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Abdulla v. Embassy of Iraq at Washington, DC

United States District Court, Third Circuit

September 9, 2013

SALLAH HAMAMIN ABDULLA
v.
THE EMBASSY OF IRAQ AT WASHINGTON, DC

MEMORANDUM

JUAN R. SÁNCHEZ, JUDGE.

Pro se Plaintiff Sallah Hamamin Abdulla asks this Court to enter a default judgment against the Embassy of Iraq at Washington, DC (the Embassy) in this breach of contract action. Having previously determined the Embassy qualifies as a “foreign state” for purposes of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602–1611 (2012), and is therefore presumptively immune from suit unless a specific statutory exception to immunity applies, this Court, by Order of March 6, 2013, established a two-step process for considering the instant motion for default judgment. See ECF No. 33. The first step consists of a determination whether this action falls within the “commercial activity” exception to sovereign immunity set forth in 28 U.S.C. § 1605(a)(2), the sole exception on which Abdulla relies. The second step consists of a determination whether Abdulla has met his burden under 28 U.S.C. § 1608(e) to “establish[] his claim or right to relief by evidence satisfactory to the court.” Upon review of Abdulla’s submissions and case law regarding the commercial activity exception, the Court concludes this action falls within the exception. Although the Order establishing the foregoing two-step process contemplates that in the event the step one inquiry is resolved in Abdulla’s favor, the Court will schedule a hearing to provide Abdulla an opportunity to present evidence in support of his claim, Abdulla maintains a further hearing is unnecessary and urges the Court to grant a default judgment based on the documentary evidence in the record. See Pl.’s Mem. in Supp. of Mot. for Default J., ECF No. 38. For the reasons set forth below, however, this Court finds the evidence in the existing record is insufficient for the Court to conclude that Abdulla has established his breach of contract claim. As a result, Abdulla’s motion for default judgment will be denied based on the current record.

BACKGROUND

In his Complaint, filed in June 2012, Abdulla sues the Embassy for breach of contract, alleging the Iraqi government breached a contract in which it agreed to pay his tuition and living expenses for three years while he obtained a Ph.D. in the United States. According to the Complaint, the Embassy paid Abdulla’s tuition at the University of Arkansas at Little Rock (UALR or the University) for one year; however, in April 2010, Embassy personnel informed him he would no longer be funded. The Complaint seeks damages in the amount of $178, 909.15, consisting of $28, 109.15 for tuition and fees Abdulla has paid since the Embassy cut off his funding, $50, 800.00 for “living expenses and other stipends for the past 2 years, ” and $100, 000.00 for “the amount of obligation of the contract that was a property already been confiscated by the defendant.” Compl. ¶ V.

At this Court’s request, in April 2013, Abdulla produced an English translation of the “Scholarship Contract” he contends the Embassy breached. The Contract identifies the parties thereto as the Iraqi Minister of Higher Education and Scientific Research (the Minister) “in his official capacity as well as whoever represents him” and “[t]he student, ” i.e., Abdulla.[1]Scholarship Contract 1, ECF No. 34 at 4. In the Contract, the Minster agreed to fund Abdulla’s studies to obtain “a Ph. D. degree in the field of telecommunication and networks from [the] United States within three years, ” including paying his airfare, tuition fees, educational and living expenses (including education-related travel expenses), and health insurance fees, in exchange for Abdulla’s agreement to return to Iraq and work for the Iraqi government for a period of “double the duration of his study, ” among other obligations. Id. at 1-2, ECF No. 34 at 4-5. The Contract does not specify the capacity in which Abdulla will be employed upon his return or the nature of the work he will perform, instead leaving those matters entirely to the discretion of the Iraqi government. See Id . at 2, ECF No. 34 at 5 (providing “[u]pon graduation, the second party shall be required to work in the agencies of the Republic of Iraq, in those projects and business determined by the state for a period of double duration of his study” and “[h]is employment and the amount of his salary will be determined upon rules valid on the day of employment”). Although the Contract includes a number of provisions regarding Abdulla’s obligation to repay funds spent on him if he fails to satisfy his contractual duties, it appears to contemplate that no such repayment obligation will arise in the event the Iraqi government does not employ him within a year of his return. See Id . at 3, ECF No. 34 at 6 (“This contract shall be considered nil if the first party [i.e., the Minister] fails to employ him within one year of his request for employment upon returning to Iraq.”). The Contract also includes a forum selection clause, providing “[t]he courts of Baghdad shall have jurisdiction over suits arising out of carrying out the contract.”[2] Id.

In July 2012, approximately one month after the Complaint in this case was filed, Abdulla promptly filed an initial motion for default judgment, which this Court denied without prejudice to reassertion after Abdulla first sought and obtained entry of the Embassy’s default by the Clerk of Court. When Abdulla thereafter filed a request for entry of the Embassy’s default and a renewed motion for default judgment, the Court again denied the motion without prejudice, finding the Embassy qualified as a “foreign state” for purposes of the FSIA and Abdulla was therefore required to serve the Embassy pursuant to 28 U.S.C. § 1608. On December 16, 2012, Abdulla effected service on the Embassy pursuant to § 1608(a)(3) by forwarding a copy of the summons, Complaint, and a notice of suit, together with a translation of each, to the Clerk of Court, who mailed these materials to the head of the Iraqi Ministry of Foreign Affairs by DHL Express. See ECF Nos. 22, 26, 27 & 30. Sixty days later, on February 15, 2012, Abdulla requested entry of the Embassy’s default, and default was entered the same day. Abdulla thereafter filed the instant motion for a default judgment.

DISCUSSION

A. Sovereign Immunity

Under the FSIA, a foreign state is presumptively immune from the jurisdiction of the courts of the United States, subject to certain enumerated exceptions. 28 U.S.C. § 1604. Once a defendant has made a prima facie showing that it is a foreign state (or where, as here, it is apparent from the pleadings that the defendant is a foreign state), the burden shifts to the plaintiff to produce evidence establishing that one of the exceptions to immunity applies.[3] Fed. Ins. Co. v. Richard I. Rubin & Co., Inc., 12 F.3d 1270, 1285 & n.13 (3d Cir. 1993) (noting the FSIA’s legislative history reflects Congress’s intent to create a burden-shifting process for the defense of immunity); see also Agudas Chasidei Chabad of U.S. v. Russian Federation, 528 F.3d 934, 940

(D.C. Cir. 2008) (holding to the extent jurisdiction depends on particular factual propositions, the plaintiff has a burden of production with respect to such facts); Rodriguez v. Transnave Inc., 8 F.3d 284, 287 n.6 (5th Cir. 1993) (characterizing the burden-shifting process as requiring the plaintiff “to raise the exceptions to sovereign immunity and assert at least some facts that would establish the exceptions”). The ultimate burden of proving immunity, however, rests with the state. Fed. Ins. Co., 12 F.3d at 1285 & n.13 (citing H.R. Rep. No. 94-1487, at 17 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6616); see also Agudas Chasidei Chabad, 528 F.3d at 940. If the plaintiff satisfies his burden of production, “jurisdiction exists unless the defendant demonstrates by a preponderance of the evidence that the claimed exception does not apply.” Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1125 (9th Cir. 2010).

Here, Abdulla invokes only the “commercial activity” exception, which provides a foreign state is not immune in any case

in which the action is based [1] upon a commercial activity carried on in the United States by the foreign state; or [2] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [3] upon 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.

28 U.S.C. § 1605(a)(2). For purposes of the FSIA, “commercial activity” means “either a regular course of commercial conduct or a particular commercial transaction or act, ” id. § 1603(d), and “commercial activity carried on in the United States by a foreign state” means “commercial activity carried on by such state and having substantial contact with the United States, ” id. § 1603(e). The Act also specifies “[t]he commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” Id. § 1603(d).

The Supreme Court has interpreted the FSIA as having “largely codifie[d] the so-called ‘restrictive’ theory of foreign sovereign immunity first endorsed by the State Department in 1952, ” under which “a state is immune from the jurisdiction of foreign courts as to its sovereign or public acts (jure imperii), but not as to those that are private or commercial in character (jure gestionis).” Saudi Arabia v. Nelson, 507 U.S. 349, 359-60 (1993) (internal quotation marks and citations omitted). Under the restrictive theory (and thus under the Act), a foreign state engages in commercial activity “where it exercises ‘only those powers that can also be exercised by private citizens, ’ as distinct from those ‘powers peculiar to sovereigns.’” Id. at 360 (quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992)). In other words, “a foreign state engages in commercial activity for purposes of the restrictive theory only where it acts ‘in the manner of a private player within’ the market.” Id. (quoting Weltover, 504 U.S. at 614). Because an act’s commercial character is to be determined based on the nature of the act rather than its purpose, see 28 U.S.C. § 1603(d), “the question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives, ” but “whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in ‘trade and traffic or commerce.’” Weltover, 504 U.S. at 614 (citation omitted).

Without specifying the particular clause of § 1605(a)(2) on which he is relying, Abdulla argues the Scholarship Contract constitutes commercial activity because private companies enter into similar agreements to fund a person’s education in exchange for the person’s promise to work for the company upon graduation.

Although this Court has found no FSIA case directly on point, Abdulla is correct that private companies can and do enter into education funding arrangements similar to the arrangement at issue here. See, e.g., Hulse v. Orthodontic Educ., Ltd, No. 05-594, 2011 WL 32437, at *1 (M.D. Fla. Jan. 5, 2011) (describing agreement whereby defendant was to pay for plaintiff’s orthodontic education and plaintiff in exchange was to work in an orthodontic practice managed by defendant for a minimum of seven years). At least one court has observed that a foreign state–owned company’s support of its employee in an American MBA program was “certainly one type of activity by which private parties trade and ...


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