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Wye Oak Technology, Inc. v. Republic of Iraq

United States District Court, D. Columbia.

November 6, 2014

WYE OAK TECHNOLOGY, INC., Plaintiff,
v.
REPUBLIC OF IRAQ, Defendant

Decided November 5, 2014

For Wye Oak Technology, Inc., Plaintiff: John Harvey Quinn, Jr., LEAD ATTORNEY, QUINN RACUSIN & GAZZOLA CHARTERED, Washington, DC USA; John J. Pavich, Robert J. Pavich, PRO HAC VICE, PAVICH LAW GROUP, P.C., Chicago, IL USA.

For Republic of Iraq, Defendant: Craig Crandall Reilly, LEAD ATTORNEY, Alexandria, VA USA; Tennant David Magee, Timothy B. Mills, LEAD ATTORNEYS, MAGGS & MCDERMOTT, LLC, Washington, DC USA.

Page 357

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge.

Plaintiff Wye Oak Technology, Inc. brings suit against the Republic of Iraq for

Page 358

breach of contract. Compl. at 12-13, ECF No. 1. The agreement at issue was executed between Wye Oak and the Iraqi Ministry of Defense (the " Ministry" ). Broker Services Agreement at 1, ECF No. 1-2. Jurisdiction in this Court is premised on the Foreign Sovereign Immunities Act (" FSIA" ), specifically § 1605(a)(2), the " commercial activity" exception to foreign sovereign immunity, which is triggered by a suit based on commercial activities of a foreign state that are carried on in this country or have " direct effect" in this country. 28 U.S.C. § § 1330(a), 1605(a)(2). Today, Wye Oak seeks partial judgment on the pleadings on a narrow question: May Iraq be held liable for the alleged breach of the agreement, despite the fact that the signatory to that agreement is the Ministry? Put somewhat differently, the Court must determine whether the Ministry's liability for breach, if any, can be attributed to Iraq.

For the following reasons and after consideration of the parties' briefing and the relevant legal standards, the Court concludes that Wye Oak has not established its entitlement to a partial judgment on the pleadings with respect to the attribution of liability between the Ministry and Iraq. Wye Oak's motion is DENIED.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings " [a]fter the pleadings are closed--but early enough not to delay trial." Fed.R.Civ.P. 12(c). The motion should be granted " if the moving party demonstrates that no material fact is in dispute and that it is entitled to judgment as a matter of law." Stewart v. Evans, 275 F.3d 1126, 1132, 348 U.S.App.D.C. 382 (D.C. Cir. 2002) (internal citation and quotation marks omitted). A court reviewing a Rule 12(c) motion should " accept as true the allegations in the opponent's pleadings and accord the benefit of all reasonable inferences to the non-moving party." Id. (internal citation and quotation marks omitted).

III. LEGAL STANDARD AND DISCUSSION

The FSIA provides federal courts with original jurisdiction over suits against foreign states when the statute's requirements are met. 28 U.S.C. § 1330. The Supreme Court has held, however, that the FSIA does not " affect the substantive law determining the liability of a foreign state or instrumentality, or the attribution of liability among instrumentalities of a foreign state." First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 620, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983) (" Bancec " ). This conclusion is rooted in the statute's provision that a foreign state against which suit is brought under the FSIA " shall be liable in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 1606. Thus, " where state law provides a rule of liability governing private individuals, the FSIA requires the application of that rule to foreign states in like circumstances." Bancec, 462 U.S. at 622 n.11.

A wrinkle in this general rule that state substantive law governs FSIA claims arises in the context of attribution of liability among state entities with separate juridical status. The Court observed in Bancec that the FSIA is silent " concerning the rule governing the attribution of liability among entities of a foreign state." Id. (emphasis in original). The Court was considering whether a juridical entity separate from Cuba under Cuban law could be ...


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