ARCHITECTURAL INGENIERIA SIGLO XXI, LLC, а Florida limited liability company, Sun Land & RGITC LLC, a Florida limited liability company f.k.a. Sun Land RGITC, Co., Plaintiffs-Appellees, v. DOMINICAN REPUBLIC, a foreign state, Instituto Nacional de Recursos Hidraulicos, a foreign government agency, Defendants-Appellants.
Nos. 13-13877, 14-12543.
United States Court of Appeals, Eleventh Circuit.
June 10, 2015.
788 F.3d 1329
Ilene L. Pabian, Gregory Alan Baldwin, Eduardo Alberto Ramos, Holland & Knight, LLP, Miami, FL, for Defendants-Appellants.
Before HULL and DUBINA, Circuit Judges, and BOWEN,* District Judge.
DUBINA, Circuit Judge:
These appeals arise from an action brought by two Florida companies against a foreign nation and one of its instrumentalities under the Foreign Sovereign Immunities Act,
Eight days after the entry of the default judgment, the Dominican Republic and INDRHI entered an appearance; and ten days thereafter, they moved to vacate the default judgment for excusable neglect under
I.
Sun Land and Architectural‘s breach-of-contract actiоn is based on several documents, which they collectively refer to as “the Contract.” Because whether the district court had subject-matter jurisdiction over the claims against the Dominican Republic depends on the nature and content of these documents, we begin with an overview of their key terms.
A.
In 2000, INDRHI proposed the construction of an irrigation project in the Dominican Province of Azua. This project, commonly referred to as Azua II, was intended to provide irrigation to an area totaling 3000 hectares. INDRHI and STP3 (the Technical Secretary) invited contractors to bid on the project. Each bid had to be for a turnkey project that, among other things, provided for the financing necessary to complete the project. To arrange the financing component of its bid, Architectural asked Sun Land to participate. Ultimately, its $51.8 million bid for the Azua II project was the winning bid.
In November 2001, the President of the Dominican Republic issued Special Power 691-01, authorizing the Technical Secretary and INDRHI—“in the name and representation of the Dominican State“—to enter into two agreements regarding the Azua II project: (1) a financing agreement with the Florida Export Finance Corporation and other commercial banks, with the guarantee of the Export-Import Bank of the United States, to obtain the funds needed to complete Azua II; and (2) a commercial agreement with Architectural to provide the services needed to complete the Azua II project.
C.
In February 2002,4 INDRHI, the Technical Secretary, and Sun Land entered into a purchase agreement. Under this agreement, INDRHI agreed to buy the “Products” (e.g., the raw materials) and the “Services” (e.g., civil engineering, architectural designs, and supervision) neеded for the Azua II project from Sun Land. To fund this purchase, the Technical Secretary agreed to obtain financing through Sun Land, an authorized agent of the Export-Import Bank. In return, INDRHI and the Technical Secretary agreed to pay Sun Land the total purchase price of $51.8 million, an amount that was “guaranteed with the full faith and credit of the Dominican Government.”
Several other provisions of the purchase agreement are relevant here.
First, the purchase agreement made plain that the Technical Secretary had been “empowered by the Executive to sign [that agreement] with the Full Faith and Credit of the Government on behalf of the country.”
Second, Sun Land had “an absolute right to subcontract” any of its obligations or duties under the purchase agreement; and INDRHI and the Technical Secretary “agree[d] to execute any additional dоcumentation [Sun Land] . . . may deem necessary to effectuate the terms and conditions of this agreement.”
Third, INDRHI and the Technical Secretary “acknowledge[d] and agree[d]” that they were not entitled to “immunity on the grounds of sovereignty or otherwise” because the activities contemplated by the purchase agreement were “commercial in nature rather than governmental or public.” INDRHI and the Technical Secretary—“in respect to themselves“—then “expressly and irrevocably waive[d] any such right of immunity.”
Fourth, the parties submitted to the jurisdiction of the federal court sitting in Miami, Florida for any action “arising out of or relating to this agreement or notes or any of the transactions contemplated thereby.”
Fifth, the parties agreed that Florida law would govern the construction and enforcement of the purchase agreement.
Sixth, INDRHI and the Techniсal Secretary “designate[d], appoint[ed] and empower[ed]” the Dominican Ambassador or any Dominican Consul to receive service of process on their behalf. They also agreed that service of process could be made personally or by mailing or delivering a copy of the summons and complaint to the Dominican Ambassador, any Dominican Consul, or the address listed in the purchase agreement.
Once executed, the purchase agreement was submitted for legislative approval. In November 2002, the Dominican National Congress passed a resolution approving the purchase agreement, which the legislature described as a document executed by “the Dominican State, represented by the Technical Secretary of the Presidency . . . and [INDRHI]” under Special Power 691-01.5
In March 2002, INDRHI and Architectural entered intо Contract 10375 for the studies, design, and construction of the Azua II project. According to the preamble—“an integral part of” Contract 10375—the Technical Secretary had instructed INDRHI “to serve as the executing entity” for the Azua II project. Also, as both its preamble and articles made clear, Contract 10375 had been entered into and was to be performed in accordance with the purchase agreement.
Under Contract 10375, INDRHI did not submit to U.S. jurisdiction, agree to a special arrangement for service of process, or explicitly waive its sovereign immunity. Instead, the parties submitted to jurisdiction in the courts of Santo Domingo, agreed that Dominican law governed the agreement, and provided that certain disputes should be arbitrated in the Dominican Republic.
Contract 10375 was ultimately replaced with a more comprehensive document and thus is not part of what Sun Land and Architectural call “the Contract.” As a result, Sun Land and Architectural do not allege that the Dominican Republic or INDRHI breached Contract 10375. Even so, this document remains relevant here because several documents that are part of the Contract explicitly incorporate Contract 10375‘s terms.
E.
In February 2004, INDRHI, Sun Land, and Architectural executed the protocol for the execution of the purchase agreement. The protocol explicitly superseded Contract 10375 and set forth each party‘s responsibilities regarding the Azua II project, including the construction and payment procedures. After acknowledging that “there [we]re several Agreements that relate[d] to and [we]re material to the construction and financing” of the Azua II project, the parties expressly provided that the terms of the purchase agreement trumped any conflicting terms in the protocol.
The protocol, like the purchase agreement, included several additional provisions that are relevant here.
First, INDRHI “acknowledge[d] and agree[d]” that it was not entitled to “immunity on the grounds of sovereignty or otherwise . . . in any legal proceeding arising out of or relating to THE PROTOCOL” because the activities contemplated by the protocol were “commercial in nature rather than governmental or public.” INDRHI then “expressly and irrevocably waive[d] any such right of immunity.”
Second, the parties submitted to the jurisdiction of the federal court sitting in Miami, Florida for any action “arising out of or relating to this PROTOCOL or any of the transactions contemplated thereby.”
Third, the parties agreed that Florida law would govern the construction and enforcement of the protocol.
Fourth, INDRHI “designate[d], appоint[ed] and empower[ed]” the Dominican Ambassador or any Dominican Consul to receive service of process on its behalf. It also agreed that service of process could be made personally or by mailing or delivering a copy of the summons and complaint to INDRHI “in care of its agent designated above.”
With the purchase agreement and the protocol in place, work on the Azua II project was ready to begin.
In March 2004, Architectural received word from INDRHI to begin the Azua II project, and it did so. Over the next 30 months, Architectural worked on the irrigation project as INDRHI directed, which included complying with its numerous orders to cease all work as well as its countermands to recommence.
In March 2006, INDRHI sent a letter to Architectural approving an itemized list of the “Components of Works in New Contract” that updated and expandеd the scope of the Azua II project. Sun Land and Architectural have characterized this letter at least three different ways: (1) in their complaint, they called it “an Agreement“; (2) in their motion for default judgment, they referred to it as “a [N]ew Contract“; and (3) in their brief on appeal, they define it as “the ‘Amendment.‘” Here, we refer to this document as “the Amendment.”
With the addition of the components referenced in “the Amendment,” the total cost of the Azua II project ballooned to $106.1 million. Once financing for this expansion was secured in June 2007, INDRHI instructed Architectural to begin working on the project again.
G.
In November 2007, INDRHI and Architectural entered into the first of three addenda. The first addendum covered structural repairs to sections of the Yaque del Sur-Azua Canal, a system of water pathways in the geographic region of the Azua II project. The total cost of this work was $63.4 million Dominican pesos. After Architectural performed part of the work contemplated by this addendum, it presented INDRHI with an invoice for $40.1 million Dominican pesos, which was paid in full.
In January 2008, INDRHI and Architectural entered into the second addendum to repair sections of the Yaque del Sur-Azua Canal damaged by Tropical Storm Noel. Architectural performed the work contemplated by this addendum and presented INDRHI with an invoice for $44.5 million Dominican pesos, which was paid in full.
Finally, in July 2008, INDRHI and Architectural entered into the third addendum to repair sections of the Yaque del Sur-Azua Canal damaged by Tropical Storm Olga. After Architectural performed the work contemplated by the addendum, it submitted a partial invoice to INDRHI for $55.1 million Dominican pesos, which was paid in part. INDRHI still owes $18.4 million Dominican pesos on this invoice.
Each addendum purported to modify the tеrms of Contract 10375 between INDRHI and Architectural. For example, the third addendum provided, “All other remaining Articles of Contract 10375 that have not been modified remain in full effect, the same as the Documents of the Contract that are not modified by effect of the present Addendum.” That addendum also provided that it would “not have to be ratified by any other party, due to the fact that the necessary funds involved in [the addendum] will come directly from the Dominican state.” None of the addenda expressly refer to either the purchase agreement or the protocol.
According to Sun Land and Architectural‘s complaint, the purchase agreement, the protocol, and the three addenda comprise “the Contract.” On appeal, as in the district court, they also contend that “the Amendment” is part of the Contract.
H.
In October 2008, INDRHI sent a letter to the lеgal counsel for the Dominican Executive Branch. In this letter, the agency described Architectural‘s performance as “satisfactory, fully complying with their obligations as principal contractor, despite the lack of payment of several invoices.” The agency also noted that Sun Land‘s work had been “executed without any problems.”
II.
In February 2013, Sun Land and Architectural filed this action against the Dominican Republic and INDRHI. The next day, service of the original summonses and complaint was made on the Office of the Consulate General of the Dominican Republic in Miami, Florida. These documents wеre received by an “auxiliary consul,” a person performing clerical duties at the consulate, who then delivered them to Gina Lacayo, “the assistant” to the Miami Consul General. This assistant position is a secretarial position, and there is no evidence that Lacayo had any management duties at the Miami consulate. Indeed, at the time of service, Lacayo had served in this secretarial capacity for only three months, though she had been an auxiliary consul (a clerical position) for nearly 12 years before taking this job.
After receiving these documents, Lacayo contacted Ramon Burgos, a Dominican lawyer in Santo Domingo, who worked as an assistant legal counsel to the Dominican government. According to her declaration, she did so to confirm her understanding that the Miami consulate was not authorized to accеpt service of process. Without reading the complaint herself or providing Burgos a copy to review (and apparently he never asked to see the complaint), Lacayo explained to Burgos that the Miami consulate had mistakenly received legal documents naming the Dominican Republic as a defendant in a U.S. legal action. Burgos then confirmed her understanding that under both Dominican law and the Vienna Convention, the Miami consulate should not have received or accepted service for a lawsuit against the Dominican Republic.
Having confirmed her understanding, Lacayo called Sun Land and Architectural‘s counsel to explain that the Miami consulate was not authorized to accept service of process. During this call, Plaintiffs’ counsel explained that the Miami consulate could accept service in this сase because it was contractually authorized to do so. But Lacayo disagreed. Given her conversation with Burgos and the Miami consulate‘s longstanding policy against accepting service of process, she suggested that Plaintiffs’ counsel send these documents to the Dominican Embassy in Washington, D.C.
In early April, Sun Land and Architectural mailed the Dominican Ambassador in Washington a certified letter that included copies of the summonses and complaint and emailed him a copy of that letter without attaching a copy of the complaint;6 a copy of this letter was also sent to the Miami consulate. When Lacayo received this letter, she again called Plaintiffs’ counsel to notify him that the Miami consulate was not authorized to receive service of process for the Dominican Republic and to request that he stop sending legal dоcuments to the Miami consulate. According to counsel‘s affidavit, Lacayo “advised that there would be no response because the Defendants had not been properly served, and told me to read the Vienna Convention.” Lacayo, in contrast, explained in her declaration that she “never said that the government of the Dominican Republic would not be taking any action in response to the Complaint and Summons. I was not then, and I am not now[,] authorized to speak on behalf of the government of the Dominican Republic.” In any event, Lacayo said that in light of the April letter, it was her understanding that the Embassy was handling this matter.
In mid-April, the clerk of the district court entered default and mailed a copy to the Miami consulate. Sun Land and Architectural moved for a default judgment a month later. A process server delivered copies of this motion to thе Miami consulate. Although Lacayo received them, because she believed that the Embassy was handling this matter, she simply filed the motion. Sun Land and Architectural also assert that they sent copies of this motion to INDRHI and the Dominican Republic Ministry of Economy, Planning, and Development (formerly known as the Technical Secretary) by Federal Express.
While that appeal was pending, the Dominican Republic moved to vacate the default judgment for voidness under
III.
Several standards of review govern these appeals. We review jurisdictional questions de novo, Beg v. Islamic Republic of Pakistan, 353 F.3d 1323, 1324 (11th Cir. 2003), and the district court‘s factual findings for clear error, Aquamar, S.A. v. Del Monte Fresh Produce, 179 F.3d 1279, 1290 (11th Cir. 1999).
We review the district court‘s ruling on a
We review the district court‘s denial of a
IV.
On appeal, the Dominican Republic challenges whether the district court had subject-matter jurisdiction over all or part of Sun Land and Architectural‘s breach-of-contract claim.
The FSIA is the sole “basis for obtaining jurisdiction over a foreign state,” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989), because this Act endows a foreign state with presumptive immunity to suits in U.S. courts unless a statutory exception applies, Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); see
For purposes of the FSIA, a foreign state expressly waives its right to immunity only where its intent to do so is clear and unambiguous. Aquamar, 179 F.3d at 1292; accord World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1162 (D.C. Cir. 2002). And as a general rule, “explicit waivers of sovereign immunity are narrowly construed ‘in favor of the sovereign’ and are not enlarged beyond what the language requires.” World Wide Minerals, 296 F.3d at 1162 (quoting Library of Cong. v. Shaw, 478 U.S. 310, 318 (1986)).
The FSIA also recognizes that a foreign state may waive its sovereign immunity implicitly, but the Act itself does not define implicit waiver. See
Here, Sun Land and Architectural alleged that the district court had subject-matter jurisdiction over their claims against the Dominican Republic based on its express and implied waivers of immunity in “the [C]ontract (herein later described as the [Protocol], Purchase Agreement, and addenda and amendments thereto)” as well as its commercial activity within the United States or its extraterritorial commercial activity that had a direct effect within the United States. See
B.
The district court concluded that all of the documents comprising what Sun Land and Architectural call “the Contract” constituted “one overall agreement” and that the waivers of sovereign immunity in the purchase agreement and the protocol thus applied to each document.8 This conclusion was warranted, the court reasoned, because this collection of documents “all relate[d] to each other and include[d] numerous statements that INDRHI and the Technical Secretary of the President signed and executed the agreements in the name of and as a representative of Defendant Dominican Republic.” Doc. 56 at 4. Additionally, the court concluded thаt “Defendant Dominican Republic is interchangeable as a party to the agreements wherever INDRHI or the Technical Secretary of the President are Parties.” Id. at 5. Consequently, the court concluded that the Dominican Republic was subject to its jurisdiction under the FSIA for its alleged breach of the purchase agreement, the protocol, the addenda, and “the Amendment” because of the foreign nation‘s waivers of sovereign immunity. Based on our review of the record, however, we cannot fully agree.
1.
The Azua II project began with Sun Land and Architectural‘s $51.8 million winning bid—a bid that accounted for the financing, design, and construction of the 3000 hectare irrigation project. As a result, the documents (and amendments thereto) executed to bring this project to fruition should be read together. See
The three addenda were executed by INDRHI and Architectural and explicitly incorporated the terms of Contract 10375. Despite this, Architectural contends that they were amendments to the protocol. We disagree for two reasons.
First, the protocol provided that any amendments could occur only with the written consent of all parties. Because Sun Land was a party to the protocol but not these addenda, the addenda were not properly executed amendments of the protocol.
Second, “where a writing expressly refers to and sufficiently describes another document, that othеr document, or so much of it as is referred to, is to be interpreted as part of the writing.” OBS Co. v. Pace Constr. Corp., 558 So. 2d 404, 406 (Fla. 1990).9 This rule applies here because INDRHI and Architectural clearly and unambiguously incorporated the terms of Contract 10375 into each addendum. Having done so, we must glean the parties’ intent from the four corners of these documents. Crawford v. Barker, 64 So. 3d 1246, 1255 (Fla. 2011). After all, the best evidence of intent is the contract‘s own language, and its plain meaning controls. Id.
INDRHI and Architectural chose to incorporate Contract 10375‘s terms, rather than those of the protocol, into each addendum. And they did so even though Contract 10375 was expressly superseded by the protocol more than three and a half years before the first addendum was executed. Although the repair work contemplated by each addendum was similar in kind to that performed as part of the Azua II project, the work under each аddendum was not directly related to the Azua II project. Nor were the payment terms the same: work related to the Azua II project was to be paid for in U.S. dollars, but work under each addendum was to be paid for in Dominican pesos. For these reasons, we cannot conclude on the current record that the three addenda should be interpreted together with the purchase agreement and the protocol—documents that they never explicitly reference—nor can we conclude that the addenda amended the protocol.
“The Amendment” fares no better. In their complaint, Sun Land and Architectural allege that “the parties” executed “an Agreement” (which they refer to as “the Amendment” on appeal) in March 2006 to “update and define” the scope of the Azua II project. To substantiate their allegation, they attached a copy of this document to their complaint. But after reviewing it, we are unpersuaded that it constitutes an amendment of either the purchase agreement or the protocol, the documents memorializing the Azua II project.
For starters, this document is signed only by INDRHI, not “the parties” as Sun Land and Architectural alleged. So this document was not a properly executed amendment of either the purchase agreement or the protocol. Next, the document itself contained no terms or obligations, nor did it incorporate the terms of any other contract. On its face, “the Amendment” is thus neither an amendment of a document that relates to the Azua II project nor a stand-alone agreement. Consequently, based solely on our review of “the Amendment,”10 we cannot conclude that the scope of the Azua II project was indeed extended in March 2006.
Even so, the larger question remains: whether the Dominican Republic has any amenability to suit in U.S. courts in this action. In a word, yes.
2.
Here, because at least one statutory exception to the FSIA applies, the Dominican Republic is amenable to the jurisdiction of U.S. courts. See
The Dominican Republic is a party to the purchase agreement. The Technical Secretary signed the purchase agreement and did so after having been “empowered by the Executive to sign [that agreement] with the Full Faith and Credit of the Government on behalf of the country.” Indeed, nothing in the record suggests that the Technical Secretary (now the Minister of Economy, Planning, and Development) is not simply one of many actors through which the Dominican Republic carries out its sovereign affairs. Cf. First Fid. Bank, N.A. v. Gov‘t of Antigua & Barbuda Permanent Mission, 877 F.2d 189, 192 (2d Cir. 1989) (“Normally, of course, a state authorizes a representative to act on its behalf.“). In other words, like most foreign ministers, the Technical Secretary is simply “part of the sovereign itself.” Garb v. Republic of Poland, 440 F.3d 579, 595 (2d Cir. 2006) (quoting Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 152 (D.C. Cir. 1994)); see also S & Davis Int‘l, Inc. v. The Republic of Yemen, 218 F.3d 1292, 1298 (11th Cir. 2000) (treating the Yemeni Ministry of Supply & Trade as “admittedly” a political subdivision of the Republic of Yemen). Thus, the Dominican Republic is bound by the purchase agreement‘s terms.11
According to the Dominican Republic, the purchase agreement‘s waiver of sovereign immunity extends only to future loans, not the construction project around which Sun Land and Architectural‘s complaint is built. We disagree.
The purchase agreement‘s waiver provision sweeps broadly. The parties to that agreement—which includes the Dominican Republic—submitted to the jurisdiction of the federal court sitting in Miami, Florida for any action “arising out of or relating to this agreement or notes or any of the transactions contemplated thereby.” Purchase Agreement art. 23 (emphasis added). The design and construction of the Azua II project were transactions contemplated by the purchase agreement—indeed, they were part of the “Services” that Sun Land agreed to provide and the Technical Secretary and INDRHI agreed to pay for under that agreement. We thus conclude that the purchase agreement‘s waiver of sovereign immunity is not limited to future loans but rather reaches the construction project at the heart of this action. Because the protocol merely memorializes the parties’ responsibilities vis-à-vis the Azua II project, the protocol constitutes a transaction contemplated by the purchase agreement. Accordingly, we hold that the district court did not err in concluding that the Dominican Republic‘s waiver of sovereign immunity extends to thе protocol.
3.
Lastly, Sun Land and Architectural contend that the Dominican Republic was also subject to the jurisdiction of U.S. courts based on its commercial activity. See
The FSIA presumes that a foreign state and its instrumentalities are separate legal entities. See
V.
Under
At the same time, our caselaw makes clear that the party seeking relief under
Here, the district court denied the Dominican Republic and INDRHI‘s
To conclude that the Dominican Republic and the INDRHI made a “willful decision” to not respond to the complaint as a “tactical maneuver,” Doc. 30 at 8, the district court relied on several factual findings. These findings were based solely on the court‘s assessment of Lacayo‘s conduct given its conclusion that resolving “the validity of the communications sent to the Embassy or the Dominican Republic directly” was unnecessary. Id. at 7 n.5.
The district court found that the Dominican Republic and INDRHI “aсknowledged receiving the [c]omplaint” and that they “twice reached out to Plaintiffs to inform them that they would not respond because of a disagreement as to the validity of service.” Id. at 7. The court also found that the Dominican Republic and INDRHI‘s failure to answer the complaint could not be excused as a clerical error. In the district court‘s view, Lacayo was not a junior employee because she had been employed at the Miami consulate for twelve years and was “the assistant” to the Consul General. Id. at 8. Indeed, the court noted that Lacayo was “senior enough” (or “felt senior enough“) in this position to twice call Sun Land and Architectural‘s counsel and “inform them that no response would be forthcoming.” Id. The court thus concluded that the Dominican Republic and INDRHI “put themselves” in a position to face a default judgment of more thаn $50 million “through their adamant and repeated refusals to participate in the legal process.” Id. at 9.
While Lacayo twicе spoke with Sun Land and Architectural‘s counsel, nothing in the record establishes that anyone with managerial responsibilities within the Dominican Republic government or INDRHI knew anything about this case. Even so, the district court found that the Dominican Republic and INDRHI twice told Sun Land and Architectural‘s counsel that they were not going to respond to the complaint because they believed that service had been improper. To make this finding, the district court imputed Lacayo‘s conduct to the Dominican Republic and INDRHI, yet nothing in the record supports doing so. Hence, this finding is also clearly erroneous.
Finally, because nothing in the record establishes that anyone at the Miami consulate other than Lacayo and a clerical employee knew about this action, the court‘s conclusion that the Dominican Republic and INDRHI willfully decided not to respond to the complaint for tactical reasons is unsupported by the record. At best, the record suggests that their failure to respond was the result of negligence that is excusable. Thus, good reason for their failure to respond to the complaint exists, and we hold that the district court‘s contrary finding was clearly erroneous.12
VI.
Having carefully considered the record in this case, the parties’ briefs, and with the benefit of oral argument, we conclude that the district court erred by denying the Dominican Republic‘s
REVERSED and REMANDED.