The opinion of the court was delivered by: GREEN
Presently before the Court is the question of its subject matter jurisdiction to entertain this action against defendant Republic of Chile. Despite the previous entry of a default against that foreign state that plaintiffs argue precludes further judicial scrutiny of this issue, the Court nonetheless is persuaded that the jurisdictional question must now be given careful consideration, and, having examined the relevant congressional enactment, the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330, 1602-1611 (1976), is convinced that such jurisdiction does indeed exist, entitling plaintiffs to proceed to seek a judgment against the Chilean Republic.
Filed in August 1978 by Isabel, Christian, Jose, Francisco, and Juan Pablo Letelier, and Michael Maggio, respectively the widow, sons, and personal representative of Orlando Letelier, as well as by Michael Moffitt and Murray and Hilda Karpen, respectively the widower-personal representative and parents of Ronni Karpen Moffitt, the complaint herein, as amended, seeks recompense for tortious injuries connected with the deaths of both former Chilean ambassador and foreign minister Orlando Letelier and Ronni Moffitt in the District of Columbia on September 21, 1976, when Letelier's car, in which they were riding to work with Michael Moffitt, was destroyed by an explosive device. Plaintiffs allege that the bomb was constructed, planted, and detonated by defendants Michael Vernon Townley, Alvin Ross Diaz, Virgilio Paz Romero, Jose Dionisio Suarez Esquivel, Guillermo Novo Sampol, and Ignacio Novo Sampol, acting in concert and purportedly at the direction and with the aid of defendants Republic of Chile, its intelligence organ the Centro Nacional de Intelligencia (CNI) (formerly Direccion de Intelligencia Nacional, a/k/a DINA), and supposed CNI-DINA agents and officers Pedro Espinoza Bravo, Juan Manuel Contreras Sepulveda, and Armando Fernandez Larios.
In accord with their allegations and acting pursuant to the provisions of the District of Columbia Code governing survival of actions, D.C.Code § 12-101 (1973), and wrongful death, id. § 16-2701 (Supp. V 1978), plaintiffs have set forth the following five causes of action that they contend give rise to civil liability on the part of the defendants:
1) Conspiracy to deprive Orlando Letelier and Ronni Moffitt of their constitutional rights, including equal protection of the law, and freedom of speech, press, association, and petition, in violation of 42 U.S.C. § 1985 (1976). Amended Complaint P 7.
2) Assault and battery causing the deaths of Orlando Letelier and Ronni Moffitt. Id. P 9.
3) Negligent transportation and detonation of explosives. Id. P 11.
4) Assassination of Orlando Letelier and Ronni Moffitt in violation of international law. Id. P 13.
5) Assault upon Orlando Letelier, an internationally protected person pursuant to 18 U.S.C. § 112 (1976), that was the proximate result of his death and the death of Ronni Moffitt. Id. P 15.
Following service upon defendants Michael Vernon Townley, Alvin Ross Diaz, Ignacio Novo Sampol, and Guillermo Novo Sampol, and the failure of these defendants to answer, defaults were entered against them in late August 1978. Plaintiffs have been unable to obtain service upon Virgilio Paz Romero and Jose Dionisio Suarez Esquivel. Service was attempted upon Juan Manuel Contreras Sepulveda, Pedro Espinoza Bravo, and Armando Fernandez Larios by registered mail to Chile and the return receipts were filed with the Court in September 1978. Subsequently, in August 1979 service was again attempted upon these three individuals in Chile pursuant to Federal Rule of Civil Procedure 4(i) by means of letters of request, signed by the Court, but proof of the completion of such service has not yet been forthcoming.
As to the Republic of Chile and CNI, pursuant to the terms of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1608(a)(4), two copies of the summons and amended complaint were dispatched by the Clerk of the Court to the United States Department of State on October 24, 1978. One of these copies, along with an explanatory diplomatic note, was delivered by the State Department to the Ministry of Foreign Affairs of the Republic of Chile in Santiago on November 17, 1978. On February 9, 1979, the Clerk of the Court was notified by letter from the Department of State that the Chilean Foreign Affairs Ministry, by a diplomatic note dated January 16, 1979, had requested that the copy of the summons and amended complaint be returned to the Court. In the note, the Ministry of Foreign Affairs made it clear that CNI was not a separate legal entity but only an organ of the Chilean government and that the Republic of Chile would not acquiesce in the jurisdiction of this Court over the subject matter of this suit.
On May 2, 1979, following the plaintiffs' filing that same day of a motion, with supporting memorandum of law, seeking the entry of a default against the Republic of Chile, the Honorable John H. Pratt held a hearing on that request. The next day an order was filed entering a default against the Republic of Chile.
On June 27, 1979, this action, along with other cases, was randomly reassigned to this judge as a new member of the Court. A hearing memorandum on plaintiffs' right to relief against all defendants was filed on August 17, 1979, but on September 4, 1979, prior to the scheduling of a hearing at which the plaintiffs would be allowed to make their required evidentiary showing in order to obtain the entry of a default judgment, 28 U.S.C. § 1608(e) (1976),
the Department of State sent to the Clerk of the Court, at the request of the Republic of Chile, a copy of Embassy Note No. 180, dated August 14, 1979, and an accompanying memorandum of law in which the Chilean Republic reiterated its belief that the Court lacks subject matter jurisdiction.
On September 13, 1979, plaintiffs moved, pursuant to Federal Rule of Civil Procedure 11, to strike the note because it was a pleading not signed by counsel. By order filed October 11, 1979, the Court denied plaintiffs' motion in that the note and the accompanying memorandum were not a "pleading" but instead could be considered a "suggestion" under Rule 12(h)(3) that the Court lacks subject matter jurisdiction. Further, the Court asked plaintiffs to submit a memorandum of law concerning that question as well as the effect of Judge Pratt's entry of a default upon this Court's ability to consider that issue. Such a memorandum has been filed.
Although it is firmly established that subject matter jurisdiction cannot be conferred upon a court by consent of the parties involved, whether that consent is by affirmation or acquiescence of the defendant, and that the issue of subject matter jurisdiction can be raised by the court sua sponte at any time, 1 Moore's Federal Practice P 0.60(4), at 624-28 (2d ed. 1979); 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3522, at 46-48 (1975), plaintiffs nevertheless argue that the entry of a default by Judge Pratt after their submission of a memorandum dealing with subject matter jurisdiction and a hearing at which the issue could have been raised should preclude the Court from further considering the issue. According to plaintiffs, two different considerations require this result. Citing DiFrischia v. New York Central Railroad, 279 F.2d 141 (3d Cir. 1960), they first contend that the Court should not allow the government of Chile to "play fast and loose" with the judicial machinery by allowing it to resurrect a question that already has been decided. In addition, they assert that the doctrine of "law of the case" precludes this judge from further consideration of the matter.