The opinion of the court was delivered by: MANSMANN
This matter comes before the Court on the Motion to Dismiss of the Republic of Venezuela, on Plaintiffs' Motion for Leave to Amend Complaint and on the Motion to Dismiss of Al Feldman. For the reasons set forth below, the Republic of Venezuela's Motion to Dismiss is granted and Plaintiffs' Motion for Leave to Amend Complaint is denied. Also for the reasons stated herein, Al Feldman's Motion to Dismiss is granted.
Although initially this matter involved forty-seven defendants, this action has been dismissed as to some Defendants, transferred as to others and defaults have been entered with respect to still others. The two remaining Defendants, the Republic of Venezuela ("Venezuela") and Al Feldman ("Feldman")
have made separate applications for dismissal, each of which will be discussed separately below.
Venezuela has applied to this Court for an order dismissing this action against it, claiming, inter alia, a lack of both personal and subject matter jurisdiction as well as defective service of process and improper venue.
In response to the jurisdictional claims, Plaintiffs have impliedly conceded that their original Complaint does not have adequate jurisdictional allegations by moving to amend their Complaint against Venezuela. Venezuela opposes the amendments, but asserts that even if this Court were to permit the amendments, this Court would be devoid of jurisdiction, both subject matter and personal. Both parties have submitted affidavits on the jurisdictional issue.
The Foreign Sovereign Immunities Act of 1976 ("FSIA")
provides, with some exceptions
that a foreign state
is normally immune from suit in this country's courts. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S. Ct. 1962, 76 L. Ed. 2d 81 (1983). Moreover, unless at least one of the specified exceptions is applicable, in a given situation, the district court is without both subject matter and personal jurisdiction. Id. at 1967, n. 5. The Verlinden Court explained the jurisdictional bases of the FSIA:
Under the Act, however, both statutory subject matter jurisdiction (otherwise known as 'competence') and personal jurisdiction turn on application of the substantive provisions of the Act. Under § 1330(a), federal district courts are provided subject matter jurisdiction if a foreign state is 'not entitled to immunity either under sections 1605-1607 . . . or under any applicable international agreement;' § 1330(b) provides personal jurisdiction wherever subject matter jurisdiction exists under subsection (a) and service of process has been made under § 1608 of the Act.
Thus, the immediate question for resolution by this Court is whether Venezuela's conduct falls into one of the enumerated exceptions of the FSIA. Therefore, this Court will examine the proposed amended complaint at the outset, because if it contains "incurable jurisdiction defects" as Venezuela has asserted, then this Court would have no choice but to deny the Motion to Amend and to enter judgment in favor of Venezuela for want of jurisdiction. Accordingly, the Court will scrutinize the "exceptions" claimed by Plaintiffs to be applicable and will determine if any give this Court subject matter and personal jurisdiction.
a. 28 U.S.C. § 1605(a)(2)
In the Fourth and Seventh Counts of the proposed amended complaint, the only counts against Venezuela, Plaintiffs allege that their claims fall within one of the exceptions to sovereign immunity set forth in the third clause of 28 U.S.C. § 1605(a)(2).
In this connection, Plaintiffs allege:
1. The property of [Plaintiffs] described on Exhibit "A" to the original Complaint was converted by the conduct of Defendant Republic of Venezuela in [sic] February 10, 1980.
2. The said conversion was a part of the commercial activity of the said Defendant; namely, the conduct of international commerce by boat, which activity is carried on by the said Defendant within the United States.
Therefore, this Court must initially decide if the activity of Venezuela, i.e., the refusal of docking privileges to a tug boat and barge and the impoundment of certain of Plaintiff's property constitutes "commercial activity." After carefully considering this question, this Court concludes that the activity complained of is not "commercial activity" within the meaning of ...