Cabiri v. Government of Republic of Ghana

• Citation: 165 F.3d 193
• Decision Date: 26 January 1999
• Docket Number: D,No. 1997,1997
• Parties: Bawol CABIRI and Efua Cabiri, Plaintiffs-Appellants, v. GOVERNMENT OF THE REPUBLIC OF GHANA, Defendant-Appellee. ocket 97-9563.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 193

165 F.3d 193

Bawol CABIRI and Efua Cabiri, Plaintiffs-Appellants, v. GOVERNMENT OF THE REPUBLIC OF GHANA, Defendant-Appellee.

No. 1997, Docket 97-9563.

United States Court of Appeals,

Second Circuit.

Argued June 24, 1998.

Decided Jan. 26, 1999.

Scott A. Kamber, New York, N.Y. (Wechsler Harwood Halebian & Feffer LLP, on the brief), for Plaintiffs-Appellants.

Michael S. Cole, New York, N.Y. (Cascone & Cole, on the brief), for Defendant-Appellee.

Before: VAN GRAAFEILAND, McLAUGHLIN and JACOBS, Circuit Judges.

JACOBS, Circuit Judge:

Bawol Cabiri was employed by the Republic of Ghana ("Ghana") as its trade representative to the United States, and enjoyed the use of a house in Westbury, New York pursuant to his employment contract. In 1986, Ghana summoned Cabiri home--where he alleges that he was detained and tortured--and undertook to discharge Cabiri from his post. When Ghana sued in state court to evict the Cabiri family from the Westbury house in which they had remained after Bawol Cabiri was recalled, Bawol Cabiri asserted counterclaims for breach of contract, abuse of trust, fraudulent misrepresentation, false imprisonment, and intentional infliction of emotional distress. His wife, Efua Cabiri, asserted a counterclaim for intentional infliction of emotional distress.

After the parties settled the eviction proceeding, the Cabiris repleaded their counterclaims in an action against Ghana in the United States District Court for the Eastern District of New York (Wexler, J.). The Cabiris now appeal from a judgment dismissing their claims for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602-11 (1994).

Under the FSIA, a foreign state is generally immune from the jurisdiction of the courts of the United States, subject however to implied waiver, 28 U.S.C. § 1605(a)(1), and to certain other exceptions, including one for counterclaims "arising out of the transaction or occurrence that is the subject matter of the claim of the foreign state," id. § 1607, and another for noncommercial torts committed in the United States, id. § 1605(a)(5). The Cabiris contend (1) that all of their claims fall within the counterclaim exception; (2) that Efua Cabiri's claim of intentional infliction of emotional distress also falls within the noncommercial tort exception; and (3) that in any event Ghana has impliedly waived immunity with respect to all of their claims.

The district court disagreed, concluding that none of the Cabiris' claims fell within the FSIA's exceptions to immunity. We conclude that the only claim that falls within the counterclaim exception to the FSIA is Bawol Cabiri's breach of contract claim; that Efua Cabiri's claim for intentional infliction of emotional distress is outside the FSIA's exception for non-commercial torts committed in the United States; and that Ghana has not waived its sovereign immunity with respect to any of the claims. We therefore reverse the judgment of the district court insofar as it dismissed Bawol Cabiri's breach of contract claim, and affirm in every other respect.

BACKGROUND

Pursuant to a 1983 contract of employment as Ghana's trade representative to the United States, Bawol Cabiri was given the use, for the duration of his employment, of a house owned by Ghana and located in Westbury, New York. In July 1986, Cabiri was In an internal government memorandum dated September 1, 1986, the head of Ghana's National Security apparatus proposed that Efua Cabiri and her children be repatriated. On April 16, 1987, Ghana wrote to Efua Cabiri purporting to "retire" her husband, effective October 31, 1986, and in October of 1987 brought a summary proceeding in Nassau County District Court to evict the Cabiri family from the Westbury house. Plaintiffs allege that, through the initiation of the eviction proceeding, as well as through "threats [and] intimidation," Ghana "attempted to force Efua Cabiri and her children to leave their residence ... and return to Ghana."

summoned back to Ghana. He alleges that upon his return, he was detained and tortured as a suspect in a planned coup d'etat. Cabiri was imprisoned for approximately a year, and was not allowed to return to the United States until 1991. During that time, his wife and family lived in the Westbury house.

By way of counterclaims to the eviction proceeding, Bawol Cabiri pleaded breach of contract, abuse of trust, fraudulent misrepresentation, false imprisonment, and intentional infliction of emotional distress, and Efua Cabiri asserted a single counterclaim for intentional infliction of emotional distress.

In the settlement of the eviction proceeding, the Cabiris agreed to vacate the house and assert their counterclaims in a new federal action, and the parties agreed that in that case Ghana would waive sovereign immunity to the extent that the counterclaim exception to the FSIA, ¹ or any other exception, would have amounted to a waiver of sovereign immunity in the state proceeding.

The Cabiris then sued Ghana in the United States District Court for the Eastern District of New York (Wexler, J.), asserting the same claims they had raised as counterclaims in the state proceeding. They now appeal from a judgment dismissing their complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction under the FSIA. See Cabiri v. Government of the Republic of Ghana, 981 F.Supp. 129 (E.D.N.Y.1997). On appeal, the Cabiris argue that Ghana lacks sovereign immunity (i) as to all of their claims, by virtue of the counterclaim exception to the FSIA, 28 U.S.C. § 1607 (1994), (ii) as to Efua Cabiri's claim for intentional infliction of emotional distress, by virtue of the FSIA's exception for non-commercial torts committed in the United States, 28 U.S.C. § 1605(a)(5) (1994), and (iii) as to all of their claims, by virtue of the implied waiver exception to the FSIA, 28 U.S.C. § 1605(a)(1) (1994).

DISCUSSION

The FSIA is the sole source for subject matter jurisdiction over any action against a foreign state. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 690, 102 L.Ed.2d 818 (1989). Except as otherwise provided in 28 U.S.C. §§ 1605 to 1607, "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States." 28 U.S.C. § 1604. "Once the defendant presents a prima facie case that it is a foreign sovereign, the plaintiff has the burden of going forward with evidence showing that, under exceptions to the FSIA, immunity should not be granted, although the ultimate burden of persuasion remains with the alleged foreign sovereign." Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir.1993) (citation omitted). "We review de novo the district court's conclusions of law regarding jurisdiction under the FSIA." Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 241 (2d Cir.1994).

I The Counterclaim Exception

Plaintiffs argue that all of their claims--his for breach of contract, abuse of trust, fraudulent misrepresentation, and false imprisonment, and their claims for intentional infliction of emotional distress--fall within the The counterclaim exception provides:

FSIA's counterclaim exception because they arose, like the eviction proceeding, out of Bawol Cabiri's employment relationship with Ghana.

In any action brought by a foreign state, or in which a foreign state intervenes, in a court of the United States or of a State, the foreign state shall not be accorded immunity with respect to any counterclaim

...

(b) arising out of the transaction or occurrence that is the subject matter of the claim of the foreign state;....

28 U.S.C. § 1607 (1994). The FSIA House Report notes that the phrase "transaction or occurrence" in § 1607 corresponds to the test for compulsory counterclaims in Fed.R.Civ.P. 13(a), and gives as the rationale for the exception that "if a foreign state brings or intervenes in an action based on a particular transaction or occurrence, it should not obtain the benefits of litigation before U.S. courts while avoiding any legal liabilities claimed against it and arising from that same transaction or occurrence." H.R.Rep. No. 94-1487, at 23 (1976), reprinted in, 1976 U.S.C.C.A.N. 6604, 6622.

To construe "transaction or occurrence" in § 1607(b), we look for guidance to cases that construe the same phrase in Rule 13(a). See, e.g., In re Oil Spill by the Amoco Cadiz, 491 F.Supp. 161, 168 (N.D.Ill.1979); Restatement (Third) of Foreign Relations Law § 456 cmt. f (1986) ("Since the phrase 'transaction or occurrence that is the subject matter of the claim' is the same in Section 1605(b) as in Rule 13(a), decisions construing that phrase as used in Rule 13(a) may serve as guidance in construing section 1605(b)."). Under Rule 13(a), a counterclaim is compulsory if it "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim." Fed.R.Civ.P. 13(a).

In Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926), the seminal Supreme Court case on the "transaction" test, the Court emphasized the "flexible meaning" of the word: "It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship." Id. at 610, 46 S.Ct. at 371. The Court therefore concluded that plaintiff's suit against a cotton exchange--alleging that the exchange violated the antitrust law by denying the plaintiff access to price quotations--arose out of the same transaction as the counterclaim in which the exchange alleged that the plaintiff was illegally receiving the quotations from an unauthorized source. The Court reasoned that the refusal to furnish the quotations was "the one circumstance without which neither party would have found it necessary to seek relief." Id.

We have construed the transaction or occurrence standard liberally:

In...