Cabiri v. Government of Republic of Ghana

• Decision Date: 22 October 1997
• Docket Number: No. CV 95-5386.,CV 95-5386.
• Citation: 981 F.Supp. 129
• Parties: Bawol CABIRI and Efua Cabiri, Plaintiffs, v. GOVERNMENT OF THE REPUBLIC OF GHANA, Defendant.
• Court: U.S. District Court — Eastern District of New York

Page 129

981 F.Supp. 129

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

No. CV 95-5386.

United States District Court, E.D. New York.

October 22, 1997.

Sonnenschein, Nath & Rosenthal by Scott A. Kamber, New York City, for Plaintiffs.

Cascone & Cole by Michael S. Cole, New York City, for Defendant.

MEMORANDUM AND ORDER

WEXLER, District Judge.

I. BACKGROUND

Plaintiff Bawol Cabiri ("Cabiri") was a trade representative to the United States appointed by the Ghanian Government in 1983 to serve in New York. He and his family were provided with a home on Marietta Drive in Westbury, New York which was owned by the defendant the Republic of Ghana.

Plaintiffs' Underlying Allegations

Plaintiff Bawol Cabiri alleges that prior to July 1986, officials of Ghana formulated a scheme to deprive him of the benefits of his position as trade counsellor, and subject him to torture, false imprisonment, false arrest, physical and mental abuse, and internal exile. Cabiri was recalled to Ghana in July 1986 for consultations regarding shipments of grain. Cabiri alleges that this recall was a ruse to repatriate him, that he was forcibly removed from the ministry of trade in Ghana where he had reported, and was imprisoned for nearly a year in detention camps.

While Cabiri was being held, Ghanian officials purportedly subjected his wife, Efua Cabiri, to threats and intimidation. Mrs. Cabiri was given no information as to her husband's whereabouts or physical condition.

Ghana claims that Cabiri was retired from his post on October 31, 1986. Cabiri argues that his retirement was attempted retroactively by a letter dated April 16, 1987, and was not effective. In June 1991, Cabiri was allowed to leave Ghana and return to the United States. The State Department granted Mrs. Cabiri asylum in the United States in 1988, and granted Mr. Cabiri asylum in 1993.

The Real Property Proceeding

In October 1987, Ghana commenced a summary proceeding in the District Court of the State of New York located in Hempstead pursuant to New York State Real Property Actions and Proceedings Law § 713(11) ("RPAPL") (the "Real Property Proceeding") to dispossess the Cabiris from the Westbury residence.¹ In addition to alleging defenses to this action, Mrs. Cabiri asserted counterclaims on behalf of herself and her husband (who was then detained in Ghana). The counterclaims included intentional infliction of emotional distress, prima facie tort, and breach of contract.

After the Cabiris, served discovery requests for their counterclaims, the parties reached a settlement as to the dispossess action, and agreed to dismiss the counterclaims so that they could be brought before this court. The parties agreed that any defenses that Ghana could assert in the federal action under the Foreign Sovereign Immunities Act or the Act of State Doctrine would be waived to the extent they had been waived in the Real Property Proceeding.²

II. DISCUSSION

This case is before this Court upon defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to FRCP Rule 12(b)(1). The Foreign Sovereign Immunities Act (the "FSIA") provides the sole source of subject matter jurisdiction over foreign sovereigns in suits brought in United States courts. 28 U.S.C. § 1602 et seq.; see Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 688, 102 L.Ed.2d 818 (1989); see also Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017 (2d Cir.1991) (citations omitted); Letelier v. Republic of Chile, 748 F.2d 790, 793 (2d Cir.1984) (citations omitted). As a rule, a foreign state is immune from the jurisdiction of the courts of the United States unless one of the specific exceptions contained within sections 1605 or 1607 of the Act is found to apply. 28 U.S.C. § 1604: see Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-89, 103 S.Ct. 1962, 1968-69, 76 L.Ed.2d 81 (1983); Carey v. National Oil Corp., 592 F.2d 673, 676 (2d Cir.1979) (footnote omitted). Only if it is determined that a foreign state is not entitled to immunity does the FSIA confer original jurisdiction on district courts. 28 U.S.C. § 1330(a); Verlinden, 461 U.S. at 489, 103 S.Ct. at 1969 ("[I]f the claim does not fall within one of the exceptions, federal courts lack subject-matter jurisdiction."); see also Shapiro, 930 F.2d at 1017 (citing § 1330(a)). If subject matter jurisdiction exists, the foreign sovereign is liable in the "same manner and to the same extent as a private individual under like circumstances." Verlinden, 461 U.S. at 488-89, 103 S.Ct. at 1969-70 (quoting § 1606) (footnote omitted.)

Plaintiffs admit that defendant constitutes a "foreign state" as defined by § 1603(a) of the FSIA. Therefore, the burden now shifts to plaintiffs to come forward with some facts which would allow this Court to find that an exception to the Act applies. See Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 289 n. 6 (5th Cir.1989); Olsen ex rel. Sheldon v. Mexico, 729 F.2d 641, 644 (9th Cir. 1984). Plaintiffs raise three different exceptions to sovereign immunity to this case to confer jurisdiction upon this Court. They are the tort exception, the counterclaim exception and the implied waiver exception. For the reasons stated below, this Court finds that no claim falls within any of the exceptions set forth by the Act.

The Tort Exception

Section 1605 (a)(5) of the FSIA provides in relevant part that:

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case — (5) ... in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment....

The FSIA applies only when the tortious acts or omissions of a foreign state occur in the United States. Relying upon legislative history, this Court has previously held that § 1605(a)(5) applies only when the entire tort takes place in the United States. See Fickling v. Commonwealth of Australia, 775 F.Supp. 66, 72 (E.D.N.Y.1991). In the case at bar, the Cabiris' claims include allegations of torture, false imprisonment and physical and mental abuse. All of these claims involve alleged conduct and injuries that took place in Ghana, and not in the United States. Even those allegations asserted by Mrs. Cabiri, stating that she was subjected to mental abuse when she was refused information about her husband, involve alleged conduct of Ghanian officials acting in Ghana. Therefore, the Cabiris cannot meet the requirements of the tort exception to the FSIA because the torts did not take place entirely in the United States.

Counterclaim Exception

Section 1607 of the FSIA states in relevant part that:

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

The intent of subsection (b) is to permit the filing of compulsory counterclaims. H.R.Rep. No. 94-1487, 94th Cong., 2d Sess. 23, reprinted in (1976) U.S.Code Cong. & Admin. News at 6622. Because the "transaction or occurrence" language is also used in Fed.R.Civ.P 13(a) dealing with the filing of compulsory counterclaims, courts have relied upon the compulsory counterclaim test in analyzing the test for the FSIA counterclaim exception under § 1607(b).

The term "transaction or occurrence" has been interpreted liberally to effectuate the policies of the federal rules. See 6 Wright & Miller § 1410. "As a word of flexible meaning, `transaction' may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship. See Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750(926)." Warshawsky & Co. v. Arcata National Corp., 552 F.2d 1257, 1261 (7th Cir.1977).

In re Oil Spill by the Amoco Cadiz, 491 F.Supp. 161, 168 (N.D.Ill.1979). In the case at bar there exists no logical relationship between the state court Real Property Proceeding and the Cabiris' claims in this action. The Real Property Proceeding involved a summary proceeding requiring evidence of Ghana's ownership of the Westbury residence and its right to possession. The claims before this Court are far more complex, involve actions that occurred primarily in Ghana, and are completely independent of the Cabiris, right to retain possession of the Westbury residence. Unlike the Real Property Proceeding, the evidence here would involve events and testimony that have nothing to do with the Westbury residence. Because the evidence required to assert or defend the Cabiris' claims of breach of contract, false imprisonment, torture and intentional infliction of emotional distress is so distinct from the evidence which would have been needed in a summary real property dispossess proceeding, this Court finds that there is no logical relationship between the claims. Therefore, even though Ghana had stipulated to waive its jurisdictional defense of sovereign immunity to the extent that it had during the Real Property Proceeding, the claims at bar do not fall under the counterclaim exception of the FSIA because they do not arise out of the same transaction or occurrences as the Real Property Proceeding.

Implied Waiver of Immunity

Section 1605 (a) of the FSIA removes jurisdictional immunity from a foreign state in any case — (1) in which 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...