United States District Court, District of Columbia
N. MCFADDEN UNITED STATES DISTRICT JUDGE.
Therrell Smith filed a three-count complaint in Superior
Court of the District of Columbia against defendant Overseas
Korean Cultural Heritage Foundation, also known as the
Overseas Korean Cultural Heritage Foundation, USA, seeking
damages related to the Defendant's construction project
on a property next to Plaintiffs residence. The Defendant
removed the action to this Court and filed a motion to
dismiss based on Federal Rules of Civil Procedure. 12(b)(1),
12(b)(4), and 12(b)(5). Def.'s Mot. to Dismiss 6-7. This
motion is ripe for adjudication, as are two other motions:
Plaintiff s Motion to Strike an affidavit filed in support of
the Defendant's Notice of Removal, and the
Defendant's Motion to Stay Discovery pending a ruling on
its Motion to Dismiss. Upon consideration of the pleadings,
relevant law, and related legal memoranda in opposition and
in support, the Defendant's Motion to Dismiss is DENIED
and the Plaintiffs Motion to Strike Affidavit is DENIED. The
Defendant's Motion to Stay Discovery is accordingly
DENIED as moot.
is a 100-year old resident of 14 Logan Circle in Washington,
D.C. Compl. ¶ 2. The Defendant, a South Korean cultural
foundation, is the owner of the property next to Plaintiffs
and has been engaged in a construction project to open the
property as a museum. Id. ¶ 4-5, Pl.'s
Memo, of Opposing P. & A. to Def.'s Mot. to Dismiss
Ex. 3. Plaintiff filed suit in Superior Court for the
District of Columbia and delivered to Defendant's
registered agent a copy of the complaint and summons. Compl.
1. Plaintiff claims that the construction has resulted in
damage to Plaintiffs property, harmed Plaintiffs physical
health, and caused her to incur certain professional fees
which she alleges should be reimbursed by the Defendant.
Compl. ¶¶ 20, 28, 33, 42; Def.'s Notice of
Removal ¶ 1.
Defendant removed the action to this Court and has filed two
motions: a Motion to Dismiss on the bases that the Defendant
was not properly served under the Foreign Sovereign
Immunities Act ("FSIA") and Federal Rule of Civil
Procedure 12(b)(4) and 12(b)(5) and that this Court lacks
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1); and a Motion to Stay Discovery until the
Motion to Dismiss is decided. See Def.'s Notice
of Removal; Def.'s Mot. to Dismiss; Def.'s Opp. and
Mot, to Stay Discovery Pending Ruling on Def.'s Mot. to
Dismiss. Plaintiff has filed a Motion to Strike an affidavit
submitted with the Defendant's Motion to Dismiss.
Pl.'s Mot. to Strike Affidavit of Soo-Dong O in Support
of Def.'s Notice of Removal. All three motions, which are
ripe, are considered below.
Federal Rule of Civil Procedure 12(b)(4) and 12(b)(5), a
complaint may be dismissed, respectively, for
"insufficient process" or "insufficient
service of process." A motion under Rule 12(b)(4) is
"proper only to challenge noncompliance with the
provisions of Rule 4(b) .. . that deals specifically with the
content of the summons." Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure §
1353 (3d ed. 2004) ("Wright & Miller"). A
motion under Rule 12(b)(5) is the "proper vehicle for
challenging the mode of delivery or the lack of delivery of
the summons and complaint." Id. When challenged
on these grounds, the plaintiff has the burden of
establishing proper service of process. See Light v.
Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (quoting Wright
& Miller § 1083).
Federal Rule of Civil Procedure 12(b)(1), a complaint may be
dismissed for lack of subject matter jurisdiction. The
plaintiff bears the burden of proof to establish that the
court has subject matter jurisdiction. Arpaio v.
Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). A court may
look beyond the complaint to consider "undisputed facts
evidenced on the record" to satisfy itself that it has
subject matter jurisdiction. Coalition for Underground
Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003).
Motion to Dismiss turns on whether the Defendant is either:
(1) a "foreign state or political subdivision of a
foreign state, " covered by 28 U.S.C. § 1608(a); or
(2) "an agency or instrumentality of a foreign state,
" covered by 28 U.S.C. § 1608(b). The Defendant
argues that the former applies and that Plaintiff failed to
serve the Defendant by any of the methods prescribed by
§ 1608(a). Memo, in Support of Def.'s Mot. to
Dismiss 4. Plaintiff appears to concede that she did not
serve the Defendant using any of the procedures listed in
§ 1608(a), but she counters that § 1608(b) is the
relevant sub-section, making service proper because she
served Defendant's registered agent. Pl.'s Memo, of
Opposing P. & A. to Def.'s Mot. to Dismiss 4. In
particular, § 1608(b) allows for service to be
effectuated by "delivering a copy of the summons and
complaint... to any other agent authorized or appointed by
law to receive service of process in the United States."
28 U.S.C.§ 1608(b)(2). I agree that § 1608(b)
applies and that Plaintiff has met her burden to show that
service of process was proper.
determine whether an entity is a "foreign state or
political subdivision of a foreign state" or "an
agency or instrumentality of a foreign state, " the
relevant inquiry is whether the core function of the entity
is governmental or commercial. Roeder v. Islamic Republic
of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003) (describing
the approach as "categorical"). If the core
function is governmental, then the entity is a foreign state
or political subdivision; if the core, function is
commercial, then the entity is an agency or instrumentality.
Id. Courts in this circuit have found that a
nation's air force, its embassy, its Ministry of Foreign
Affairs, and its cities are governmental functions. See,
e.g., Id. at 234-35; Transaero, Inc. v. La
FuerzaAerea Boliviana, 30 F.3d 148, 150 (D.C. Cir.
1994); Howe v. Embassy of Italy, 68 F.Supp.3d 26, 33
(D.D.C. 2014); Malewicz v. City of Amsterdam, 362
F.Supp.2d 298, 306 (D.D.C. 2005). The Defendant does not
argue that its status is as unambiguously governmental as
those examples, but rather contends that its function is
"governmental in nature." Memo, in Support of
Def.'s Mot. to Dismiss 5. This is because the Defendant
was created through a presidential decree under a South
Korean statute, and its function to "protect, preserve,
popularize, and enhance South Korean cultural heritage and
develop traditional South Korean life-style and culture . ..
serve[s] a national purpose that is traditionally performed
by a government." Id. The Defendant also
emphasizes that the property has great cultural significance
to South Korea. Memo, of P. & A. in Support of Def.'
s Reply Memo. 3.
the Defendant's interests and objectives may align with,
or be directed by, a foreign state, I must look to the
"nature" of the act, rather than its
"purpose." See Republic of Argentina v.
Weltover, Inc., 504 U.S. 607, 614 (1992). At its core,
the Defendant's act is to build and operate a museum.
This is an act that sovereigns may accomplish, but it is not
an act that only a sovereign power can do. Museums can be
privately built and operated, even if they may be focused on
promoting a particular culture or tradition. Whether the
Defendant intends to operate the museum for profit also does
not impact the inquiry. As the Supreme Court has stated in
the context of defining "commercial" for purposes
of FSIA, "the question is not whether the foreign
government is acting with a profit motive or instead with the
aim of fulfilling uniquely sovereign objectives. Rather, the
issue is whether the government's particular actions
(whatever the motive behind them) are the type of
actions by which a private party engages in commerce."
Id. As the Defendant's action-building and
operating a museum-is the type of action by which a private
party can engage in commerce, the Defendant's act is
commercial in nature. See id.; see also Malewicz,
362 F.Supp.2d at 313 ("'Commercial' means only
'not sovereign, ' as long as there is some example of
private action of a similar type connected with 'trade
and traffic or commerce.'"). This makes the
Defendant an '-agency or instrumentality" of a
foreign state and service properly accomplished upon delivery
of the complaint and summons to an authorized agent.
See 28 U.S.C. § 1608(b)(2).
the commercial nature of the Defendant's activity defeats
its claim of sovereign immunity, as actions "based upon
a commercial activity carried on in the United States by the
foreign state" are excepted from the jurisdictional
immunity of a foreign state. See 28 U.S.C. §
1605(a)(2). As courts have recognized, if the activity can
similarly be accomplished by a private party, the action is
"commercial" within the meaning of FSIA. See,
e.g., Republic of Argentina, 504 U.S. at 614-15
("[A] contract to buy army boots or even bullets is a
'commercial' activity, because private companies can
similarly use sales contracts to acquire goods");
Malewicz, 362 F.Supp.2d at 314 ("There is
nothing 'sovereign' about the act of lending art
pieces, even though the pieces themselves might belong to a
sovereign."). In this case, the establishment and
operation of a cultural museum, while rooted in policy
interests promulgated by the government of South Korea, is an
act in which both public and private entities may engage.
Therefore, the act is "commercial."
Plaintiff seeks to strike an affidavit submitted in support
of the Defendant's notice of removal. Plaintiff argues
that the affidavit cannot be accurate because it was signed
on March 28, 2017, seven days prior to the filing of the
Defendant's notice of removal on April 4, 2017.
Plaintiffs Mot. to Strike Affidavit of Soo-Dong O in Support
of Def.'s Notice of Removal. The Defendant responds that
it initially included the affidavit with its removal notice
filed in Superior Court on March 30, 2017, and filed the same
affidavit in federal court on April 4, 2017, adding the
federal case number assigned. Memo, of P. & A. in Support
of Def.'s Opp'n to Pl.'s Mot. to Strike Affidavit
3. I find that this non-substantive change is not