Martinez v. Republic of Cuba, 1:14–CV–00856 (LEK/CFH)

• Decision Date: 21 November 2016
• Docket Number: 1:14–CV–00856 (LEK/CFH)
• Citation: 221 F.Supp.3d 276
• Parties: Ana Margarita MARTINEZ, Plaintiff, v. The REPUBLIC OF CUBA, Defendant.
• Court: U.S. District Court — Northern District of New York

221 F.Supp.3d 276

Ana Margarita MARTINEZ, Plaintiff,

v.The REPUBLIC OF CUBA, Defendant.

1:14–CV–00856 (LEK/CFH)

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

Signed November 21, 2016

Rhonda A. Anderson, Rhonda A. Anderson, P.A., Coral Gables, FL, for Plaintiff.

MEMORANDUM–DECISION AND ORDER

Lawrence E. Kahn, U.S. District Judge

I. INTRODUCTION

In the present action, Plaintiff Ana Margarita Martinez seeks to enforce a default judgment against the Republic of Cuba. Dkt. No. 39 ("1610(c) Motion"). Martinez brought suit against Cuba in the Eleventh Judicial Circuit of Florida, asserting acts of torture and the commission of a tortious act under the Foreign Sovereign Immunities Act ("FSIA"). Id. at 3–4. On March 9, 2001, the Florida state court entered a default judgment in favor of Martinez in the amount of $7,175,000. Dkt. No. 39–3 ("Florida Judgment") at 22. On December 7, 2007, the Southern District of New York extended full faith and credit to the default judgment, Dkt. No. 39–1 ("SDNY Judgment"), and on April 22, 2015, this Court likewise recognized Martinez's judgment, Dkt. Nos. 18 ("NDNY Judgment"), 19.

Presently before the Court is Martinez's motion seeking an order directing Thomas P. DiNapoli, New York State Comptroller, to turn over assets located in the Northern District of New York that are being held by the Comptroller as custodian of abandoned property. Dkt. No. 41 ("Turnover Motion"). In particular, Martinez seeks turnover of two Banco Nacional accounts that this Court deemed Cuban property subject to turnover in an earlier order involving different plaintiffs. Id. at 1; Volloldo v. Ruz , No. 14–MC–25, 2016 WL 81492, at *20 (N.D.N.Y. Jan. 7, 2016) (Kahn, J.). Martinez also filed a Motion for Entry of a 28 U.S.C. § 1610(c) Order. 1610(c) Mot. The Comptroller opposes both of Martinez's motions, Dkt. No. 48 ("Response"), and Martinez filed a Reply, Dkt. No. 54 ("Reply"). For the following reasons, Martinez's 1610(c) Motion and Turnover Motion are denied.

II. BACKGROUND

A. Factual Background¹

In February 1992, Juan Pablo Roque, a Cuban spy, swam to the Guantanamo Bay Naval Base on the pretense that he was a "military defector from Cuba." Fla. J. at 3. Roque's mission was to infiltrate the Cuban expatriate community in Miami and conduct espionage on behalf of the Cuban government. Id. at 1–2. Accordingly, when he arrived in Miami in March 1992, he began integrating himself into the Cuban exile community. Id. at 3. He started going to a church attended by Martinez, who "saw him regularly at religious services and church events." Id. After formally meeting at a church-related event in May 1992, the two started dating. Id. Cuba ordered Roque to romantically pursue Martinez, whom he married after three years of dating. Id. Unbeknownst to Martinez, "Roque was using her as an unwitting pawn to legitimize his presence in Miami by establishing a credible cover for his covert espionage activities on behalf of the Cuban Government."Id. Roque performed espionage as part of a spy ring known as the "Wasp Network," which took orders from Cuba. Id. at 4. Roque used the cover provided by his marriage to "infiltrate[ ] Miami-based organizations that have humanitarian missions directed toward Cuba or desire democracy for Cuba." Id. at 3. At the same time, he became an established member of the Cuban exile community in Miami. Id.

On February 23, 1996, Roque left home and went to Havana, Cuba. Id. at 4. He had told Martinez that he was going on a business trip, but she realized what actually happened when, two days later, Roque gave an interview to CNN in which he said he had returned to Cuba because he was "disillusioned with life in the United States." Id. Although it is not clear from the Florida Judgment, it appears that he also revealed that he had been performing espionage on behalf of the Cuban government. Id. Stunned by the news that her husband was a Cuban spy, Martinez became "emotionally distraught." Id. at 5. Her distress was compounded by the exile community's suspicion that she was "conspiring" with her husband. Id. She had her marriage annulled on October 15, 1996, on account of Roque's fraud. Id. Finally, "[s]he required medical and psychological care and was left saddled with debt ... incurred by Roque while he was married to her." Id. at 6.

B. Procedural History

Cuba was served with process in the Florida state proceedings but failed to appear, "assert[ing] in a diplomatic note that the Courts in the United States have no jurisdiction over Cuba." Id. at 8. On March 9, 2001, following the entry of default and a non-jury trial, the Florida state court found that Cuba was liable under 28 U.S.C. §§ 1605(a)(7)² and 1605(a)(5) for acts of torture and battery suffered by Martinez at the hands of Roque. Id. at 8–11. These findings formed the basis of the court's conclusion that it had subject matter jurisdiction over Martinez's case. Id. The court awarded Martinez $7,175,000 in compensatory damages, noting that it was "outraged by the defendant Cuba's conduct and would have awarded 20 million in punitive damages if it could." Id. at 22.

Martinez commenced the present action on July 11, 2014. Dkt. No. 1. After registering her default judgment with the Court, NDNY J., Martinez served a Writ of Execution on the Comptroller, Dkt. No. 24. Martinez subsequently filed a 1610(c) Motion seeking an order "holding that all conditions precedent to [Martinez's] request to attach, execute and seek turnover against blocked assets of the Defendant have been met and that a reasonable period of time has elapsed following the entry of judgment and the giving of notice to Defendant." 1610(c) Mot at 1. Martinez also filed her Turnover Motion seeking turnover of two Banco Nacional accounts held by the Comptroller. Turnover Mot. The Comptroller opposes the motions, arguing that the Florida state court that issued the original default judgment lacked subject matter jurisdiction over the case, Resp. at 4–11, and that the Banco Nacional accounts are not subject to turnover, id. at 12.

III. LEGAL STANDARD

The FSIA provides "the sole basis for obtaining jurisdiction over a foreign state in the courts of this country." Argentine Republic v. Amerada Hess Shipping Corp. , 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Foreign states are immune from the jurisdiction of federal and state courts unless one of the exceptions contained in §§ 1605 –1607 applies. 28 U.S.C. § 1604. The "terrorism exception"—codified at § 1605A—"abrogates immunity for those foreign states officially designated as state sponsors of terrorism by the Department of State where the foreign state commits [torture] or provides material support for the commission of ... [torture,] and the act results in the death or personal injury of a United States citizen." Weinstein , 609 F.3d at 48. Cuba was designated as a state sponsor of terrorism in 1982. Weininger v. Castro , 462 F.Supp.2d 457, 479 (S.D.N.Y. 2006) (citing Clarification for Foreign Policy Export Controls, 47 Fed. Reg. 16,623 (Apr. 19, 1982) ). The FSIA also abrogates sovereign immunity for foreign states where "money damages are sought against a foreign state for personal injury ... 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." 28 U.S.C. § 1605(a)(5). However, this exception to immunity, known as the "noncommercial tort exception," In re Terrorist Attacks on September 11, 2011 , 714 F.3d 109, 115 (2d Cir. 2013), does not apply to claims based on "misrepresentation" or "deceit," among other things, 28 U.S.C. § 1605(a)(7)(B).

IV. DISCUSSION

The Comptroller asks the Court to consider whether the Florida state court that issued Martinez's original default judgment had subject matter jurisdiction under the terrorism exception of the FSIA. Resp. at 4–11. The Comptroller argues that Roque's conduct, while "despicable," does not qualify as "torture" under the FSIA. Id. at 10. Although the Comptroller does not argue that the Florida state court lacked jurisdiction under the noncommercial tort exception of the FSIA, the Court will also consider that issue because it was one of the two bases on which the Florida court found subject matter jurisdiction (the other basis for jurisdiction was the terrorism exception). Fla. J. at 11. Martinez responds that the Comptroller has not pointed to any jurisdictional defect in the Florida court's default judgment, and that in any event this Court should not second-guess that court's determination that it had subject matter jurisdiction to hear the case. Reply at 4–8.

A. Subject Matter Jurisdiction

The Full Faith and Credit Act provides that "judicial proceedings ... shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of [the] State [in which they took place]." 28 U.S.C. § 1738. Thus, "a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra v. Warren City Sch. Dist. Bd. of Educ. , 465 U.S. 75, 80, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). However, "a judgment of a court in one State is conclusive upon the merits in a court in another State only if the court in the first State had power to pass on the merits—had jurisdiction, that is, to render the judgment." Underwriters Nat'l Assurance Co. v. N.C. Life & Acc. & Health Ins. Guar. Ass'n , 455 U.S. 691, 704, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982) (quoting Durfee v. Duke , 375 U.S. 106, 110, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963) ). "Consequently, before a court is bound by the judgment rendered in another State, it may inquire into the jurisdictional basis of the foreign court's decree. If that court did not have jurisdiction over the subject matter or the relevant parties, full faith and credit...