OBB Personenverkehr AG v Sachs

Sachs suffered injuries when she fell trying to get aboard a train in Austria operated by OBB. She sued in federal district court arguing OBB, an entity of the government of Austria, was not immune from suit based on its sale of Europass tickets in the United States. The district court dismissed based on immunity and the 9th Circuit reversed en banc. The Court unanimously reversed.  It held that a claim is “based upon” commercial activity for purposes of 28 U.S.C. 1605(a)(2) when the particular conduct giving rise to the claim is the gravamen of the claim. Here, the conduct in question is the operation of the train in Austria, not commercial activity in the United States, and thus immunity applied and the case must be dismissed for lack of subject matter jurisdiction.