This case is presently before the Court on the question of subject matter jurisdiction. Although defendant has not filed a formal motion to dismiss,
the case is now in a posture requiring the Court to consider, sua sponte, whether it in fact has jurisdiction over the subject matter of this action.
The factual basis of plaintiff's complaint is quite simple. Plaintiff alleges that on November 29, 1982, Antonio Francisco da Silveira, Jr., the grandson of defendant's ambassador to the United States, assaulted and shot him outside a local nightclub. On December 9, 1982, plaintiff filed suit in this Court against da Silveira, Jr., his grandfather, and the Federative Republic of Brazil. Plaintiff had some difficulty in effective service, but on May 17, 1983, his counsel appeared before the Court and represented that service had been completed and that the statutory time for defendants to respond had elapsed. 28 U.S.C. § 1608(d).
At the status conference on May 17, 1983, the Court asked plaintiff's counsel about a certification filed by the United States Department of State on March 29, 1983, attesting that Ambassador da Silveira had been duly notified to the State Department as Brazil's ambassador and that hence both the ambassador and his family were entitled to full diplomatic immunity under the provisions of the Vienna Convention on Diplomatic Relations, 23 U.S.T. 3227, T.I.A.S. 7502, 500 U.N.T.S. 95, to which the United States is a party. At the status conference, counsel for plaintiff admitted that the representations of the State Department were essentially correct, and with plaintiff's consent the Court dismissed the action against the individual defendants in an Order filed May 17, 1983. 22 U.S.C. § 254d.
Also appearing at the status conference on May 17, 1983, was J. P. Janetatos, Esq., who stated to the Court that he did not intend to enter a formal appearance,
but that he represented defendant Brazil. At the invitation of the Court, Mr. Janetatos filed a "Memorandum of Counsel" on the subject of the Court's jurisdiction on May 31, 1983. Counsel for plaintiff responded on June 21, 1983.
Plaintiff seeks to invoke this Court's jurisdiction under 28 U.S.C. § 1330, the jurisdictional provision of the Foreign Sovereign Immunities Act (FSIA). Section 1330 gives the Court jurisdiction over any action against a foreign state in which "the foreign state is not entitled to immunity." See 28 U.S.C. § 1604. The particular exception to the general rule of sovereign immunity that plaintiff seeks to invoke here is that of 28 U.S.C. § 1605(a)(5), which states that a foreign state shall not be immune from suit in a case
in which money damages are sought against a foreign state for personal injury . . . occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.