Opinion
CASE NO. 15-81105-CIV-COHN/SELTZER
08-31-2016
Esther Monica HOBAN, Plaintiff, v. The SOVEREIGN REPUBLIC OF PERU, Defendant.
Rafael Angel Castro, III, R. Castro & Associates, Miami, FL, for Plaintiff. Juan C. Basombrio, Dorsey & Whitney, Costa Mesa, CA, Krystina Noelle Jiron, Atkinson & Brownell PA, Miami, FL, for Defendant.
Rafael Angel Castro, III, R. Castro & Associates, Miami, FL, for Plaintiff.
Juan C. Basombrio, Dorsey & Whitney, Costa Mesa, CA, Krystina Noelle Jiron, Atkinson & Brownell PA, Miami, FL, for Defendant.
ORDER GRANTING MOTION TO DISMISS
JAMES I. COHN, United States District Judge
THIS CAUSE is before the Court upon Defendant's Motion to Dismiss [DE 27] ("Motion"). The Court has reviewed the Motion, Plaintiff's Response [DE 44], and Defendant's Reply [DE 49]. The Court has considered these filings, the record in this case, and is otherwise advised in the premises. For the reasons that follow, the Court will GRANT the Motion and DISMISS Plaintiff's Amended Complaint [DE 8] with prejudice.
The Court GRANTS Plaintiff's motions for the Court to accept the filing of her Response [DE 47 & 48], even though the response is overlong and overdue. Defendant's Motion to Strike [DE 53] is DENIED.
Defendant mounts a factual challenge to the Court's jurisdiction to hear this case under Federal Rule of Civil Procedure 12(b)(1). A Rule 12(b)(1) standing challenge can be either "facial" or "factual." Lawrence v. Dunbar , 919 F.2d 1525, 1528–29 (11th Cir.1990). Facial challenges attack standing based solely on the allegations in the complaint and any exhibits attached to the complaint, see Stalley v. Orlando Reg'l Healthcare Sys., Inc. , 524 F.3d 1229, 1233 (11th Cir.2008), and the district court takes the allegations in the complaint as true when deciding the motion, Lawrence , 919 F.2d at 1529. Factual attacks challenge jurisdiction in fact, encompassing matters outside of the pleadings, and therefore allow the district court to consider extrinsic evidence such as testimony and affidavits. Id. When the attack is facial, the trial court must afford the plaintiff the benefit of "safeguards similar to those provided in opposing a Rule 12(b)(6) motion—the court must consider the allegations of the complaint to be true." Id. at 1529 (citations omitted). But when the attack is factual:
the trial court may proceed as it never could under 12(b)(6) or [Rule] 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.
Id. (citations omitted).
Plaintiff sues to enforce three purported bearer bonds issued by the government of Peru to her father during a currency crisis in the 1980s. The bonds are peculiar. Rather than offering the bonds for sale to interested purchasers, Peru required its citizens to buy them. Plaintiff explains in an affidavit submitted in opposition to Defendant's Motion:
My father, a national police officer erstwhile in Peru, did not want to purchase these Hoban Bearer-Bonds. It was a forced, obligatory, public debt issued by the Republic of Peru, and the money was taken from my father's salary as a forced contribution in exchange for the delivery to him of the pieces of paper (the Hoban Bearer-Bonds) representing such public debt.
[DE 36-1 at 11–12.] Further, the Court credits the Affidavit of Betty Armida Sotelo Bazan, which states that the bonds "were issued only in Peru to natural persons or legal entities in Peru," and that "foreign investors could not acquire these bonds." [DE 27-1 at 4.] The Bonds were payable only upon presentment to Banco de la Nacion in Peru, and were paid only in Peruvian currency. The Court agrees with Defendant that this scheme functioned as a sort of tax, rather than as a debt-offering on the open marketplace. [See id. at 9.]
The Court grants Defendant's Motion to Dismiss because Peru enjoys sovereign immunity with respect to Plaintiff's claims. Subject to certain international agreements not applicable here, "a foreign state shall be immune from the courts of the United States and of the States except as provided" in the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1602 –11. Plaintiff bears the initial burden of producing evidence that the conduct which forms the basis of the complaint falls within one of FSIA's statutorily defined exceptions to sovereign immunity. Butler v. Sukhoi Co. , 579 F.3d 1307, 1312–13 (11th Cir.2009).
Here, Plaintiff relies on FSIA § 1605(a)(2). [See DE 44 at 8.] Section 1605(a)(2) states as follows:
A foreign state shall not be immune from the jurisdiction of the courts of the United States or the States in any case ... in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or 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 ....
Plaintiff's efforts to bring this case within one of FSIA § 1605(a)(2)'s exceptions fail. Plaintiff has identified no commercial or other act that Peru committed in the United States upon which she bases her claims. Likewise, she has not shown that Peru's alleged actions in issuing and dishonoring the bonds had a direct effect in the United States.
As observed above, Peru issued the bonds at issue only to Peruvians within Peru, and would honor them only at the Banco de la Nacion within the country. The only effect within the United States that Plaintiff has identified is Plaintiff's nonreceipt of the funds. But this is not sufficient. The Supreme Court has held that, under FSIA § 1605(a)(2), "[a]n effect is direct if it follows as an immediate consequence of the defendant's activity." Republic of Argentina v. Weltover, Inc. , 504 U.S. 607, 618, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992). It is not sufficient that Peru's nonpayment of the bonds affects a United States citizen, especially when that citizen holds the bonds through conduct in which Peru took no part. See Samco Global Arms, Inc. v. Arita , 395 F.3d 1212, 1218 (11th Cir.2005) (finding FSIA immunity for breach of contract where "[t]he contract in [the] case was between a Panamanian citizen and Honduras, was negotiated and executed in Honduras, involved goods manufactured outside of the United States, required performance by Honduras only within its territory, and made no reference whatsoever to the United States.")
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff's Motion to Accept the Filing of the Opposition Memorandum Despite its Non-Compliance with the Page Limitation of Local Rule 7.1(c)(2) [DE 47] is GRANTED .
2. Plaintiff's Motion to Accept as Timely Filed Her Memorandum of Law in Opposition to the Motion to Dismiss for Lack of Subject Matter Jurisdiction [DE 48] is GRANTED .
3. Defendant Republic of Peru's Motion to Strike [DE 53] is DENIED .
4. Defendant's Motion to Dismiss [DE 27] is GRANTED .
5. The Court will enter separate final judgment.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 31st day of August, 2016.
ORDER DENYING MOTION TO ALTER OR AMEND THE FINAL JUDGMENT
THIS CAUSE is before the Court upon Plaintiff's Motion to Alter or Amend the Final Judgment [DE 66] ("Motion"). The Court has reviewed the Motion and Defendant's Response [DE 67], and is otherwise advised in the premises.
Plaintiff has not filed a Reply and the time has passed for her to do so.
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In this action, Plaintiff sued to enforce three purported bearer bonds issued by the government of Peru to her father during a currency crisis in the 1980s. The Court granted Defendant's Motion to Dismiss because it found that Peru enjoys sovereign immunity with respect to Plaintiff's claims. [DE 64 at 3.] Plaintiff's instant Motion seeks reconsideration of the Court's ruling under Fed. R. Civ. P. 59(e).
A motion to alter or amend a judgment "must demonstrate why the court should reconsider its prior decision and set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Socialist Workers Party v. Leahy , 957 F. Supp. 1262, 1263 (S.D. Fla. 1997). Generally courts have recognized three grounds for justifying reconsideration of an order: "(1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or manifest injustice." Williams v. Cruise Ships Catering & Serv. Int'l, N.V. , 320 F. Supp. 2d 1347, 1357–58 (S.D. Fla. 2004) ; see also Reyher v. Equitable Life Assur. Soc. , 900 F.Supp. 428, 430 (M.D. Fla. 1995). Reconsideration of a previous order "is an extraordinary remedy to be employed sparingly" in the interests of finality and conservation of scarce judicial resources. Sussman v. Salem, Saxon & Nielsen, P.A. , 153 F.R.D. 689, 694 (M.D. Fla. 1994).
Litigants "cannot use a Rule 59(e) motion to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Michael Linet, Inc. v. Vill. of Wellington, Fla. , 408 F.3d 757, 763 (11th Cir. 2005). See also Mobley v. Bradshaw , 11–CV–81357, 2013 WL 11318868, at *1 (S.D. Fla. Nov. 12, 2013) ("A Rule 59(e) motion does not provide Plaintiff with another bite at the apple—another chance to rehash arguments made and issues decided.").
Plaintiff completely fails to establish any reasons for the Court to alter or amend its dismissal Order or subsequent Judgment. Rather, Plaintiff's Motion merely repeats her previously rejected argument that the bonds at issue constituted commercial activity with a direct effect in the United States. In fact, the Motion incorporates by reference thirteen pages of Plaintiff's memorandum in opposition to Defendant's Motion to Dismiss and explicitly asks the Court to reconsider its analysis. [DE 66 at 7.] It is clear that Plaintiff improperly seeks to "rehash arguments made and issues decided." Mobley , 2013 WL 11318868. See also Crown Auto Dealership v. Nissan N. Am., Inc. , No. 8:12–CV–1367–T–17TGW, 2014 WL 412757, at *1 (M.D. Fla. Feb. 3, 2014) ("Court opinions are ‘not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.’ ").
Plaintiff also argues that the Court should not have dismissed her Amended Complaint without jurisdictional discovery or an evidentiary hearing. [DE 66 at 8.] Prior to her instant Motion, however, Plaintiff made no formal request for either an evidentiary hearing or jurisdictional discovery. In any event, Plaintiff fails to establish that she is entitled to jurisdictional discovery or an evidentiary hearing or explain how either would have made any difference. In sum, Plaintiff fails to show any "clear error or manifest injustice" in the Court's dismissal of the Amended Complaint or any other reason for the Court to alter or amend its dismissal Order or subsequent Judgment.
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff's Motion to Alter or Amend the Final Judgment [DE 66] is DENIED .
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 2nd day of November, 2016.