The opinion of the court was delivered by: RICHARD ROBERTS, District Judge
Pro se plaintiff David Bruce brought this action against the
Consulate of Venezuela*fn1 alleging that the Consulate of
Venezuela used plaintiff's name in a letter. Because the court
lacks subject matter jurisdiction pursuant to the Foreign
Sovereign Immunities Act ("FSIA") of 1976, 28 U.S.C. §§ 1330,
1602-1611 (2000), the court will dismiss the plaintiff's
complaint sua sponte.
Plaintiff, a resident of Washington, D.C., alleges in his
nineteen-line complaint simply that the Consulate of Venezuela
"used [his] name in a letter." (Compl. at 1.) The complaint cites
to the privileges and immunities clause of Article IV of the
United States Constitution, as well as Amendments One through Nine, Thirteen and Fourteen; civil rights statutes,
42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1986; and 18 U.S.C. §§ 2510, et
seq., which govern the interception of wire and electronic
communications. The complaint also invokes federal question,
diversity and civil rights jurisdiction under 28 U.S.C. §§ 1331,
1332, and 1343, respectively. Plaintiff seeks damages in the
amount of $5 million. (See Compl. at 1-2.)
Plaintiff has also submitted several filings in addition to his
complaint, which appear to be intended to elaborate upon his
claim. As best as can be discerned from these filings, plaintiff
alleges that a Venezuelan employee at the Consulate of Venezuela
wrote a letter using plaintiff's name, without his consent, that
somehow related to plaintiff traveling to Thailand.*fn2
(See Pl.'s Special Damages Pleading at 4-5; Mot. for Subpoena
at 1, 3.) Plaintiff also suggests that defendant's use of his
name in a letter violated plaintiff's "interests of privacy."
(Mot. of Pl. Pleading, Ex. D.) Plaintiff further alludes to
defendant's plans "to steal [his] money" and defendant's
involvement in an alleged "conspiracy agreement to steal [the]
money he was using for religious Christian ministry purposes in
Thailand. . . ." (Pl.'s Special Damages Pleading at 6.) Plaintiff also alleges
that the defendant engaged in conduct which resulted in "actual
hurt, harm, injury, [and] death" to plaintiff's family members.
(Mot. of Pl.'s Pleading at 2.) Specifically, plaintiff alleges
that the defendant reached a "mutual agreement" with an American
named John Herrick Lawson, without identifying the nature of that
agreement. (See id. at ¶ 1.) Thereafter, Lawson allegedly
traveled from the United States to Bangkok, Thailand where he
murdered plaintiff's youngest son (id. at ¶¶ 2, 5-6), sodomized
and raped plaintiff's three-and-a-half-year old daughter (id.
at ¶ 7), and murdered plaintiff's wife and son.*fn3 (Id.
at ¶ 9.)
Before a court may adjudicate the merits of a plaintiff's case,
the court must determine whether it has subject matter
jurisdiction to entertain the case. Nurse v. Sec'y of the Air
Force, 231 F. Supp. 2d 323, 327 (D.D.C. 2002) (citing Ex Parte
McCardle, 74 U.S. 506 (1868)). Whether a court has subject
matter jurisdiction over a case is an issue which may be raised
by the court, and the case may be dismissed sua sponte upon the
determination that subject matter jurisdiction is lacking.
Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003); Houston Bus. Journal, Inc. v. Office of the Comptroller
of the Currency, 86 F.3d 1208, 1211 (D.C. Cir. 1996) (citing
Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinée,
456 U.S. 694, 702 (1982)); see, e.g., Rafeedie v. I.N.S.,
880 F.2d 506, 536 (D.C. Cir. 1989) (Silberman, J., dissenting) ("The
Supreme Court has often stated that a court is obliged to reach
questions of subject matter jurisdiction sua sponte, and may
undertake review of the merits of a dispute only if the court is
satisfied such jurisdiction exists."); Skeen v. Federative
Republic of Brazil, 566 F. Supp. 1414, 1415-18 (D.D.C. 1983)
(taking up subject matter jurisdiction over
28 U.S.C. § 1605(a)(5) claim sua sponte).
When determining the existence of subject matter jurisdiction,
the court is not limited to the jurisdictional statutes
identified in the complaint. Gerritsen v. de la Madrid Hurtado,
819 F.2d 1511, 1515 (9th Cir. 1987). "`[T]he court may sustain
jurisdiction when an examination of the entire complaint reveals
a proper basis for assuming jurisdiction other than one that has
been improperly asserted. . . .'" Id. (quoting 5 C. Wright & A.
Miller, Federal Practice and Procedure § 1206 (1969)).
Absent any prior international agreement conferring
jurisdiction over a foreign state, the FSIA provides "the sole
basis for obtaining jurisdiction over a foreign state in federal court. . . ." Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 434 (1989); Princz v. Federal Republic of
Germany, 26 F.3d 1166, 1169 (D.C. Cir. 1994). "Under the FSIA, a
foreign state is immune from the jurisdiction of our courts
unless certain statutory exceptions are met." El-Hadad v. United
Arab Emirates, 216 F.3d 29, 31 (D.C. Cir. 2000); see also
Reiss v. Societe Centrale Du Groupe Des Assurances Nationales,
235 F.3d 738, 746-47 (2d Cir. 2000); Princz, 26 F.3d at 1171.
The general rule of foreign sovereign immunity is overcome if a
case falls within one of the exceptions to immunity under
28 U.S.C. § 1605. Persinger v. Islamic Republic of Iran,
729 F.2d 835, 838 (D.C. Cir. 1984). Plaintiff bears the initial burden
under the FSIA to show that an exception applies. Cargill Int'l
S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993).
When an exception applies, the foreign state will lose its
immunity and "[t]he district courts [will] have original
jurisdiction without regard to [the] amount in controversy. . . ."
28 U.S.C. § 1330(a); Argentine Republic, 488 U.S. at 434.
Additionally, the foreign state may be subject to the court's
jurisdiction if there is an international agreement enacted prior
to the FSIA with which FSIA immunity would expressly conflict.
See 28 U.S.C. § 1604; Von Dardel v. Union of Soviet Socialist
Republics, 736 F. Supp. 1, 5 (D.D.C. 1990); see also
Argentine Republic, 488 U.S. at 442. It is undisputed that Venezuela is a foreign state under the
FSIA. See 28 U.S.C. § 1603; cf. Shakour v. Federal Republic
of Germany, 199 F. Supp. 2d 8, 13 (E.D.N.Y. 2002) (finding
Germany to be undisputedly a foreign state under the FSIA);
Puente v. Spanish Nat'l State, 116 F.2d 43, 45 (2d Cir. 1940)
(noting that "[c]ourts take judicial notice of the sovereign
character of a defendant"). The Embassy of Venezuela, as a
separate legal entity, also qualifies as a "foreign state" under
the FSIA.*fn4 See Joseph v. Office of Consulate Gen. of
Nigeria, 830 F.2d 1018, 1021 (9th Cir. 1987) (finding that the
Consulate of Nigeria qualified as a "foreign state" under the
FSIA); Gerritsen, 819 F.2d at 1517 (finding that "the defendant
Mexican Consulate falls within the definition of a foreign state
because it is `a separate legal person' that is `an organ of a
foreign state or political subdivision thereof' and that is
`neither a citizen of a state of the United States . . . nor
created under the laws of a third country'" (quoting
28 U.S.C. § 1603(b))).
While plaintiff does not allege that this court may invoke
jurisdiction over the defendant pursuant to an exception in the
FSIA,*fn5 plaintiff's pro se filings will be construed
liberally to determine whether his allegations show that an exception is
applicable. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(per curiam) (explaining that pro se complaints are held to
less stringent standards than are formal pleadings drafted by
lawyers); Richardson v. United States, 193 F.3d 545, 548-49
(D.C. Cir. 1999) (holding that courts must construe pro se
filings liberally, and that the district court should have read
all of the pro se plaintiff's filings together before
dismissing the case for lack of subject matter jurisdiction, but
also noting that a court need not "cull through every filing of a
pro se litigant to preserve a defective complaint").
I. WAIVER EXCEPTION, 28 U.S.C. § 1605(a)(1)
The first exception to foreign sovereign immunity under § 1605
provides, in relevant part, that a foreign state will "not be
immune from the jurisdiction of the courts of the United States . . .
in any case in which the foreign state has waived its
immunity either explicitly or by implication. . . ."
28 U.S.C. § 1605(a)(1).
"[A]n implied waiver depends upon the foreign government's
having at some point indicated its amenability to suit."
Princz, 26 F.3d at 1174; see, e.g., Foremost-McKesson, Inc.
v. Islamic Republic of Iran, 905 F.2d 438, 444 (D.C. Cir. 1990)
("`[C]ourts rarely find that a nation has waived its sovereign
immunity, particularly with respect to suits brought by third
parties, without strong evidence that this is what the foreign state
intended.'") (quoting Frolova v. Union of Soviet Socialist
Republics, 761 F.2d 370, 377 (7th Cir. 1985)). A foreign state
implicitly waives immunity where, for example, it (1) fails to
raise the sovereign immunity defense in a responsive pleading,
(2) agrees to arbitrate the case outside of ...