107 F.3d 913 (D.C. Cir. 1997), 96-7071, Rendall-Speranza v. Nassim

Docket Nº:96-7071, 96-7145.
Citation:107 F.3d 913
Party Name:Margot RENDALL-SPERANZA, Appellee, v. Edward A. NASSIM, Appellant.
Case Date:March 14, 1997
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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107 F.3d 913 (D.C. Cir. 1997)

Margot RENDALL-SPERANZA, Appellee,


Edward A. NASSIM, Appellant.

Nos. 96-7071, 96-7145.

United States Court of Appeals, District of Columbia Circuit

March 14, 1997

Argued Nov. 12, 1996.

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[323 U.S.App.D.C. 281] Appeals from the United States District Court for the District of Columbia (No. 95cv01855).

Jana Howard Carey, Baltimore, MD, argued the cause for appellant Edward A. Nassim, with whom James R. Myers and Kenneth C. Bass were on the briefs.

Michael S. Helfer, Washington, DC, argued the cause for appellant International Finance Corporation, with whom Thomas P. Olson and Stuart F. Delery were on the briefs. Lester Nurick and Eric J. Mogilnicki entered appearances.

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[323 U.S.App.D.C. 282] David H. Shapiro, Washington, DC, argued the cause for appellee, with whom Diane Bodner was on the brief.

William D. Rogers was on the brief for amicus curiae Inter-American Development Bank.

Before: GINSBURG, SENTELLE, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Margot Rendall-Speranza, an employee of the International Finance Corporation (which is a subsidiary of the World Bank) sued her supervisor, Edward A. Nassim, alleging battery and intentional infliction of emotional distress. During the pre-trial proceedings in the district court, Rendall-Speranza moved to amend her complaint in order to add the IFC as a defendant. Although the limitation period had run when Rendall-Speranza moved to add the IFC as a defendant, the district court allowed the amendment, holding that Rendall-Speranza's failure to name the IFC as a defendant in her first complaint was due to a "mistake of identity." The district court then denied each defendant's motion to dismiss. We reverse.

I. Background

For the purposes of this appeal we take the facts to be as alleged in the complaint. From 1992 to 1995 Rendall-Speranza worked as an investment officer at the IFC; Nassim was her supervisor. According to Rendall-Speranza, Nassim tried on several occasions to take indecent liberties with her. Rendall-Speranza rebuffed his every advance and protested whenever he tried to kiss her or to touch her inappropriately. Eventually, Rendall-Speranza reported Nassim's behavior to officials of the World Bank; that was in the early Summer of 1994. The events giving rise to this suit occurred on the evening of August 25, 1994 when, in the offices of the World Bank, Nassim allegedly grabbed Rendall-Speranza by the wrist, twisted her arm painfully behind her back, and kicked her in the shin.

On August 24, 1995 Rendall-Speranza sued Nassim in the Superior Court of the District of Columbia. She alleged separate counts of sexual harassment, assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and simple negligence. Nassim removed the suit to federal district court, whereupon Rendall-Speranza amended her complaint to allege only assault and battery and intentional infliction of emotional distress. When Nassim moved to dismiss Rendall-Speranza's amended complaint, the IFC filed an amicus curiae brief stating that Nassim's conduct on the evening of August 25, 1994 was appropriate under IFC policy because he was preventing Rendall-Speranza from stealing IFC files when he restrained and allegedly kicked her. Rendall-Speranza then moved for leave to file a further amended complaint adding the IFC as a defendant on the battery count. The district court granted Rendall-Speranza's motion, and the IFC promptly filed its own motion to dismiss.

The district court denied both defendants' motions to dismiss. The court first held that although Rendall-Speranza did not add the IFC as a defendant until after the applicable limitation period had run, her amended complaint "relates back," pursuant to Federal Rule of Civil Procedure 15(c), to the date upon which the original complaint was filed because her failure to name the IFC in the original complaint was due to "a mistake concerning the identity of the proper party" to sue. The court also rejected the IFC's contention that Rendall-Speranza's exclusive remedy lay in the IFC's internal employee grievance procedure.

The district court then rejected the IFC's claim to immunity under the International Organizations Immunities Act, 22 U.S.C. §§ 288-288j (IOIA), which grants to international organizations in the United States "the same immunity from suit and every form of judicial process as is enjoyed by foreign governments." 22 U.S.C. § 288a(b). In 1945, when the IOIA was first passed, foreign governments enjoyed absolute immunity. In 1976, however, the Congress passed the Foreign Sovereign Immunities Act, 28 U.S.C. [323 U.S.App.D.C. 283]

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§ § 1602 et seq. (FSIA), which creates certain exceptions to the immunity of foreign governments. We have not heretofore found it necessary to decide whether the exceptions contained in the FSIA likewise limit the immunity extended to international organizations under the IOIA. See, e.g., Broadbent v. Organization of American States, 628 F.2d 27, 32-33 (D.C.Cir.1980) (no need to decide issue because international organization immune from liability for alleged harm even under FSIA). The district court held conditionally that if the FSIA does circumscribe the immunity available under the IOIA, then the IFC is not immune from liability for Nassim's tortious conduct because that conduct did not involve the exercise of discretion. See 28 U.S.C. § 1605(a)(5) (no sovereign immunity "in any case ... in which money damages are sought for ... damage ... caused by [a] tortious act or omission ... except this paragraph shall not apply to--(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused"). The district court therefore found it necessary to decide whether the exceptions found in the FSIA do indeed limit the immunity of international organizations under the IOIA; it held that they do and accordingly denied the IFC's motion to dismiss.

For essentially the same reason grounded in the FSIA the district court rejected Nassim's claim to immunity from liability for the alleged battery. Turning to Rendall-Speranza's claim against Nassim for intentional infliction of emotional distress, the court determined that liability for all the acts alleged by Rendall-Speranza except the battery of August 25, 1994 would ordinarily be barred by the District of Columbia's one-year statute of limitations for a claim based upon a battery. The court held, however, that because the last alleged act did occur within the limitation period, Rendall-Speranza could pursue redress for the entire course of conduct alleged on the ground that it constitutes a "continuing tort." The court also rejected Nassim's contention that the acts alleged did not as a matter of law constitute the intentional infliction of emotional distress.

Both the IFC and Nassim filed interlocutory appeals contesting the district court's rejection of their claims of immunity from suit. See Foremost-McKesson v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C.Cir.1990) (decision rejecting claim of foreign sovereign immunity immediately appealable). In addition, the appellants urge this court to exercise pendent jurisdiction over those issues with respect to which they do not claim any immunity, viz., the statute of limitations defenses.

II. Analysis

We address first (in Part II.A) the issue of pendent jurisdiction, which we decide to exercise because, if the appellants have a valid defense in the statute of limitations, then the court can both economize on judicial resources and avoid resolving their claims of immunity. We then hold (in Part II.B) that Rendall-Speranza's claim against the IFC for battery does not relate back to the date of her original complaint; accordingly, that claim is barred by the statute of limitations. Finally, we take up (in Part II.C) Rendall-Speranza's claims against Nassim for battery and for intentional infliction of emotional distress. We hold that Nassim is immune from liability for battery because he was acting within the scope of his employment during the alleged battery, and that the claim for emotional distress is also barred by the statute of limitations.

  1. Pendent Appellate Jurisdiction

    Both defendants argue that we should, and Rendall-Speranza argues that we should not, exercise pendent jurisdiction over the issues in this case that do not involve the defendants' claims of immunity. We do not ordinarily engage in interlocutory review of a district court's decision to deny a motion to dismiss because a verdict rendered after trial could make any review unnecessary. Where, however, a defendant raises and the district court rejects immunity as a defense, the defendant enjoys the right of immediate appeal. The reason is clear enough: Immunity protects the defendant not only from liability upon the merits of the claim against it but also from the burden of standing trial in the

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    [323 U.S.App.D.C. 284] first place. Foremost-McKesson, 905 F.2d at 443.

    Of course, a district court's decision may involve a mix of issues, some immediately appealable and others not. Considerations of judicial economy may then impel the court to consider the whole case at once by exercising "pendent appellate jurisdiction" over the otherwise unappealable aspects of the district court's order(s). We do so, however, only when "substantial considerations of fairness or efficiency demand it."...

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