Rote v. Zel Custom Mfg., LLC
| Decision Date | 11 February 2015 |
| Docket Number | Case No: 2:13-cv-1189 |
| Court | U.S. District Court — Southern District of Ohio |
| Parties | Troy and Amanda Rote, Plaintiffs, v. Zel Custom Manufacturing, LLC, et al., Defendants. |
Opinion and Order
Plaintiff Troy Rote brings this negligence and products liability action in connection with injuries that he suffered to his right hand and arm when a firearm that he was attempting to operate malfunctioned. This matter is before the court on the motion to dismiss of defendant Fabrica Militar Fray Luis Beltran (a/k/a Dirección General de Fabricaciones Militares or "DGFM"), which argues that it is entitled to foreign sovereign immunity. For the reasons set forth below, the court finds that the complaint sets forth allegations supporting application of the commercial activity exception to foreign sovereign immunity and thus denies the motion.
Rote alleges that on September 10, 2011, he was present as an invited guest on real property owned by defendants Gary and Judith Buyer in Sunbury, Ohio. Between 12 and 15 other guests were present, including defendant Edward Grimm, who owned and brought with him a .50 caliber rifle. According to the complaint, Grimm assembled the upper receiver and the lower receiver of the firearm that day on the premises of the Buyers' property.
At Grimm's invitation, and with the Buyers' knowledge, 5 or 6 people fired the rifle. Grimm then invited Rote to fire the rifle. Grimm provided loading and firing instructions to Rote and also provided ammunition. As Rote was loading the rifle with a 12.7 x 99 mm round of ammunition, the ammunition allegedly exploded, causing injuries to Rote's right hand and arm. According to the complaint, the "round loaded into the chamber of the .50 caliber rifle exploded before the bolt moved to the position of being closed and secured, a condition commonly referred to as 'being out of battery.'" Third Am. Compl., ¶ 29.
The complaint alleges that the rifle was composed of an upper receiver manufactured by defendant Zel Custom Manufacturing, LLC and a lower receiver manufactured by defendant Bushmaster Firearms International, LLC. The Zel upper receiver was allegedly purchased from defendant Vance Outdoors, Inc., and Grimm allegedly purchased the lower receiver directly from Bushmaster.
The round that exploded was allegedly from a box of ammunition bearing marks identifying it as being made by defendant DGFM. The ammunition was allegedly purchased from defendant Ammoman.com, a company in New Jersey.
The complaint alleges that the wrongful acts by DGFM consisted of its defective design and manufacture of the ammunition due to a "protruding primer." See Oxford English Dictionary (3rd Ed.) (defining a primer as a "cap or cylinder containing a compound which responds to friction, an electric spark, etc., and ignites the charge in a cartridge or explosive."). The complaint further alleges that DGFM failed to provide an adequate warning regarding the hazards posed by a protruding primer.
The complaint asserts negligence claims against Grimm and the Buyers (Count I), a premises liability claim against the Buyers (Count II), Ohio Products Liability Act claims, including strict liability against Zel, Bushmaster, Vance, Ammoman, and DGFM (Count III), supplier liability claims against Zel, Bushmaster, Vance, Ammoman, and DGFM (Count IV), and a loss of consortium claim against all defendants (Count V).
The Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq., provides the sole basis for courts in the United States to obtain jurisdiction over a foreign sovereign. See Republic of Argentina. v. Weltover, Inc., 504 U.S. 607, 611 (1992). The FSIA provides that a "foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter." 28 U.S.C. § 1604. "The party claiming FSIA immunity bears the initial burden of proof of establishing a prima facie case that it satisfies the FSIA's definition of a foreign state; once this prima facie case is established, the burden of production shifts to the non-movant to show that an exception applies." Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 815 (6th Cir. 2002); see also Am. Telecom Co., L.L.C. v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007).
The complaint acknowledges that DGFM is a foreign sovereign. It alleges that DGFM is "an instrumentality of the Argentine government, currently under the supervision of the Argentine Ministry of Defense." Third Am. Compl., ¶ 16. Under the FSIA, the definition of a "foreign state" includes its agencies and instrumentalities. See 28 U.S.C. § 1603(a).
In its motion to dismiss, DGFM makes a facial challenge to subject matter jurisdiction. It argues that the complaint's allegations do not provide a basis from which a plausible inference can be made that one of the exceptions to immunity applies. "Federal courts have consistently applied the FSIA's burden-shifting process to facial motions to dismiss; in doing so, courts simply look to the general standards for evaluating motions to dismiss pursuant to Rule 12(b)(1) and take the factual allegations of the plaintiff as true." O'Bryan v. Holy See, 556 F.3d 361, 376 (6th Cir. 2009) .
As an initial matter, Rote contends that DGFM waived its ability to seek entitlement to immunity from suit. Under the FSIA, a foreign state is not immune in any case "in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver." 28 U.S.C. § 1605(a)(1).
The waiver provision has been narrowly construed, such that the waiver must be clear and unambiguous. See generally Charles Alan Wright, et al., 14A Federal Practice & Procedure § 3662.3 (4th Ed. 2013). Courts have found an implicit waiver in three situations: "when (1) a foreign state has agreed to arbitrate in another country; (2) a foreign state has agreed that the law of a particular country shall govern; or (3) a foreign state has filed a responsive pleading but has failed to raise the defense of sovereign immunity." Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1017 (2d Cir. 1993) (). Accord In re Republic of Philippines, 309 F.3d 1143, 1151 (9th Cir. 2002); Abur v. Republic of Sudan, 437 F.Supp.2d 166, 178 (D. D.C. 2006).
Rote argues that DGFM implicitly waived immunity. In January 2014 DGFM participated in a conference of the parties under Federal Rule of Civil Procedure 26(f). DGFM asserted in the parties' Rule 26(f) report that it had not been properly served under 28 U.S.C. § 1608. See Doc. 34,§ 4. Rote argues that DGFM waived immunity because it did not raise a sovereign immunity objection to jurisdiction in the Rule 26(f) report.
The court disagrees and finds that DGFM did not implicitly waive its immunity defense. At the time of the Rule 26 conference, DGFM had not been served and it properly asserted an objection on that ground in the Rule 26(f) report. A Rule 26(f) report plainly is not a responsive pleading. See Fed. R. Civ. P. 7(a). Once DGFM was served in July 2014, it timely moved to dismiss on grounds of sovereign immunity. This is not a situation in which the foreign state filed a responsive pleading but failed to raise the sovereign immunity defense.
In Hirsh v. State of Israel, 962 F. Supp. 377 (S.D.N.Y. 1997), the court rejected a waiver argument similar to the one raised here. Plaintiffs argued that the Federal Republic of Germany had implicitly waived immunity by waiting to raise the defense until after it had "appeared first in court in writing" by way of a letter advising the court that it had not been properly served. 962 F. Supp. at 380. The court disagreed, holding that Id.
Moreover, this is not a situation in which DGFM's assertion of the immunity defense has taken plaintiff by surprise. DGFM has demonstrated that it informed plaintiff three months prior to service that DGFM, if served, intended to raise sovereign immunity as a defense. See Doc. 73, Ex. A, pp. 3-4.
The court thus finds that DGFM has not waived the defense of sovereign immunity.
The FSIA contains several exceptions to sovereign immunity, including a commercial activity exception and a tortious act exception. See 28 U.S.C. § 1605(a)(2), (5). The complaint brings claims for products liability against DGFM. Rote does not argue for application of the tortious act exception to sovereign immunity, but instead seeks to apply the commercial activity exception.
The Sixth Circuit has instructed courts to "look to the core of the activities alleged to be commercial in nature" in determining if the commercial activity exception to immunity may apply. O'Bryan, 556 F.3d at 380 (citing Weltover, 504 U.S. 607 and Saudi Arabia v. Nelson, 507 U.S. 349 (1993)). The court adopted the "gravamen" test as stated by another court:
Nelson rest[s] on a broader principle, directing district courts first to ascertain the claim's gravamen to determine whether the FSIA plaintiff is simply using creative nomenclature as a semantic...
To continue reading
Request your trial