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Firebird Global Master Fund II Ltd. v. Republic of Nauru

United States District Court, District of Columbia

January 15, 2013

FIREBIRD GLOBAL MASTER FUND II LTD., Plaintiff,
v.
REPUBLIC OF NAURU, Defendant.

Page 125

Bruce Samuel Marks, Marks & Sokolov, LLC, Philadelphia, PA, for Plaintiff.

MEMORANDUM OPINION

RICHARD W. ROBERTS, District Judge.

Plaintiff Firebird Global Master Fund II Ltd. (" Firebird" ) brings this action under the Foreign Sovereign Immunities Act (" FSIA" ), 28 U.S.C. § 1602 et seq., seeking to enforce a foreign judgment against the defendant Republic of Nauru (" Nauru" ). After default was entered against Nauru, Firebird moved for entry of default judgment arguing that Nauru waived sovereign immunity and Firebird is entitled to enforce the foreign judgment against Nauru in the United States. Because Firebird has not shown that Nauru waived sovereign immunity as to United States courts, the court lacks subject matter jurisdiction, the motion for entry of default judgment will be denied, and the complaint will be dismissed.

BACKGROUND

The Republic of Nauru Finance Corporation (" Ronfin" ) issued two series of Japanese

Page 126

yen bond certificates, Series B and Series C certificates. Compl. ¶¶ 7-8. Nauru guaranteed paying principal and interest on the bond certificates in bond purchase agreements. Id. ¶ 10. Nauru explicitly waived sovereign immunity as to the courts of Japan and Nauru in the Conditions of Guarantee annexed to the bond purchase agreements. Id., Ex. B, Series B Bond Purchase Agreement Annex 2, ¶ 9 and Series C Bond Purchase Agreement Annex 2, ¶ 9. On the relevant redemption dates, Ronfin did not redeem the bond certificates. Id. ¶ 9. Firebird currently holds the bond certificates. Id. ¶ 13. Firebird brought an action in the Tokyo District Court against Nauru seeking payment of the principal and interest on the bonds. Id. ¶ 14. In 2011, the Tokyo District Court ruled in favor of Firebird and awarded the equivalent of $37,427,658.29 in Japanese yen to Firebird. Id. ¶¶ 15-16; see also id., Ex. A at 1, 20. Firebird seeks to enforce that award here. The Clerk entered default and Firebird moves for entry of default judgment.

DISCUSSION

The FSIA is " the sole basis for obtaining jurisdiction over a foreign state in [United States] courts" and " ‘ must be applied by the district courts in every action against a foreign sovereign[.]’ " Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434-35, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (quoting Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983)). " Under the [FSIA], 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." Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) (citing Verlinden B.V., 461 U.S. at 488-89, 103 S.Ct. 1962); see also Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C.Cir.2004) (citing 28 U.S.C. § 1604).

Default judgment may not be entered against a foreign state under the FSIA " unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." 28 U.S.C. § 1608(e). This provision " ‘ imposes a duty on FSIA courts to not simply accept a complaint's unsupported allegations as true, and obligates courts to inquire further before entering judgment against parties in default.’ " Wultz v. Islamic Republic of Iran, 864 F.Supp.2d 24, 28-29 (D.D.C.2012) (quoting Rimkus v. Islamic Republic of Iran, 750 F.Supp.2d 163, 171 (D.D.C.2010)). In evaluating whether a plaintiff has sufficiently established its claim, courts may accept the plaintiff's " uncontroverted factual allegations, which are supported by ... documentary and affidavit evidence." Oveissi v. Islamic Republic of Iran, 879 F.Supp.2d 44, 49 (D.D.C.2012) (internal quotation marks omitted).

Firebird argues that the waiver exception to sovereign immunity in 28 U.S.C. § 1605(a)(1) is applicable in this case. That exception denies immunity to a foreign state when

the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver[.]

28 U.S.C. § 1605(a)(1). Generally, with regard to express waivers under this provision, " [a] foreign sovereign will not be found to have waived its immunity unless it has clearly and unambiguously done so." World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d ...


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