Smith v. Overseas Korean Cultural Heritage Foundation
Civil Action No. 2017-0598
D.D.C.Jan 2, 2018Background
- Plaintiff Therrell Smith, a 100‑year‑old D.C. resident, sued Overseas Korean Cultural Heritage Foundation (the Foundation) in D.C. Superior Court for damages allegedly caused by the Foundation’s construction of a museum next to her home.
- Plaintiff served the complaint and summons on the Foundation’s registered agent in the United States and sought damages for property damage, health harms, and fees.
- The Foundation removed the case to federal court and moved to dismiss under Fed. R. Civ. P. 12(b)(1), 12(b)(4), and 12(b)(5), arguing improper service under the Foreign Sovereign Immunities Act (FSIA) service provisions and lack of subject‑matter jurisdiction.
- Plaintiff opposed, arguing service was proper under 28 U.S.C. § 1608(b) (service on an agent) rather than § 1608(a) (service on a foreign state).
- The Foundation also sought to stay discovery pending resolution of its motion; Plaintiff moved to strike an affidavit the Foundation submitted with its removal.
- The Court denied the Foundation’s motion to dismiss, denied Plaintiff’s motion to strike, and found the stay of discovery moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service was proper under FSIA | Service on the Foundation’s U.S. registered agent complied with 28 U.S.C. § 1608(b) | Service was defective because FSIA § 1608(a) (procedures for foreign states) applied | Court held § 1608(b) applied; service on authorized agent was sufficient |
| Whether the Foundation is a “foreign state” or an “agency or instrumentality” under FSIA | The Foundation functions commercially (museum operation) and thus is an agency/instrumentality subject to § 1608(b) | The Foundation’s creation by presidential decree and national cultural mission show governmental status | Court held the Foundation’s core activity (building/operating a museum) is commercial in nature and it is an agency/instrumentality |
| Whether the Foundation is entitled to sovereign immunity | Plaintiff: commercial activity exception to FSIA (28 U.S.C. § 1605(a)(2)) applies because museum activity can be carried out by private actors | Foundation: asserts governmental nature and claims immunity | Court held the activity is commercial so sovereign immunity is defeated under the commercial‑activity exception |
| Whether the affidavit attached to removal should be struck | Plaintiff: affidavit dates pre‑removal and is defective; should be struck | Foundation: affidavit was filed earlier in state court and refiled in federal court with case number; change is non‑substantive | Court denied motion to strike as the change was non‑substantive and not grounds under Rule 12(f) |
Key Cases Cited
- Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003) (categorical test: whether entity’s core function is governmental or commercial for FSIA status)
- Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148 (D.C. Cir. 1994) (examples of governmental functions)
- Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298 (D.D.C. 2005) (commercial acts are those private parties also perform)
- Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992) (focus on nature of the act, not purpose, in determining commercial character)