Richardson v. Attorney Gen. of the British V.I.

Decision Date21 August 2013
Docket NumberCivil No. 2008-144
PartiesMEAGHAN RICHARDSON and CYRIL RICHARDSON, Plaintiffs, v. THE ATTORNEY GENERAL OF THE BRITISH VIRGIN ISLANDS and RANDY DONOVAN, Defendants.
CourtUnited States District Courts. 3th Circuit. District of the Virgin Islands

ATTORNEYS:

Thomas F. Friedberg

Law Offices of Friedberg & Bunge

San Diego, CA

For the plaintiffs.

The Attorney General of the British Virgin Islands

Pro Se.

Randy Donovan

Pro Se.
MEMORANDUM OPINION

GÓMEZ, J.

On or about December 1, 2007, Meaghan Richardson and Cyril Richardson ("the Richardsons") were passengers on a power boat. At or about 9:14 p.m., Randy Donovan ("Donovan"), a customs officer for the Government of the British Virgin Islands (the "BVI"), stopped the Richardsons' boat. Donovan informed the Richardsons that their boat was in BVI waters. Thereafter, Donovan ordered the Richardsons and the other passengers on theboat to disembark from their vessel and enter his vessel. Donovan's vessel was owned by the BVI. The Richardsons allege that after they boarded Donovan's boat, Donovan operated his boat without maintaining a safe speed or a proper lookout. The Richardsons claim that they sustained injuries as a result of Donovan's operation of the vessel.

Thereafter, on November 15, 2008, the Richardsons filed this negligence action against the Attorney General of the BVI and against Donovan in his individual capacity.

The Attorney General of the BVI and Donovan have not appeared in this case.1 As such, the Richardsons moved for entry of default against the defendants.

On July 23, 2010, the Magistrate Judge issued an order in which he found that the Richardsons properly effected service on the BVI and Donovan. The Magistrate nonetheless denied the motion because the plaintiffs had not "established that the alleged tortious act occurred in the United States or that there has been a waiver of foreign immunity." (July 23, 2012, Order, ECF No. 12.)

Thereafter, the Richardsons filed a second motion for entry of default. The Richardsons attached Cyril Richardson'saffidavit to the motion. In his affidavit, Cyril Richardson averred that the underlying incident occurred in the United States. (ECF No. 14.)

On February 17, 2011, the Magistrate Judge granted the Richardsons' motion for entry of default. In the order, the Magistrate noted that there was "topographical corroboration . . . to establish that the alleged tort occurred in the United States." (Magistrate Order, Feb. 17, 2011.) The Magistrate further stated that the "[d]efendants Attorney General of the Government of the BVI and Randy Donovan have been duly served and have failed to answer or otherwise respond to the Complaint." (Magistrate Order, Feb. 17, 2011.)

On August 29, 2011, the undersigned held a bench trial in this matter. At the conclusion of the bench trial, the Court asked the Richardsons from what entity they sought relief. Specifically, the Court asked, "[w]hen you sued the Attorney General of the British Virgin Islands, it was your intention to sue the government of the British Virgin Islands, correct?" (Trial FTR R. 9:28:26-30.) The Richardsons responded in the affirmative. (Id. at 9:28:33.) Thereafter, the Court requested that the Richardsons file a brief addressing whether the Attorney General of the BVI was the properly named party in thismatter and whether service on the Attorney General was properly executed. The Richardsons complied.

In the event that the Court finds that the Attorney General of the BVI was not properly named in this matter, the Richardsons request leave to amend their complaint to name the Government of the BVI. In the event that the Court finds that the defendants were not properly served, the Richardsons request leave to properly effect service.

ANALYSIS
I. SUITS AGAINST A FOREIGN GOVERNMENT

A threshold issue presented by the Richardsons' complaint is whether a suit naming the Attorney General of the BVI as a defendant is effectively a suit against the BVI. To the extent it is, the Richardsons have named the proper party and the Court may need to address the issue of sovereign immunity. To the extent it is not, the Court may need to address the motion for leave to amend.

"In determining whether a foreign entity is to be treated as the state itself or as an agency or instrumentality, courts employ the 'core functions' test as it was set out in Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003)." Baker v. Socialist People's Libyan Arab Jamahirya, 775 F. Supp. 2d 48, 73 (D.D.C. 2011) ("An official capacity claim against agovernment official is a claim against the government itself."). In Roeder, the D.C. Circuit "adopted a categorical approach: if the core functions of the entity are governmental, it is considered the foreign state itself; if commercial, the entity is an agency or instrumentality of the foreign state." 333 F.3d at 234.

Here, the Richardsons have named the Attorney General of the BVI as the defendant. According to the BVI Constitution,

(a) There shall be an Attorney General of the Virgin Islands, whose office shall be a public office and who shall be appointed in accordance with section 95.

(b) The Attorney General shall be the principal legal advisor to the Government of the Virgin Islands.

British Virgin Islands Constitution Order 2007, June 13, 2007, SI 1678, art. 58 (BVI). Certainly, the Attorney General's role as the principal legal advisor to the BVI Government is a governmental, as opposed to a commercial function. Because the Attorney General's core functions are governmental, a suit against the Attorney General of the BVI must be construed as a suit against the BVI itself. See, e.g., Roeder, 333 F.3d at 234 (concluding that the core functions of Iran's Ministry of Foreign Affairs is "clearly on the governmental side" and thus the Ministry "must be treated as the state of Iran itself rather than as its agent.").

Having determined that the Government of the BVI is indeed the party being sued in this matter, the Court will next address whether it may properly exercise subject matter jurisdiction over this action against the Government of the British Virgin Islands (the "BVI"). If the Court determines that it has subject matter jurisdiction, it will then determine whether it may exercise personal jurisdiction over the BVI.

A. Subject Matter Jurisdiction over a Foreign Sovereign: Foreign Sovereign Immunity

The Foreign Sovereign Immunities Act, 28 U.S.C.A. § 1330 et seq ("FSIA")2, allows a court to exercise subject matter jurisdiction over any action against a foreign state in which "the foreign state is not entitled to immunity." 28 U.S.C. § 1604. The FSIA is "the sole basis for obtaining [subject matter]jurisdiction over a foreign state in our courts." Argentine Republic v. Amerada Hess Shipping Corp., 109 S.Ct. 683, 688 (1989).

In 1976, Congress passed the Foreign Sovereign Immunities Act in order to free the Government from the case-by-case diplomatic pressures, to clarify the governing standards, and to "assur[e] litigants that ... decisions are made on purely legal grounds and under procedures that insure due process," H.R.Rep. No. 94-1487, p. 7 (1976), reprinted in [1976] U.S.Code Cong. & Ad.News 6604. To accomplish these objectives, the Act contains a comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies or instrumentalities.

For the most part, the Act codifies, as a matter of federal law, the restrictive theory of sovereign immunity. 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. Those exceptions include actions in which the foreign state has explicitly or impliedly waived its immunity, § 1605(a)(1), and actions based upon commercial activities of the foreign sovereign carried on in the United States or causing a direct effect in the United States, § 1605(a)(2).[] When one of these or the other specified exceptions applies, "the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 1606.

Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488-89, 103 S. Ct. 1962, 1968-69, 76 L. Ed. 2d 81 (1983) (emphasis added). "The foreign state bears the burden of persuasion on the issue of immunity under the FSIA, but once a prima facie showing of immunity has been made, the plaintiff seeking to litigate in the district court bears the burden of coming forward with factsshowing that an exception applies." Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) (citing Walter Fuller Aircraft Sales, Inc. v. Republic of Philippines, 965 F.2d 1375, 1383 (5th Cir. 1992)). The Court will address the relevant FSIA exceptions, listed in 28 U.S.C.A. § 16053, in turn.

i. Waiver Exception

"A claim of sovereign immunity under the FSIA is waived only when the sovereign/state fails to assert immunity in a responsive pleading." MCI Telecommunications Corp. v. Alhadhood,82 F.3d 658, 662 (5th Cir. 1996) (citing Rodriguez v. Transnave Inc., 8 F. 3d 284, 287 (5th Cir. 1993); Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990)). "Thus, a waiver of sovereign immunity cannot be implied from a foreign state's failure to appear. Such a waiver would be inconsistent with section 1608(e) of the FSIA, which requires the court to satisfy itself that jurisdiction exists prior to entering a default judgment.[] '[E]ven if the foreign state does not enter an appearance to assert an immunity defense, a district court still must determine that immunity is unavailable under the Act.'" MCI, 82 F.3d at 662 (citing Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 493-94 n. 20, 103 S. Ct. 1962, 1971 n. 20, 76 L. Ed. 2d 81 (1983)).

Here, the record reflects that the BVI has not filed a responsive pleading. It has not appeared or done anything...

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