“The foreseeable 13 event must be characteristic of the activities of the enterprise.”
How later courts described this case
- “The foreseeable 13 event must be characteristic of the activities of the enterprise.”
- noting 26 that “mere foreseeability” is insufficient
- contrasting Mary M., 54 Cal. 3d at 207, with Lisa 20 M., 12 Cal. 4th at 306
- “[W]hen a question of the District 13 Court’s jurisdiction is raised . . . the court may inquire by affidavits or otherwise, into the 14 facts as they exist.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 LOALOA SHAMOUN, Case No. 19-cv-832-MMA (BLM)
12 Plaintiff,
ORDER GRANTING
13 v. GOVERNMENT DEFENDANTS’
MOTION TO DISMISS
14 REPUBLIC OF IRAQ, EMBASSY OF
THE REPUBLIC OF IRAQ, THE
15
INDEPENDENT HIGH ELECTORAL
16 COMMISSION, and SHEFAN KHOSHO,
17 Defendants.
18
19 On May 3, 2019, Plaintiff Loaloa Shamoun (“Plaintiff”) filed a Complaint against
20 Defendants Republic of Iraq (“Republic”), the Embassy of the Republic of Iraq
21 (“Embassy”), the Independent High Electoral Commission (“Commission”) (collectively,
22 “Government Defendants”), and Iraqi national Shefan Khosho (“Khosho”). Doc. No. 1.1
23 Government Defendants filed a motion to dismiss. Doc. No. 16. Plaintiff then
24 filed a First Amended Complaint (“FAC”) pursuant to Federal Rule of Civil Procedure
25 15(a)(1)(B). See Doc. No. 17 (“FAC”). Plaintiff alleges thirteen causes of action: (1)
26
27
28
1 assault; (2) battery; (3) sexual battery; (4) negligence; (5) negligent infliction of
2 emotional distress; (6) intentional infliction of emotional distress; (7) false imprisonment;
3 (8) respondeat superior; (9) negligent hiring, supervising, and retention; (10) negligence
4 for failure to maintain a reasonably safe workplace; (11) violation of California Labor
5 Code §§ 6400–6404 for failure to maintain a safe work environment; (12) violation of
6 California Civil Code § 51.7 for violence based on sex; and (13) violation of California
7 Civil Code § 51.9 for sexual harassment. See FAC.
8 Government Defendants move to dismiss Plaintiff’s claims pursuant to Federal
9 Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6), Doc. No. 19. Plaintiff filed an
10 opposition to Government Defendants’ motion, and Government Defendants replied. See
11 Doc. Nos. 20, 23. The Court found the matter suitable for determination on the papers
12 and without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil
13 Local Rule 7.1.d.1. Doc. No. 24.
14 For the reasons set forth below, the Court GRANTS Government Defendants’
15 motion to dismiss Plaintiff’s causes of action without leave to amend.
16 I. BACKGROUND2
17 Plaintiff’s allegations arise out of a sexual assault that occurred at a polling place
18 in El Cajon, California during the Republic of Iraq’s 2018 parliamentary elections. See
19 FAC ¶¶ 1, 20. Plaintiff alleges that Khosho sexually assaulted her and subsequently pled
20 guilty to sexual battery. Id. ¶¶ 1, 28.
21
22
23
24
25
2 Because Government Defendants bring this motion predominately as a facial attack on subject-matter
26 jurisdiction, the Court must accept the allegations of the complaint as true and draw all reasonable
inferences in favor of Plaintiff. See Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009) (citing Wolfe
27 v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). For the limited factual disputes relevant to
jurisdiction, the Court notes where Government Defendants disagree with Plaintiff’s allegations. See
28
1 Plaintiff alleges that Plaintiff and Khosho were hired as employees of both
2 Commission and Embassy.3 Id. ¶¶ 20–21 Plaintiff states that Commission—“in
3 coordination with the Embassy”—hired Plaintiff, a dual citizen of the United States and
4 Iraq, as a temporary poll worker in May 2018 “at 115 S. Mollison Ave in El Cajon,
5 California (‘El Cajon polling place’) to assist in the operation of their polling location for
6 the May 12, 2018 election servicing Iraqis in the Southern California area.” Id. ¶¶ 13,
7 19–20. Khosho served as “Plaintiff’s supervisor and person-in-charge of the El Cajon
8 polling place.” Id. ¶ 21. His job involved “overseeing all operations at the location
9 including the direct daily supervision of approximately 50 poll workers.” Id. Plaintiff
10 states that she and Khosho were paid for their work by “a check issued by the Embassy
11 [and] drawn from the ‘Embassy Account.’” Id. ¶ 19.
12 Plaintiff alleges that Khosho made “threatening and intimidating comments, such
13 as, ‘if anyone disobeys me, I will have them fired, right away.’” Id. ¶ 22. Khosho also
14 allegedly “frequently made degrading remarks regarding the attire, appearance, weight[,]
15 and work ethic of various female employees occasionally directed at Plaintiff or within
16 earshot of Plaintiff and observed by Defendant Khosho’s superiors.” Id. Plaintiff avers
17 that Khosho felt “emboldened and secure as the person-in-charge of the polling location,
18 surrounded by [his] family members, women[,] and newly-arrived immigrants while
19 cloaked in the authority of the Republic of Iraq during critical elections.” Id. While at
20 work, Khosho “frequently made unwelcomed, lewd[,] and lascivious comments to
21 Plaintiff.” Id. ¶ 23. Plaintiff “unequivocally and expressly rejected the advances” and
22 attempted to be accompanied by others while with Khosho. Id. Additionally, Plaintiff
23 claims Khosho “frequently complained that Plaintiff ‘talked too much’ and ‘needed to
24
25
26 3 As discussed below, Government Defendants state in a signed declaration that Plaintiff and Khosho
“were temporary contract employees of only [Commission] in the United States in connection with
27 certain 2018 Iraqi Elections. . . . [They] were not employed by the Republic or the Embassy.” Doc. No.
19-2 at 2; see also Doc. No. 19-2 at 51–65 (stating in their employment contracts that both Plaintiff and
28
1 pay attention’ during meetings, including requiring the separation of her from her friends
2 during the workday.” Id.
3 On May 10, 2018, Plaintiff claims Embassy and Commission sent Asam, an
4 official, “to observe and oversee the election process.” 4 Id. ¶ 24. Asam “was a higher-
5 ranking employee than Defendant Khosho and had immediate and direct authority over
6 him.” Id. Plaintiff alleges Asam failed to intervene despite witnessing Khosho
7 “aggressively interacting and making unwelcomed advances upon Plaintiff during the
8 working hours.” Id. This included “intimidation, unwelcome touching, aggressive
9 posturing, unwarranted threats of firing, and discipline of Plaintiff.” Id.
10 During working hours at the polling place on May 11, 2018, Khosho sexually
11 attacked Plaintiff. Id. ¶ 25. The attack occurred on “one of the two days where the
12 polling location was open to the public for voting.” Id. ¶ 26. Plaintiff alleges the sexual
13 assault proceeded as follows:
14
15 While Plaintiff was alone in the main office of the El Cajon polling place, a
room approximately 400 square feet with no windows and one double door,
16
Defendant Khosho approached within one foot of Plaintiff, asked her to
17 speak to him about her failure to pay attention during meetings, and
subsequently ask[ed] her to wipe his chin and asked her for a kiss. Plaintiff
18
refused and Defendant advanced upon her, grabbing Plaintiff by the
19 shoulders attempting to kiss Plaintiff. Plaintiff avoided the unwanted
kissing and said that she wanted to leave the room. At that time, Defendant
20
Khosho walked to the double doors, locked them and stood in between
21 Plaintiff and her only means of escape. After locking the door, Defendant
Khosho continued his assault on Plaintiff despite Plaintiff’s numerous pleas
22
of “no” and forcefully grabbed Plaintiff’s breasts and genitals over her
23 clothes approximately a dozen times while Plaintiff attempted to fight off the
attack. Plaintiff was eventually able to break away from Defendant[,] and
24
25
26
4 As discussed below, Government Defendants state in a signed declaration that “[Commission] records
27 do not identify any employee or official of [Commission] with that name or other person authorized to
act in the United States on behalf of [Commission] during the 2018 Iraqi elections.” Doc. No. 19-2 at 5;
28
1 the Defendant unlocked the door as he exited the room. The entire attack
was recorded on a security camera.
2
3
4 Id. ¶ 25.
5 Plaintiff secured the video camera footage of the incident and reported the attack to
6 Asam. Id. ¶ 26. “Asam responded that he had noticed that [Khosho] was harassing her
7 and making unwelcomed advances to her the day before. [Asam] then stated that he
8 ‘supported her’ but refused to provide Plaintiff with his last name.” Id. Plaintiff had no
9 further contact with Asam. Id.
10 Plaintiff alleges that the sexual battery left her traumatized, and she “has suffered
11 and continues to suffer severe emotional distress as a result of the attack, necessitating
12 over year of therapy from a licensed therapist.” Id. ¶ 26. Khosho was “initially charged
13 with violations of . . . California Penal Code §§ 243.4(A), 236 - Felony Sexual Battery
14 and Felony False Imprisonment with Violence, respectively.” Id. ¶ 28. On October 2,
15 2019, Khosho “pled guilty pursuant to a plea deal to one count of Sexual Battery.” Id.
16 Government Defendants move to dismiss Plaintiff’s claims based on lack of
17 subject-matter jurisdiction and failure to state a claim.
18 II. LEGAL STANDARD
19 A Federal Rule of Civil Procedure 12(b)(1) motion to dismiss allows for dismissal
20 of a complaint for lack of subject-matter jurisdiction. Federal courts are courts of limited
21 jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). “A
22 federal court is presumed to lack jurisdiction in a particular case unless the contrary
23 affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville
24 Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Subject-matter jurisdiction must exist
25 when the action is commenced. Morongo Band of Mission Indians v. California State
26 Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). Further, subject-matter
27 jurisdiction may be raised “at any stage of the litigation.” Arbaugh v. Y&H Corp., 546
28
1 U.S. 500, 506 (2006); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any
2 time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
3 A facial attack on jurisdiction asserts that the allegations in a complaint are
4 insufficient to invoke federal jurisdiction, whereas a factual attack disputes the truth of
5 the allegations that would otherwise confer federal jurisdiction. Safe Air for Everyone v.
6 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In resolving a facial challenge to
7 jurisdiction, a court accepts the allegations of the complaint as true and draws all
8 reasonable inferences in favor of the plaintiff. Holy See, 557 F.3d at 1073 (citing Wolfe,
9 392 F.3d at 362). In resolving a factual attack, a court may examine extrinsic evidence
10 “without converting the motion to dismiss into a motion for summary judgment,” and a
11 court need not accept the allegations as true. Safe Air for Everyone, 373 F.3d at 1039; see
12 also Land v. Dollar, 330 U.S. 731, 735 n.4 (1947) (“[W]hen a question of the District
13 Court’s jurisdiction is raised . . . the court may inquire by affidavits or otherwise, into the
14 facts as they exist.”). “[A] motion to dismiss for lack of jurisdiction under the [Foreign
15 Sovereign Immunities Act] is no different from any other motion to dismiss on the
16 pleadings for lack of jurisdiction, and [courts] apply the same standards in evaluating its
17 merit.” Holy See, 557 F.3d at 1073.
18 Here, Government Defendants’ motion is predominately a facial attack on subject-
19 matter jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”) with limited
20 factual attacks. Government Defendants argue that Plaintiff’s allegations taken as true
21 fail to sustain jurisdiction. See, e.g., Doc. No. 19-1 at 16 (“The FAC’s allegations, alone,
22 sufficiently establish that the [discretionary function] exclusion applies.”), 19 (arguing
23 that the tort exception does not apply because the claims against Government Defendants
24 are not based on acts of that foreign state), 21 (arguing that the tort exception does not
25 apply because the claims are not based on an employee acting within the scope of
26 employment). Because the motion to dismiss predominately constitutes a facial
27 challenge to the Court’s jurisdiction and the Court reaches its ultimate disposition based
28 on Plaintiff’s allegations, the Court accepts the allegations of the complaint as true and
1 draws all reasonable inferences in favor of Plaintiff—regardless of Government
2 Defendants’ two factual attacks.
3 The first factual attack addresses Plaintiff’s and Khosho’s employer. Plaintiff
4 alleges that she was hired by Embassy and Commission and that Khosho “was a full-time
5 employee or officer of the Embassy and the [Commission], and an attorney licensed in
6 the Republic of Iraq.” FAC ¶¶ 20–21. However, Government Defendants disagree. In a
7 declaration by the General Director of the Legal Department, Iraqi Ministry of Justice, he
8 states that Plaintiff and Khosho “were temporary contract employees of only
9 [Commission] in the United States in connection with certain 2018 Iraqi Elections. . . .
10 [They] were not employed by the Republic or the Embassy.” Doc. No. 19-2 at 2; see also
11 Doc. No. 19-2 at 51–65 (stating in their respective employment contracts that both
12 Plaintiff and Khosho were employees of Commission).5 Because this dispute would
13 otherwise confer jurisdiction over Embassy depending on Plaintiff’s success in carrying
14 its burden to trigger an exception to the FSIA, the Court finds this a factual challenge.
15 However, the factual attack standard is only necessary to determine jurisdiction over
16 Embassy and Republic if an exception to the FSIA applies. Despite the factual
17 disagreement over Khosho’s employer, the Court comes to the same conclusion regarding
18 the inapplicability of the alleged FSIA exceptions regardless of whether Khosho was also
19 employed by Embassy. See infra Section III.B.
20 The second factual attack involves Asam’s connection to Government Defendants.
21 Plaintiff alleges that Asam “was a higher-ranking employee than [Khosho] and had
22
23
5 Government Defendants’ motion to dismiss also includes a related request for judicial notice. See
24
Doc. No. 19-5. The request asks the Court to take judicial notice of two declarations with
25 accompanying exhibits. Plaintiff responds that the declarations introduce “non-jurisdictional facts” that
“have no bearing on subject[-]matter jurisdiction [and] should be disregarded by the Court.” Doc. No.
26 20 at 14–17. For the limited purpose of determining the Court’s subject-matter jurisdiction, the Court
GRANTS Government Defendants’ request for judicial notice of Exhibits 8 (Plaintiff’s employment
27 contract) and 9 (Khosho’s employment contract) of Hanan Munther Niseaf’s declaration. Doc. No. 19-2
at 51–57, 59–65. As to the remaining documents, the Court DENIES Government Defendants’ request
28
1 immediate and direct authority over him.” FAC ¶ 24. However, Government Defendants
2 declare that “[Commission] records do not identify any employee or official of
3 [Commission] with that name or other person authorized to act in the United States on
4 behalf of [Commission] during the 2018 Iraqi elections.” Doc. No. 19-2 at 5. Despite
5 this dispute, the Court does not rely on this fact in resolving the issue of jurisdiction.
6 Because the truth of the allegation would not otherwise confer federal jurisdiction, the
7 Court accepts the allegations of Asam’s employment status as true.
8 III. DISCUSSION
9 A. Jurisdiction and the Foreign Sovereign Immunity Act
10 1. The Foreign Sovereign Immunity Act
11 “The [FSIA] ‘provides the sole basis for obtaining jurisdiction over a foreign state
12 in the courts of this country.’” OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 393
13 (2015) (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443
14 (1989)); see also 28 U.S.C. § 1330; Foreign Sovereign Immunities Act, 28 U.S.C. §§
15 1602–1611. “The [FSIA] defines ‘foreign state’ to include a state ‘agency or
16 instrumentality,’ such as ‘an organ of a foreign state or political subdivision thereof.’”
17 OBB Personenverkehr AG, 136 S. Ct. at 393 (quoting 28 U.S.C. § 1603(a)–(b)). The
18 FSIA “shields foreign states and their agencies from suit in United States courts unless
19 the suit falls within one of the [FSIA’s] specifically enumerated exceptions.” Id. at 392.
20 When a claim is brought against a foreign state, a court has a threshold duty to
21 “determine whether the FSIA provides subject[-]matter jurisdiction over the claim.”
22 Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 706 (9th Cir. 1992) (citing
23 Liu v. Republic of China, 892 F.2d 1419, 1424 (9th Cir.1989)). “A federal court lacks
24 subject[-]matter jurisdiction over a claim against a foreign state unless the claim falls
25 within an exception to immunity under the FSIA.” Id. A court has personal jurisdiction
26 over a foreign state if (1) subject-matter jurisdiction exists and (2) proper service was
27 executed under the FSIA. Id. at 704 n.4; see also 28 U.S.C. § 1330(b). The FSIA
28 “conflates the usually distinct questions of sovereign immunity, subject[-]matter
1 jurisdiction, and personal jurisdiction.” Corzo v. Banco Cent. de Reserva del Peru, 243
2 F.3d 519, 522 (9th Cir. 2001).
3 “Section 1604 [of the FSIA] creates a ‘statutory presumption that a foreign state is
4 immune from suit.’” Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1124 (9th Cir.
5 2010). As the Ninth Circuit has explained,
6
7 A foreign defendant bears the initial burden to “make a prima facie case that
it is a foreign state.” “Once the court has determined that the defendant is a
8
foreign state, the burden of production shifts to the plaintiff to offer evidence
9 that an exception applies.” “If the plaintiff satisfies her burden of
production, jurisdiction exists unless the defendant demonstrates by a
10
preponderance of the evidence that the claimed exception does not apply.”
11
12 Packsys, S.A. de C.V. v. Exportadora de Sal, S.A. de C.V., 899 F.3d 1081, 1087–88 (9th
13 Cir. 2018) (footnote omitted) (quoting Peterson, 627 F.3d at 1124, 1125).
14 Republic is a foreign state. FAC ¶¶ 2, 10, 14; see 28 U.S.C. § 1603(a). Embassy
15 and Commission are foreign state agencies or instrumentalities of Republic. FAC ¶¶ 2, 5,
16 10, 15–16; see 28 U.S.C. § 1603(a)–(b). Based on Plaintiff’s own allegations as
17 confirmed by Government Defendants that Republic, Embassy, and Commission are each
18 “foreign states” under the FSIA, Doc. No. 19-1 at 11–12, the Court finds all three
19 Government Defendants are foreign states under the FSIA. Accordingly, Government
20 Defendants have made their prima facie case of their status as foreign states. Now, “the
21 burden of production shifts to the plaintiff to offer evidence that an exception applies.”
22 Packsys, 899 F.3d at 1088 (quoting Peterson, 627 F.3d at 1125).
23 2. Entity Separateness for Jurisdictional Purposes
24 Before addressing the applicability of the FSIA’s immunity exceptions, the Court
25 must first determine which allegations may be attributed to Commission, Embassy, or
26 Republic for the purposes of establishing jurisdiction as to each Defendant. See Holy
27 See, 557 F.3d at 1076. Plaintiff alleges tortious acts by Commission, Embassy, and
28 Republic. Government Defendants argue that even if the Court were to find that it has
1 jurisdiction over Commission and Commission were liable, Republic and Embassy could
2 not be held liable. See Doc. No. 19-1 at 25. Plaintiff responds that “Embassy oversaw
3 the workplace, [and] had immediate control and supervisory responsibility over
4 Defendant Khosho and the other poll workers.” Doc. No. 20 at 13. Further, Plaintiff
5 appears to allege that Commission is under the supervision of Embassy. See FAC ¶¶ 19,
6 22.
7 The Supreme Court has held that “government instrumentalities established as
8 juridical entities distinct and independent from their sovereign should normally be treated
9 as such.” Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 822 (2018) (quoting First
10 Nat. City Bank v. Banco Para El Comercio Exterior de Cuba (Bancec), 462 U.S. 611,
11 626–27 (1983), superseded by statute, 28 U.S.C. § 1610(g)(1)). Thus, a foreign state and
12 its entities cannot be held liable for the acts of one another. See id. The Court presumes
13 independent status between a foreign state and its instrumentalities. Bancec, 462 U.S. at
14 627; see Rubin, 138 S. Ct. at 827. For the purpose of the FSIA, the presumption of
15 separateness applies at both the jurisdictional and liability phases. Holy See, 557 F.3d at
16 1079.
17 There are two exceptions where liability may be warranted: “[1] where a corporate
18 entity is so extensively controlled by the state that a relationship of principal and agent is
19 created or [2] where recognizing the state and its agency or instrumentality as distinct
20 entities ‘would work fraud or injustice.’”6 Rubin, 138 S. Ct. at 822 (emphasis added)
21 (quoting Bancec, 462 U.S. at 629). The Supreme Court declined to create a mechanical
22 formula to determine when the exceptions apply. Id. at 823–24 (quoting Bancec, 462
23 U.S. at 633). However, the Courts of Appeals developed five factors (Banec factors) to
24 determine whether the exceptions apply. Id. at 823. Congress subsequently amended the
25
26
27 6 “The Bancec standard is in fact most similar to the ‘alter ego’ or ‘piercing the corporate veil’
standards applied in many state courts to determine whether the actions of a corporation are attributable
28
1 FSIA, where 28 U.S.C. § 1610(g)(1) “incorporate[d] almost verbatim the five Bancec
2 factors.” Id. The factors include the following:
3
4 (A) the level of economic control over the property by the government of the
foreign state;
5
(B) whether the profits of the property go to that government;
6 (C) the degree to which officials of that government manage the property or
otherwise control its daily affairs;
7
(D) whether that government is the sole beneficiary in interest of the
8 property; or
(E) whether establishing the property as a separate entity would entitle the
9
foreign state to benefits in United States courts while avoiding its
10 obligations.
11
12 28 U.S.C. § 1610(g)(1); see also Rubin, 138 S. Ct. at 822.
13 As applied to the case here, Republic is a foreign state where Embassy and
14 Commission are agencies or instrumentalities of Republic. FAC ¶¶ 14–16. The Court
15 begins with the presumption of independent status between the three entities. See
16 Bancec, 462 U.S. at 627. Thus, Plaintiff carries the burden to prove (1) Commission is so
17 extensively controlled by Embassy or Republic that a relationship of principal and agent
18 is created or (2) fraud or injustice would result from treating the three entities as separate.
19 See Holy See, 557 F.3d at 1079 (holding that the plaintiff failed to allege facts sufficient
20 to overcome the presumption of juridical separateness). To overcome the presumption of
21 separateness, Plaintiff alleges the following:
22
23 [Republic] has absolute and unqualified power and control over [Embassy]
and [Commission].
24
25 [Embassy] is a fully-controlled agent, organ, agency or instrumentality of
the foreign state of [Republic] . . . .
26
27 [Commission] is a fully-controlled agent, organ, agency or instrumentality of
the foreign state of [Republic] . . . . [Commission] is an ad hoc
28
1 instrumentality of the foreign state of the [Republic] established from time to
time for the purposes of conducting elections. [Commission] holds no assets
2
in which to satisfy any judgment.
3
4 FAC ¶¶ 14–16. Plaintiff further avers that
5
6 Plaintiff, a multi-lingual, dual citizen of the United States and Iraq, was
hired as a poll worker by [Commission] in coordination with [Embassy],
7
both of which are fully-controlled agents, organs, agencies and/or
8 instrumentalities of the foreign nation, [Republic]. Plaintiff was paid for her
labor by a check issued by [Embassy] drawn from the “Embassy Account.”
9
Upon information and belief, Defendant Khosho was similarly paid with an
10 Embassy Check drawn from the Embassy Account.
11
12 FAC ¶ 19. In a declaration attached to her opposition brief, Plaintiff adds that “[o]n May
13 10, 2018, the Embassy sent officials or employees to observe and oversee the election
14 process,” where one of the individuals was Asam. Doc. No. 20-1 at 3. “Asam was a
15 higher-ranking employee than [Khosho] and had immediate and direct authority over
16 him.” Id.
17 As to the first exception, Plaintiff’s conclusory allegations as to extensive control
18 between the three entities lack the factual support necessary to overcome the presumption
19 of separate juridical status. See Holy See, 557 F.3d at 1080. Plaintiff fails to plead facts
20 showing how Republic or Embassy held extensive control over Commission that would
21 render Commission a mere agent. Although Plaintiff alleges that she was paid through
22 Embassy’s account, Plaintiff fails to show how payment through Embassy makes
23 Commission subject to Embassy’s extensive control. Plaintiff further relies on
24 conclusory allegations and fails to plead sufficient facts to show how Embassy sending
25 officials to oversee the election process rises to the level of extensive control.
26 As to the second exception, Plaintiff does not show how treating the entities as
27 separate would perpetuate fraud or injustice. Plaintiff neglects to indicate how the
28 distinct juridical form has been abused. As in Holy See, Plaintiff does not allege that
1 Embassy or Republic have inappropriately used the separate status of the entities to their
2 own benefit or that Commission was formed for the purpose to evade liability. Id. at
3 1080.
4 Accordingly, the Court finds that the tortious acts of any one entity does not
5 establish the Court’s jurisdiction as to the other two entities. Breaching the presumption
6 of government entities’ juridical independence is a serious remedy that should be
7 approached with caution. Cf. Davidson v. Seterus, Inc., 21 Cal. App. 5th 283, 305–06
8 (2018) (citations omitted) (discussing the application of the corporate alter ego doctrine,
9 which involves a similar analysis to the juridical separateness doctrine). Plaintiff fails to
10 demonstrate that this extreme approach is warranted. The Court now turns to whether it
11 can exercise jurisdiction over Commission, Embassy, or Republic for their separate
12 alleged tortious actions under the FSIA’s exceptions.
13 3. The Tort Exception to the FSIA
14 The tort exception to the FSIA states the following:
15
16 (a) A foreign state shall not be immune from the jurisdiction of courts of the
United States or of the States in any case--
17
18 [. . . ]
19
(5) not otherwise encompassed in paragraph (2) above, in which
20 money damages are sought against a foreign state for personal injury
or death, or damage to or loss of property, occurring in the United
21
States and caused by the tortious act or omission of that foreign state
22 or of any official or employee of that foreign state while acting within
the scope of his office or employment; except this paragraph shall not
23
apply to--
24
(A) any claim based upon the exercise or performance or the
25
failure to exercise or perform a discretionary function
26 regardless of whether the discretion be abused, or
27
28
1 (B) any claim arising out of malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or interference
2
with contract rights . . . .
3
4 28 U.S.C. § 1605(a)(5) (emphasis added).
5
6 In order to find that a foreign sovereign can be sued under the tortious
activity exception, the court must find: (1) that the tortious acts of individual
7
employees of the sovereign were undertaken within the scope of
8 employment, and (2) that the claim is not based upon the exercise or failure
to exercise a discretionary function.
9
10
11 Joseph v. Office of Consulate Gen. of Nigeria, 830 F.2d 1018, 1025 (9th Cir. 1987).
12 Plaintiff alleges that the tort exception applies to Government Defendants. FAC ¶¶
13 6–7, 9. Government Defendants argue that
14
15 The non-commercial tort exception does not apply because (1) the claims are
“based upon the exercise or performance or the failure to exercise or
16
perform a discretionary function”; (2) there was no “tortious act or omission
17 of that foreign state” because the assault cannot be attributed to the foreign
state; and (3) . . . Khosho was not “acting within the scope of his office or
18
employment.”
19
20 Doc. No. 19-1 at 12.
21 i. Respondeat Superior for Khosho’s Acts – Tortious Act or Omission of
22 an Employee Acting Within Scope of Employment
23 Government Defendants argue that the tort exception does not apply because
24 “Khosho’s assault was not in the course and scope of employment and he was fired.”
25 Doc. No. 19-1 at 21. Plaintiff responds that Khosho’s conduct was within the scope of
26 employment because it foreseeable: “Government Defendants knew or should have
27 known that the Defendant was sexually harassing the Plaintiff prior to the date of the
28 attack and her supervisor knew he was sexually harassing her.” Doc. No. 20 at 25.
1 “[T]he ‘scope of employment’ provision of the tortious activity exception
2 essentially requires a finding that the doctrine of respondeat superior applies to the
3 tortious acts of individuals. This determination is governed by state law.” Holy See, 557
4 F.3d at 1082 (quoting Joseph, 830 F.2d at 1025).
5 Under California’s respondeat superior doctrine, “the determination of whether an
6 employee has committed a tort during the course of employment turns on whether: (1) the
7 act performed was either required or incident to his or her duties, or (2) the employee’s
8 misconduct could be reasonably foreseen by the employer.” Joseph, 830 F.2d at 1025
9 (citing Clark Equipment Co. v. Wheat, 92 Cal. App. 3d 503, 520 (1979)). These elements
10 are based on the three policy goals of the respondeat superior doctrine: “preventing future
11 injuries, assuring compensation to victims, and spreading the losses caused by an
12 enterprise equitably.” Lisa M. v. Henry Mayo Newhall Mem’l Hosp., 12 Cal. 4th at 304
13 (1995). “Respondeat superior liability should apply only to the types of injuries that are
14 as a practical matter certain to occur in the conduct of the employer’s enterprise.”
15 Randolph v. Budget Rent-A-Car, 97 F.3d 319, 327 (9th Cir. 1996) (citing Lisa M., 12 Cal.
16 4th at 299). California courts treat scope of employment as a question of fact; however, it
17 “becomes a question of law when the facts are undisputed and no conflicting inferences
18 are possible.” Perez v. Van Groningen & Sons, Inc., 41 Cal. 3d 962, 968 (1986) (first
19 citing Ducey v. Argo Sales Co., 25 Cal. 3d 707, 722 (1979); and then citing Hinman v.
20 Westinghouse Elec. Co., 2 Cal. 3d 956, 963 (1970)).
21 “The first condition is satisfied if the tort is engendered by or arises from the work.
22 The employee need not have intended to further the employer’s interests.” Randolph, 97
23 F.3d at 327 (citing Lisa M., 12 Cal. 4th at 297–98). Tortious conduct may be within the
24 scope of employment when an employee violates his duties or ignores express orders.
25 Wilson v. Drake, 87 F.3d 1073, 1076 (9th Cir. 1996) (citing Mary M. v. City of Los
26 Angeles, 54 Cal. 3d 202, 209 (1991)). For example, an employee’s assault or battery falls
27 within the scope of employment “even if it violates the employer’s direct orders if it
28 results from ‘a dispute arising out of the employment.’” Id. (quoting Carr v. Wm. C.
1 Crowell Co., 28 Cal. 2d 652, 654 (1946)). However, an employer escapes liability where
2 the employee “substantially departs from his duties for purely personal reasons.” John R.
3 v. Oakland Unified Sch. Dist., 48 Cal. 3d 438, 447 (1989) (citation omitted).
4 The second condition requires that the tort be “in a general way, foreseeable from
5 the employee’s duties.” Randolph, 97 F.3d at 327 (quoting Lisa M., 12 Cal. 4th at 299).
6 Foreseeability for respondeat superior occurs “only if ‘in the context of the particular
7 enterprise an employee’s conduct is not so unusual or startling that it would seem unfair
8 to include the loss resulting from it among other costs of the employer’s business.” Lisa
9 M., 12 Cal. 4th at 302 (quoting Rodgers v. Kemper Constr. Co., 50 Cal. App. 3d 608, 619
10 (1975)). “The employment must be such as predictably to create the risk employees will
11 commit intentional torts of the type for which liability is sought.” Id.; see also Rita M. v.
12 Roman Catholic Archbishop, 187 Cal. App. 3d 1453, 1461 (1986) (“The foreseeable
13 event must be characteristic of the activities of the enterprise.”).
14 A number of California courts have generally held that “under the doctrine of
15 respondeat superior, sexual misconduct falls outside the course and scope of employment
16 and should not be imputed to the employer.” Juarez v. Boy Scouts of Am., Inc., 81 Cal.
17 App. 4th 377, 394 (2000) (footnote omitted) (citations omitted that provide examples of
18 the proposition). However, this is not always the case. See Doe v. Uber Techs., Inc., 184
19 F. Supp. 3d 774, 784 (N.D. Cal. 2016) (contrasting Mary M., 54 Cal. 3d at 207, with Lisa
20 M., 12 Cal. 4th at 306). In Mary M., the court held Los Angeles liable under respondeat
21 superior after a police officer raped a woman after detaining her. 54 Cal. 3d at 207. In
22 Lisa M., the court found an ultrasound technician to have not acted within the scope of
23 his employment when he committed a sexual battery after completing an examination.
24 12 Cal. 4th at 306. Distinguishing these two holdings in Lisa M., the court stated that the
25 police officer’s assault was “a generally foreseeable consequence of his position.” Id. at
26 304. The police officer’s “considerable power and authority” made it “neither startling
27 nor unexpected that on occasion an officer will misuse that authority by engaging in
28 assaultive conduct.” Id. (quoting Mary M., 54 Cal. 3d at 217).
1 The Lisa M. court emphasized Mary M.’s limited holding: “We stress that our
2 conclusion in this case flows from the unique authority vested in police officers.
3 Employees who do not have this authority and who commit sexual assaults may be acting
4 outside the scope of their employment as a matter of law.” 12 Cal. 4th at 304 (quoting 54
5 Cal. 3d at 218 n.11). In stating the limited holding, the Mary M. court cites to Rita M. 54
6 Cal. 3d at 218 n.11 (citing 187 Cal. App. 3d 1453). In Rita M., priests were alleged to
7 have entered into a conspiracy to have sexual intercourse with a sixteen-year-old girl,
8 causing her to become pregnant, and then to have secretly transported her to the
9 Philippines. 187 Cal. App. 3d at 1455. The California Court of Appeals held that the
10 Archdiocese could not be held liable for the conduct of the priests because the priests did
11 not commit the tort in the course and scope of employment. Id. at 1461.
12 The Court finds the present case more analogous to Lisa M. and Rita M. As a
13 preliminary matter, the FAC reveals that the underlying allegations pertain to Khosho’s
14 sexual misconduct. See, e.g., FAC ¶ 25. Plaintiff alleges that “the attack was reasonably
15 related to the relationship of the subordinate poll worker to the superior manager for the
16 foreign state Defendants and arose out of a pretense for a meeting relating to discipline
17 for failure to ‘pay attention during meetings.’” Id. ¶ 79; see also id. ¶¶ 23, 25. However,
18 as California courts have emphasized, “sexual misconduct falls outside the course and
19 scope of employment and should not be imputed to the employer.” Juarez, 81 Cal. App.
20 4th at 394 (footnote omitted) (citations omitted). But see Mary M., 54 Cal. 3d at 207.
21 For example, the sexual misconduct fell outside the course of employment and thus was
22 not imputed to the employer when a technician sexually assaulted a patient, a teacher
23 molested a student, or a Sunday school teacher molested a student. Lisa M., 12 Cal. 4th
24 at 306; John R., 48 Cal. 3d at 451; Jeffrey E. v. Cent. Baptist Church, 197 Cal. App. 3d
25 718, 722 (1988). The Court finds that Plaintiff’s allegations fit within these examples
26 and fail to rise to the level of unique control and authority found in Mary M. Therefore,
27 the Court finds that Khosho’s sexual misconduct falls outside the course and scope of
28 employment and should not be imputed to his employer. In an abundance of caution, the
1 Court proceeds by analyzing the two respondeat superior conditions as to the acts
2 pertaining to the sexual assault allegations in addition to the false imprisonment
3 allegations.
4 Regarding the first condition of the respondeat superior doctrine, just as in Rita M.
5 where the court found that the plaintiff could not earnestly argue that “sexual relations
6 with parishioners are either required by or instant to a priest’s duties,” 187 Cal. App. 3d
7 1461, the Court here finds that sexual relations with—or false imprisonment of—a
8 polling place employee are not required or incident to a polling place supervisor’s duties.
9 Plaintiff fails to establish a nexus between “the nature of the work involved and the type
10 of tort committed.” See Lisa M., 12 Cal. 4th at 302. Additionally, a polling place
11 supervisor does not have the power or control over polling place employees as does a
12 police officer have over criminal suspects. See Mary M., 54 Cal. 3d at 218 n.11.
13 Moreover, despite any job-created authority vested in Khosho by Commission or
14 Embassy, employees do not act within the scope of employment when they abuse job-
15 created authority over others for purely personal reasons. Farmers Ins. Grp. v. Cty. of
16 Santa Clara, 11 Cal. 4th 992, 1013 (1995). Regardless of any particular vulnerability of
17 Plaintiff, an employer’s liability under respondeat superior focuses on “the extent to
18 which the tort of the employee is incident to his employment” and not the victim’s
19 vulnerability. Xue Lu v. Powell, 621 F.3d 944, 949 (9th Cir. 2010) (interpreting Lisa M.,
20 12 Cal. 4th at 302 n.6). Therefore, the Court finds that Plaintiff has not carried her
21 burden as to the first condition.
22 As to the second condition of the respondeat superior doctrine, the Court finds that
23 Khosho’s conduct could not have been reasonably foreseen by Commission. Sexual
24 assault and false imprisonment of a polling place employee by a supervisor is not
25 characteristic of facilitating an election. Cf. Rita M., 187 Cal. App. 3d at 1461 (noting
26 that “mere foreseeability” is insufficient). Plaintiff fails to provide the Court with facts
27 that show that the employment at a polling place would predictably create the risk of
28 sexual assault or false imprisonment. See Lisa M., 12 Cal. 4th at 302–03.
1 Accordingly, the Court finds that the tort exception does not apply to deprive
2 Commission—or Embassy when taking Plaintiff’s allegations as true—of immunity
3 because Khosho was not acting in the course and scope of employment as to the causes of
4 action grounded in the sexual assault and false imprisonment. Further, even if the tort
5 exception did apply, Republic would still retain immunity because Plaintiff fails to rebut
6 the presumption of juridical separateness and fails to allege specific tortious actions
7 against Republic. See supra Section III.A.2.
8 ii. Negligent Hiring, Supervising, and Retention; Failure to Maintain
9 Safe Work Environment – Tortious Act or Omission of that Foreign State
10 Government Defendants argue that “the tort exception does not apply because the
11 claims against the Government Defendants are not based on a ‘tortious act or omission of
12 that foreign state.’” Doc. No. 19-1 at 19 (emphasis added) (quoting 28 U.S.C. §
13 1605(a)(5)). Government Defendants emphasize that Khosho lacked actual authority to
14 sexually assault Plaintiff. Id. Government Defendants assert that Khosho’s actions
15 “cannot be imputed or attributed to the Government Defendants to satisfy the ‘of the
16 foreign state’ requirement” without actual authority. Id. Plaintiff responds that
17 “[r]atification makes the Government Defendants directly liable for the tortious act at
18 issue.” Doc. No. 20 at 26. The Court proceeds by assessing (1) whether Khosho’s
19 individual tortious actions can be attributed to Government Defendants as “actions of that
20 foreign state” or (2) whether the various negligence causes of action directly against
21 Government Defendants are subject to the tort exception.
22 a. Khosho’s Individual Actions as “Actions of that Foreign State”
23 As to whether Khosho acted as an agent of Government Defendants, Government
24 Defendants’ argument rests on case law involving the commercial activity exception. See
25 Doc. No. 19-1 at 19–20. They assert that the reasoning underlying the actual authority
26 requirement in the commercial activity context “applies to the other FSIA exceptions.”
27 Id. at 20. The Ninth Circuit has held that “acts undertaken without actual authority are
28 not acts ‘of the foreign state,’ regardless of whether the agent appeared to have the
1 authorization of the sovereign.” Packsys, 899 F.3d at 1089 (quoting 28 U.S.C. §
2 1605(a)(2)); see also Phaneuf v. Republic of Indonesia, 106 F.3d 302, 307–08 (9th Cir.
3 1997). The Ninth Circuit noted that this “conclusion applies with equal force regardless
4 of the commercial or noncommercial character of the act in question.” Packsys, 899
5 F.3d at 1091 (emphasis added).
6 The Court finds that the “the tortious act or omission of that foreign state” clause
7 requires an agent of the state to have actual authority to trigger the tort exception.
8 Finding otherwise would result in inconsistent application of almost identical language
9 found elsewhere within § 1605(a). Compare 28 U.S.C. § 1605(a)(5) (“the tortious act or
10 omission of that foreign state”), with 28 U.S.C. § 1605(a)(2) (“commercial activity . . . by
11 the foreign state; . . . commercial activity of the foreign state”). Plaintiff fails to allege
12 that Republic, Embassy, or Commission granted actual authority to Khosho to commit
13 the alleged tortious acts against Plaintiff. Plaintiff’s argument regarding ratification is
14 unavailing. Actual authority is required to satisfy “actions of that foreign state.”
15 Packsys, 899 F.3d at 1089; Phaneuf, 106 F.3d at 307–08. The Court finds that
16 ratification does not meet the actual authority standard because Government Defendants
17 did not empower Khosho to commit the tortious acts. Therefore, Khosho’s individual
18 actions cannot be attributed to Government Defendants as “actions of that foreign state.”
19 b. Actions Performed by Government Defendants Themselves -
20 Discretionary Function Exclusion
21 The Court now examines whether the various negligence causes of action directly
22 against Government Defendants are subject to the tort exception. Even if the alleged
23 negligence comes within the language of the tort exception, the Court must determine
24 whether the allegations are barred as “discretionary functions.” See Holy See, 557 F.3d at
25 1083. Government Defendants argue that the tort exception does not apply because the
26 discretionary function exclusion forecloses Plaintiff’s causes of action against them.
27 Doc. No. 19-1 at 15. Plaintiff responds that Government Defendants owed her a duty of
28 care as their employee. See Doc. No. 20 at 24. Plaintiff notes that the discretionary
1 function exclusion does not save Government Defendants’ immunity because
2 “Government Defendants provide no authority that the failure to maintain a reasonably
3 safe workplace or that subjecting their employee to (and taking reasonable steps to
4 prevent) sexual harassment, sexual battery or the such is an outgrowth of any
5 discretionary function.” Id.
6 “The discretion function exclusion shields foreign sovereigns from tort claims
7 ‘based upon the exercise or performance or the failure to exercise or perform a
8 discretionary function regardless of whether the discretion be abused.’” Holy See, 557
9 F.3d at 1083 (quoting 28 U.S.C. § 1605(a)(5)(A)). The Ninth Circuit looks to the Federal
10 Tort Claims Act (“FTCA”) to interpret the FSIA’s discretionary function exclusion given
11 the parallels between the two statutory schemes. Id.; see also 28 U.S.C. § 2680(a). A
12 foreign state “is protected by the discretionary function exclusion if the challenged action
13 meets two criteria: (1) it is ‘discretionary in nature’ or ‘involve[s] an element of judgment
14 or choice’ and (2) ‘the judgment is of the kind that the discretionary function exception
15 was designed to shield.’” Holy See, 557 F.3d at 1083–84 (quoting United States v.
16 Gaubert, 499 U.S. 315, 322–23 (1991). The foreign state carries the burden to prove that
17 the discretionary function exclusion applies; however, “a plaintiff must advance a claim
18 that is facially outside the discretionary function exception in order to survive a motion to
19 dismiss.” Id. at 1084 (quoting Prescott v. United States, 973 F.2d 696, 702 n.4 (9th Cir.
20 1992)).
21 The first factor focuses “on the nature of the actions taken and on whether they are
22 susceptible to policy analysis,” not an employee’s “subjective intent in exercising the
23 discretion conferred by statute or regulation.” Gaubert, 499 U.S. at 325. Safety
24 standards remove discretion when the standard “is embodied in a specific and mandatory
25 regulation or statute which creates clear duties incumbent upon the governmental
26 actors.” Kennewick Irr. Dist. v. United States, 880 F.2d 1018, 1026 (9th Cir. 1989) (third
27 emphasis added) (interpreting the discretionary function exclusion regarding safety and
28 engineering standards under the FTCA); see also Berkovitz by Berkovitz v. United States,
1 486 U.S. 531, 536 (1988). Similarly, discretion may be removed—and thus open a
2 foreign state to jurisdiction—“by a specific mandatory governmental policy duly adopted
3 under authority delegated by statute or regulation.” Kennewick Irr. Dist., 880 F.2d at
4 1026. Finally, discretion may further be removed “if the government incorporates
5 specific safety standards in a contract which imposes duties on the government’s agent.”
6 Id. (emphasis added). Exclusion of immunity under the discretionary function exception
7 is based on the rationale that once a foreign state “adopts safety standards in the form of
8 specific and mandatory regulations or policy, employees do not have any discretion to
9 violate these standards.” Id. 1026–27.
10 As to the second factor, the discretionary function exclusion was designed to shield
11 “only those decisions ‘grounded in social, economic, and political policy.’” Soldano v.
12 United States, 453 F.3d 1140, 1145 (9th Cir. 2006) (quoting Childers v. United States, 40
13 F.3d 973, 974 (9th Cir. 1994)) (interpreting the discretionary function exclusion under the
14 FTCA). The Ninth Circuit has held that the exclusion was designed to protect decisions
15 such as “whether and how to retain and supervise an employee” and “whether to warn
16 about [an employee’s] dangerous proclivities.” Holy See, 557 F.3d at 1084; see also
17 Vickers v. United States, 228 F.3d 944, 950 (9th Cir. 2000).
18 Examining the first factor, Plaintiff fails to allege the existence of a regulation or
19 statute, policy, or contractual provision that is specific and mandatory on Commission,
20 Embassy, or Republic. See Holy See, 557 F.3d at 1084; Kennewick Irr. Dist., 880 F.2d at
21 1026. Plaintiff “does not state the terms of this alleged policy, or describe any
22 documents, promulgations, or orders embodying” a policy. Holy See, 557 F.3d at 1084.
23 Without pointing to a specific and mandatory standard that creates clear duties on the
24 government actors as to hiring, supervising, retaining, and maintaining a safe work
25 environment, any decision regarding the context surrounding these claims appears based
26 on exercising discretionary policy judgments.
27 As to the second factor, Plaintiff’s allegations pertaining to Government
28 Defendants themselves fall into the type of judgment the discretionary function exclusion
1 was designed to shield. As held by the Ninth Circuit, decisions over hiring, supervision,
2 retention, safe working environment, and warning over an individual’s dangerousness are
3 discretionary acts that the exclusion was designed to protect. See id. at 1084–85.
4 Accordingly, Plaintiff’s allegations on their face do not constitute a claim outside
5 the discretionary function exclusion, see id. at 1084, and thus Plaintiff’s allegations
6 pertaining to torts committed by Commission—or Embassy when taking Plaintiff’s
7 allegations as true—are subject to dismissal. Further, even if the discretionary function
8 exclusion did not apply, Republic would still retain immunity because Plaintiff fails to
9 rebut the presumption of juridical separateness and fails to allege specific tortious actions
10 against Republic. See supra Section III.A.2.
11 4. The Commercial Activity Exception to the FSIA
12 Plaintiff alleges that the tortious acts arose “in connection with a commercial
13 activity performed within the United States.” FAC ¶ 8. Government Defendants argue
14 that the commercial activity exception does not apply because the FAC sounds in tort
15 and, thus, is not based upon a commercial activity. Doc. No. 19-1 at 24. Further, they
16 assert that “Khosho’s sexual assault was not ‘commercial activity.’” Id. Plaintiff
17 responds that her claims—specifically causes of action seven through twelve—trigger the
18 commercial activity exception because they are based on her employment as “a poll
19 worker, directing people to queues and providing information to the voting Iraqis in El
20 Cajon, California.” Doc. No. 20 at 20–21. She argues that several of her employment-
21 based causes of action “are predicated on the commercial activity of employment and
22 primarily rely upon the negligence or failure to adhere to duties owed by employers to
23 employees.” Id. at 21.
24 The commercial activity exception to the FSIA states the following:
25 (a) A foreign state shall not be immune from the jurisdiction of courts of the
United States or of the States in any case--
26
27 [. . . ]
28
1 (2) in which the action is based upon a commercial activity carried on
in the United States by the foreign state; or upon an act performed in
2
the United States in connection with a commercial activity of the
3 foreign state elsewhere; or upon an act outside the territory of the
United States in connection with a commercial activity of the foreign
4
state elsewhere and that act causes a direct effect in the United
5 States . . . .
6
7 28 U.S.C. § 1605(a)(2) (emphasis added). The FSIA defines “commercial activity” as
8 “either a regular course of commercial conduct or a particular commercial transaction or
9 act. The commercial character of an activity shall be determined by reference to the
10 nature of the course of conduct or particular transaction or act, rather than by reference to
11 its purpose.” 28 U.S.C. § 1605(d). “Although a contract to purchase goods or services
12 may be presumptively commercial, a contractual activity should not be designated as
13 ‘commercial’ without first examining whether the activity is of a kind in which a private
14 party might engage.” Joseph, 830 F.2d at 1024.
15 To determine what an action is “based upon,” a court must examine “the
16 ‘particular conduct’ that constitutes the ‘gravamen’ of the suit.” OBB Personenverkehr
17 AG, 136 S. Ct. at 396 (interpreting Saudi Arabia v. Nelson, 507 U.S. 349, 357 (1993)).
18 For example, Saudi Arabia v. Nelson involved a couple suing Saudi Arabia and its state-
19 owned hospital for negligence and intentional tort “stemming from the husband’s
20 allegedly wrongful arrest, imprisonment, and torture by Saudi police while he was
21 employed at a hospital in Saudi Arabia.” Id. at 395 (quoting Nelson, 507 U.S. at 351,
22 353–54). In reaching its holding that the action was not based upon a commercial
23 activity, the Court explained:
24
25 Even taking each of the Nelsons’ allegations about Scott Nelson’s
recruitment and employment as true, those facts alone entitle the Nelsons to
26
nothing under their theory of the case. The Nelsons have . . . alleged . . .
27 personal injuries caused by the defendants’ intentional wrongs and by the
defendants’ negligent failure to warn Scott Nelson that they might commit
28
1 those wrongs. Those torts, and not the arguably commercial activities that
preceded their commission, form the basis for the Nelsons’ suit.
2
3
4 Id. at 396 (quoting Nelson, 507 U.S. at 358).
5 Here, the Court finds Plaintiff’s FAC faces the same result as the plaintiffs’
6 allegations in Nelson. Even taking Plaintiff’s allegations as true, Plaintiff alleges
7 personal injuries caused by intentional wrongs, negligent acts and omissions, and
8 statutory violations all grounded in tort. Thus, Plaintiff’s claims are “based upon” tort
9 allegations—and not commercial activities even if Plaintiff’s employment were an
10 “economic activity.” Therefore, the commercial activity exception does not apply to
11 remove immunity.
12 Plaintiff’s argument that her employment-based claims are predicated on the
13 commercial activity of employment with Government Defendants is unavailing. Plaintiff
14 quotes the Ninth Circuit to argue “when the Court is presented with claims that are not
15 purely within a commercial context, ‘a plaintiff’s claim is based upon [commercial]
16 activities [if the commercial activity] are [sic] elements of the claim that would entitle the
17 plaintiff to relief.’” Doc. No. 20 at 20 (quoting Holden v. Canadian Consulate, 92 F.3d
18 918, 920 (9th Cir. 1996) (citing, in turn, Nelson, 507 U.S. at 356–57)). Plaintiff relies on
19 this element-based approach to argue that causes of action seven through twelve each rely
20 upon the element of her employment status with Government Defendants. See id. at 21.
21 However, the Supreme Court held that its “analysis in Nelson is flatly incompatible with
22 a one-element approach” 7 adopted by the Ninth Circuit. OBB Personenverkehr AG v.
23 Sachs, 136 S. Ct. at 396. The Supreme Court emphasized that “Nelson instead teaches
24 that an action is ‘based upon’ the ‘particular conduct’ that constitutes the ‘gravamen’ of
25
26
27 7 “A one-element test necessarily requires a court to identify all the elements of each claim in a
complaint before that court may reject those claims for falling outside § 1605(a)(2).” OBB
28
1 the suit. Rather than individually analyzing each of the Nelsons’ causes of action, we
2 zeroed in on the core of their suit.” Id. (emphasis added). As noted above, the Court
3 finds that that the gravamen of Plaintiff’s suit is grounded in tort and not any commercial
4 employment relationship with Commission or Embassy. Finding otherwise “would
5 effectively thwart the [FSIA’s] manifest purpose to codify the restrictive theory of
6 foreign sovereign immunity” through a “semantic ploy” where “a plaintiff could recast
7 virtually any claim of intentional tort committed by sovereign act as a claim of failure to
8 warn, simply by charging the defendant with an obligation to announce its own tortious
9 propensity before indulging it.” Nelson, 507 U.S. at 363; see also OBB Personenverkehr
10 AG, 136 S. Ct. at 396; O’Bryan v. Holy See, 556 F.3d 361, 380 (6th Cir. 2009).
11 Accordingly, the gravamen of Plaintiff’s FAC sounds in, and is based upon, tort,
12 which renders the commercial activity exception inapplicable to deprive Commission—
13 or Embassy when taking Plaintiff’s allegations as true—of immunity. Further, even if the
14 commercial activity exception did apply, Republic would still retain immunity because
15 Plaintiff fails to rebut the presumption of juridical separateness and fails to allege specific
16 tortious actions against Republic. See supra Section III.A.2.
17 5. The Waiver Exception to the FSIA
18 Plaintiff alleges that “[Government Defendants] have waived any claim to
19 immunity via express provisions in the employment contract with Plaintiff.” FAC ¶ 4.
20 Plaintiff elaborates in her opposition brief that both Plaintiff’s and Khosho’s employment
21 contracts contain language indicating waiver. See Doc. No. 20 at 17–19. Government
22 Defendants reply that the waiver exception does not apply because they have not waived
23 sovereign immunity and Plaintiff’s employment contract did not contain a waiver of
24 immunity. Doc. No. 19-1 at 22. Government Defendants argue that Khosho’s actions do
25 not fall under the language of the at-issue contract clause and that the clause does not
26 constitute a waiver because it indicates only the employee’s—and not Government
27 Defendants’— amenability to suit. See Doc. No. 23 at 13–14.
28 The waiver exception to the FSIA states the following:
1 (a) A foreign state shall not be immune from the jurisdiction of courts of the
United States or of the States in any case--
2
3 (1) in which the foreign state has waived its immunity either explicitly
or by implication, notwithstanding any withdrawal of the waiver
4
which the foreign state may purport to effect except in accordance
5 with the terms of the waiver . . . .
6
7 28 U.S.C. § 1605(a)(1) (emphasis added). The “waiver exception is narrowly construed.”
8 Joseph, 830 F.2d at 1022. Moreover, courts will “rarely” find waiver “without strong
9 evidence that this is what the foreign state intended.” Corporacion Mexicana de
10 Servicios Maritimos, S.A. de C.V. v. M/T Respect, 89 F.3d 650, 655 (9th Cir. 1996), as
11 amended on denial of reh’g (Aug. 28, 1996) (quoting Rodriguez v. Transnave Inc., 8 F.3d
12 284, 287 (5th Cir. 1993)) (citing Frolova v. Union of Soviet Socialist Republics, 761 F.2d
13 370, 377 (7th Cir. 1985)). “[A] sovereign party has waived immunity where a contract
14 specifically states that the laws of a jurisdiction within the United States are to govern the
15 transaction.” Packsys, 899 F.3d at 1093 (quoting Joseph, 830 F.2d at 1022). A mere
16 contractual agreement between a foreign state and another party does not waive sovereign
17 immunity. Joseph, 830 F.2d at 1022.
18 However, the governing law need not be explicitly mentioned to waive immunity.
19 Id. Implicit waiver typically falls under three situations: “(1) a foreign state has agreed to
20 arbitration in another country; (2) a foreign state has agreed that a contract is governed by
21 the law of a particular country; and (3) a foreign state has filed a responsive pleading in a
22 case without raising the defense of sovereign immunity.” M/T Respect, 89 F.3d at 655
23 (quoting Joseph, 830 F.2d at 1022). However, this list is not exclusive because implicit
24 waiver may also be found where an agreement “contemplates adjudication of a dispute by
25 the United States courts.” Barapind v. Gov’t of Republic of India, 844 F.3d 824, 829 (9th
26 Cir. 2016) (emphasis added) (quoting Joseph, 830 F.2d at 1023).
27 Here, Plaintiff has the burden to offer evidence that an exclusion applies to remove
28 immunity. See Packsys, 899 F.3d at 1087–88 (quoting Peterson, 627 F.3d at 1124–
1 1125). To carry her burden of showing that Government Defendants waived immunity,
2 Plaintiff offers Plaintiff’s and Khosho’s employment contracts. See Doc. No. 20 at 17–
3 18; see also Doc. No. 19-2 at 52, 60 (employment contracts). The clause in both
4 contracts under the section heading “Third: Obligations of the Second Party”—where
5 “Second Party” is defined as Plaintiff and Khosho in their respective contracts and “First
6 Party” is defined as Commission—states
7
8 4- In case [the Second Party] performs any action or behavior that affects the
safety and integrity of the electoral process or he manipulates the elections’
9
results, the First Party shall have the right to take all legal and disciplinary
10 measures against him and refer him to the competent Courts according to the
laws in force.
11
12
13 Doc. No. 19-2 at 52, 60.
14 Plaintiff points to the Joseph case to persuade the Court to find waiver. See Doc.
15 No. 20 at 17–19. In Joseph, the Ninth Circuit asked whether a lease agreement between
16 an individual and foreign state implicitly waived sovereign immunity. 830 F.2d at 1022.
17 The lease provision in Joseph stated
18
19 In the event that any action shall be commenced by either party hereto
arising out of, or concerning this lease or any right or obligation derived
20
therefrom, then in addition to all other relief at law or equity, the prevailing
21 party shall be entitled to recover attorney’s fees as fixed by the court.
22
23 Id. The Court ultimately held that the provision “constitut[ed] a waiver of sovereign
24 immunity.” Id. The Ninth Circuit reasoned that despite the agreement not specifying
25 which jurisdiction’s laws governed the lease, a contract need not specifically state the
26 controlling law for the waiver exception to attach. Id. at 1023. Rather, “[w]here an
27 agreement contemplates adjudication of a dispute by the United States courts, the waiver
28 exception should be applied, regardless of whether the governing law is explicitly
1 identified.” Id. (emphasis added). The Ninth Circuit held that given “the wholly local
2 nature of the transaction, it is virtually inconceivable that the Consulate contemplated that
3 adjudication of disputes would occur in a court outside of the United States.” Id.
4 However, the court placed an important caveat on its waiver holding. It noted that the
5 vagueness of the waiver of the lease provision and the need to construe the waiver
6 exception narrowly made the court “reluctant to rest [its] holding—that the district court
7 has jurisdiction over Joseph’s basic claims—solely on the waiver exception.”8 Id. at
8 1023 n.6.
9 The Court notes three important differences between the facts presented in the
10 employment contracts here and the lease provision in Joseph. First, the employment
11 contract here gives Commission the unilateral power to bring suit whereas the Joseph
12 provision allowed either party to bring suit. The employment contract here clearly gives
13 only “the First Party”—the Commission—“the right to take all legal and disciplinary
14 measures.” Doc. No. 19-2 at 52, 60. The lease term in Joseph envisioned suits by both
15 the foreign state and the individual: “In the event that any action shall be commenced by
16 either party . . . .” 830 F.2d at 1022. Regardless of this difference, the following two
17 differences are dispositive because they indicate only weak evidence of intent to waive
18 immunity after narrowly construing the scope of the alleged waiver. See M/T Respect, 89
19 F.3d at 655 (noting that the waiver exception is narrowly construed and waiver generally
20 requires strong evidence that the foreign state intended to waive its immunity).
21 Second, the employment contract here does not concern a wholly local matter that
22 contemplates adjudication by United States courts, as was the case under Joseph’s
23 landlord-tenant lease provision. The employment provision here concerns “the safety and
24 integrity of the electoral process” for an Iraqi parliamentary election. Doc. No. 19-2 at
25
26
27 8 In particular, the Ninth Circuit expressed uncertainty “whether the [foreign state] knowingly and
intentionally agreed to waive sovereign immunity, or whether under the circumstances in this case such
28
1 52, 60. The lease provision in Joseph concerned a landlord-tenant dispute where “it
2 [was] virtually inconceivable that the Consulate contemplated that adjudication of
3 disputes would occur in a court outside of the United States” given the “wholly local
4 nature of the transaction.” 830 F.2d at 1022. Here, the employment clause is wholly
5 foreign in nature given that its contents refer exclusively to the operation of a foreign
6 election. Whereas a landlord-tenant dispute could not readily be contemplated to be
7 adjudicated outside of the United States, an action regarding the safety and integrity of a
8 foreign election likely contemplates adjudication in the foreign state responsible for the
9 election and the maintenance of its own election laws
10 Third, there is not a direct connection between Commission’s activities in
11 American courts and Plaintiff’s allegations. In holding that a plaintiff presented
12 sufficient evidence to show implied waiver where the foreign state “deliberately involved
13 United States Courts in its efforts to persecute [a plaintiff],” the Ninth Circuit looked for
14 a direct connection between the waiver and the activity at issue. Siderman de Blake, 965
15 F.2d at 722. The Ninth Circuit reasoned,
16
17 [i]f Argentina has engaged our courts in the very course of activity for which
the [plaintiffs] seek redress, it has waived its immunity as to that redress.
18
19 As noted, Argentina will have an opportunity to rebut the [plaintiff’s]
evidence on remand. We do not suggest that because Argentina may have
20
implicitly waived its immunity in this suit, any foreign sovereign which
21 takes actions against a private party in our courts necessarily opens the way
to all manner of suit by that party. To support a finding of implied waiver,
22
there must exist a direct connection between the sovereign’s activities in our
23 courts and the plaintiff’s claims for relief.
24
25 Id. (emphasis added); see also In re Estate of Ferdinand Marcos Human Rights Litig., 94
26 F.3d 539, 547 (9th Cir. 1996) (“[T]o support a finding of implied waiver, there must exist
27 a direct connection between the sovereign’s activities in U.S. courts and the plaintiff’s
28 claims for relief.”). Here, as to the scope of the employment contract, the terms
1 themselves are limited to the circumstance where “the [Second Party] performs any
2 action or behavior that affects the safety and integrity of the electoral process or he
3 manipulates the elections’ results.” Doc. No. 19-2 at 52, 60. In Joseph, the lease
4 provision anticipated suits “arising out of, or concerning this lease or any right or
5 obligation derived therefrom.” 830 F.2d at 1022. Whereas the action in Joseph involved
6 underlying liability concerning a lease and the contract provision envisioned suits arising
7 from the lease, Plaintiff’s underlying allegations here concern tortious conduct—but the
8 employment contract provision envisions suits arising from election law and the
9 operation of an election. Even if the Court found that the employment contract’s mere
10 mention of possible suit made Commission amenable to the Court’s jurisdiction, the
11 Court would still be unable to find waiver because there is no direct connection between
12 Commission’s contractual power to bring suit over electoral integrity and Plaintiff’s tort-
13 based allegations.
14 Accordingly, the Court finds that the waiver exception does not apply to deprive
15 Commission—or Embassy when taking Plaintiff’s allegations as true—of immunity.
16 Further, even if the waiver exception did apply, Republic would still retain immunity
17 because Plaintiff fails to rebut the presumption of juridical separateness and fails to allege
18 specific tortious actions against Republic. See supra Section III.A.2.
19 6. Jurisdictional Discovery
20 Plaintiff requests the Court grant jurisdictional discovery if the Court finds in favor
21 of Government Defendants. Doc. No. 20 at 30. Specifically, Plaintiff seeks “written
22 discovery to determine the applicability of FEHA, depositions of Defendant Khosho to
23 investigate who he reported to, the basis of his termination and the Government
24 Defendants’ investigation into his claims and other measures to determine the identity
25 and role of Official Asam.” Id. Government Defendants counter that the Court should
26 deny Plaintiff’s request. Doc. No. 23 at 15. They argue that “[t]he FSIA precludes
27 additional discovery” and that they “have already, and voluntarily, provided discovery
28 responses and documents on the jurisdictional issues.” Id.
1 “To the extent that the jurisdictional facts are disputed . . . , the parties should be
2 allowed to conduct discovery for the limited purpose of establishing jurisdictional facts
3 before the claims can be dismissed.” Siderman de Blake, 965 F.2d at 713.
4
5 Because of the “delicate balance between permitting discovery to
substantiate exceptions to statutory foreign sovereign immunity and
6
protecting a sovereign’s or a sovereign agency’s legitimate claim to
7 immunity from discovery,” jurisdictional discovery in FSIA cases “should
be ordered circumspectly and only to verify allegations of specific facts
8
crucial to an immunity determination.”
9
10 Packsys, 899 F.3d at 1094 (quoting Alpha Therapeutic Corp. v. Nippon Hoso Kyokai, 199
11 F.3d 1078, 1088 (9th Cir. 1999), opinion withdrawn sub nom. Alpha Therapeutic Corp. v.
12 Kyokai, 237 F.3d 1007 (9th Cir. 2001)).
13 Plaintiff’s jurisdictional discovery request does not identify facts crucial to an
14 immunity determination. The Court made its findings even taking Plaintiff’s allegations
15 as true. The Court did not rely on disputed facts in reaching its holding. See supra Part
16 II. Even if Khosho were employed by both Commission and Embassy and even if Asam
17 were employed by Commission or Embassy, the Court’s holding would remain
18 unchanged. Therefore, given that these specific facts are not crucial to an immunity
19 determination, the Court finds jurisdictional discovery inappropriate. See Packsys, 899
20 F.3d at 1094.
21 Accordingly, the Court DENIES Plaintiff’s request for jurisdictional discovery.
22 B. Failure to State a Claim
23 In addition to its arguments over improper jurisdiction, Government Defendants
24 also move to dismiss pursuant to Rule 12(b)(6). Doc. No. 19-1 at 30–33. Because the
25 Court lacks subject-matter jurisdiction, the Court must dismiss the case. See Fed. R. Civ.
26 P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction,
27
28
1 || the court must dismiss the action.”). Accordingly, the Court declines to rule on the merits
2 ||of Government Defendants’ Rule (12)(b)(6) motion.’
3 IV. CONCLUSION
4 For the foregoing reasons, the Court GRANTS Government Defendants’ motion to
5 || dismiss Plaintiff’s causes of action without leave to amend. Further, the Court
6 || ORDERS the Clerk of Court to terminate this action as to Government Defendants.
7 IT IS SO ORDERED.
8
9 || Dated: February 26, 2020
10 pbb LTn- hihtr
11 Hon. Michael M. Anello
12 United States District Judge
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
8 ? The Court similarly declines to rule on the merits of Government Defendants’ argument regarding
diplomatic immunity. See Doc. No. 19-1 at 33; Doc. No. 23 at 15.