Robinson v. Govt. of Malaysia

Citation269 F.3d 133
Decision Date01 August 2000
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Appeal from a judgment of the United States District Court for the Southern District of New York (Constance Baker Motley, Judge) dismissing the plaintiff's complaint for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act. We affirm on the ground that the plaintiff failed either to allege facts, or to meet his burden of coming forward with evidence, sufficient to deprive the defendant of immunity under the Foreign Sovereign Immunity Act's "non-discretionary torts" exception. We also hold that because of the absence of "manifest injustice," the plaintiff may not raise an alternative basis for jurisdiction under the Foreign Sovereign Immunities Act for the first time on appeal. Affirmed. Judge Sotomayor concurs in a separate opinion. [Copyrighted Material Omitted] Brian J. Issac, Pollack, Pollack, Issac & DeCicco (Michael B. Palillo, Michael B. Palillo, P.C., of counsel), New York, Ny, for Plaintiff-Appellant.

Timothy J. Keane, Quirk & Bakalor, P.C. (Scott P. Taylor and Corrine R. Robinson, of counsel), New York, NY for Defendant-Appellee.

Before: Sack, Sotomayor, and Katzmann, Circuit Judges.

Sack, Circuit Judge

In November 1994, plaintiff Justin Robinson, an employee of John Shields Detective Agency ("Shields Agency"), was assigned as a security guard at a building on the East Side of Manhattan, in New York City. The building had then recently been purchased by the defendant, the Government of Malaysia. While on duty, Robinson was injured when he slipped and fell on a "white substance" apparently left on the floor by construction workers.

Invoking federal subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343, Robinson filed a complaint against the Malaysian government in the United States District Court for the Southern District of New York alleging that it had "caused" his injuries "by [its] recklessness, carelessness and negligence... in the ownership, operation, maintenance and control of the [building]...." Pl.'s Compl. ¶ 11. In its amended answer, the Malaysian government asserted immunity under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602- 1611, and concurrently moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. The district court (Constance Baker Motley, Judge) granted the motion.

We affirm on the grounds that (i) Robinson failed either to allege facts, or to meet his burden of coming forward with evidence, sufficient to deprive the Malaysian government of immunity under the "non- discretionary torts" exception of the FSIA, 28 U.S.C. § 1605(a)(5); and (ii) Robinson may not, for the first time on appeal, raise the "commercial activities" exception to sovereign immunity, 28 U.S.C. § 1605(a)(2), as an alternative basis for jurisdiction, because he has failed to demonstrate that our refusal to hear that assertion in the first instance would work a "manifest injustice."


With one exception, discussed below in footnote 1, the parties do not dispute the material facts insofar as they are relevant to this appeal. From July 1981 to November 1994, Robinson worked as a private security guard for Shields Agency. In 1984, the agency assigned Robinson to act as a guard at a building at 313 East 43rd Street, New York, New York (the "premises"), then occupied by a foreign-student organization, the American Field Service. Robinson continued to work at the premises until November 29, 1994, the date of the accident that is the subject of this litigation.

In 1993, the American Field Service vacated the premises. The Malaysian government purchased them on a date unspecified in the record but before the time of Robinson's accident. It had not yet occupied them when Robinson was hurt.1 Although Robinson was himself uncertain who owned the premises at the time of the accident, he was under the impression that the Malaysian government did because "[f]rom time to time people [,]... representatives maybe from the Malaysian Government" would visit to "see what [was] happening."

The record suggests that the Malaysian government in effect inherited and retained the services of Shields Agency from the American Field Service. Robinson confirmed that he continued to work at the premises throughout the ownership transition, until the time of the accident. His duties included periodic security inspections of each floor of the building, registration of visitors, and maintenance of a logbook in which he recorded, inter alia, the results of his inspections and the arrival and departure of visitors.

To render the premises suitable for use as a mission to the United States,2 the Malaysian government hired a general contractor, E.W. Howell Co., Inc. ("Howell"), to perform renovations. Howell, in turn, enlisted at least one subcontractor, Walsh Floors, Inc. & General Assurance Company ("Walsh"). Howell and Walsh are third party defendants in this action. Their claims are not before us on appeal, and the record on appeal provides scant information about their activities. The record strongly suggests, however, that both were independent contractors, and we assume that to be the case for the purposes of this opinion. One J. Walsh, presumably a principal of Walsh, testified that the Malaysian government never instructed Walsh employees in the means or methods by which they should work or furnished them with construction materials or equipment. The record does not show what control, if any, the Malaysian government exercised over the means or methods by which Howell performed its general contract. But the Malaysian government's brief on appeal states, Appellee's Br. at 1-2, and Robinson does not dispute, that Howell, too, was a "contractor."

On the morning of November 29, 1994,3 Robinson slipped and fell at the premises, then still undergoing construction work. He cannot recall the accident and cannot say for certain what caused it. But he did testify that prior to the accident, construction workers were putting up drywall, preparing to lay carpet, and installing electrical wiring. Both parties ascribe Robinson's accident to a "white substance" on the floor, which they assume one of the contractors left there during construction. Robinson's accident injured him, he contends severely, and he asserts that he continues to suffer from "serious orthopedic and neurological conditions." Appellant's Br. at 3.

On November 12, 1997, Robinson brought suit against the Malaysian government by filing a verified complaint in the United States District Court for the Southern District of New York. He invoked federal jurisdiction under 28 U.S.C. §§ 1331 and 1343 and alleged that he "was caused to sustain severe and permanent injuries when, due to the negligence of the Defendant, he was caused to slip and fall due to a dangerous and defective condition." Pl.'s Compl. ¶ 10. He also alleged that his injuries were "caused by the recklessness, carelessness and negligence of the Defendant in the ownership, operation, maintenance and control of the premises...." Id. ¶ 11. Apart from these generic allegations of negligence, the complaint did not specify how the Malaysian government caused Robinson's injuries except insofar as it asserted that, as owner of the premises, the government "had a duty to maintain [them] in a reasonably safe condition...," id. ¶ 8, and owed and breached some non-delegable duty of care to "all persons lawfully [at its premises]," including Robinson, id.

The Malaysian government's answer, filed on September 10, 1998, denied the allegations generally. The defendant then filed a third-party complaint against Howell, which, in turn, filed a second third-party complaint against Walsh.

On April 20, 2000, the Malaysian government moved to amend its answer nunc pro tunc to assert sovereign immunity and to dismiss the complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. Robinson failed timely to file opposition papers, and the district court granted the motion by default.

On May 15, however, the district court vacated its order so as to permit Robinson to respond to the Malaysian government's motion. Robinson then filed answering papers in which he argued that the "non-discretionary torts" exception to the FSIA deprives the Malaysian government of sovereign immunity under the allegations set forth in his complaint. The Malaysian government responded, inter alia, that even assuming the truth of these allegations, it retained immunity because its only acts - - purchasing a building and hiring contractors to renovate it for use as a foreign mission -- were discretionary; and that to defeat sovereign immunity under the "non-discretionary torts" exception, the plaintiff must, as Robinson did not, allege non-discretionary conduct.

On May 17, 2000, the district court again granted the Malaysian government's motion "on sovereign immunity grounds" and dismissed Robinson's complaint "for lack of subject matter jurisdiction." On May 26, 2000, judgment dismissing the complaint "for the reasons stated in the Court's Order dated May 17, 2000" was entered. This appeal followed.

I. Standard of Review

"The standard of review applicable to district court decisions regarding subject matter jurisdiction under the FSIA is clear error for factual findings and de novo for legal conclusions." U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 150-51 (2d Cir. 2001) (citing Filetech S.A. v. Fr....

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