Licea et al v Curacoa Drydock Appeal - Order of Dismissal

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

John Ley Clerk of Court

June 16, 2014

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Steven M. Larimore U.S. District Court 400 N MIAMI AVE MIAMI, FL 33128-1810 Appeal Number: 12-14440-EE Case Style: Alberto Licea, et al v. The Kingdom of the Netherlands, et al District Court Docket No: 1:06-cv-22128-JLK Secondary Case Number: 1:11-cv-22568-JLK The enclosed copy of this Court's Order of Dismissal is issued as the mandate of this court. See 11th Cir. R. 41-4. Counsel and pro se parties are advised that pursuant to 11th Cir. R. 27-2, "a motion to reconsider, vacate, or modify an order must be filed within 21 days of the entry of such order. No additional time shall be allowed for mailing." The Court’s previous order of 2/10/2014 is VACATED and replaced with the attached order. Motion for reconsideration is dismissed without prejudice to Curacao’s ability to challenge the Order issued today. Sincerely, JOHN LEY, Clerk of Court Reply to: Lois Tunstall, EE/bmc Phone #: (404) 335-6224 Enclosure(s)

DIS-4 Multi-purpose dismissal letter

Case: 12-14440 Date Filed: 06/16/2014 Page: 1 of 1 (1 of 13)

http://www.ca11.uscourts.gov/

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT _____________________________

No. 12-14440

_____________________________

D.C. Docket Nos. 1:06-cv-22128-JLK, 1:11-cv-22568-JLK (consolidated)

ALBERTO JUSTO RODRIGUEZ LICEA, et al., Plaintiffs-Appellees,

versus THE COUNTRY OF CURACAO, et al.,

Defendants-Appellants.

_____________________________

Appeal from the United States District Court for the Southern District of Florida

_____________________________

Before MARTIN and JORDAN, Circuit Judges, and BAYLSON, * District Judge:

PER CURIAM:

The Order issued by this panel on February 10, 2014, is VACATED. That

Order was mistakenly issued without the dissenting opinion of Judge Martin,

* Honorable Michael M. Baylson, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.


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which was intended to be part of the original Order when it issued. The Order that

follows replaces the February 10, 2014, Order, as though it had never issued.

Therefore, the Motion for Reconsideration filed by the Country of Curacao on

March 3, 2014, is dismissed without prejudice to Curacao's ability to challenge the

Order we issue today.

The panel apologizes to the parties for its mistake.

This interlocutory appeal arises from the second of two related, procedurally

complex actions now consolidated in the Southern District of Florida.1 The

Country of Curacao, as legal successor to the Netherlands Antilles and the Island

Territory of Curacao, and the Kingdom of the Netherlands seek appellate review of

the district court’s order staying their motions to dismiss in the second filed action.

For the reasons discussed below, we dismiss the appeal for lack of jurisdiction.

I

The plaintiffs filed their first lawsuit against Curacao Drydock Company,

Inc. (“Drydock”) in 2006, alleging that they had been victims of a forced labor

scheme perpetrated by Drydock and the government of Cuba. After securing an

$80 million default judgment against Drydock, the plaintiffs filed a motion to

implead the Island Territory of Curacao, where the alleged scheme took place, the 1 Docket entry cites refer to the consolidated docket in Case No. 1:06-cv-22128.


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Netherlands Antilles, and the Kingdom of the Netherlands2 as judgment-debtors on

the theory that Drydock was their “alter ego.” The Governments moved to dismiss

under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq.

Because the plaintiffs “identif[ied] property belonging to the Governments located

in the United States which is now or was used in conjunction with the underlying

claim,” the district court denied the motions to dismiss and allowed the plaintiffs to

pursue limited jurisdictional discovery on the “commercial activity” exception to

FSIA immunity from attachment or execution under 28 U.S.C. § 1610(a)(2). See

D.E. 185 at 5. The Governments appealed the district court’s order as a de facto

denial of their sovereign immunity, but a panel of this Court dismissed that appeal

for lack of jurisdiction. See Licea v. Curacao Drydock Company, Inc., Case No.

11-15909 (11th Cir. Apr. 24, 2012). The propriety of the district court’s prior

discovery order and the dismissal of the corresponding appeal are not properly

before us now, and therein lies the rub.

The plaintiffs now admit that § 1610 of the FSIA only “governs post-

judgment attachment or execution of assets of a state agency,” and acknowledge

that they “have not yet obtained a judgment against the Governments.”

Pls./Appellees’ Br. at 6 (emphasis in original). In an attempt to rectify this

2 The Kingdom of the Netherlands was initially added as the successor-in-interest to the Netherlands Antilles, see D.E. 183 at 2 n.2, but has since been dismissed as a party to the action below, see D.E. 325. Because both the Country of Curacao and the Kingdom of the Netherlands are named as appellants, however, we refer to them collectively as the “Governments.”


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problem with their first lawsuit, the plaintiffs filed a second lawsuit against

Curacao and the Netherlands “in order to obtain a judgment against the

Governments that can be used to execute upon the assets of the Governments in the

United States.” Id. It is this second lawsuit that is the subject of this appeal.

The Governments filed motions to dismiss the second action, arguing that

the complaint failed to allege sufficient facts, taken as true, to state an exception to

their immunity from suit under the FSIA. Following the consolidation of the two

cases, the district court issued an order staying the Governments’ motions to

dismiss “pending the limited jurisdictional discovery currently underway in [the

first filed case].” D.E. 282 at 3-4. The Governments timely filed this appeal from

that order.

II

It is by now “well-settled that a court of appeals has jurisdiction over

interlocutory orders denying claims of immunity under the FSIA.” Butler v.

Sukhoi Co., 579 F.3d 1307, 1311 (11th Cir. 2009). See also S & Davis Int’l, Inc. v.

The Republic of Yemen, 218 F.3d 1292, 1297 (11th Cir. 2000) (“This court has

jurisdiction over interlocutory orders denying claims of sovereign immunity under

the FSIA.”). We have also held that “[i]nasmuch as [an] order on appeal require[s]

appellants to answer the complaint and call[s] for discovery, it denie[s] them


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immunity from suit under the FSIA,” thereby allowing for appellate review.

Butler, 579 F.3d at 1311. See also McMahon v. Presidential Airways, Inc., 502

F.3d 1331, 1339 (11th Cir. 2007) (“A party is entitled to a collateral order appeal

when it has a substantial claim to a true immunity from suit: i.e., an immunity that

not only insulates the party from liability, but also prevents the party from being

exposed to discovery and/or trial.”). A careful review of the district court’s order

here, however, reveals that this is not such a case.

Although the district court’s order includes stray remarks regarding the

sufficiency of the plaintiffs’ complaint, see, e.g., D.E. 282 at 3 (noting that “the

Court finds that Plaintiffs’ Complaint sufficiently pleads an exception to the

FSIA”), we take the district court at its word: the order from which the

Governments now appeal does nothing more than stay the motions to dismiss

“pending the limited jurisdictional discovery currently under way in [the first

lawsuit].” Id. at 3-4. Where, as here, no jurisdictional discovery has been ordered

in the underlying action, an order merely staying ruling on a motion to dismiss on

sovereign immunity grounds does not amount to a denial of said immunity, even

where jurisdictional discovery is already underway in a related, consolidated

matter. The practical effect of the district court’s stay order here is no different

than had the court chosen to do nothing at all and left the motions to dismiss


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pending on the docket. In sum, the district court’s stay order does not confer

appellate jurisdiction on this Court.3

Our dismissal of this appeal on jurisdictional grounds should not be read as

minimizing the importance of the immunity issues raised by the Governments.

Indeed, we recognize the implications of subjecting foreign sovereigns to the

burdens of litigation the FSIA was designed to protect against. See Kelly v. Syria

Shell Petroleum Dev. B.V., 213 F.3d 841, 849 (5th Cir. 2000) (“FSIA immunity is

immunity not only from liability, but also from the costs, in time and expense, and

other disruptions attendant to litigation.”). But our ability to reach these important

merits issues is confined by the unique procedural posture of this case.

As noted, the only jurisdictional discovery authorized by the district court is

confined to the plaintiffs’ execution proceedings in the first filed lawsuit, and the

appeal here is from an order staying ruling on the motions to dismiss in the second

lawsuit. Despite the district court’s procedural consolidation of the two cases, the

correctness of the district court’s earlier order allowing such discovery in the

execution proceedings and of the prior panel’s dismissal of the Governments’

3 We do not know whether the discovery ordered in the plenary suit remains ongoing or has been completed. We briefly note that ongoing delay in the culmination of that discovery also prevents a speedy resolution of the sovereign immunity issue by the district court, and accordingly, encourage that those issues be resolved promptly. See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (“Moreover, because ‘[t]he entitlement is an immunity from suit rather than a mere defense to liability,’. . . we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.”) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).


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corresponding appeal is not properly before us. The issue we must decide is

whether an interlocutory order staying a motion to dismiss on sovereign immunity

grounds—pending jurisdictional discovery in a related matter—amounts to a denial

of immunity so as to confer appellate jurisdiction on this Court. For the reasons

we have articulated, we hold that it does not, at least where, as here, the district

court orders no jurisdictional discovery in the case on appeal.

We also decline to treat the improper interlocutory appeal as a petition for a

writ of mandamus. First, there is no indication that the Governments provided a

copy of their appellate brief (which essentially functioned as the mandamus

petition) to the district court as required by Rule 21(a)(1) of the Federal Rules of

Appellate Procedure. Second, given that the district court merely stayed ruling on

the motions to dismiss without allowing for any new or additional discovery, the

Governments have not demonstrated a “clear abuse of discretion or usurpation of

judicial power.” In re Lopez-Lukis, 113 F.3d 1187, 1187 (11th Cir. 1997).

We therefore dismiss this appeal for lack of jurisdiction. In so doing, we

express no views as to whether the Governments would be entitled to an

interlocutory appeal if the discovery order in the execution proceedings in the first

filed lawsuit were to be enlarged or modified in any way to encompass

jurisdictional issues specific to the plaintiffs’ claims in this second case. See

Butler, 579 F.3d 1307 (noting that district courts must “ensure that jurisdictional


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discovery is ‘ordered circumspectly and only to verify allegations of specific facts

crucial to an immunity determination’”) (quoting First City, Texas-Houston, N.A.

v. Rafidain Bank, 150 F.3d 172, 176 (2d Cir. 1998)).

APPEAL DISMISSED FOR LACK OF JURISDICTION.


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MARTIN, Circuit Judge, dissenting:

I respectfully dissent. The Majority and I agree that it is “well-settled that a

court of appeals has jurisdiction over interlocutory orders denying claims of

immunity under the FSIA.” Butler v. Sukhoi Co., 579 F.3d 1307, 1311 (11th Cr.

2009). We part ways because the Majority finds two unique circumstances here

that they believe prevent us from exercising jurisdiction: (1) the fact that the

District Court chose to stay, rather than rule upon the Governments’ motion to

dismiss, and (2) the fact that the District Court did not order jurisdictional

discovery directly in the case before us in this appeal. Majority Op. at 5 and 6.

Because I do not agree that these two circumstances create a sufficient basis for

setting aside our “well-settled” rule favoring jurisdiction, I would exercise

jurisdiction to consider this appeal.

The Majority first emphasizes that we have no jurisdiction because the

District Court merely stayed its ruling. In Butler, the District Court denied as

“premature” the government-defendants’ motion to dismiss. Id. at 1311. Here, the

District Court chose instead to stay the case below. However, this distinction

should not strip us of jurisdiction. This Court, along with many other circuits, has

noted that a stay order may raise an important issue of public interest—such as

immunity—that justifies immediate appellate jurisdiction under the collateral order

doctrine. See Miccosukee Tribe of Indians v. S. Fla. Water Mgmt. Dist., 559 F.3d


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1191, 1199 (11th Cir. 2009); see also Everson v. Leis, 556 F.3d 484, 492 (6th Cir.

2009) (“If a district court can thwart interlocutory appeal by refusing to address

qualified immunity through abeyance rather than dismissal, then the district court

can effectively ignore this court’s directive that district courts address qualified

immunity promptly.”); Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 996 (5th

Cir. 1995); Valiente v. Rivera, 966 F.2d 21, 23 (1st Cir. 1992); Smith v. Reagan,

841 F.2d 28, 31 (2d Cir. 1988).

This precedent, as well as the specific facts of this case, contradicts the

Majority’s view that the practical effect of the District Court’s stay order is no

different than had the District Court done nothing at all and left the motion to

dismiss pending on the docket. Majority Op. at 5. In the unusual procedural

posture of this case, the effect of the District Court’s stay order is to prolong the

litigation in both cases and subject the Governments to further discovery. As the

Majority notes, the Plaintiffs admit that they must first receive a judgment in this

action before they can seek post-judgment attachment or execution of the

Governments’ assets. Majority Op. at 3. Therefore if we conclude, as I believe we

should, that the Governments’ motion to dismiss this lawsuit should be granted,

then the post-judgment proceedings cannot continue and the discovery will end.

This result demonstrates that the District Court’s stay order is denying the

Governments the full benefit of their sovereignty—to be immune not just from


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liability but also from the burdens of litigation, including discovery.4 See Butler,

579 F.3d at 1311.

Neither do I find it significant, as the Majority does, that the District Court

did not order discovery specifically in this action. The District Court’s stay order

had as its clear and sole purpose to allow for further discovery between these

parties before deciding the Governments’ motion to dismiss. [Doc. 282 at 1, 3-4].

And the stay order had the effect of fostering discovery because the post-judgment

proceedings necessarily end if we grant immunity in this case.

For these reasons, I believe we have jurisdiction over this appeal. Upon

reaching the merits, I would hold that the Plaintiffs’ complaint fails to state a

4 The Majority also recognizes that the Country of Curacao and the Kingdom of the Netherlands

are entitled to immunity from discovery. Majority Op. at 5 n.3. While the Majority says we do

not know whether the “limited” jurisdictional discovery ordered on November 7, 2011, in the

post-judgment proceedings [Doc. 185 at 7] remains ongoing, the District Court’s electronic case

management system shows that it is. See, e.g., Pls.’ Reply to Obj. to Order Denying Pls.’ Mot.

to Compel, No. 1:06-cv-22128-JLK (S.D. Fla. Nov. 26, 2013), ECF No. 411. The Governments

have therefore been subjected to discovery for more than two years in post-judgment

proceedings that the Plaintiffs admit are invalid without a judgment in the case before us. This

fact further highlights why in light of the unique procedural posture of this case the stay order

raises an important issue of public interest that justifies immediate appellate jurisdiction under

the collateral order doctrine. See Miccosukee Tribe of Indians, 559 F.3d at 1199.


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legally sufficient exception to the FSIA. The Plaintiffs cannot satisfy the

commercial activities exception in 28 U.S.C. § 1605(a)(2) because their claims are

not “based upon” the Governments’ dry dock activities that were carried on in the

United States as that term has been interpreted. Saudi Arabia v. Nelson, 507 U.S.

349, 358, 113 S. Ct. 1471, 1478 (1993) (holding the alleged “torts, and not the

arguably commercial activities that preceded their commission, form the basis for

the [plaintiffs’] suit”). Nor are the Plaintiffs’ claims based on an act that caused a

“direct effect” in the United States as defined by Republic of Argentina v.

Weltover, 504 U.S. 607, 618, 112 S. Ct. 2160, 2168 (1992) (“[A]n effect is ‘direct’

if it follows as an immediate consequence of the defendant’s . . . activity.”

(quotation marks omitted)). As such, I would vacate the District Court’s stay order

and remand with instructions to dismiss this case.


Licea et al v Curacoa Drydock Appeal - Order of Dismissal

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