United States District Court, D. Columbia
August 31, 2005.
DAVID LAWRENCE BRUCE, Plaintiff,
CONSULATE OF VENEZUELA, Defendant.
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 the United States, or
(3) agrees to abide by the laws of a specific country in
resolving a contract. H.R. Rep. No. 94-1487, at 8 (1976), as
reprinted in 1976 U.S.C.C.A.N. 6604, 6617.
Here, plaintiff has not suggested or shown in his complaint or
any of his subsequent filings that defendant has waived,
explicitly or implicitly, its immunity. Defendant has not
responded to plaintiff's complaint or any of his subsequent
filings, and otherwise has done nothing in this case that
constitutes an explicit waiver of its immunity. Nor does the fact
that defendant has filed nothing in and of itself result in an
implicit waiver of immunity. See Canadian Overseas Ores Ltd.
v. Compania de Acero del Pacifico S.A., 727 F.2d 274, 277-78 (2d
Cir. 1984) (affirming the lower court's conclusion that Compania
had not waived its sovereign immunity although it never filed a
pleading in response to Canadian Overseas' complaint).
II. COMMERCIAL ACTIVITY EXCEPTION, 28 U.S.C. § 1605(a)(2)
The second exception provides that a foreign state will not be
immune from the court's jurisdiction if the case "is based upon a commercial activity carried on in the United States by the
foreign state; or upon an act performed in the United States in
connection with a commercial activity of the foreign state
elsewhere. . . ." 28 U.S.C. § 1605(a)(2). A "commercial activity"
is defined as "either a regular course of commercial conduct or a
particular commercial transaction or act." 28 U.S.C. § 1603(d).
In determining whether an activity is commercial, "the issue is
whether the particular actions that the foreign state performs
(whatever the motive behind them) are the type of actions by
which a private party engages in `trade and traffic or
commerce.'" Princz, 26 F.3d at 1172 (quoting Republic of
Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992)).
As best as can be discerned from plaintiff's filings, plaintiff
alleges that the Consulate of Venezuela wrote a letter, using
plaintiff's name, that somehow related to allowing plaintiff to
travel to Thailand. (See Pl.'s Special Damages Pleading at 4-5;
Mot. for Subpoena at 1,3.) Plaintiff makes no allegations of fact
which show that the defendant's letter related to its commercial
activity or constituted a regular course of conduct or act that
is carried on by private parties engaged in commerce. Cf.
Malewicz v. Amsterdam, 362 F. Supp. 2d 298, 314 (D.D.C. 2005)
(holding that the city of Amsterdam engaged in "commercial
activity" within the meaning of the FSIA when it loaned artworks to U.S. museums, since potential sale of work was
contemplated by the parties).
III. RIGHTS IN PROPERTY EXCEPTIONS, 28 U.S.C. §§ 1605(a)(3),
Under the third exception, a foreign state will not be immune
from this court's jurisdiction if the plaintiff's case is one "in
which rights in property taken in violation of international law
are in issue and that property or any property exchanged for such
property is present in the United States in connection with a
commercial activity carried on in the United States by the
foreign state. . . ." 28 U.S.C. § 1605(a)(3). Under the fourth
exception, a foreign state does not have immunity for cases
involving "rights in property in the United States acquired by
succession or gift or rights in immovable property situated in
the United States. . . ." 28 U.S.C. § 1605(a)(4).
Plaintiff's complaint alleges no facts regarding a taking of
property. In subsequent filings, plaintiff does allude 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 . . ." but does not allege that any of his money or
property has actually been stolen, that property was taken in
violation of international law, or that such property is present
in the United States in connection with commercial activity carried on by the Embassy of Venezuela. (Pl.'s Special Damages
Pleading at 6.) Nor has plaintiff alleged any facts relating to
property rights acquired by succession or gift, or rights in
IV. NONCOMMERCIAL TORT EXCEPTION, 28 U.S.C. § 1605(a)(5)
The fifth exception denies immunity to a foreign state in a
case in which money damages are sought against a foreign state
for personal injury or death, or for damage to or loss of
property, occurring in the United States and caused by a tortious
act or omission of the foreign state, or an official or employee
of that state. 28 U.S.C. § 1605(a)(5). Claims arising out of
malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights
do not provide exceptions to immunity. 28 U.S.C. § 1605(a)(5)(B).
Plaintiff's complaint alleges nothing more than that defendant
used plaintiff's name in a letter. In subsequent filings,
however, plaintiff suggests that defendant's use of his name in a
letter violated plaintiff's "interests of privacy." (Mot. of Pl.
Pleading, Ex. D.) Specifically, plaintiff claims that the
defendant violated his privacy interest by (1) appropriating his
name or likeness for the defendant's benefit, (2) intruding upon
his solitude or seclusion, (3) publicly disclosing private
information, and (4) placing him in a false light in the public's eye. (Br. on P. & A. at 6.) To the
extent that plaintiff's claim is one for defamation, libel, or
slander, defendant is immune from suit pursuant to the FSIA.
See 28 U.S.C. § 1605(a)(5)(B); see also Ortega Trujillo v.
Banco Central Del Ecuador, 17 F. Supp. 2d 1340, 1344-45 (S.D.
Fla. 1998) ("Courts have consistently afforded literal
interpretation to the 1605(a)(5)(B) bar on defamation claims
against foreign sovereigns and their agents.").
Furthermore, section 1605(a)(5)(A) also bars tort claims "based
upon the exercise or performance or the failure to exercise or
perform a discretionary function regardless of whether the
discretion be abused. . . ." 28 U.S.C. § 1605(a)(5)(A). Here, it
may be that defendant's alleged act of including plaintiff's name
in a letter was the performance of a discretionary function for
which defendant is immune from suit. However, this question need
not be resolved, for plaintiff's tort claims would not survive a
motion to dismiss pursuant to Rule 12(b)(6) for failure to state
a claim. See Baker v. Dir., United States Parole Comm'n,
916 F.2d 725, 726-27 (D.C. Cir. 1990) (per curiam) (upholding
district court's sua sponte dismissal for failure to state a
claim pursuant to Rule 12(b)(6) "[b]ecause it is patently obvious
that [the pro se plaintiff] could not have prevailed on the
facts alleged in his complaint"). In the District of Columbia, courts have adopted the definition
of the tort of appropriation as set forth in Section 652C of the
Restatement (Second) of Torts. Tripp v. United States,
257 F. Supp. 2d 37, 40-41 (D.D.C. 2003); see Vassiliades v.
Garfinckel's, 492 A.2d 580, 592 (D.C. 1985). A defendant is
liable for the tort of appropriation of name or likeness if the
defendant "`appropriates to his own use or benefit the name or
likeness of another.'" Tripp, 257 F. Supp. 2d at 40-41 (quoting
Restatement (Second) of Torts § 652C). "Incidental use of name or
likeness or publication for a purpose other than taking advantage
of a person's reputation or the value associated with his name
will not result in actionable appropriation." Vassiliades,
492 A.2d at 592. "The value of a plaintiff's name is not appropriated
by mere mention of it. . . ." Tripp, 257 F. Supp. 2d at 41
(internal quotation marks omitted). Here, neither plaintiff's
complaint nor any of his subsequent filings allege any facts
suggesting that defendant used plaintiff's name to take advantage
of his reputation or other value of his name. Thus, plaintiff's
claim of misappropriation would not survive a motion to dismiss
for failure to state a claim.
Plaintiff also has not stated a claim for "intrusion upon
seclusion." In Wolf v. Regardie, the District of Columbia Court
of Appeals adopted Section 652B of the Restatement (Second) of
Torts (1977) and its definition of a tort for "intrusion upon seclusion": "One who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of another or his
private affairs or concerns, is subject to liability to the other
for invasion of his privacy, if the intrusion would be highly
offensive to a reasonable person." 553 A.2d 1213, 1217 (D.C.
1989). Some of the circumstances in which the tort of intrusion
upon seclusion could arise include harassment, peeping through
windows, eavesdropping on private conversations, entering a
person's home without permission, or secretly searching a
person's belongings. Id. at 1217-18; see also Helton v.
United States, 191 F. Supp. 2d 179, 181 (D.D.C. 2002). Here,
plaintiff's allegations that defendant used plaintiff's name in a
letter nowhere allege that defendant has intentionally intruded
upon plaintiff's seclusion or intruded upon him in a way that
would be "highly offensive to a reasonable person." Although
plaintiff asserts that a privacy interest has been violated, he
alleges no facts to support such an assertion.
To succeed on a claim for public disclosure of private
information, a plaintiff must establish that "the matter
published is of a kind that (a) would be highly offensive to a
reasonable person, and (b) is not of legitimate concern to the
public." Wolf, 553 A.2d at 1220. "The tort is generally
considered as having five constituent elements: (1) publicity,
(2) absent any waiver or privilege, (3) given to private facts (4) in which the public has no legitimate concern (5) and which
would be highly offensive to a reasonable person of ordinary
sensibilities." Id. Again, all plaintiff has alleged here is
that defendant used plaintiff's name in a letter. Plaintiff has
alleged no facts to support the elements of this privacy tort
"To prevail on a false light claim under District of Columbia
law, appellant must show that (a) the published material places
appellant in a false light which would be highly offensive to a
reasonable person, and (b) the actor had knowledge of or acted in
reckless disregard as to the falsity of the publicized matter and
the false light in which the other would be placed." Weyrich v.
New Republic, Inc., 235 F.3d 617, 628 (D.C. Cir. 2001) (internal
quotation marks omitted). Here, plaintiff has made no allegations
that defendant, in its alleged letter, made false statements
about plaintiff or used plaintiff's name in such a way as to
place plaintiff's name in a false light.
Thus, even assuming plaintiff had sufficiently invoked the
noncommercial tort exception to establish the court's
jurisdiction over this action, plaintiff has not alleged
sufficient facts for his tort claims to survive a motion to
dismiss.*fn6 See Kowal v. MCI Commc'n Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994) (stating that the court "need not accept
inferences drawn by plaintiffs if such inferences are unsupported
by the facts set out in the complaint").
V. ARBITRATION AWARDS EXCEPTION, 28 U.S.C. § 1605(a)(6)
Under the sixth exception, a foreign state will not be immune
from suit if the case is one in which a private party seeks to
"enforce an agreement made by the foreign state with or for the
benefit of a private party to submit to arbitration all or any
differences which have arisen or which may arise between the
parties with respect to a defined legal relationship. . . ."
28 U.S.C. § 1605(a)(6). Since plaintiff's complaint and filings do
not allege violations pertaining to the enforceability of an
arbitration agreement, this exception is inapplicable here. VI. "TERRORISM EXCEPTION," 28 U.S.C. § 1605(a)(7)
The last exception, which is commonly referred to as the
"terrorism exception," was enacted in 1996 as part of the
Antiterrorism and Effective Death Penalty Act ("AEDPA").
Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1028
(D.C. Cir. 2004). Under this exception, a foreign state will be
subject to the court's jurisdiction if the suit is one
in which money damages are sought against a foreign
state for personal injury or death that was caused by
an act of torture, extrajudicial killing, aircraft
sabotage, hostage taking, or the provision of
material support or resources . . . for such an act
if such act or provision of material support is
engaged in by an official, employee, or agent of such
foreign state while acting within the scope of his or
her office, employment, or agency. . . .
28 U.S.C. § 1605(a)(7). A court will not exercise jurisdiction
over the suit, however, "if the foreign state was not designated
as a state sponsor of terrorism under section 6(j) of the Export
Administration Act of 1979 (50 U.S.C. App. 2405(j)) or section
620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371) at
the time the act occurred. . . ." 28 U.S.C. § 1605(a)(7)(A);
Acree v. Republic of Iraq, 370 F.3d 41
, 44 (D.C. Cir. 2004).
The terrorism exception is not applicable here because
Venezuela has not been designated as a state sponsor of
terrorism. See § 1605(a)(7)(A); Acree, 370 F.3d at 44;
Exports of Agricultural Products, Medicines, and Medical Devices
to Cuba, Sudan, Libya, and Iran, 66 Fed. Reg. 36,683, 36,684
(July 21, 2001) (noting that the governments of Cuba, Sudan, Libya, and
Iran have been designated as supporting international terrorism
pursuant to section 6(j) of the Export Administration Act of
1979.); Defense Federal Acquisition Regulation Supplement,
67 Fed. Reg. 62,590, 62,608 (Oct. 7, 2002) (noting that the
countries listed under the Export Administration Act of 1979 as
of October 7, 2002 include: Cuba, Iran, Iraq, Libya, North Korea,
Sudan, and Syria).
Plaintiff has failed to show that any of the exceptions to the
general rule of foreign sovereign immunity under the FSIA apply
in this case. Therefore, this court lacks subject matter
jurisdiction over plaintiff's action and the complaint will be
dismissed. A separate order accompanies this memorandum opinion.