Martyn Baylay v. Etihad Airways P.j.s.c., Saravdeep Mann, 909 North Michigan Avenue Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16-4113 & 17-1958
MARTYN B AYLAY,
Plaintiff-Appellant,
v.
ETIHAD A IRWAYS P.J.S.C., SARAVDEEP MANN,
909 NORTH MICHIGAN A VENUE CORPORATION, and
LHO MICHIGAN A VENUE FREEZEOUT , LLC,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 CV 8736 — Joan B. Gottschall, Judge.
____________________
A RGUED NOVEMBER 1, 2017 — D ECIDED FEBRUARY 7, 2018
____________________
Before MANION, KANNE , and R OVNER , Circuit Judges.
KANNE , Circuit Judge. In 2013, Saravdeep Mann attacked
his coworker, Martyn Baylay, with a bronze hotel decoration.
The two men, members of a flight crew employed by Etihad
Airways, were at a Chicago hotel for the night on a layover.

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2 Nos. 16-4113 & 17-1958
Baylay sued Etihad, Mann, and the hotel’s corporate enti-
ties in federal district court. The court dismissed all of
Baylay’s claims against Etihad on the basis that the claims
should be heard by the Illinois Workers’ Compensation Com-
mission instead. The court entered an order allowing an im-
mediate appeal of that decision, which Baylay filed on De-
cember 9, 2016 (No. 16-4113). A few months later, the district
court dismissed Baylay’s remaining claims. It reasoned that it
had no original jurisdiction over the claims and declined to
exercise its supplemental jurisdiction. Baylay filed his notice
of appeal of that decision on May 5, 2017 (No. 17-1958). The
appeals have been consolidated and are before us now. We
affirm the dismissal of Baylay’s claims.
I. BACKGROUND
The following facts are drawn from Baylay’s second
amended complaint. See Veseley v. Armslist LLC, 762 F.3d 661,
664–65 (7th Cir. 2014) (when reviewing a 12(b)(6) motion, we
accept the facts in the complaint as true); see also Sykes v. Cook
Cty. Circuit Court Prob. Div., 837 F.3d 736, 739 (7th Cir. 2016)
(when reviewing a dismissal for lack of subject-matter juris-
diction, we accept the facts in the complaint as true).
Etihad Airways is a public joint stock company estab-
lished by Emiri Decree and incorporated in the Emirate of
Abu Dhabi, United Arab Emirates. Martyn Baylay, a British
citizen, worked as a pilot for Etihad in 2013.
That October, Etihad assigned Baylay to a flight crew that
also included Saravdeep Mann. The crewmembers flew from
Abu Dhabi to Chicago. After arrival, Etihad arranged for the

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Nos. 16-4113 & 17-1958 3
crewmembers’ transportation to The Westin on Michigan Av-
enue in Chicago for an overnight layover. Etihad paid for the
accommodations.
The crewmembers drank pre-dinner cocktails together
that night, where Mann consumed a significant amount. It ap-
peared to Baylay that he had imbibed before meeting the
group, too. At dinner, Mann downed even more alcohol and
then expressed anti-American and anti-British views while
emphasizing his distaste for the British by placing his hands
around Baylay’s throat. Mann left the restaurant without pay-
ing his bill and without his coat. The crewmembers settled
Mann’s bill, and Baylay offered to take Mann’s coat and return
it the next day.
Back at the hotel, Baylay heard a knock on the door of his
hotel room and saw Mann standing outside his room. Think-
ing Mann was there to apologize for his earlier actions and
collect his coat, Baylay opened the door. Mann struck him on
the head and leg with a bronze hotel decoration. During the
attack, Mann threatened Baylay, saying, “I’m going to kill you.
You f*cking British bastard.” Baylay managed to escape, took
the elevator to the lobby of the hotel, and was then trans-
ported to Northwestern Memorial Hospital. Mann was ar-
rested and transported to the Chicago Police Department.
Mann left the United States with Etihad’s help after post-
ing bond on October 14. He never returned, criminally violat-
ing his bond.
Baylay filed the second amended complaint on February
25, 2016, in federal district court. He sued Mann; Etihad Air-
ways; 909 North Michigan Avenue Corporation and LHO

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4 Nos. 16-4113 & 17-1958
Michigan Avenue Freezeout, LLC—the Westin’s corporate en-
tities; and United Security Services, Inc.—the company that
provided security for the Westin at the time of the incident.
United Security Services was later voluntarily dismissed from
the case.
Against Etihad, Baylay brought state-law claims of negli-
gent retention, negligence, and willful and wanton conduct.
Against Mann, he brought state-law claims of negligence and
willful and wanton conduct. And against the Westin’s corpo-
rate entities, Baylay brought a state-law claim of negligence.
In March 2016, Etihad filed a 12(b)(6) motion to dismiss
Baylay’s claims against it. The district court granted the mo-
tion, concluding that Baylay’s state-law claims against his em-
ployer were barred by the exclusivity provisions of the Illinois
Workers’ Compensation Act (“the IWCA”). If Baylay wanted
to pursue claims against his employer arising from the inci-
dent with Mann, he needed to do so in front of the Illinois
Workers’ Compensation Commission (“the Commission”).
The court entered an order providing for an immediate ap-
peal of this decision, which Baylay timely filed on December
9, 2016 (No. 16-4113).
In early 2017, the district court asked the parties to submit
jurisdictional statements addressing whether the district
court still had jurisdiction over the case after Etihad’s dismis-
sal. After reviewing the submitted statements, the district
court dismissed Baylay’s remaining claims without prejudice
on April 7, 2017. It concluded that it had no original jurisdic-
tion over the claims and declined to exercise its supplemental
jurisdiction. With all of the plaintiff’s claims dismissed, the
district court terminated the civil case. Baylay filed a timely
notice of appeal on May 5, 2017 (No. 17-1958).

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Nos. 16-4113 & 17-1958 5
We now consider the merits of both appeals.
II. A NALYSIS
Our central focus in this appeal is on the power and pro-
priety of the federal courts to hear Baylay’s claims.
First, Baylay contends that the Foreign Sovereign Immun-
ities Act (“the FSIA” or “the Act”) requires any claim against
a foreign state to be adjudicated in a court. Thus, the district
court erred when it concluded that Baylay’s claims against Eti-
had should be heard by the Commission, an administrative
body. In the alternative, Baylay argues that the IWCA does not
apply to his claims against Etihad, so the district court was
nonetheless the proper forum for his claims.
Second, Baylay maintains that the district court had diver-
sity jurisdiction over his remaining claims after Etihad’s dis-
missal. In the alternative, he argues that the district court
should have exercised supplemental jurisdiction over the
claims.
We take—and reject—each of Baylay’s arguments in turn.
A. Baylay’s claims against Etihad must be resolved by the Illi-
nois Workers’ Compensation Commission.
Baylay believes that the Foreign Sovereign Immunities Act
vests the power to decide claims against foreign states in the
judicial branch alone. Thus, he argues that the Commission
cannot adjudicate his claims against Etihad. In other words,
he argues that the FSIA preempts the IWCA. Alternatively, he
contends that the IWCA doesn’t apply to his claims against
Etihad, so the district court should have remained the arbiter
of his claims.

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6 Nos. 16-4113 & 17-1958
The district court rejected these arguments. We review a
12(b)(6) dismissal de novo, viewing the allegations in the light
most favorable to the nonmovant, and we are similarly unper-
suaded. See Veseley, 762 F.3d at 664.
1. The FSIA does not preempt the IWCA, so the Commission
may adjudicate applicable claims.
The Foreign Sovereign Immunities Act “provides the sole
basis for obtaining jurisdiction over a foreign state in the
courts of this country.” Argentine Republic v. Amerada Hess
Shipping Corp., 488 U.S. 428, 443 (1989). When a plaintiff sues
a foreign state, the Act presumes immunity and then creates
exceptions to the general principle. Bolivarian Republic of Ven-
ezuela v. Helmerich & Payne Int’l Drilling Co., 137 S. Ct. 1312,
1320 (2017). The parties agree that Etihad is a foreign state and
that an exception to immunity exists. The parties disagree,
however, about whether the Act requires claims against a for-
eign state to be heard by a court after that court has concluded
that the foreign state is not immune from suit.
“A foreign state shall not be immune from the jurisdiction
of courts of the United States or of the States … .” 28 U.S.C.
§ 1605(a) (emphasis added). Baylay believes that this lan-
guage vests the power to resolve claims against foreign states
in the judiciary alone. Thus, even though the IWCA might
mandate that certain claims against employers must be adju-
dicated first in front of the Commission, the FSIA preempts
the IWCA and requires claims against foreign-state employ-
ers to remain in a court.
But by reading that provision in isolation, Baylay miscon-
strues the Act as a whole. Congress intended the FSIA to
transfer immunity determinations in cases against foreign states

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Nos. 16-4113 & 17-1958 7
from the executive branch to the judicial branch. See 28 U.S.C.
§ 1602 (“Claims of foreign states to immunity should hence-
forth be decided by courts.”); Frolova v. Union of Soviet Socialist
Republics, 558 F. Supp. 358, 361 (N.D. Ill. 1983), aff’d, 761 F.2d
370 (7th Cir. 1985) (noting that one of the four main objectives
of FSIA was to ensure that immunity would be strictly a judi-
cial determination); Nat’l Airmotive Corp. v. Gov’t & State of
Iran, 499 F. Supp. 401, 406 (D.D.C. 1980) (“A primary purpose
of th[e] Act was to depoliticize sovereign immunity decisions
by transferring them from the Executive to the Judicial
Branch.”). Thus, the Act preempts any other state or federal
law that accords immunity from suit. See Samantar v. Yousuf,
560 U.S. 305, 313 (2010). But it is not intended—and has not
been construed—to affect the governing substantive law. First
Nat’l City Bank v. Banco Para El Comercia Exterior de Cuba, 462
U.S. 611, 620 (1983).
Instead, the Act imposes liability on the foreign state “in
the same manner and to the same extent as a private individ-
ual under like circumstances.” 28 U.S.C. § 1606. “[W]here
state law provides a rule of liability governing private indi-
viduals, the FSIA requires the application of that rule to for-
eign states in like circumstances.” First Nat’l, 462 U.S. at 622
n.11. Thus, if the foreign state is not immune from suit, “plain-
tiffs may bring state law claims that they could have brought
if the defendant were a private individual.” Oveissi v. Islamic
Republic of Iran, 573 F.3d 835, 841 (D.C. Cir. 2009). Applying
the state-law principles that govern that state-law claim, ra-
ther than constructing a set of federal common-law principles,
better serves the congressional intent behind § 1606. Cf. id.
(concluding that the application of the forum state’s
choice-of-law principles, rather than federal common-law
ones, better effectuates Congress’s intent.). “In this way, ‘the

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8 Nos. 16-4113 & 17-1958
FSIA … operates as a “pass-through” to state law principles.’”
Id. (omission in original) (quoting Pescatore v. Pan Am. World
Airways, Inc., 97 F.3d 1, 12 (2d Cir. 1996)).
In sum, Congress vested the courts with the sole power to
determine immunity from suit to assure litigants that immun-
ity decisions were made in accordance with uniform and fair
legal principles, see Republic of Austria v. Altmann, 541 U.S. 677,
716–17 (2004), but it did not intend to disturb the substantive
law that applies to a claim against a foreign state if an excep-
tion to immunity applies.
The FSIA’s mandates and purpose were served in this case:
the district court determined that Etihad was not immune
from suit and then looked to the IWCA to analyze how
Baylay’s claims should proceed. The IWCA is certainly sub-
stantive law. Upon its passage by the Illinois legislature, the
IWCA eliminated employer liability for all common-law neg-
ligence claims and created a new scheme through which em-
ployees can be compensated for work-related injuries. Thus,
the district court was correct that the FSIA should not affect
the applicability and operation of the IWCA once the court
determined that Etihad was not immune from its employee’s
claims.
We turn now to whether the district court erred in its anal-
ysis of the IWCA.1
1 Neither party raises a choice-of-law objection to the district court’s
application of Illinois law, so we need not concern ourselves with the cir-
cuit split on FSIA and choice of law. See Thornton v. Hamilton Sundstrand
Corp., No. 12 C 329, 2013 WL 4011008, at *3 (N.D. Ill. Aug. 6, 2013).

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Nos. 16-4113 & 17-1958 9
2. The IWCA’s exclusivity provisions apply, so the Commis-
sion must hear the claims.
The Illinois Workers’ Compensation Act provides an ad-
ministrative remedy for employees’ injuries “arising out of
and in the course of the[ir] employment.” 820 Ill. Comp. Stat.
305/11. It “abrogates employer liability for all common law
negligence claims,” Walker v. Doctors Hosp., 110 F. Supp. 2d
704, 714 (N.D. Ill. 2000), and provides the exclusive means by
which an employee can recover against an employer for a
work-related injury in Illinois, 820 Ill. Comp. Stat. 305/5(a),
305/11; see also Meerbrey v. Marshall Field & Co., 564 N.E.2d
1222, 1225–26 (Ill. 1990). The exclusivity provisions (305/5(a)
and 305/11) are “part of the quid pro quo in which the sacrifices
and gains of employees and employers are to some extent put
in balance.” Meerbrey, 564 N.E.2d at 1225. Injured employees
can recover for their injuries without establishing their em-
ployer’s negligence but also “relinquish their rights to main-
tain common law actions against their employers.” Whitehead
v. AM Int’l, Inc., 860 F. Supp. 1280, 1289 (N.D. Ill. 1994).
If an employer is sued in common law, the employer may
raise the IWCA’s exclusivity provisions as an affirmative de-
fense. Arnold v. Janssen Pharmaceutica, Inc., 215 F. Supp. 2d.
951, 956 (N.D. Ill. 2002). If it establishes the elements of the
affirmative defense, then the burden shifts to the plaintiff to
show that his claims are not subject to the IWCA or its exclu-
sivity provisions. Id. Here, Etihad raised the IWCA’s exclusiv-
ity provisions as an affirmative defense in its 12(b)(6) motion
to dismiss. Baylay responded that the IWCA did not apply so
his common-law claims could remain in the district court ra-
ther than being sent to the Commission. The district court
granted Etihad’s motion.

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10 Nos. 16-4113 & 17-1958
On appeal, Baylay argues that the IWCA does not apply to
his claims against Etihad for two reasons. First, he contends
that it does not apply because Etihad does not meet the
IWCA’s definition of an employer. Because he raises this issue
for the first time on appeal, we decline to consider its merits.
See, e.g., Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 841 (7th
Cir. 2010). Second, he asserts—as he did below—that the
IWCA’s exclusivity provisions do not apply to his claims
against Etihad.
In order to show that the IWCA’s exclusivity provisions do
not apply, Baylay must demonstrate that his injury “(1) was
not accidental, (2) did not arise from his … employment, (3)
was not received during the course of employment, or (4) was
noncompensable under the [IWCA].” Collier v. Wagner Cast-
ings Co., 408 N.E.2d 198, 202 (Ill. 1980). We take each exception
in turn.
First, Baylay’s injuries were accidental within the meaning
of the IWCA. An employee’s claims of employer negligence
and willful and wanton conduct fall within the definition of
“accidental.” See Lannom v. Kosco, 634 N.E.2d 1097, 1100–01
(Ill. 1994). This is true even if the claims arise from an inten-
tional tort committed by a co-worker; the tort is “accidental”
within the meaning of the IWCA because it is unexpected and
unforeseeable from both the injured employee’s and the em-
ployer’s points of view. Meerbrey, 564 N.E.2d at 1226. To show
that a coworker’s intentional tort is not accidental, a plaintiff
must establish that the coworker was the alter ego of the em-
ployer or that the employer commanded or expressly author-
ized the acts. Id. Baylay did not include an allegation of either
in his complaint.

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Nos. 16-4113 & 17-1958 11
Second, Baylay’s injuries arose out of his employment. The
question of whether an injury arises out of the employment of
traveling employees is answered differently than for other
employees. Kertis v. Ill. Workers’ Comp. Comm’n, 991 N.E.2d
868, 873 (Ill. Ct. App. 2013). “An injury sustained by a travel-
ing employee”—one whose work requires him to travel away
from his employer’s office and for whom travel is an essential
element of the employment—“arises out of his employment
if he was injured while engaging in conduct that was reason-
able and foreseeable.” Id. Baylay, an Etihad pilot, was unques-
tionably a traveling employee. He sustained his injury while
in his employer-paid hotel room on a layover when his fellow
crewmember knocked on his door. That a coworker would
knock on Baylay’s door, and that Baylay would open the door,
while the crew was staying at the hotel is both reasonable and
foreseeable.
Third, Baylay conceded that he was injured during the
course of his employment. (Appellant’s Br. at 34–35; R. 111 at
11–12.)
And fourth, Baylay failed to establish that the Commission
would not compensate him for his injuries. Assaults by
coworkers in the workplace “that are motivated by general
racial or ethnic prejudice are best treated as compensable
‘neutral’ risks arising out of the employment.” Rodriguez v. In-
dus. Comm’n, 447 N.E.2d 186, 190 (Ill. 1982). In Rodriguez, an
employee fractured his coworker’s skull out of general hostil-
ity toward Mexicans and people of Mexican descent. Id. at
187–88. The attack was compensable because “the most [the
victim] … brought to the workplace was his ethnic heritage,
over which he of course had no control.” Id. at 189. “[I]n the
absence of anything that would personalize the incident, a

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12 Nos. 16-4113 & 17-1958
bigoted and violence-prone co-worker is as much a risk inher-
ent in employment in an integrated or ethnically mixed work-
place as a defective machine or ceiling might be.” Id. at 190. In
the present case, like in Rodriguez, Mann’s attack was moti-
vated by his hostility toward Baylay’s national origin. And
Baylay does not allege that he brought anything to the work-
place other than his national origin that would personalize
Mann’s attack on him. Thus, Baylay failed to show that his in-
juries would not be compensated under the IWCA.
The district court properly granted Etihad’s motion to dis-
miss. Though the dismissal was based on Etihad’s affirmative
defense, the defense was conclusively established by the com-
plaint and Baylay’s own concessions. Arnold, 215 F. Supp. 2d.
at 956–57 (A 12(b)(6) dismissal based on an affirmative de-
fense “is appropriate only where the defense is conclusively
established by the complaint, concessions made by the plain-
tiff, or any other material appropriate for judicial notice.”). All
that was left of Baylay’s suit after this dismissal (and the vol-
untary dismissal of United Security Services) were his claims
against Mann and the Westin’s corporate entities, which we
turn to now.
B. The district court correctly concluded that it had no original
jurisdiction over Baylay’s remaining claims and appropri-
ately declined to exercise its supplemental jurisdiction.
The district court concluded that it had no original sub-
ject-matter jurisdiction over Baylay’s remaining claims and
declined to exercise supplemental jurisdiction over them. We
review the court’s legal determination regarding subject-mat-
ter jurisdiction de novo, LM Ins. v. Spaulding Enters. Inc., 533

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Nos. 16-4113 & 17-1958 13
F.3d 542, 547 (7th Cir. 2008), but review its decision not to ex-
ercise supplemental jurisdiction for an abuse of discretion,
Hagan v. Quinn, 867 F.3d 816, 820 (7th Cir. 2017).
Baylay contends that the district court had diversity juris-
diction over his claims against Mann and the Westin’s corpo-
rate entities, but his argument has no merit. Baylay is a British
citizen, and he is the only plaintiff in this cause. Mann is a
foreign citizen, and the Westin’s corporate entities are citizens
of U.S. states. In cases where a foreign citizen alone is suing
both a foreign citizen and a citizen of a U.S. state in diversity,
a federal court has no original jurisdiction. 28 U.S.C. § 1332(a)
does not grant it. See Allendale Mut. Ins. v. Bull Data Sys., Inc.,
10 F.3d 425, 428 (7th Cir. 1993) (“The point was not so much
that there were foreigners on both sides,” but “that there was
no citizen on one side, which took it out of [28 U.S.C. §
1332(a)(3)]; and (a)(2), when read in light of (a)(3), does not
permit a suit between foreigners and a mixture of citizens and
foreigners.”). Baylay’s misreading of Allendale and Tango Mu-
sic, LLC v. Deadquick Music, Inc., 348 F.3d 244 (7th Cir. 2003),
does not convince us otherwise. (Appellant’s Br. at 40.)
The district court properly concluded that it had only sup-
plemental jurisdiction over Baylay’s remaining claims. Baylay
claims that it should have continued to exercise that jurisdic-
tion because, he says, it had original jurisdiction over
third-party contribution claims that the Westin’s corporate en-
tities filed against Etihad in the wake of Etihad’s dismissal as
a primary defendant.2
2 Though the district court inherently dismissed the third-party con-
tribution claims when it dismissed Baylay’s supplemental claims and ter-
minated his civil suit, the propriety of that dismissal is not before us on

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14 Nos. 16-4113 & 17-1958
But even if Baylay is correct that the district court had orig-
inal jurisdiction over those third-party contribution claims,
district courts may decline to exercise supplemental jurisdic-
tion over a claim when the supplemental claim “substantially
predominates over the claim or claims over which the district
court has original jurisdiction.” 28 U.S.C. § 1367(c). This is the
case here. After Etihad’s dismissal, Baylay’s remaining claims
included two state-law claims against Mann and a state-law
claim of negligence against the Westin’s corporate entities.
The corporate entities’ third-party contribution claims are en-
tirely dependent on the resolution of the underlying state-law
negligence claim against them. Thus, Baylay’s state-law
claims substantially predominate. The district court’s decision
to decline to exercise supplemental jurisdiction over them was
not an abuse of discretion in light of 28 U.S.C. § 1367(c).
III. CONCLUSION
The Foreign Sovereign Immunities Act does not affect the
content of the governing substantive law. In Illinois, that gov-
erning substantive law—the IWCA—instructs courts to send
to the Commission for adjudication any employee claim
against his or her employer that falls within the purview of
the IWCA. Baylay’s claims against Etihad are covered by the
IWCA. We AFFIRM the district court’s dismissal of Baylay’s
claims in case number 16-4113.
The district court had only supplemental jurisdiction over
Baylay’s remaining claims against Mann and the Westin’s cor-
porate entities. It did not abuse its discretion in declining to
appeal. In fact, the Westin’s corporate entities who filed the claims do not
contest the dismissal.

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Nos. 16-4113 & 17-1958 15
exercise that jurisdiction. We AFFIRM the district court’s dis-
missal of Baylay’s claims in case number 17-1958.

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