Jerez v. Republic of Cuba, No. 13-7141 (D.C. Cir. Dec. 30, 2014) [click for opinion]

Plaintiff Nilo Jerez filed suit in 2005 under the Torture Victim Protection Act, 28 U.S.C. § 1350, in Florida state court against the Republic of Cuba, Fidel Castro, and several others alleging that he had been tortured while incarcerated in Cuba in the 1960s and 1970s and continued to suffer the consequences. Defendants defaulted and the state court granted Plaintiff a $200 million judgment. Plaintiff enforced the default judgment in federal district court in Florida,  where Defendants again defaulted. Plaintiff registered the default judgment in the district court for the District of Columbia, and successfully moved for writs of attachment on certain patents and trademark registrations held by alleged agencies and instrumentalities of Cuba, which then sought to vacate the writs . The district court granted the motion to vacate on the grounds that the Florida state court and district court lacked subject matter jurisdiction over the claims pursuant to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq. The U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") affirmed the district court's order.

The D.C. Circuit held that a defendant that has never appeared in a case is always free to assert a jurisdictional attack later in the court where enforcement of the default judgment is sought. Under these circumstances, both federal precedent and Florida state law on default judgment dictate that the court considers jurisdictional objections de novo.

Turning to the question of whether jurisdiction existed over Defendants, the court explained that the FSIA is the sole basis for obtaining jurisdiction over a foreign state in U.S. courts. Under the FSIA, foreign states are immune from the jurisdiction of U.S. courts unless an exception applies. Plaintiff argued unsuccessfully that the non-commercial tort and terrorism exceptions covered Defendants' conduct.

The non-commercial tort exception provides jurisdiction for claims that cause injury or damage in the United States and that are caused by a foreign state. The court held this exception inapplicable, as Plaintiff's injuries were inflicted in Cuba, not the United States. As to the terrorism exception, under the version of the exception in place at the time of Plaintiff's default judgment, the exception was available if the state at issue was a designated sponsor of terrorism at the time the act occurred or was designated as a state sponsor of terrorism because of the conduct underlying the litigation. In addition, to qualify for the exception the claimant must have been a U.S. national when the alleged unlawful conduct took place. The court held that Plaintiff could not satisfy either of these criteria. The acts of torture underlying Plaintiff's claim took place before Cuba was designated a state sponsor of terrorism in 1982, that designation was not based on the torture inflicted on Plaintiff, and Plaintiff was not a U.S. national at the time he was subjected to these acts. The court also rejected Plaintiff's "redeployment" theory that he continued to suffer new and contemporaneous acts of torture due to the ongoing effects of injuries inflicted by the original torture.

John Fedele of the Washington, DC office contributed to this summary.