Rishikof v. Mortada
2014 U.S. Dist. LEXIS 137049
D.D.C.2014Background
- Plaintiff Harvey Rishikof, personal representative of Trudith N. Rishikof, sues Mortada and the Swiss Confederation for negligence arising from a fatal pedestrian accident on Oct. 6, 2011.
- Mortada drove a Swiss Embassy vehicle delivering a package to the World Bank and was acting as an employee of the Swiss Confederation at the time.
- Plaintiff asserts jurisdiction under FSIA tort exception (28 U.S.C. § 1605(a)(5)) and supplemental jurisdiction for DC-law claims; the Swiss Confederation agrees Mortada is its employee and will accept liability.
- Magistrate Judge Kay recommended denying immunity; Defendants object; the court, after review, grants Mortada common-law conduct-based immunity and dismisses Mortada with prejudice.
- Court analyzes conduct-based immunity under Samantar v. Yousuf and related Restatement principles, concluding Mortada qualifies as an agent acting within official capacity.
- Court discusses the FSIA jury-trial prohibition, ruling that a joint-and-several theory against Mortada and the Swiss Confederation would circumvent the prohibition; plaintiff must choose to sue either Mortada or the Swiss Confederation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mortada is entitled to conduct-based common-law foreign immunity | Rishikof argues Mortada lacks foreign-immunity status | Mortada is an agent entitled to conduct-based immunity | Mortada entitled to conduct-based immunity |
| Whether Mortada acted within the scope of employment | Mortada acted within Swiss employment when the death occurred | Mortada acted within scope; Swiss will accept liability | Yes, within the scope of employment |
| Whether exercising jurisdiction would enforce a rule of law against the Swiss Confederation | Joint-and-several liability can be read against Swiss | Jurisdiction would enforce law against Switzerland | Yes, would enforce against Swiss; immunity applies |
| Jury-trial issue under FSIA | Plaintiff seeks jury trial against Mortada and Swiss | FSIA prohibits jury trial against foreign states | Precludes jury trial if both defendants are pursued; plaintiff must choose between Mortada (jury) or Swiss (bench) |
Key Cases Cited
- Samantar v. Yousuf, 560 U.S. 305 (2010) (conduct-based foreign immunity can extend to an agent of a foreign state)
- Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012) (immunity stands on the foreign official’s actions, not status)
- Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009) (immunity based on acts performed in official capacity; not dependent on tenure)
- Belhas v. Ya’alon, 515 F.3d 1279 (D.C. Cir. 2008) (conduct-based immunity context for foreign officials)
- Arango v. Guzman Travel Advisors, 761 F.2d 1527 (11th Cir. 1985) (illustrates immunity when acts were within official duty)
- Brown v. Argenbright Security, Inc., 782 A.2d 752 (D.C. 2001) (respondeat superior and state liability considerations)
- District of Columbia v. Evans, 644 A.2d 1008 (D.C. 1994) (illustrates limits of municipal liability principles)