Howland v. Hertz Corp., 8:05-CV-2190-T-24MSS.

• Decision Date: 03 May 2006
• Docket Number: No. 8:05-CV-2190-T-24MSS.,8:05-CV-2190-T-24MSS.
• Citation: 431 F.Supp.2d 1238
• Parties: Dale HOWLAND, Plaintiff, v The HERTZ CORPORATION, Enny Tin Suryanti, and Bank Indonesia Defendants.
• Court: U.S. District Court — Middle District of Florida

Page 1238

431 F.Supp.2d 1238

Dale HOWLAND, Plaintiff, v The HERTZ CORPORATION, Enny Tin Suryanti, and Bank Indonesia Defendants.

No. 8:05-CV-2190-T-24MSS.

United States District Court, M.D. Florida, Tampa Division.

May 3, 2006.

Carolyn B. Lamm, Frank A. Vasquez, Jr., Erika M. Serran, White & Case, LLP, Washington, DC, Jaime A. Bianchi, T. Neal McAliley, White & Case, LLP, Miami, FL, for Bank of Indonesia.

ORDER

BUCKLEW, District Judge.

This cause comes before the Court on Defendant Bank Indonesia's Motion to Dismiss the Complaint (Doc. No. 8). Plaintiff filed a Response in opposition thereto (Doc. No. 12). Defendant replied with leave of Court (Doc. No. 16).

I. Background

Ms. Tin Suryanti and Ms. Zainah traveled to Tampa, Florida in August of 2002 to attend an educational auditing course on behalf of the internal audit department of their employer Defendant Bank Indonesia. Bank Indonesia paid Mses. Tin Suryanti and Zainah a lump sum amount prior to their departure for business-related expenses, consisting of (1) a Daily Allowance, to cover hotel accommodations, meals, and necessities related to the employee's business, as well as transportation within the destination city overseas, (2) an Allowance for the Official Position Held for incidentals not covered by the Daily Allowance, (3) a Taxi Allowance for travel to and from the Tampa International Airport, and (4) Payment to Settle Domestic Costs, for travel to and from the airport in Indonesia and for fiscal and airport taxes in Indonesia.

The educational auditing course was held from 8:30 a.m. on Monday, August 19, 2002 to 1:00 p.m. on Wednesday, August 21, 2002 at the Hyatt Regency Tampa Hotel in downtown Tampa. Mses. Tin Suryanti and Zainah chose to stay at the Travelodge Resort near Busch Gardens. They arrived in Tampa on the morning of Sunday, August 18, 2002 and rented a vehicle from Defendant Hertz. Ms. Zainah signed the rental contract on behalf of Ms. Tin Suryanti and paid for the rental on her credit card. According to the rental contract, the car was to be returned the next day August, 19, 2002.

After leaving the airport on August 18, 2002, Ms. Tin Suryanti drove the couple to breakfast, then to explore the area and then to check into the hotel. Later that day, they met Mr. Carmeen, a sailor who was also a guest at the Travelodge Resort. That evening, Ms. Tin Suryanti and Ms. Zainah ate sandwiches for dinner in their room at the hotel before Mr. Carmeen drove the couple in the rental car to have their camera repaired. Afterwards, Mses. Tin Suryanti and Zainah dropped Mr. Carmeen off at the hotel and continued to drive around downtown. While searching for the way back to the Travelodge Resort at approximately 11:35 p.m., Ms. Tin Suryanti drove into an area that was under construction and ran into Plaintiff, who was working road repair detail. After hitting the Plaintiff, Ms. Tin Suryanti proceeded to the Bush Boulevard exit without stopping. She was apprehended, arrested, and charged with the felony Leaving the Scene of an Accident with Injury or Death, a violation of § 316.027, Florida Statutes. Plaintiff was airlifted to Tampa General Hospital.

Plaintiff, Dale Howland, filed a personal injury lawsuit on July 28, 2005, against Defendants, Ms. Tin Suryanti, Bank Indonesia, and the Hertz Corporation in the Circuit Court for the Thirteenth Judicial Circuit in Hillsborough County, Florida. Bank Indonesia removed this action to the Middle District of Florida on November 31, 2005.

In the Complaint, Plaintiff asserts claims for (1) vicarious liability against the Hertz Corporation; (2) vicarious liability against Bank Indonesia; and (3) negligence against Ms. Suryanti. (Doc. No. 2). Defendant Bank Indonesia now moves to dismiss the complaint pursuant to (1) Rule 12(b)(1) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602-11; (2) Rule 12(b)(2) of the Federal Rules of Civil Procedure, for lack of personal jurisdiction under the FSIA; and (3) Rule 12(b)(7) of the Federal Rules of Civil Procedure, for failure to join a party under Rule 19 of the Federal Rules of Civil Procedure. Plaintiff responds that notwithstanding the Court's basis of jurisdiction, Defendant's motion to dismiss is not ripe for a ruling by this Court because Plaintiff has not had the opportunity to conduct jurisdictional discovery on the immunity claim.

II. Discussion

A motion to dismiss based on lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) comes in two forms: "facial attacks" and "factual attacks." See Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). "`Facial attacks' on the complaint `require[] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.'" Id. at 1529 (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). However, "factual attacks" challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.'" Id. Unlike a motion under Rule 12(b)(6), "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional issue.'" Morrison v. Amway Corp., 323 F.3d 920, 924-925 (11th Cir.2003)(quoting Lawrence, 919 F.2d at 1529). Defendant's motion to dismiss comes in the form of a factual attack, and Defendant has relied on matters outside the pleadings, such as depositions and company documentation.

Defendant argues that the Complaint against Bank Indonesia should be dismissed because Bank Indonesia is an instrumentality of the Republic of Indonesia and, as such, is presumptively immune from the jurisdiction of this Court under the FSIA. Defendant further argues that Bank Indonesia's immunity is not vitiated by the tort exception to the FSIA because Bank Indonesia's employee, Ms. Tin Suryanti, was outside the scope of her employment at the time of her accident with the Plaintiff. Lastly, Defendant argues that the suit should not go forward because Plaintiff has failed to properly join Ms. Tin Suryanti, the sole tortfeasor and an indispensable party to the action.

A. Immunity from Jurisdiction under the FSIA

Under the FSIA, a foreign state is immune from the jurisdiction of the courts of the United States unless a stated exception applies. 28 U.S.C. §§ 1330, 1605-07; Verlinden B.V. v. Central Bank of Nigeria, 461. U.S. 480, 485 n. 5, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). Section 1330(b) provides personal jurisdiction wherever subject, matter jurisdiction exists under § 1330(a) and service of process has been made under § 1608. Id. There is no dispute that service of process was properly executed. Accordingly, personal jurisdiction will lie if this Court has subject matter jurisdiction. Therefore, this Court will now address whether Defendant qualifies as a "foreign state" under the FSIA and whether a stated exception applies.

1. Qualification as a "Foreign State"

Defendant contends that it qualifies as an entity entitled to sovereign immunity under the FSIA. According to § 1603(a), a foreign state includes "an agency or instrumentality of a foreign state." An "agency or instrumentality of a foreign state" is "any entity"

(1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and

(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.

28 U.S.C. § 1603(b).

The parties do not dispute that Defendant Bank of Indonesia is "an agency or instrumentality of a foreign state" as defined by the Act. It is a separate corporate entity that is wholly-owned by Indonesia and created under the laws of Indonesia. Furthermore, Defendant is the central bank of the. Republic of Indonesia. The Supreme Court has routinely considered central banks of foreign sovereigns as "foreign states" covered by the Act. See Central Bank of Nigeria, 461 U.S. at 482, 103 S.Ct. 1962; see also Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611 n. 1, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992) (noting that it is undisputed that the central bank of Argentina qualifies as a "foreign state" within the meaning of the Act). Therefore, Defendant is a "foreign state" within the meaning of the FSIA.

2. Tort Exception to the FSIA

When one of the exceptions under §§ 1605-07 of the FSIA apply, a foreign state may be subject to the jurisdiction of the court. 28 U.S.C. § 1330. Plaintiff argues that the "Non-Commercial Tort" or "Accident" provision of the FSIA is applicable to Defendant. This provision, § 1605(a)(5) states that a foreign state shall not be immune in any case:

in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of personal property, occurring in the United States and caused by the 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.

Plaintiff is seeking money damages against the Defendant, a foreign state, for personal injury that occurred within the United States. Thus, this exception is applicable as long as the injury was caused by an employee of the Defendant acting within the scope of her employment.

Defendant argues that Florida courts generally apply what has been dubbed the "distinct departure" or "traveling employee" rule to determine whether...