost on the
question of jurisdiction, cannot bring the same case in a state
court claiming the federal court’s decision extended only to the
question of federal jurisdiction and not to sovereign immunity or
only had force in the federal courts.
6462 GUPTA v. THAI AIRWAYS INTERNATIONAL
III

A.

The existence of subject matter jurisdiction under the FSIA
is a question of law reviewed de novo. See Coyle v. P.T.
Garuda Indonesia, 363 F.3d 979, 984 n.7 (9th Cir. 2004);
Blaxland, 323 F.3d at 1203.

B.

While the order from which Thai Airways is appealing is
one denying its motion to dismiss for lack of subject matter
jurisdiction, Thai Airways’ first theory supporting dismissal is
that the California state court already determined Thai Air-
ways was immune under FSIA. Thus, Thai Airways contends
this determination has preclusive effect in federal court under
the principle of res judicata. We agree.

[3] Whether a prior state court judgment precludes re-
litigation of an identical claim in federal court depends on the

14A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Juris-
diction and Related Matters § 3662 (3d ed. 1998) (emphasis added). The
same result occurs when the private party first brought the case in the state
court, then filed in federal court. See Kremer v. Chem. Constr. Corp., 456
U.S. 461, 466 (1982).
Hence, the “sovereign immunity question” is here settled, and to deny
interlocutory appeal in this case would frustrate the purpose of FSIA,
which is to provide, like qualified immunity, “an immunity from suit rather
than a mere defense to liability . . . .” Compania Mexicana, 859 F.2d at
1358 (emphasis added); see Saucier v. Katz, 533 U.S. 194, 200-01 (2001);
Brittain v. Hansen, 451 F.3d 982, 987 (9th Cir. 2006) (“[Q]ualified immu-
nity is ‘immunity from suit rather than mere defense to liability . . . .”
(quoting Mitchell, 472 U.S. at 526)). Thai Airways’ immunity, to which
it is entitled pursuant to the state court’s decision, would be “effectively
lost if [the] case is erroneously permitted to go to trial.” Compania Mex-
icana, 859 F.2d at 1358.
 GUPTA v. THAI AIRWAYS INTERNATIONAL 6463
preclusion rules of the state. Migra v. Warren City Sch. Dist.
Bd. of Educ., 465 U.S. 75, 81 (1984); Allen v. McCurry, 449
U.S. 90, 96 (1980). This principle results from the statutory
command in 28 U.S.C. § 1738 that “judicial proceedings . . .
shall have the same full faith and credit in every court within
the United States and its Territories and Possessions as they
have by law or usage in the courts of such State from which
they are taken.” “This statute has long been understood to
encompass the doctrines of res judicata, or claim preclusion,
and collateral estoppel, or issue preclusion.” San Remo Hotel,
L.P. v. City and County of San Francisco, Cal., 545 U.S. 323,
336 (2005) (internal quotation marks omitted). Hence, we
look to California law to determine whether principles of res
judicata precluded the district court from deciding anew Thai
Airways’ immunity under the FSIA.

[4] Under California law, “ ‘[a]n order denying a motion or
dismissing a proceeding for procedural reasons such as lack
of jurisdiction is not res judicata as to the merits of any under-
lying substantive question.’ ” Kalai v. Gray, 109 Cal. App.
4th 768, 774 (2003) (emphasis added) (quoting Gorman v.
Gorman, 90 Cal. App. 3d 454, 462 (1979)).10 However, and
10
In Kalai, “underlying substantive question” referred to the merits of
a claim a homeowner-plaintiff brought against a contractor based on a dis-
pute arising from home improvements. 109 Cal. App. 4th at 771-72. The
agreement between the homeowner and the contractor included an arbitra-
tion clause that stated the exclusive remedy for either party would be
through arbitration. Id. The homeowner, however, brought suit in state
court, and “rather than filing a petition to compel arbitration,” the contrac-
tor moved for summary judgment on the basis of the arbitration agree-
ment. Id. at 772. The contractor’s motion was based on Charles J. Rounds
Co. v. Joint Council of Teamsters No. 42, 4 Cal. 3d 888 (1971), “in which
the [California] Supreme Court held that a party faced with a lawsuit filed
in contravention of an arbitration agreement may move for summary judg-
ment as an option to filing a petition to compel arbitration pursuant to
Title 9.” Id. The court granted the motion for summary judgment, and in
so doing, ruled that the homeowner had waived his right to arbitrate by
bringing suit in state court. Id. The homeowner appealed.
6464 GUPTA v. THAI AIRWAYS INTERNATIONAL
determinative here, such dismissal does bar re-litigation of
“ ‘issues necessary for the determination of jurisdiction.’ ”
MIB, Inc. v. Super. Ct., 106 Cal. App. 3d 228, 233 (1980)
(quoting Nichols v. Canoga Indus., 83 Cal. App. 3d 956, 967
(1978)).11 As the California Supreme Court explained, “when
the decision on the jurisdictional question is based upon a
determination of the merits of an issue before the court, it
constitutes a binding determination of that issue.” Shore v.
Shore, 43 Cal. 2d 677, 681 (1954).

The appellate court reversed, holding that the homeowner did not waive
his rights to arbitrate by filing suit in state court. In so ruling, the court
mentioned, among numerous other grounds, that the homeowner had not
litigated the merits of his claims in superior court, and therefore the deci-
sion did not preclude arbitration. Id. at 773-74. Kalai does not address the
preclusive effect of a determination of jurisdictional facts, which is the
discrete issue here.
11
In MIB, a nonresident corporate defendant served with summons and
complaint by mail filed a motion to quash the service of summons on two
grounds: lack of jurisdiction because the defendant did not have sufficient
contacts with California, and res judicata. The defendant asserted res judi-
cata because rulings in three prior actions filed by plaintiff against the
defendant had determined that the defendant had insufficient contacts with
the state to be subject to personal jurisdiction in California. 83 Cal. App.
3d at 230. The trial court denied the defendant’s motion, and the defendant
appealed. The California Court of Appeal reversed based on the “res judi-
cata effect to findings of jurisdictional facts . . . .” Id. at 234. Although a
dismissal because of lack of jurisdiction is not res judicata on the merits
of the underlying action, “a finding with respect to jurisdictional facts will
be treated as res judicata in subsequent actions” with respect to those facts.
Id. at 232. Because the facts underlying California’s personal jurisdiction
over the defendant had already been determined in the previous actions,
the plaintiff was prohibited from re-litigating the issue of California
courts’ personal jurisdiction over the defendant.
The decision in MIB fully accords with the explanation in Kalai that
dismissal for procedural reasons does not bar future litigation of the merits
of a claim. MIB simply prohibits re-litigation of jurisdictional facts already
decided; the merits of the claim may still be litigated in a court of compe-
tent jurisdiction. The present case is analogous to MIB because the supe-
rior court here made findings on jurisdictional facts.
 GUPTA v. THAI AIRWAYS INTERNATIONAL 6465
C.

[5] Here, the California state court concluded it lacked sub-
ject matter jurisdiction because Thai Airways is 79% owned
by the Ministry of Finance of the Kingdom of Thailand and
is therefore immune from suit in courts in the United States
under the FSIA. See 28 U.S.C. § 1603(b)(2) (including as a
“foreign state” “any entity . . . a majority of whose shares or
other ownership interest is owned by a foreign state or politi-
cal subdivision thereof”). The state court further concluded
Gupta had not alleged any of the exceptions to the FSIA
applied to Thai Airways. These findings were necessary to the
determination of jurisdiction and therefore have a preclusive
effect under Shore, 43 Cal. 2d at 681, and MIB, 106 Cal. App.
3d at 231-35.12
12
We note that the result here is not affected by the recent decision in
Af-Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080 (9th Cir.
2007). There, we declined to apply principles of collateral estoppel in
determining the legal meaning of FSIA’s exception for “used for a com-
mercial activity in the United States” under 28 U.S.C. § 1610(a). Id. at
1086-87. A previous Fifth Circuit decision, stemming from the same con-
troversy before this court in Af-Cap and involving the same plaintiff,
already had interpreted the “commercial activity” exception in § 1610(a).
Id. at 1087; see Af-Cap, Inc. v. Republic of Congo, 383 F.3d 361 (5th Cir.
2004). We explained that “ ‘[i]ssue preclusion has never been applied to
issues of law with the same rigor as to issues of fact[.]’ ” Af-Cap, 475 F.3d
at 1086 (first alteration in the original) (quoting Segal v. Am Tel. & Tel.
Co., Inc., 606 F.2d 842, 845 (9th Cir. 1979). We also noted the novelty
of the issue and the importance of developing the law in the area—an area
where only one circuit court had addressed an issue as yet unresolved by
the Supreme Court. Id. We then reviewed de novo the meaning of the
“used for commercial activity” exception in § 1610(a). Id. at 1087-91.
The case before us bears no resemblance to Af-Cap. Here, on a purely
factual question of immunity—ownership interest of more than 50% by a
foreign sovereign and nonexistence of allegations of exceptions to FSIA—
we are called upon to consider only whether California principles of res
judicata bar Gupta from re-litigating Thai Airways’ immunity in federal
court where a state court already determined the factual basis for the appli-
cation of the FSIA: that Thai Airways is immune.
6466 GUPTA v. THAI AIRWAYS INTERNATIONAL
[6] Under California law, it makes no difference that Gupta
now contends the Warsaw Convention provides the court
jurisdiction. The California Appellate Court in MIB faced a
similar situation where in the fourth action attempting to
establish jurisdiction over an out-of-state defendant, the plain-
tiffs introduced new evidence and pleaded new causes of
action. 106 Cal. App. 3d at 231. The court held that evidence
“which was not introduced in the earlier proceedings” does
not overcome the preclusive effect of the prior decisions. Id.
at 235. Even if wrong, an earlier decision involving the same
issue and the same parties, “is as conclusive as a correct one.”
Id. Gupta had a full and fair opportunity to establish the juris-
diction of United States courts over Thai Airways. He failed
to do so. He does not now get a do-over.13

Accordingly, we REVERSE and REMAND with instruc-
tions to the district court to vacate its order and dismiss
Gupta’s suit for lack of jurisdiction.14

REVERSED and REMANDED.

TASHIMA, Circuit Judge, dissenting:

The majority finds appellate jurisdiction in this case only
by mistakenly assuming that if any issue decided by the dis-
trict court is subject to interlocutory appeal, any other issue
decided in the same order can also be reached on interlocutory
appeal. Because I disagree and would dismiss this interlocu-
tory appeal for lack of appellate jurisdiction over the limited
issues raised and not reach the merits, I respectfully dissent.
13
We say nothing about whether Gupta can raise his claims against Thai
Airways where his claims are not subject to the FSIA.
14
Having so determined, we need not address Thai Airways’ claim that
Gupta’s federal court action is barred under the Rooker-Feldman doctrine.
 GUPTA v. THAI AIRWAYS INTERNATIONAL 6467
Under the collateral order doctrine, this court would have
jurisdiction over an interlocutory appeal from that portion of
the district court’s order denying Thai Airways’ claim to sov-
ereign immunity under the Foreign Sovereign Immunities Act
(“FSIA”), 28 U.S.C. §§ 1602-1611. But this rule does not
confer jurisdiction over an interlocutory appeal from other
parts of the same order.

Thai Airways was very specific of the issues it raised on
this appeal. It raised only two issues. To quote fully the “Is-
sues Presented for Review” section of Thai Airways’ opening
brief:

1. Whether the District Court erred in Denying
Thai Airways’ motion to dismiss after the State
Superior Court determined, in an identical prior
action, that Thai Airways was immune from suit
on Gupta’s claim in the United States under the
Foreign Sovereign Immunities Act (“FISA”). 28
U.S.C. § 1604; Saudi Arabia v. Nelson, 507 U.S.
349, 355 (1993).

2. Whether Gupta’s subsequent identical action
against Thai Airways in federal court was a de
facto appeal of the prior State Court determina-
tion and thus barred under the Rooker-Feldman
Doctrine.

In support of its first issue, Thai Airways argued that the
district court erred in denying its motion to dismiss because
the prior ruling by the state superior court was res judicata. In
support of its second issue, Thai Airways argued that under
the Rooker-Feldman doctrine,1 Gupta’s action in the district
court was a de facto appeal of the state court’s dismissal of
his earlier action. Thai Airways raised no argument in its
1
See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923; Dist. of Colum-
bia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
6468 GUPTA v. THAI AIRWAYS INTERNATIONAL
briefs that it was immune from suit as a foreign state under
the FSIA. Yet, because Thai Airways is taking an interlocu-
tory appeal from an “order denying Thai Airways immunity
under the FSIA,” Maj. op. at 6461 (emphasis added), the
majority concludes, without analysis and erroneously in my
view, that we have jurisdiction to review that portion of the
district court’s order denying dismissal on the basis of res
judicata.

The collateral order doctrine is intended to allow immediate
appeal only of “that small class [of decisions] which finally
determine claims of right separable from, and collateral to,
rights asserted in the action, too important to be denied review
and too independent of the cause itself to require that appel-
late consideration be deferred until the whole case is adjudi-
cated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949). “The requirements for collateral order appeal
have been distilled down to three conditions: that an order (1)
conclusively determine the disputed question, (2) resolve an
important issue completely separate from the merits of the
action, and (3) be effectively unreviewable on appeal from a
final judgment.” Will v. Hallock, 126 S. Ct. 952, 957 (2006)
(citation and internal quotation marks omitted).

While it is true that our case law permits an immediate
interlocutory appeal from an order denying a motion to dis-
miss based on foreign sovereign immunity, Compania Mex-
icana de Aviacion, S.A. v. U.S. Dist. Court, 859 F.2d 1354,
1358 (9th Cir. 1988) (per curiam), it is equally well-settled
that the denial of a motion to dismiss based on res judicata
grounds is not immediately appealable. See Will, 126 S. Ct. at
960 (“[The] rule of respecting a prior judgment by giving a
defense against relitigation has not been thought to protect
values so great that only immediate appeal can effectively
vindicate them.”). To repeat, in this case, while it is true that
the order Thai Airways appeals from rejected its claim of sov-
ereign immunity, Thai Airways’ only arguments on appeal are
 GUPTA v. THAI AIRWAYS INTERNATIONAL 6469
directed to the other bases of the order, those resting on res
judicata and the Rooker-Feldman doctrine.2

Although the cases discussing the collateral order doctrine
sometimes loosely refer to interlocutory orders as being
appealable, in fact, the cases actually analyze the specific
claim or issue presented in determining the scope of their
jurisdiction on an interlocutory appeal. And each claim pre-
sented must independently meet the requirements of the col-
lateral order doctrine in order for it to be considered on inter-
locutory appeal. Appellate jurisdiction over one claim rejected
in a district court order does not confer jurisdiction over all
other claims rejected in the same order. Abney v. United
States, 431 U.S. 651, 662-63 (1977); see also United States v.
Yellow Freight Sys., Inc., 637 F.2d 1248, 1251 (9th Cir. 1980)
(“Inquiry into the immediate appealability of a particular pre-
trial order must focus upon each claim asserted.”).

In Abney, after ruling that a denial of a criminal defendant’s
motion to dismiss on double jeopardy grounds is an immedi-
ately appealable collateral order, the Supreme Court noted
that “we, of course, do not hold that other claims contained
in the motion to dismiss are immediately appealable as well.”
431 U.S. at 662-63. The Court held that “other claims pre-
sented to, and rejected by, the district court in passing on the
accused’s motion to dismiss . . . . are appealable if, and only
if, they too fall within Cohen’s collateral-order exception to
the final-judgment rule.” Id. at 663. The Court thus held that
the court of appeals lacked jurisdiction to review the district
2
Thai Airways did not make any Rooker-Feldman-based arguments to
the district court. “As a general rule, a federal appellate court does not
consider an issue not passed upon below.” Dodd v. Hood River County,
59 F.3d 852, 863 (9th Cir. 1995) (citation and internal quotation marks
omitted). Even if we wished to deviate from this general rule, we lack
jurisdiction over the Rooker-Feldman argument for the same reasons that
we lack jurisdiction over the res judicata issue.
6470 GUPTA v. THAI AIRWAYS INTERNATIONAL
court’s denial of the motion to dismiss based on insufficiency
of the indictment. Id.3

The principle that appellate courts must examine each
claim or issue presented separately to determine their jurisdic-
tion on interlocutory appeal is also reflected in the require-
ments that an order must meet to be immediately appealable.
Those requirements are phrased in terms of a disputed “ques-
tion” — in the singular — indicating that it is not the breadth
of the order that defines the scope of appellate jurisdiction on
an interlocutory appeal. Rather, each particular appealable
issue that is resolved by the order must be examined sepa-
rately. See Will, 126 S. Ct. at 957 (noting that an order must
“conclusively determine the disputed question” and “resolve
an important issue completely separate from the merits” to be
immediately appealable) (emphasis added).

Hence, the issue here is whether separate claims/defenses
are raised by Thai Airways’ arguments to the district court of
(1) a substantive entitlement to foreign sovereign immunity,
and (2) issue preclusion as to its entitlement to foreign sover-
eign immunity. Here, under simple logic, applying Abney, if
the two arguments constitute separate claims, then this court
does not have jurisdiction over an appeal taken solely from
the portion of the district court’s order rejecting Thai Air-
ways’ issue preclusion argument. The fact that the ruling on
one argument is interlocutorily appealable does not mean that
the other is as well.4
3
The Abney rule may be eased somewhat in instances where courts
choose to exercise pendent appellate jurisdiction. In this instance, how-
ever, pendent jurisdiction is inapplicable because there is no independent
basis for jurisdiction to which jurisdiction over this matter can be “ap-
pended.” Cf. Swint v. Chambers County Comm’n, 514 U.S. 35, 50-51
(1995) (“We need not definitively or preemptively settle here whether or
when it may be proper for a court of appeals, with jurisdiction over one
ruling, to review, conjunctively, related rulings that are not themselves
independently appealable.”).
4
The majority’s reliance on Compania Mexicana is misplaced because
there the only issue that was before the appellate court on interlocutory
appeal was sovereign immunity under the FSIA.
 GUPTA v. THAI AIRWAYS INTERNATIONAL 6471
There may be instances where it is not entirely clear
whether the two arguments can be considered separate
defenses.5 An immunity defense and an issue preclusion
defense, however, are clearly unrelated, separate defenses.
See, e.g., Timpanogos Tribe v. Conway, 286 F.3d 1195, 1200
(10th Cir. 2002) (refusing to exercise pendent jurisdiction
over a res judicata claim in an interlocutory appeal of the
denial of a motion to dismiss on Eleventh Amendment
grounds, because there was no showing that the res judicata
claim was “inextricably intertwined” with the Eleventh
Amendment claim).6

Here, the rationale for applying the Cohen collateral order
doctrine to appeals from denials of foreign sovereign immu-
nity does not encompass instances where the appeal is taken
and supported solely on the grounds of issue preclusion. The
Supreme Court has pointedly remarked that “the third Cohen
question, whether a right is ‘adequately vindicable’ or ‘effec-
tively reviewable [on appeal from a final judgment],’ simply
cannot be answered without a judgment about the value of the
interests that would be lost through rigorous application of a
final judgment requirement.” Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 878-79 (1994).
5
The transactional definition of a “claim” for purposes of claim preclu-
sion, which is aimed at determining whether two suits allege the same
cause of action, is unhelpful here, where the court must consider the rela-
tionship between defenses rather than between claims. Cf. Cent. Delta
Water Agency v. United States, 306 F.3d 938, 952 (9th Cir. 2002) (most
important factor in claim preclusion analysis is “whether the two suits
arise out of the same transactional nucleus of facts”).
6
The majority argues that because the state court judgment was based
on FSIA immunity, that should make a difference in determining whether
we have jurisdiction over this interlocutory appeal based only on res judi-
cata, Maj. op. at 6461-62 n.9, but it cites no case in support of that asser-
tion. It further conflates the inquiry by asserting that “to deny interlocutory
appeal in this case would frustrate the purposes of the FSIA.” Id. But that
frustration is caused by Thai Airways appealing only from the res judicata
portion of the district court’s order and not appealing from the FSIA
immunity portion of the same order.
6472 GUPTA v. THAI AIRWAYS INTERNATIONAL
In explaining why pretrial rulings based on res judicata
grounds do not merit immediate appeal, courts have empha-
sized that the res judicata doctrine is not meant to give a
defendant an absolute right to avoid trial. See, e.g., In re Cor-
rugated Container Antitrust Litig., 694 F.2d 1041, 1043 (5th
Cir. 1983) (“[T]he only injury [from denial of immediate
review] . . . is that [the defendant] will have to present its
defense at trial, but that sort of injury follows in every denial
of a motion to dismiss a complaint and does not justify an
exception to the final-judgment rule.”); see also R.R. Donnel-
ley & Sons Co. v. FTC, 931 F.2d 430, 432-33 (7th Cir. 1991)
(“Preclusion in a civil case creates a ‘right not to be tried’
only in the sense that it creates a right to win; but many legal
doctrines do that without also creating a right to interlocutory
appellate review.”).

Here, in relying only on issue preclusion arguments, Thai
Airways is not arguing that the substantive purposes of the
FSIA would be served by granting it sovereign immunity.
Those admittedly weighty interests are not the interests at
stake in this appeal. Rather, Thai Airways is only arguing that
respect for another court’s judgment entitles it to dismissal.
The interests at stake in the claim being asserted are simply
those ordinarily protected by the doctrine of res judicata. Any
interest that Thai Airways may legitimately possess in avoid-
ing suit under the FSIA is not truly implicated in this appeal,
because Thai Airways is not arguing the merits of its claim to
FSIA immunity. Thus, in reaching the merits of this interlocu-
tory appeal, the majority frustrates “the substantial finality
interests § 1291 is meant to further, Will, 126 S. Ct. at 957,
and expands the intended “modest scope” of the collateral
order doctrine, id. at 958.

Had Thai Airways chosen to appeal the district court’s rul-
ing as to its entitlement to foreign sovereign immunity under
the FSIA, we might have exercised jurisdiction over that
appeal. However, nowhere in its opening or reply brief did
Thai Airways make this argument. In fact, Thai Airways affir-
 GUPTA v. THAI AIRWAYS INTERNATIONAL 6473
matively declared that the merits of its FSIA defense are not
within the scope of its appeal, arguing in its reply brief that
“the applicability of the Warsaw Convention is not an issue
on this appeal.”7 By electing not to argue its entitlement to
FSIA immunity on the merits, Thai Airways has waived the
issue for purposes of this appeal. United States v. Kama, 394
F.3d 1236, 1238 (9th Cir. 2005). Thai Airways’ issue preclu-
sion defense is an insufficient ground upon which to base our
appellate jurisdiction over this interlocutory appeal.

Because I would dismiss this appeal for lack of jurisdiction,
I respectfully dissent.

7
In a supplemental filing, Thai Airways argues that if we find jurisdic-
tion lacking under the final judgment rule, we should construe this appeal
as a petition for mandamus. However, my conclusion that this appeal does
not fall within the Cohen collateral order doctrine is based on my view
that the rights at stake in an issue preclusion defense are adequately vindi-
cable on appeal from a final judgment. This conclusion implies that Thai
Airways has an “adequate means” to obtain relief, and will not be “dam-
aged or prejudiced in a way not correctable on appeal” if we do not pro-
vide mandamus relief. See Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-
55 (9th Cir. 1977) (listing these criteria among the factors that should be
considered in determining whether to grant mandamus). As a result, I see
no reason to grant mandamus relief.