Jerez v. Republic of Cuba
964 F. Supp. 2d 52
D.D.C.2013Background
- Plaintiff Nilo Jerez obtained a default judgment in Florida state court (2007) and a federal court in S.D. Fla. later gave it full faith and credit; he then registered the judgment in D.D.C. and sought writs of attachment against the Republic of Cuba and various Cuban entities/agencies.
- Third-party movants (entities whose property was targeted) and intervenor Camara de Comercio moved to vacate the writs; Magistrate Judge Kay found no subject-matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA) and quashed the writs as unenforceable under the Cuban Assets Control Regulations.
- Jerez objected, arguing FSIA exceptions applied (non‑commercial tort under 28 U.S.C. § 1605(a)(5) and the then‑existing terrorism exception § 1605(a)(7)), and that the magistrate erred in reviewing the Florida state court’s jurisdiction after full faith and credit was given by a federal court.
- The district court reviewed the magistrate’s factual findings for clear error and legal conclusions de novo, found no clear error or legal error, and overruled Jerez’s objections.
- Because Jerez failed to establish an FSIA exception (tortious acts occurred in Cuba; no evidence of U.S.‑based omission by Cuban agents; terrorism exception timing and nationality requirements not met), the court held there is no subject‑matter jurisdiction and other attachment/trademark arguments were moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FSIA non‑commercial tort exception (§1605(a)(5)) waives immunity | Jerez: ongoing injuries (Hepatitis C replication, cirrhosis) and alleged failure to warn in U.S. make tort and injury occur in U.S. | Third‑party movants: tortious acts occurred in Cuba; plaintiff offers no evidence of U.S.‑based tortious omission by Cuban agents | Held: No waiver — both tort and injury must occur in U.S.; here tortious acts occurred abroad and no evidence of U.S. omission |
| Whether FSIA terrorism exception (§1605(a)(7) as of 2007) applies | Jerez: torture claims fall within the terrorism exception | Movants: statutory prerequisites not met — Cuba’s designation timing and plaintiff’s nationality at time of acts fail the statute | Held: No jurisdiction — Cuba’s designation not tied to these acts and Jerez was not a U.S. national when acts occurred |
| Whether the court could review the Florida state court’s subject‑matter jurisdiction after full faith and credit was given by a federal court | Jerez: district court should defer to full faith and credit determination and not reexamine state court jurisdiction absent plain usurpation | Movants: courts must address subject‑matter jurisdiction sua sponte; state courts here did not consider FSIA immunity and affected third parties contest enforcement | Held: Court properly reviewed jurisdiction — subject‑matter jurisdiction can be examined, especially where state court did not address FSIA and third parties contest enforcement |
| Enforceability of writs re: Cuban Assets Control Regulations and trademark liens | Jerez: exceptions allow attachment and equitable liens or foreclosure of IP interests | Movants: regulations prohibit such attachments; court need not reach because jurisdiction lacking | Held: These objections are moot given lack of subject‑matter jurisdiction |
Key Cases Cited
- Nemariam v. Fed. Democratic Republic of Ethiopia, 491 F.3d 470 (D.C. Cir. 2007) (FSIA is sole basis for jurisdiction over foreign states)
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (U.S. 1989) (scope of FSIA non‑commercial tort exception and requirement that tort occur in the U.S.)
- Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. 1984) (both tort and injury must occur in the United States for §1605(a)(5))
- Cicippio v. Islamic Republic of Iran, 30 F.3d 164 (D.C. Cir. 1994) (limits on FSIA exceptions)
- Weininger v. Castro, 462 F. Supp. 2d 457 (S.D.N.Y. 2006) (consideration of whether to reopen foreign‑sovereign default judgments when third parties contest enforcement)
- Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (U.S. 1982) (res judicata effect of litigated jurisdictional determinations)