Strach v. Casino Windsor
| Decision Date | 22 December 2004 |
| Docket Number | No. 04-74197.,04-74197. |
| Citation | 351 F.Supp.2d 641 |
| Parties | Lorraine STRACH, Plaintiff, v. CASINO WINDSOR, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Orlando L. Blanco, Blanco & Associates, Troy, MI, for Plaintiff.
Daniel J. Weiner, Howard Borin, Schafer & Weiner (Bloomfield Hills), Bloomfield Hills, MI, for Defendant.
ORDER AND OPINION GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
This matter is before the Court on Defendant's Motion to Dismiss for Lack of Personal and Subject Matter Jurisdiction. For the reasons stated, the Court GRANTS Defendant's Motion.
Lorraine Strach ("Plaintiff") alleges she was injured when she fell after contact with an employee of Casino Windsor ("Defendant"), located in Windsor, Ontario, Canada. As a result of the April 2003 incident, Plaintiff asserts that she had to "endure painful surgery and rehabilitation," which occurred in Michigan. Plaintiff filed this claim in Wayne County Circuit Court. Defendant removed the case to this Court citing diversity jurisdiction, then filed this motion.
"Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3). Under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 et seq, federal courts lack subject matter jurisdiction over foreign states unless a statutory exception applies. See Keller v. Central Bank of Nigeria, 277 F.3d 811 (6th Cir.2002). "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, 277 F.3d at 815 (citing Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445, 451-52 (6th Cir.1988)). The movant, however, "retains the ultimate burden of persuasion throughout." Id.
Defendant asserts that this Court lacks subject matter jurisdiction under the FSIA as defined in 28 U.S.C. § 1603(b)(2). Unless one of the enumerated exceptions to the FSIA applies, Defendant is correct.
Plaintiff does not dispute that Defendant qualifies as a foreign state under the FSIA.1 The exception which Plaintiff contends applies is outlined in 28 U.S.C. 1605(a)(2):
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case — [in which there is]
(2) ... an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.
Neither party challenges that the claim is based on an "act outside of the territory of the United States in connection with commercial activity of the foreign state elsewhere." The point of contention is whether the act caused "a direct effect in the United States."
"To be `direct' within the meaning of the FSIA, an effect need not be `substantial' or `foreseeable' so long as it is more than `purely trivial' and `it follows as an immediate consequence of the defendant's ... activity.'" Princz v. Fed. Republic of Germany, 26 F.3d 1166, 1172 (D.C.Cir.1994) (quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992)); see also Keller, 277 F.3d at 817. Plaintiff argues that the negligent activities of the Casino Windsor employee caused a `direct effect' in the United States because surgery was performed on Mrs. Strach in the United States; she rehabilitated in the United States; and, her life has been forever altered in the United States. Defendant asserts that this effect is not direct enough to be covered by the statutory exception.
While there is no Sixth Circuit case law directly on point, other circuits have consistently held that "the lingering effects of a personal injury suffered [abroad] cannot be sufficient to satisfy the direct effect requirement of the FSIA." Princz, 26 F.3d at 1173; see also Antares Aircraft, L.P. v. Fed. Republic of Nigeria, 999 F.2d 33, 36 (2d Cir.1993) (); Sugarman v. Aeromexico, Inc., 626 F.2d 270, 272 (3rd Cir.1980) (); Zernicek v. Brown & Root, Inc., 826 F.2d 415, 418 (5th Cir.1987) (); Abrams v. Societe Nationale des Chemins de Fer Francais, 175 F.Supp.2d 423, 430 (E.D.N.Y.2001) (); Harris v. VAO Intourist, Moscow, 481 F.Supp. 1056, 1062 (E.D.N.Y.1979) ().
Indeed, if this type of effect was considered a "direct effect" under the FSIA, "the commercial activity exception would in large part eviscerate the FSIA's provision of immunity for foreign states." Princz, 26 F.3d at 1173. Thus this Court, as many others have done, rejects the argument that an injury suffered abroad which causes damages to be suffered in the United States triggers the "direct effect" exception to the FSIA.
Plaintiff relies only on Aldy v. Valmet Paper Machinery, 74 F.3d 72 (5th Cir.1996) to support her contention that the alleged injury at Casino Windsor has a direct effect in the United States. In Aldy, the plaintiff, a United States citizen, filed a products liability suit asserting failure to warn, and design and manufacturing defects. The machinery was manufactured in Finland and installed in a Louisiana facility. The manufacturer qualified as a foreign sovereign. The Court of Appeals found that the defendant was not entitled to qualified immunity because its commercial activity had a direct effect in the United States.
Aldy, however, is distinguishable from this case and the others cited, supra, in one important respect: in Aldy the injury occurred in the United States. Id. at 73. That...
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