Risk v. Kingdom of Norway

• Decision Date: 02 March 1989
• Docket Number: No. C-88-1435-WWS.,C-88-1435-WWS.
• Citation: 707 F. Supp. 1159
• Court: U.S. District Court — Northern District of California
• Parties: Larry RISK, Plaintiff, v. KINGDOM OF NORWAY, et al., Defendants.

707 F. Supp. 1159

Larry RISK, Plaintiff, v. KINGDOM OF NORWAY, et al., Defendants.

No. C-88-1435-WWS.

United States District Court, N.D. California.

March 2, 1989.

COPYRIGHT MATERIAL OMITTED

Dennis P. Riordan, Riordan & Rosenthal, Marvin Stender, McTernan, Stender, Walsh & Schwartzbach, San Francisco, Cal., for plaintiff.

John R. McDonough, Ball, Hunt, Hart, Brown & Baerwitz, Los Angeles, Cal., Michael Traynor, Cooley, Godward, Castro, Huddleson & Tatum, San Francisco, Cal., for defendants.

MEMORANDUM OF DECISION AND ORDER

SCHWARZER, District Judge.

Plaintiff Larry Risk, suing individually and as guardian ad litem for his two minor children, brings this action against the Kingdom of Norway ("Norway"), the Norwegian Seaman's Mission ("Mission"), and five individuals, including his wife, Elisabeth Antonsen Risk, and Jacob Frode Knudsen ("Knudsen"), a religious minister employed by the Mission, arising out of the removal of Risk's children from California in violation of a temporary custody order of the San Francisco Superior Court.¹ On his behalf Risk alleges interference with his parental relationship with his children, intentional infliction of emotional distress, and conspiracy by the defendants to remove the children from California. On behalf of his children he alleges interference with their right to parental consortium.

Defendants have made the following motions: (1) a motion by Norway, the Mission, and Knudsen to dismiss the claims against them for lack of subject matter jurisdiction; (2) a motion by Norway, the Mission, and Knudsen to dismiss the action by Larry Risk for himself and as guardian ad litem on the ground of the act of state doctrine; (3) a motion by Norway, the Mission, and Knudsen to dismiss the claims by Larry Risk on the ground that the limitations period has run; (4) a motion by the Mission and Knudsen to disqualify Larry Risk as guardian ad litem for his children; and (5) a motion by Knudsen to dismiss for failure to state a claim against him.

I. Factual Background

In July 1983 the Risk family — Larry Risk, Elisabeth Antonsen Risk and their children Karima and Jamil Risk — left the United States to live in Norway for a year. (Norway's Exh. 4, translation of decision of Norwegian Supreme Court, at 1.) Later that year, after an attempt by Larry Risk to take the children back to the United States while Elisabeth Risk was hospitalized, Elisabeth Risk requested and received a temporary custody order from a Norwegian County Court. (Id.) That order gave Larry Risk "ordinary visitation rights." (Id.)

During the first visitation period, Larry Risk took the children and returned with them to the United States. (Id. at 1-2.)

Elisabeth Risk then returned to the United States and filed a petition in the Superior Court for the City and County of San Francisco ("San Francisco Superior Court") seeking custody of the children. (Complaint at ¶ 12.) In January 1984, Elisabeth and Larry Risk were awarded joint custody of the children. (Risk's Joint Response, Ex. A, Order of San Francisco Superior Court, at 1-2.) The custody order barred the Risks from removing the children from the Bay Area, required them to surrender their passports and those of their children to Larry Risk's counsel, and forbade them from "applying for, obtaining, or directing any other party to apply for on behalf of either party or the minor children a passport ... without prior order of a California Court." (Id. at 2-3.)

In July 1984, Elisabeth Risk took the children and returned to Norway.

In April 1988, Larry Risk filed this action. His complaint alleges that an agent of the Mission contacted officials of the Norwegian consulate, that these officials provided Elisabeth Risk with funds for traveling to Norway and with traveling papers for herself and the children, all under Elisabeth's maiden name. (Complaint at ¶¶ 16-18.) It further alleges that defendant Knudsen, an official in the Norwegian Seamen's Church, covered up Elisabeth's flight, and that when Larry Risk went to Norway in an attempt to locate his children, the Norwegian government frustrated his efforts. (Complaint at ¶¶ 17-23.) Finally, it alleges an agreement between the Norwegian government and Elisabeth Risk to inform her if Larry Risk arrives in Norway and to assist her "in assuring that Larry Risk will not be able to locate her or his children while he is in Norway." (Complaint at ¶ 23.)

Elisabeth Risk and the children remain in Norway, and she has not appeared in this action.

II. Subject Matter Jurisdiction

Defendants contend that the Court lacks subject matter jurisdiction (1) over the claim on behalf of the Risk children because of lack of diversity under 28 United States Code section 1332(a), and (2) over the entire action by Larry Risk for himself and as guardian ad litem for the Risk children on the ground of sovereign immunity.

A. Diversity jurisdiction over the Risk children's claim

Larry Risk alleges that the Risk children are citizens of California and the United States. (Complaint at ¶ 8.) The Mission and Norway, however, have produced evidence, including a decision of the Norwegian Supreme Court, that the children are also Norwegian citizens. (See Norway's Motion to Dismiss, Ex. 3 at 1.) On the basis of that evidence, defendants contend that, regardless of the children's California citizenship, their Norwegian citizenship defeats diversity jurisdiction under 28 United States Code section 1332(a)(2) because all defendants are Norwegian citizens.²

This appears to be an issue of first impression. Other courts have, however, addressed the analogous situation of a plaintiff, who is a citizen of a state of the United States, asserting dual foreign citizenship to create diversity. Courts have reached different results in that situation. In Aguirre v. Nagel, 270 F.Supp. 535, 536 (E.D.Mich.1967), the district court stated that it did not "deem it good law to deny the existence of jurisdiction under 28 United States Code section 1332(a) subsection (2) on the grounds of non-existence of jurisdiction under subsection (1)." Aguirre has been criticized by commentators as inconsistent both with the principle of complete diversity, 1 Moore's Federal Practice, ¶ 0.751.-1 at 709.4-.5 (1986); 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3621 at 581-82 (2d ed. 1984), and with the rationale of avoiding bias against out-of-state residents underlying diversity jurisdiction, 13B C. Wright, A. Miller & E. Cooper at 582. Subsequent courts have not followed Aguirre. Sadat v. Mertes, 615 F.2d 1176 (7th Cir. 1980); Nazareth Candy Co. v. Sherwood Group, Inc., 683 F.Supp. 539 (M.D.N.C. 1988); Raphael v. Hertzberg, 470 F.Supp. 984, 986 (C.D.Cal.1979), appeal dismissed, 636 F.2d 1227 (9th Cir.1980). For example, in Raphael the court, relying on the requirement of complete diversity and noting the inequities that would result if dual citizens had greater access to the courts than do solely United States citizens, stated that there was no jurisdiction over a claim against California defendants by a "dual national" residing in California.³ 470 F.Supp. at 986.

In Sadat v. Mertes, the Seventh Circuit addressed a slightly different situation. Plaintiff was an American citizen residing in Egypt and therefore not a citizen of any state for purposes of jurisdiction under section 1332(a)(1). 615 F.2d at 1182. He sued other American citizens for damages suffered in an auto accident in the United States, asserting alienage jurisdiction as an Egyptian citizen. Id. The defendants denied that he was an Egyptian citizen, but argued that even if he were, that citizenship should be disregarded for purposes of section 1332(a)(2). The Seventh Circuit held, basing its decision on a concern for uniform treatment and on the principles underlying diversity jurisdiction, that there was no jurisdiction over his claim against other American citizens. 615 F.2d at 1188. First, it reasoned that dual nationality should not give a citizen a right not given similarly situated solely United States citizens. Id. at 1185-86, 1188. Second, it stated that, despite plaintiff's dual nationality, the foreign nation would be unlikely to complain about a state court's treatment of him, particularly if his dominant nationality was American. Id. at 1186-1188. And, finally, it saw little reason to fear local bias if the plaintiff, as a resident of that state, is forced into state court. Id. at 1186 n. 13.

The instant case differs from those previously decided in that it is the defendant who is relying on plaintiff's foreign citizenship to defeat diversity, rather than the plaintiff who is relying on it to create diversity.

Notwithstanding that difference, the principles developed in those cases are relevant. Those principles are uniformity of treatment of dual and solely United States citizens, the requirement of complete diversity,⁴ and the need to protect foreign citizens against bias in state court and to avoid friction with foreign nations.

In the instant case, these principles are in tension. Denying jurisdiction would deny the children, because they are dual citizens, access to the court they would otherwise have as California citizens, while giving them access would violate the requirement of complete diversity since Norwegian citizens would be suing each other. With these two factors cancelling each other out, what is decisive is that the Risk children, as California residents, need not fear local bias and Norway, recognizing the children's dual citizenship, is unlikely to complain of their treatment by a state court. Since the factors that counsel against asserting jurisdiction predominate, the claim of the Risk children must be dismissed.⁵

B. Foreign Sovereign Immunity

Larry Risk asserts that the Court has jurisdiction of his claims against Norway under the Foreign Sovereign Immunity Act of 1976 ("FSIA"),⁶ which provides that "the district courts shall have...