Chang v. Republic of S. Sudan

Decision Date03 March 2023
Docket NumberCivil Action 21-1821 (RC)
PartiesNATALIE CHANG, et al., Plaintiffs, v. REPUBLIC OF SOUTH SUDAN, et al., Defendants.
CourtUnited States District Courts. United States District Court (Columbia)

Re Document No.: 25

MEMORANDUM OPINION GRANTING DEFENDANTS' MOTION TO DISMISS

RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs Natalie Chang, Irene Scott, Jeana Graham, Jane Doe, Gian Libot, and Mary Roe (collectively Plaintiffs)[1] bring suit against Defendants the Republic of South Sudan and the South Sudan Ministry of Defence and Veteran Affairs (together, “South Sudan” or Defendants) for injuries suffered due to a horrific attack perpetrated by South Sudanese armed forces in July 2016. Defendants have filed a motion to dismiss Plaintiffs' complaint for lack of subject matter and personal jurisdiction, contending that South Sudan and its political subdivisions are immune to suit in the United States under the Foreign Sovereign Immunities Act (FSIA). For the reasons detailed below, the Court grants Defendants' motion to dismiss.

II. BACKGROUND
A. Factual Background[2]

On July 11, 2016, members of South Sudan's armed forces, including soldiers of the Sudan People's Liberation Army (“SPLA”), perpetrated a horrific assault on U.S. and international aid workers at a humanitarian aid compound in South Sudan called the Terrain Hotel. Compl. ¶ 1, ECF No. 1. At the time of the attack, Plaintiffs were employees of Internews, an American non-governmental organization based at the Terrain Hotel that ran international development programs in support of an independent media in South Sudan. Id. ¶ 2. Over the course of nearly five hours, Plaintiffs were terrorized and physically assaulted by the attackers. Id. ¶¶ 4-5. Natalie Chang, Irene Scott, Jeana Graham, Jane Doe, and Mary Roe were subjected to rape and other forms of sexual violence, in addition to being beaten and psychologically traumatized. Id. ¶¶ 4, 49-92. One of their colleagues, John Gatluak, was executed. Id. ¶ 4. Gian Libot, who was struck with the butt of a rifle by a soldier, witnessed Jane Doe's assault and John Gatluak's execution. Id. ¶¶ 4, 98-103. Although South Sudan evacuated Chang, Graham, Doe, and Libot from the compound several hours after the attack began, Scott, Roe, and others were left behind and not evacuated until the following morning. Id. ¶¶ 5, 107.

Both South Sudan's Investigation Committee and the United Nations' Independent Special Investigation concluded that government soldiers had committed the attack. Id. ¶¶ 10812. Further, an SPLA General Court Martial convicted ten “SPLA personnel” of-among other charges-murder, rape, and assault for the attack. Id. ¶¶ 7, 115. The court martial then found the South Sudan Ministry of Defence and Veterans Affairs civilly liable for the attack. Id. ¶¶ 3, 116. Though it awarded the owners of the Terrain Hotel $2.25 million in damages for the property damage and lost earnings, it awarded five of the victims of sexual assault and rape- including Chang, Scott, and Graham-only $4,000 each. Id. ¶¶ 117, 127. Plaintiffs have sought to appeal the damages portion of the judgment, but the Supreme Court of South Sudan has yet to hear the appeal because the case file has gone missing. Id. ¶¶ 119-20. Despite years of negotiation with the Government of South Sudan, and though South Sudan has paid the damages owed to the Terrain Hotel owners, South Sudan has not paid Plaintiffs any compensation. Id. ¶¶ 121-27.

B. Procedural Background

Plaintiffs now seek to bring suit against Defendants in this Court and raise claims of assault, battery, intentional infliction of emotional distress, and negligent retention, training, and supervision. Id. ¶¶ 142-53, 159-62, 164-68. Chang, Scott, Graham, Doe, and Roe each seek $15 million for pain and suffering and $8 million in economic damages and lost earnings, or a greater amount to be proved at trial. Id. ¶¶ 170-74. Libot seeks $5 million for pain and suffering and $3 million in economic damages and lost earnings, or a greater amount to be proved at trial. Id. ¶ 175.

Plaintiffs claim that South Sudan has waived its sovereign immunity to suit under the FSIA. Id. ¶ 12. Specifically, according to Plaintiffs, Plaintiffs on March 22, 2021 sent a demand letter and draft complaint to Counsel Biong Pieng Kuol, Advocate General of South Sudan in the Ministry of Justice and “the chief negotiator for South Sudan in this case,” via WhatsApp. Id. ¶ 128; Pls.' Opp'n to Defs.' Mot. to Dismiss (“Pls.' Opp'n”) at 5, ECF No. 27. Counsel Kuol then responded, “Okay, well received.” Compl. ¶ 128. On April 6, 2021, Counsel Kuol “informed Plaintiffs' local counsel in South Sudan that the Plaintiffs should bring their claims so that the case can be resolved.” Id. ¶ 11. Then, on June 26, 2021, “the Legal Adviser to Salva Kiir, the President of South Sudan, reiterated to Plaintiffs' local counsel that Plaintiffs should bring their claims.” Id. On July 8, 2021, counsel for Plaintiffs sent copies of the Complaint and exhibits to Counsel Kuol via WhatsApp, stating:

I look forward to continuing our dialogue so that we can reach a just and speedy resolution to this matter. Please confirm if you agree to service of documents, process, and correspondence via email. This has been a convenient means of communication for all parties so far, and we hope that it can continue.

Pls.' Opp'n at 6 (citation omitted). Counsel Kuol then responded, “Okay. The Minister will find out the matter because we have letters of request to the money with the Presidential Affairs Minister.” Id. at 7 (citation omitted). On August 23, 2021, Plaintiffs purportedly served process on Counsel Kuol by email and provided a copy on WhatsApp. Id. Counsel Kuol replied, “Okay. Let me print out the documents and share it with the Minister.” Id. (citation omitted).

Plaintiffs filed their Complaint in the instant matter on July 8, 2021. Compl. at 1. On November 5, 2021, following Defendants' failure to file an Answer or other response to Plaintiffs' Complaint, the Clerk of Court placed an entry of default on the docket. Defs.' Mot. to Set Aside Default at 1, ECF No. 22. Upon consideration of Defendants' unopposed motion to set aside the default, the Court vacated the entry of default and ordered Defendants to respond to Plaintiffs' Complaint by March 28, 2022. Minute Order of Jan. 27, 2022. Defendants did not timely respond to Plaintiffs' Complaint as directed, and the Court again permitted Defendants to respond by May 15, 2022. Minute Order of Apr. 19, 2022. Defendants then filed the instant motion to dismiss on May 11, 2022. Defs.' Mot. to Dismiss at 1.

III. LEGAL FRAMEWORK
A. Foreign Sovereign Immunities Act

The FSIA “is the source of jurisdiction in federal court over claims against foreign states, their agencies, or their instrumentalities.” Hardy Expl. & Prod. (India), Inc. v. Gov't of India, 219 F.Supp.3d 50, 56 (D.D.C. 2016) (citing Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989)). This statute “codifies the concept of foreign sovereign immunity, something which is ‘a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution.' Roth v. Islamic Republic of Iran, 78 F.Supp.3d 379, 392 (D.D.C. 2015) (quoting Republic of Argentina v. NML Cap., Ltd., 573 U.S. 134, 140 (2014)). As set out by the FSIA, [a] foreign state is normally immune from the jurisdiction of federal and state courts, 28 U.S.C. § 1604, subject to a set of exceptions specified in §§ 1605 and 1607.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488 (1983). It is well-established that [t]he FSIA begins with a presumption of immunity, which the plaintiff bears the initial burden to overcome by producing evidence that an exception applies, . . . and once shown, the sovereign bears the ultimate burden of persuasion to show the exception does not apply[.] Wye Oak Tech., Inc. v. Republic of Iraq, 24 F.4th 686, 696 (D.C. Cir. 2022) (quoting Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1183 (D.C. Cir. 2013)).

Among other exceptions, the FSIA provides that a foreign state may waive its immunity “either explicitly or by implication.” Id. at 690 (quoting 28 U.S.C. § 1605(a)(1)). The exceptions set forth by the FSIA to foreign sovereign immunity “provide the only authority for a district court to assert subject matter jurisdiction over claims against a foreign state.” Roth, 78 F.Supp.3d at 393. Thus, [i]f no exception applies, the district court has no [subject matter] jurisdiction.” Id. (citation omitted). “Under the FSIA, ‘subject matter jurisdiction plus service of process equals personal jurisdiction.' Hardy, 219 F.Supp.3d at 56 (quoting Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1548 n.11 (D.C. Cir. 1987)).

B. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction, see Gen Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004), and must therefore address jurisdiction as a “threshold matter,” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). “A court considering a Rule 12(b)(1) motion must assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting a plaintiff the benefit of all inferences that can be derived from the facts alleged.” McFadden v. Washington Metro. Area Transit Auth., 949 F.Supp.2d 214, 219 (D.D.C. 2013) (quoting Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)) (cleaned up). Even so, “a [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than resolving a 12(b)(6) motion for failure to...

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