(vii) unlawful expropriation of aliens' property in violation of the Alien Tort Act, 28 U.S.C. § 1350; and (viii) tortious interference with prospective economic advantage. Millicom seeks damages from the defendants in excess of $ 134 million -- trebled pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15, and in an amount to be established at trial -- plus interest, attorneys' fees, expenses, and costs.
A. Applicability of the FSIA
Whenever the court is presented with a suit against a foreign state, the court must initially determine whether it has jurisdiction to hear the case. The FSIA "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, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989). The FSIA presumes a foreign state is immune from suit in United States courts except as provided in one of the statutory exceptions. See Saudi Arabia v. Nelson, 507 U.S. 349, 355, 123 L. Ed. 2d 47, 113 S. Ct. 1471 (1993) ("Under the Act, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state"). Exceptions to this immunity exist for cases dealing with waiver of immunity, 28 U.S.C. § 1605(a)(1); certain commercial activities, 28 U.S.C. 28 U.S.C. § 1605(a)(2); expropriation of certain types of property, 28 U.S.C. § 1605(a)(3); cases concerning rights to immovable property situated in the United States, 28 U.S.C. § 1605(a)(4); actions based in tort, 28 U.S.C. § 1605(a)(5); or admiralty claims, 28 U.S.C. § 1605(b).
The plaintiffs argue that the FSIA's statutory exceptions defeat the defendants' immunity claims to give this court jurisdiction over the present action. In particular, the plaintiffs allege that the defendants are not entitled to foreign sovereign immunity because two of the FSIA's exceptions to immunity apply: (i) the commercial activity exception, 28 U.S.C. § 1605(a)(2); and (ii) the expropriation exception, 28 U.S.C. § 1605(a)(3). Neither of the FSIA jurisdictional exceptions cited by the plaintiffs is meritorious and defeats the defendants' immunity claim. Therefore, for the reasons stated herein, the present action is dismissed because the FSIA does not confer upon this court subject-matter jurisdiction over this action.
The court will address each FSIA statutory exception in turn.
1. "Commercial Activity" Exception, 28 U.S.C. § 1605(a)(2)
The FSIA "commercial activity" exception confers U.S. courts jurisdiction and denies immunity to a foreign state and its agencies or instrumentalities when the action:
is based upon (clause one) a commercial activity carried on in the United States by the foreign state; or (clause two) an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or (clause three) an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.
28 U.S.C. § 1605(a)(2). Thus in order to have subject matter jurisdiction under clause one the court must find that the plaintiffs' action is based upon a commercial activity carried on in the United States by the foreign state. In order to find subject matter jurisdiction under clause two the court must find (1) plaintiffs' action is based upon an act performed in the United States, and (2) that it was taken in connection with a commercial activity of the defendants. Finally, under clause three the court can have subject matter jurisdiction if it finds that plaintiffs' action is (1) based upon an act outside the territory of the United States, (2) that was taken in connection with a commercial activity of the defendants outside of this country, and (3) that caused a direct effect in the United States. Republic of Argentina v. Weltover, 504 U.S. 607, 611, 119 L. Ed. 2d 394, 112 S. Ct. 2160 (1992).
a. Clauses One and Two - "Commercial Activity" in the U.S.
Plaintiffs allege that clauses one and two confer this court jurisdiction because their claims are based on the defendants' commercial activity that have "substantial contact" with the United States.
See 28 U.S.C. § 1603(d). In particular, the plaintiffs allege that because the "defendants own and operate a network of cables, wires, and satellite links that literally connects Costa Rica and the U.S." they control all cellular calls to and from the U.S. See Opp. at 19-20. The plaintiffs argue that their anti-trust claims all focus on this activity because without access to facilities essential to complete calls to and from the U.S., the defendants' misconduct secures their monopoly power and stifles the plaintiffs' efforts to compete in that market. Id. at 20. The court disagrees and rejects the plaintiffs' jurisdictional argument.
The first two clauses do not defeat the defendants' immunity claims because the plaintiffs' action is not "based upon" any misconduct committed by the defendants in the United States. § 1605(a)(2). The court previously rejected the plaintiffs' argument that the defendants' interconnectivity arrangements are a basis of their action. As this court stated in its discovery order,
"each of the plaintiffs' claims relates to the defendants' acts taken with regard to the cellular services market in Costa Rica. The fact that the defendants have arranged for interconnectivity between Costa Rica and the United States does not make that arrangement an 'element of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case.' Saudi Arabia v. Nelson, 507 U.S. 349, 356, 123 L. Ed. 2d 47, 113 S. Ct. 1471 (1993). While the extent of Millicom's alleged injury is directly related to its inability to transfer calls to the United States, that injury was caused solely by its lack of access to the Costa Rican network."