Kline v. Kaneko

• Decision Date: 03 May 1988
• Docket Number: No. 87 Civ. 6479(RJW).,87 Civ. 6479(RJW).
• Citation: 685 F. Supp. 386
• Parties: Rukmini Sukarno KLINE, Frankenburg Import-Export Ltd., a Kansas Corporation, Franklin L. Kline, Plaintiffs, v. Yasuyuki KANEKO, Paloma Cordero De De La Madrid, Manuel Bartlett Diaz, Richard Neal, J.E. Franklin, C.D. Douglas, and Jim Whalen, Defendants.
• Court: U.S. District Court — Southern District of New York

685 F. Supp. 386

Rukmini Sukarno KLINE, Frankenburg Import-Export Ltd., a Kansas Corporation, Franklin L. Kline, Plaintiffs, v. Yasuyuki KANEKO, Paloma Cordero De De La Madrid, Manuel Bartlett Diaz, Richard Neal, J.E. Franklin, C.D. Douglas, and Jim Whalen, Defendants.

No. 87 Civ. 6479(RJW).

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

May 3, 1988.

Sulkow, Birnbach, Jasilli & Schleifer, New York City, for plaintiffs; Gerald Gorinsky, Howard R. Birnbach, of counsel.

United Mexican States, New York City, for pro se defendants Paloma Cordero de De la Madrid and Manuel Bartlett Diaz.

OPINION

ROBERT J. WARD, District Judge.

Plaintiffs brought this action in state court, claiming breach of contract, breach of fiduciary duty, and malicious fraud against Yasuyuki Kaneko, Richard Neal, J.E. Franklin, C.D. Douglas and Jim Whalen (collectively, "the Frankenburg defendants"). Plaintiffs also allege that Paloma Cordero de De la Madrid, the wife of the president of the United Mexican States ("Mexico"), and Manuel Bartlett Diaz, Mexico's Secretary of Government (collectively, "the Mexico defendants"), caused the false imprisonment and abduction of plaintiff Rukmini Sukarno Kline from her Mexico City apartment and her expulsion from Mexico without warrant, extradition process or any authority of law. Plaintiffs further assert that the Mexico defendants ordered Kline's Mexico City apartment to be searched and ransacked. The Mexico defendants removed the action to this Court, and thereafter filed a motion to dismiss. For the reasons that follow, the action is dismissed as to defendant Bartlett Diaz and remanded to state court as to the remaining defendants.

BACKGROUND

Briefly, the underlying dispute giving rise to this action involves a commercial transaction among plaintiffs, the Frankenburg defendants and Petroleos Mexicanos, S.A., the Mexican state oil company ("Pemex"), for the supply of steel pipes to Pemex. Plaintiffs claim that as sole authorized suppliers of steel pipe to Pemex, they contacted the Frankenburg defendants to fill purchase orders that had been awarded to plaintiffs. Instead of operating through plaintiffs, however, the Frankenburg defendants allegedly created a Cayman Islands corporation with the name Frankenburg Import-Export Ltd., which plaintiffs assert is confusingly similar to the name of their corporation. Plaintiffs allege that the Frankenburg defendants then dealt directly with Pemex, causing plaintiffs to lose substantial commission payments. Plaintiffs further allege that as part of the scheme, Kline was kidnapped, falsely imprisoned and then forced onto a private plane back to the United States by aides of the Mexico defendants.

After this action was filed in state court, the Mexico defendants removed to this Court and moved to dismiss, pursuant to Rules 12(b)(1), 12(b)(2), 12(b)95) and 12(b)(6), Fed.R.Civ.P., and for the imposition of sanctions pursuant to Rule 11, Fed. R.Civ.P. The Frankenburg defendants have taken no part in either the removal of this action from state court or in the instant motion.

DISCUSSION

The Mexico defendants argue that Bartlett Diaz, as Secretary of Government, was operating in his official capacity in ordering the expulsion of plaintiff Kline from Mexico and is therefore immune from suit according to the provisions of the Foreign Sovereign Immunities Act of 1976 ("FSIA"), Pub.L. 94-583, 90 Stat. 2891 (codified at 28 U.S.C. §§ 1330, 1332, 1391, 1441, 1602-1611). Defendant Cordero de De la Madrid, they assert, as the wife of Mexico's head of state, is protected by head of state immunity. The Mexico defendants put forth additional grounds for dismissal, including lack of personal jurisdiction, improper service and the statute of limitations.

The federal courts have subject matter jurisdiction over suits brought under the FSIA, even where the rule of decision is under state law. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 491-97, 103 S.Ct. 1962, 1970-73, 76 L.Ed.2d 81 (1983). This jurisdiction is founded not on the Diversity Clause of Article III of the Constitution, but on the "Arising Under" Clause. Id. The courts' subject matter jurisdiction, though, depends on the applicability of one of the exceptions to sovereign immunity provided for in the FSIA. Id. at 485 n. 5, 489, 493, 103 S.Ct. at 1967 n. 5, 1969, 1971. If one of the exceptions to immunity does not apply, then the court lacks subject matter jurisdiction, as well as personal jurisdiction, over the foreign defendant. Id. at 485 n. 5, 103 S.Ct. at 1967 n. 5.

1. Bartlett Diaz' Motion to Dismiss

The initial question to be resolved is whether defendant Bartlett Diaz may properly claim the protection of FSIA at all. Plaintiffs assert that Bartlett Diaz' expulsion of Kline from Mexico was a personal act, accomplished without any authority of law. Defendants assert, to the contrary, that Bartlett Diaz was acting under the authority of his office and in his official capacity. The FSIA does apply to individual defendants when they are sued in their official capacity. American Bonded Warehouse Corp. v. Compagnie Nationale Air France, 653 F.Supp. 861, 863 (N.D.Ill.1987); Rios v. Marshall, 530 F.Supp. 351, 371 (S.D.N.Y.1981).¹ The Court, then, must resolve whether Bartlett Diaz' alleged involvement in Kline's expulsion was an official act, and if so, whether an exception to the FSIA's general grant of immunity would apply.

A court considering a motion to dismiss is usually confined to the facts in the pleadings, but "on a motion attacking the court's jurisdiction, the district judge may resolve disputed jurisdictional fact issues," 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2713 at 612 (2d ed. 1983), and may rely on affidavits as well as the pleadings. Braka v. Bancomer, S.A., 589 F.Supp. 1465, 1468 (S.D.N.Y. 1984), aff'd, 762 F.2d 222 (2d Cir.1985).

Sovereign immunity is an affirmative defense, and defendants have the burden of proof on the issue. Once defendants have produced prima facie evidence that they are entitled to immunity, the burden of going forward shifts to plaintiffs to produce evidence establishing that immunity does not apply. The ultimate burden of proof on the issue, however, remains at all times with defendants. H.R.Rep. No. 1487, 94th Cong., 2d sess., reprinted in 1976 U.S.Code Cong. & Admin.News 6604, 6616. Accord Meadows v. Dominican Republic, 817 F.2d 517, 522 (9th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 486, 98 L.Ed.2d 485 (1987); Baglab Ltd. v. Johnson Matthey Bankers Ltd., 665 F.Supp. 289, 293-94 (S.D.N.Y.1987); Braka v. Bancomer, S.A., supra, 589 F.Supp. at 1467-68.

A. Official Capacity

Defendants have submitted two affidavits of government officials setting forth the duties of Bartlett Diaz and the circumstances of Kline's expulsion. Alfonso de Rosenzweig Diaz, the Undersecretary of Foreign Affairs for Mexico, states that defendant Bartlett Diaz is the Secretary of Government, and that the Secretariat of Government is responsible under Mexican law for the implementation and enforcement of Mexican immigration laws. Affidavit of Alfonso de Rosenzweig Diaz, filed October 5, 1987 ¶¶ 1, 3, 4. Further, Jose Ortiz Arana, General Director of Migratory Services, states that plaintiff Kline was placed aboard a plane bound for the United States at Mexico City's airport and expelled from Mexican territory on February 27, 1984 for violations of Mexico's immigration law. Affidavit of Jose Ortiz Arana, filed October 5, 1987 ¶¶ 1-3. Plaintiffs argue only that the expulsion was carried out without any extradition hearing and with no process. Affidavit of Rukmini Sukarno Kline, filed December 7, 1987 ¶ 5. Plaintiffs' arguments do not respond to defendants' assertions that Bartlett Diaz' involvement in Kline's expulsion was within the scope of his official duties. It is not for this Court to question the internal administration of Mexico's immigration laws. See Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1380 (5th Cir.1980) (actions of Dominican immigration officials, in denying entry to plaintiffs and compelling their immediate removal, not subject to judicial review); Frolova v. Union of Soviet Socialist Republics, 558 F.Supp. 358, 364 (N.D.Ill.1983) (denial of exit visa), aff'd, 761 F.2d 370 (7th Cir.1985). Kline's assertion that she was not accorded due process is in no way inconsistent with Bartlett Diaz having acted in his official capacity.

The affidavits of Rosenzweig Diaz and Ortiz Arana are, then, effectively uncontroverted. In determining whether an entity is entitled to claim the protection of the FSIA, courts have accorded great weight to statements of foreign officials. E.g., S & S Machinery Co. v. Masinexportimport, 706 F.2d 411, 415 (2d Cir.), cert. denied, 464 U.S. 850, 104 S.Ct. 161, 78 L.Ed.2d 147 (1983); O'Connell Machinery Co. v. M.V. "Americana", 566 F.Supp. 1381, 1384 (S.D.N.Y.1983), aff'd, 734 F.2d 115 (2d Cir.), cert. denied, 469 U.S. 1086, 105 S.Ct. 591, 83 L.Ed.2d 701 (1984).² Because plaintiffs have come forward with no evidence to rebut defendants' prima facie showing that Bartlett Diaz was acting in his official capacity, this Court concludes that Bartlett Diaz' involvement in Kline's expulsion from Mexico was pursuant to the execution of his official duties. Bartlett Diaz, then, can be sued only in his official capacity, and the protections of the FSIA are available to him.

B. Exceptions to Immunity

Plaintiffs assert that the acts complained of fall within the exceptions to immunity set forth in 28 U.S.C. §§ 1605(a)(2), (a)(3) and (a)(5). These are, respectively, the commercial activity exception, the taking of property exception, and the non-commercial tort exception.³ None of these, however, can apply to plaintiffs' claims against Bartlett Diaz.

i. Commercial Activity Exception

Two questions must be resolved when determining whether the commercial activity exception to sovereign immunity applies...