District Court Avoids Testing Common Law Sovereign Immunity

Defense Remanded by the Second Circuit But Dismisses the Claims on Personal Jurisdiction Grounds Instead

By Louis M. Solomon

Carpenter v. Republic of Chile, et al., 07-CV-5290 (JS)(ETB) (E.D.N.Y. June 2011) [enhanced version available to lexis.com subscribers], is the remand from a Second Circuit decision of last year (601 F.3d 776 (2d Cir. 2010) [enhanced version  / unenhanced version available from lexisONE Free Case Law]) requiring the District Court to reconsider the dismissal on sovereign immunity grounds of various individual defendants (the Court of Appeals affirming the balance of the District Court's earlier decision concerning the sovereign). The decision addresses the following issues of interest to international litigation practice:

First, the current decision acknowledges that the mandate from the Court of Appeals required the District Court to consider "whether the federal common law of foreign sovereign immunity protects the Individual Defendants", but the District Court observed that the Defendants, on remand, "declined to brief the issue raised by the Second Circuit's mandate". Instead, the Individual Defendants pressed a motion to dismiss for lack of personal jurisdiction. The District Court was willing to entertain the alternate motion.

Second, the District Court was willing to address the personal jurisdiction question rather than the subject matter jurisdiction question because "the personal jurisdiction issues are straightforward" where, "[c]onversely, the Second Circuit's mandate raises complicated subject matter jurisdiction issues". Relying on the U.S. Supreme Court's statement in Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) [enhanced version  / unenhanced version ], that there is "no jurisdictional hierarchy between personal and subject matter jurisdiction questions", the Court found personal jurisdiction over the Individual Defendants lacking.

Third, in performing that analysis, because there was no hearing, the Court applied a standard that merely required the plaintiff to make out a "prima facie showing of personal jurisdiction", where the well-pleaded facts as pleaded by the plaintiff are accepted as true. Even on that basis the claims failed. Explained the Court, the acts complained of were "quintessentially governmental tasks in Chile". Travel by one or more of the Individual Defendants to New York for matters irrelevant to the pleaded cause of action was irrelevant, since it did not amount to a continuous course of conduct sufficient to ground general jurisdiction over any of them. And the plaintiff pleaded no facts sufficient to ground a claim of specific personal jurisdiction or that the Individual Defendants committed torts that harmed any person or property in New York.

The District Court did not permit the plaintiff to replead and dismissed the Complaint with prejudice.

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