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GUZEL v. STATE OF KUWAIT

March 29, 1993

LETICIA GUZEL, Plaintiff,
v.
THE STATE OF KUWAIT, et al., Defendants.



The opinion of the court was delivered by: JOYCE HENS GREEN

 On April 2, 1992, plaintiff Leticia Guzel ("Guzel") filed a complaint against defendants, Walid Azab Al-Uneizi ("Al-Uneizi") and the State of Kuwait ("Kuwait"). She alleges that on or about September 20, 1991, Al-Uneizi, while acting within the scope of his employment as an agent, officer or servant of the Ministry of Defense of Kuwait, committed an assault and battery upon her by "pushing, holding, striking, and raping plaintiff." Complaint, P 9. As a result of these actions, Guzel claims to have sustained serious personal injuries, thus incurring significant expenses for her medical care and treatment.

 Presently pending is Kuwait's Motion to Dismiss or, in the Alternative, for Summary Judgment and Plaintiff's Motion for Continuance or Refusal of the Defendant State of Kuwait's Motion to Dismiss or, in the Alternative, for Summary Judgment. For the reasons stated below, Kuwait's motion to dismiss is granted *fn1" , and Guzel's motion for continuance is denied. *fn2"

 BACKGROUND

 Leticia Guzel, an employee of the Willard Inter-Continental Hotel ("the Willard") in Washington, D.C., whose duties included the restocking of mini-bars, Complaint P 8; Plaintiff's Motion for Continuance or Refusal of the Defendant State of Kuwait's Motion to Dismiss or, in the Alternative for Summary Judgment ("Plaintiff's Motion"), Affidavit of Plaintiff Leticia Guzel ("Guzel Affidavit"), P 5, has made the following allegations: On or about September 20, 1991, at approximately 11:00 a.m., Guzel was restocking mini-bars on the sixth floor of the hotel. Plaintiff's Motion, Guzel Affidavit, P 6; Complaint, PP 8, 9. As she approached the vicinity of rooms 610 and 612, she was approached by Al-Uneizi, who conferred with her regarding the restocking of Room 612's mini-bar. Plaintiff's Motion, Guzel Affidavit, P 6. After completing restocking the mini-bar in Room 612, Guzel proceeded to service the mini-bar in Room 610. Id. P 7. "A short time thereafter," Al-Uneizi assaulted her, forcibly "pushing, holding, striking, and raping" her. *fn3" Plaintiff's Motion, Guzel Affidavit, P 7; Complaint, P 9. After the assault, he gave her a Kuwaiti Flag pin. Supplemental Memorandum in Support of Plaintiff's Response to defendant State of Kuwait's Motion to Dismiss, or in the alternative for Summary Judgment, at 10 n.10; see Plaintiff's Motion, at Exhibit 1 (Plea Agreement, United States v. Walid Al-Uneizi, Crim. No. F11290 (Superior Ct. D.C. September 17, 1992), at 17); see also id., Exhibit 2 (transcript, United States v. Walid Azab Al-Uneizi, Crim. No. F11290-91 (Superior Ct. D.C. March 28, 1992), at 446-47).

 DISCUSSION

 Pursuant to Federal Rule of Civil Procedure 12(b), Kuwait has moved to dismiss the action against it on the ground that this Court lacks jurisdiction over Kuwait pursuant to the Federal Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1391(f), 1441(d), and 1602-11. In the alternative, Kuwait requests that the Court grant summary judgment. Guzel counters first that the action fits squarely within a FSIA exception and hence Kuwait's motion should be denied, and alternatively she argues that if the motion is to be decided on summary judgment grounds, she should be granted a continuance in order to propound additional discovery to support her argument that Al-Uneizi acted within the scope of his employment with Kuwait when he allegedly assaulted Guzel.

 In viewing a motion to dismiss, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The factual allegations of the complaint must be presumed true and liberally construed in favor of the plaintiff. Shear v. National Rifle Ass'n., 196 U.S. App. D.C. 344, 606 F.2d 1251, 1253 (D.C. Cir. 1979); 5A C. Wright & A. Miller, Federal Practice and Procedure, § 1357, p. 304 (1990). The plaintiff is entitled to all favorable inferences which may be drawn from those allegations. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Nevertheless, in making a determination whether to dismiss for lack of jurisdiction, "a district court may consider conflicting evidence--contained in affidavits, for example--and make its own resolution of disputed jurisdictional facts." Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 289 n.6 (5th Cir. 1989).

 Thus, the question presented to the court is whether the long-established doctrine of sovereign immunity requires dismissal of Kuwait from this action. *fn4" It is unnecessary at this time to recite the extensive history of sovereign immunity in the United States. It is only necessary to look back to 1976, the year Congress codified the doctrine of sovereign immunity in the Foreign Sovereign Immunities Act. In pertinent part, the FSIA states that:

 
Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.

 28 U.S.C. § 1604 (1988). Then in 1989, interpreting the FSIA's jurisdictional grant, the United States Supreme Court held that the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in United States courts. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989). Accordingly, personal jurisdiction over a foreign sovereign, like subject-matter jurisdiction, exists only when one of the exceptions to the FSIA applies. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493, 76 L. Ed. 2d 81, 103 S. Ct. 1962 (1983).

 As a consequence, Guzel has consistently maintained that a FSIA exception applies to the circumstances of her case. Specifically, she invokes 28 U.S.C. § 1605 (a)(5) which states:

 
(a) A foreign state shall not be immune from the jurisdiction of courts in the United States or of ...

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