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BRUCE v. CONSULATE OF VENEZUELA

August 31, 2005.

DAVID LAWRENCE BRUCE, Plaintiff,
v.
CONSULATE OF VENEZUELA, Defendant.



The opinion of the court was delivered by: RICHARD ROBERTS, District Judge

MEMORANDUM OPINION

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.

BACKGROUND

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.)

DISCUSSION

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 ...


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