Jerez v. Republic of Cuba

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

NILO JEREZ, )

)

Plaintiff, )

)

v. ) Misc. Action No. 09-466 (RWR)

)

REPUBLIC OF CUBA, et al., )

)

Defendants. )

______________________________)

MEMORANDUM OPINION

Plaintiff Nilo Jerez brought this action to enforce a

default judgment against defendants the Republic of Cuba, Fidel

Castro Ruz, Raul Castro Ruz, the Cuban Revolutionary Armed Forces

and El Ministerio Del Interior. The motion by entities that

Jerez alleged in an application for a writ of attachment are

agencies and instrumentalities of the Republic of Cuba (“third

party movants”)1 to vacate the writ of attachment, Jerez’s motion

for an order to show cause why the writ of attachment should not

be issued against the third party movants, and the intervenor

Camara de Comercio’s motion to vacate the writ of attachment were

referred to Magistrate Judge Alan Kay who found that there was no

subject matter jurisdiction to enforce Jerez’s state court

default judgment and that Jerez’s writ of attachment was not

enforceable. Jerez filed objections under Local Civil Rule

1

See Appl. for Writ of Attach. on J., Schedule A; Pl.’s

Mot. for Order to Show Cause at 2 n.1; id., Ex. A (Appl. for Writ

of Attach. on J., Schedule A).

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72.2(b) to the magistrate judge’s order.2 Because the magistrate

judge’s rulings as to subject matter jurisdiction are not clearly

erroneous or contrary to law, Jerez’s objections will be

overruled.

BACKGROUND

The extensive factual and procedural history of this dispute

is set forth in detail in Jerez v. Republic of Cuba, 777 F. Supp.

2d 6 (D.D.C. 2011). Briefly, Jerez filed a complaint in 2005 in

Florida state court against the Republic of Cuba, Fidel Castro

Ruz, Raul Castro Ruz, the Cuban Revolutionary Armed Forces and El

Ministerio del Interior seeking damages for the physical and

mental torture he allegedly endured when he was incarcerated in

Cuban prisons in the early 1970's. Id. at 10-11. Jerez alleged

that he was purposefully infected with Hepatitis C and developed

cirrhosis of the liver, among other injuries. Pl.’s Objections

to Magistrate Judge’s Mem. Op. and Order (“Pl.’s Objs.”) at 6.

In 2007, Jerez obtained a default judgment against the defendants

in the Florida state court. Id. at 8; Opp’n to Pl.’s Objections

by Centro de Bioactivos Químicos et al. (“Defs.’ Opp’n”) at 2.

In May 2009, the United States District Court for the Southern

District of Florida granted full faith and credit to the state

2

The third party movants also filed a motion for leave to

file a surreply and the plaintiff moved for a status conference

and/or oral argument on his objections. These motions will be

denied as moot in light of the lack of subject matter

jurisdiction.

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court judgment and entered default judgment against the

defendants. Pl.’s Objs. at 9; Defs.’ Opp’n at 2. In September

2009, Jerez registered his Southern District of Florida default

judgment in this court and filed a writ of attachment seeking to

attach assets of the named defendants and of entities alleged to

be agencies and instrumentalities of the defendants. Pl.’s Objs.

at 9; Defs.’ Opp’n at 3. Third party movants whose property

Jerez sought to attach, but who were not named as defendants in

the Southern District of Florida’s default judgment, moved to

vacate the writ.3 Jerez then moved for an order to show cause

why a writ of attachment should not be issued against the

agencies and instrumentalities of the Republic of Cuba and its

co-defendants. Camara del Comercio, which was permitted to

intervene, moved to vacate plaintiff’s writ of attachment with

respect to the Republic of Cuba’s registration of its

certification mark for Cuban Cigars. Magistrate Judge Kay found

that the Florida state court did not have subject matter

jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”),

28 U.S.C. §§ 1330, 1602 et seq. Jerez, 777 F. Supp. 2d at 25-26.

In addition, the magistrate judge found that the writ of

attachment was unenforceable under the Cuban Assets Control

Regulations and related statutory authority even if the Florida

3

The magistrate judge quashed the writ on the grounds that

it listed as defendants more than the defendants named in the

Southern District of Florida’s judgment. Jerez filed a corrected

application for a writ of attachment on April 15, 2010.

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state court had subject matter jurisdiction. Id. at 29.

Finally, the magistrate judge decided that the attachment of the

trademark would be impermissible. Id. at 32. Jerez filed

objections to the magistrate judge’s decision arguing that the

magistrate judge erred on each issue.

DISCUSSION

“Upon consideration of objections filed . . . , a district

judge may modify or set aside any portion of a magistrate judge’s

order . . . found to be clearly erroneous or contrary to law.”

LCvR 72.2(c); see also Fed. R. Civ. P. 72(a). Factual findings

are subject to the clearly erroneous standard and will be

affirmed unless “the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake has

been committed.” Am. Ctr. for Civil Justice v. Ambush, 794 F.

Supp. 2d 123, 129 (D.D.C. 2011) (internal quotation marks

omitted). “The contrary to law standard, by contrast, permits de

novo review of a magistrate judge’s legal conclusions.” Id.

(internal quotation marks omitted).

I. SUBJECT MATTER JURISDICTION

Jerez objects to the magistrate judge’s decision that there

is no subject matter jurisdiction under the FSIA. The FSIA is

the “‘sole basis for obtaining jurisdiction over a foreign state

in our courts.’” Nemariam v. Fed. Democratic Republic of

Ethiopia, 491 F.3d 470, 474 (D.C. Cir. 2007) (quoting Argentine

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Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434

(1989)). “Under the FSIA, a court may entertain jurisdiction

over a civil complaint directed against a foreign sovereign ‘only

if the foreign state lacks immunity under the Act’s

prescriptions[.]’” Doe v. Bin Laden, 580 F. Supp. 2d 93, 96

(D.D.C. 2008) (alteration in original) (quoting Practical

Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1544 (D.C.

Cir. 1987)). “When a defendant qualifies for sovereign immunity,

‘the federal courts lack subject matter jurisdiction’ over

proceedings against that defendant, and therefore ‘must dismiss

the case’ against the immune defendant.” Inversora Murten, S.A.

v. Energoprojekt Holding Co., 671 F. Supp. 2d 152, 155 (D.D.C.

2009) (quoting Auster v. Ghana Airways, Ltd., 514 F.3d 44, 48

(D.C. Cir. 2008)). “An agency or instrumentality of a foreign

state is treated as a foreign state under the FSIA, . . . and

thus is ‘immune from the jurisdiction of the courts of the United

States.’” Id. (quoting Peterson v. Islamic Republic of Iran, 563

F. Supp. 2d 268, 273 (D.D.C. 2008)). The FSIA provides

exceptions which allow a plaintiff to bring suit when particular

conditions are met. Bin Laden, 580 F. Supp. 2d at 96 (citing 28

U.S.C. § 1605). The plaintiff bears the burden of showing that

an FSIA exception allows waiver of the defendants’ sovereign

immunity. Id. at 96-97 (citing Youming Jin v. Ministry of State

Sec., 475 F. Supp. 2d 54, 61 (D.D.C. 2007)).

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Jerez argues that two waivers of sovereign immunity are

applicable under the FSIA: the non-commercial tort exception

under 28 U.S.C. § 1605(a)(5) and the terrorism exception under 28

U.S.C. § 1605(a)(7).

A. Non-commercial tort exception

Under the non-commercial tort exception, a waiver of

sovereign immunity is appropriate where a party seeks money

damages against a foreign state when the injury was caused by

“the tortious act or omission of that foreign state or of any

official[.]” 28 U.S.C. § 1605(a)(5). It is well-settled in the

D.C. Circuit that under this provision, “both the tort and the

injury must occur in the United States.” Persinger v. Islamic

Republic of Iran, 729 F.2d 835, 842 (D.C. Cir. 1984); accord

Cicippio v. Islamic Republic of Iran, 30 F.3d 164, 169 (D.C. Cir.

1994). The Supreme Court has recognized that “Congress’ primary

purpose in enacting § 1605(a)(5) was to eliminate a foreign

state's immunity for traffic accidents and other torts committed

in the United States[.]” Amerada Hess, 488 U.S. at 439-40; see

also H.R. Rep. No. 94-1487, at 20-21 (1976), reprinted in 1976

U.S.C.C.A.N. 6604, 6619 (stating that “Section 1605(a)(5) is

directed primarily at the problem of traffic accidents but is

cast in general terms . . . . It denies immunity as to claims

for personal injury or death . . . ; the tortious act or omission

must occur within the jurisdiction of the United States”).

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Unlike the commercial activity exception to the FSIA under

§ 1605(a)(2), which allows consideration of whether a foreign

activity had a “direct effect” inside the United States, the non-

commercial tort exception “covers only torts occurring within the

territorial jurisdiction of the United States.” Amerada Hess,

488 U.S. at 441.

Overall, Jerez argues that the magistrate judge erred in

finding the non-commercial tort exception inapplicable because of

the continuing nature of his injuries. In particular, Jerez

states that the replication of the Hepatitis C virus within his

body creates separate and distinct tortious acts within the

United States. Pl.’s Objs. at 28. Under a similar theory, Jerez

argues that cirrhosis of the liver caused by the Hepatitis C is a

separate and distinct tortious act which occurred in the United

States and therefore the waiver of sovereign immunity is valid.

Id. at 30. However, this interpretation would broaden the non-

commercial tort exception far beyond the expectation of Congress.

The D.C. Circuit has been vigilant in limiting this exception to

circumstances where both the tort and the injury occurred in the

United States and rejecting claims to the contrary. See

Persinger, 729 F.2d at 839-43 (reviewing the legislative history

and concluding that the parents’ emotional distress arising from

their son being taken hostage did not fall within the exception

because “both the tort and injury must occur in the United

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States”); Asociación de Reclamantes v. United Mexican States, 735

F.2d 1517, 1525 (D.C. Cir. 1984) (requiring the “entire tort” to

have occurred in the United States); see also Cicippio, 30 F.3d

at 169. In this case, even if the injuries -- Hepatitis C and

cirrhosis of the liver -- occurred solely in the United States,

the tortious acts which gave rise to these injuries undoubtedly

occurred outside of the United States. See Pl.’s Objs. at 5-6

(detailing the torture which occurred in Cuba and the related

“long term psychiatric and physical injuries” which continued to

affect Jerez after he “came to the United States”). The

magistrate judge properly reviewed the record and rejected

Jerez’s theory.

Jerez also argues that Cuba’s failure to advise him of the

presence of the virus in his body provides an additional basis

under § 1605(a)(5) to find the non-commercial tort exception

applicable. Id. at 28-29. The scope of this exception includes

both tortious acts and omissions of foreign officials. 18 U.S.C.

§ 1605(a)(5). The magistrate judge found that Jerez failed to

point to evidence that “[t]he Republic of Cuba knew that

Plaintiff had contracted Hepatitis C and concealed this fact” and

that any “failure to advise . . . would be deemed to have

occurred in Cuba.” Jerez, 777 F. Supp. 2d at 23 n.36, 25 n.40.

Jerez argues that this was error because any failure to

advise should be deemed to have occurred in the United States.

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Pl.’s Objs. at 28-29. Jerez’s objection relies on the case

O’Bryan v. Holy See, 556 F.3d 361 (6th Cir. 2009). In that case,

the Sixth Circuit found that the claims based on actions

committed abroad fell outside the scope of the exception, but a

claim survived “against the Holy See for the actions of its

supervising employees occurring in the United States.” Id. at

387-88. However, Jerez misreads O’Bryan in arguing that because

Cuba had representatives in the United States who failed to warn

Jerez, the omission should be deemed a tort which occurred in the

United States under this exception. O’Bryan states that “any

portion of plaintiffs’ claim that relies upon acts committed by

the Holy See abroad cannot survive” and “plaintiffs cannot pursue

claims based upon . . . acts . . . that occurred abroad.” Id. at

385-86. Furthermore, in O’Bryan, the plaintiff advanced

“theories of liability premised on the conduct of Holy See

employees in the United States engaged in the supervision of the

allegedly abusive priests.” Id. at 386. Some of O’Bryan’s

claims were against the bishops, archbishops and Holy See

personnel within the United States. Id. There was a basis in

that case for the claim to proceed against individuals within the

United States who had a duty to warn, allowing that claim to

survive.

In this case, Jerez has sued the Republic of Cuba, Fidel

Casto Ruz, Raul Castro Ruz, The Cuban Revolutionary Armed Forces

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and El Ministerio Del Interior, all entities which are abroad.

In his objections to the magistrate judge’s opinion, Jerez seeks

to newly allege wrongdoing by “representatives at the Cuba

Interest Section in Washington D.C.” Pl.’s Objs. at 29. But

Jerez has not submitted any evidence as to the knowledge or duty

of unnamed individuals in Washington D.C. in relation to this

case. Jerez has failed to show that the waiver of sovereign

immunity should be granted based on the non-commercial tort

exception.

B. Terrorism exception

Jerez argues that the FSIA provided a basis for subject

matter jurisdiction under 28 U.S.C. § 1605(a)(7) as it was

codified at the time he secured his default judgment in 2007.4

4

This provision was repealed in January 2008, but it

provided that:

A foreign state shall not be immune from the

jurisdiction of courts of the United States or of the

States in any case . . .

(7) . . . in which money damages are sought

against a foreign state for personal injury or

death that was caused by an act of torture, . . .

except that the court shall decline to hear a

claim under this paragraph --

(A) if the foreign state was not designated

as a state sponsor of terrorism . . . at the

time the act occurred, unless later so

designated as a result of such act . . . ;

and

(B) even if the foreign state is or was so

designated, if . . .

(ii) neither the claimant nor the victim

was a national of the United States

. . . when the act upon which the claim

is based occurred.

28 U.S.C. § 1605(a) (repealed 2008).

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This section provided a waiver of sovereign immunity for a party

seeking money damages against a foreign state where the injury

was caused by, among other things, an act of torture. 28 U.S.C.

§ 1605(a)(7) (repealed 2008). This exception required the

foreign state to have been designated as a “state sponsor of

terrorism” at the time the act occurred or later as a result of

the act in question. Id. § 1605(a)(7)(A). Even when the first

condition was met, the waiver was not applicable where “neither

the claimant nor the victim was a national of the United States”

at the time the act occurred. Id. § 1605(a)(7)(B)(ii).

Jerez has failed to satisfy the statutory requirements for

this waiver. First, Cuba was designated as a state sponsor of

terrorism in 1982, see Clarification for Foreign Policy Export

Controls, 47 Fed. Reg. 16623-01 (Apr. 19, 1982), after the acts

occurred that form the basis of this dispute, see Pl.’s Objs. at

5-6 (stating that the incarceration and torture occurred from

1970 to 1971 before the defendant moved to the United States).

Furthermore, the record indicates that Cuba was not designated as

a result of Cuba’s treatment of Jerez. See 82 Dep’t of State

Bull., No. 2063, at 56 (June 1982) (stating that Cuba was

designated as a “state sponsor of terrorism” particularly based

on “evidence of Cuban support for revolutionary violence and

groups which use terrorism as a policy instrument”). In light of

these facts, Jerez’s objection on this ground must be overruled.

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Second, there was no clear error in the magistrate judge’s

factual finding that Jerez was not a United States citizen when

the alleged torture occurred. Jerez cites a transcript of a

trial which reflects his testimony that he was a United States

citizen “[s]ince almost 50 years ago or more.” Pl.’s Objs. at 25

(internal quotation marks omitted). However, the plaintiff’s own

filing states that “counsel believes that ‘15 years ago or more’

is the correct testimony” and he asserts this discrepancy only to

challenge the magistrate judge’s weighing of “conflicting

evidence.” Id. Jerez’s new argument raising this likely

typographical error is facially insufficient to carry his burden

of showing American citizenship at the time of the tortious acts

of this case. The magistrate judge’s conclusion was drawn from

Jerez’s own Florida state court complaint and the final judgment

in that case which reflected Jerez’s status as a “resident alien”

as well as the Florida state court’s assertion of jurisdiction

under the Alien Tort Claims Act, 28 U.S.C. § 1350, which could

have applied only if Jerez were an alien. Jerez, 777 F. Supp. 2d

at 19 (citing Fl. State Ct. Compl. ¶¶ 4, 7; Fl. State Ct. Jan.

30, 2007 Final J. at 2). As Jerez has not shown that the

statutory requirements of the FSIA have been met, there is no

subject matter jurisdiction over this controversy.

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II. SCOPE OF REVIEW

Jerez objects to the magistrate judge having reviewed the

basis for subject matter jurisdiction underlying the default

judgment before addressing the merits of the case. Jerez

concedes that “a lack of subject matter jurisdiction by the

Florida State Court could not [be] cured by a full faith and

credit determination [by the Florida U.S. District Court.]” Pl.’s

Objs. at 13. But he argues that the magistrate judge should not

have independently reviewed the Florida state court’s subject

matter jurisdiction, and that the court should only have

addressed the narrower issue of the validity of the Florida

federal court’s full faith and credit determination. Id. at 13-

14. In particular, Jerez states that the magistrate judge

“fail[ed] to give the prior full faith and credit decision some

weight when he started his analysis with the Florida State Court

Judgment.” Id. at 13 (citing Weininger v. Castro, 462 F. Supp.

2d 457, 469 (S.D.N.Y. 2006)). According to Jerez, he is entitled

to enforce the Florida default judgment unless the Florida state

court “plainly usurped its jurisdiction.” Pl.’s Objs. at 14.

Generally, subject matter jurisdiction “goes to the

foundation of the court’s power to resolve a case, and the court

is obliged to address it sua sponte.” Doe by Fein v. District of

Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996) (citing Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). The

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Supreme Court has recognized that “a judgment of a court in one

State is conclusive upon the merits in a court in another State

only if the court in the first State had power to pass on the

merits -- had jurisdiction, that is, to render the judgment.”

Durfee v. Duke, 375 U.S. 106, 110 (1963). However, “principles

of res judicata apply to jurisdictional determinations -- both

subject matter and personal.” Ins. Corp. of Ireland, Ltd. v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982).

In other words, the reviewing court is foreclosed from reaching

issues, including jurisdiction, that “have been fully and fairly

litigated and finally decided in the court which rendered the

original judgment.” Durfee, 375 U.S. at 111. This res judicata

effect is ordinarily seen in cases where the defendant has

submitted to the jurisdiction of the court and litigated the

issue. American Surety Co. v. Baldwin, 287 U.S. 156, 166 (1932);

Baldwin v. Traveling Men’s Ass’n, 283 U.S. 522, 525-26 (1931).

See generally Ins. Corp. of Ireland, 456 U.S. at 706-07 (“By

submitting to the jurisdiction of the court for the limited

purpose of challenging jurisdiction, the defendant agrees to

abide by that court’s determination on the issue of jurisdiction:

That decision will be res judicata on that issue in any further

proceedings.”) (citations omitted). By contrast, “[a] defendant

is always free to ignore the judicial proceedings, risk a default

judgment, and then challenge that judgment on jurisdictional

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grounds in a collateral proceeding.” Id. at 706. Where, as

here, “enforcement of the default judgment is attempted, . . . [a

defendant] may assert his jurisdictional objection” and “[i]f he

prevails on the objection, the default judgment will be vacated.”

Practical Concepts, Inc., 811 F.2d at 1547.

Jerez argues that only the defendant may attack a default

judgment on jurisdictional grounds and third parties may not

mount a collateral jurisdictional attack at this stage of the

case. Pl.’s Reply to Centro de Bioactivos Químicos et al.’s

Opp’n to Pl.’s Objs. (“Pl.’s Reply”) at 4. In this case, the

magistrate judge did not review subject matter jurisdiction on

the basis of the third party movants’ collateral attack.

Instead, the magistrate judge reviewed the subject matter

jurisdiction of the state court’s default judgment. The issue

presented here is whether, in the absence of a defendant’s

jurisdictional objection, a court may inspect the subject matter

jurisdiction of the default judgment after a reviewing federal

district court has already granted full faith and credit to the

original state court’s default judgment.

As to this issue, the Weininger case is instructive.

Plaintiff Weininger successfully obtained a default judgment in a

Florida state court against the Republic of Cuba, Fidel Castro,

Raul Castro and the Army of the Republic of Cuba. Weininger, 462

F. Supp. 2d at 463. Weininger sought to domesticate the Florida

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state court judgment by seeking summary judgment in New York

state court. Weininger obtained an attachment order for property

held in JPMorgan Chase bank accounts in which the Republic of

Cuba and agencies or instrumentalities allegedly held interests.

Weininger’s litigation was removed to federal court where the

Florida judgment was given full faith and credit. Id. at 464-65.

Plaintiff McCarthy also secured a default judgment against the

Republic of Cuba in a Florida state court. McCarthy then

obtained a final default judgment in the U.S. District Court for

the Southern District of Florida and registered the judgment with

the U.S. District Court for the Southern District of New York.

Id. at 466. In both plaintiffs’ cases, the Florida state courts

determined that they had jurisdiction under the FSIA. Id. at

469. Both plaintiffs sought to enforce their default judgments

by requesting a turnover of assets in the bank accounts of the

alleged Cuban entities. Id. at 466-67. The cases were

consolidated before a single district judge. Id. at 467.

JPMorgan Chase, seeking interpleader relief, and a third

party serving as amicus curiae, posited that the default

judgments were unenforceable because the Florida state courts

that rendered the judgments lacked jurisdiction under the FSIA.

The district judge in Weininger considered whether, in the

absence of an attack by the defendants who originally defaulted,

the court should examine the jurisdictional competence of the

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previous courts’ decisions. Id. at 468-69. The judgment debtors

whose assets were at risk of loss failed to appear before the

Florida state courts or the federal courts to challenge the

judgments against them. Id. at 469. The district judge

concluded that “the policies and principles underlying res

judicata doctrine would make it manifestly inequitable for this

Court to reopen the judgments so as to permit a challenge to the

underlying adjudication at the request of parties not affected by

the judgments[.]” Id. In reaching this conclusion, the judge

principally cited the completeness of the state courts’

determination of jurisdiction, the federal courts’ implicit

recognition of jurisdiction, and the failure of any entities

whose assets were at risk of loss to contest the validity of the

judgments. Id.

By contrast, these considerations weigh against the

plaintiff in this case. First, Weininger highlighted that the

Florida state courts, in line with the FSIA’s requirement that

the claimant establish his claim “‘by evidence satisfactory to

the court,’ . . . held hearings, took evidence, satisfied

themselves of their jurisdiction, and expressly so ruled.” Id.

(quoting 28 U.S.C. § 1608(e)). Here, the record in Jerez’s

original default judgment reflects that the Florida state court

explicitly relied on the Alien Tort Claims Act, 28 U.S.C. § 1331,

for jurisdiction, Mot. to Vacate Writ of Attachment, Decl. of

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Lindsey Frank, Esq., Ex. B at 2, and as Jerez concedes, the

Florida state court’s judgment does not discuss sovereign

immunity or FSIA, Pl.’s Objs. at 20. Although Jerez’s state

court complaint included references to the FSIA, id. at 19, the

Florida state court’s judgment reflects no consideration of

sovereign immunity under the FSIA, the essential consideration

for subject matter jurisdiction in an action against a foreign

state. See Nemariam, 491 F.3d at 474 (stating that a district

court lacks subject matter jurisdiction unless there is an

applicable FSIA exception).

In addition, unlike in Weininger, third parties whose assets

are at risk here do contest the validity of the judgments and

have directly attacked the underlying basis of subject matter

jurisdiction. While Jerez objects to the third party movants’

ability to collaterally attack subject matter jurisdiction at

this stage, Jerez has shown no abuse in the magistrate judge’s

exercise of discretion to examine subject matter jurisdiction.

In light of the uncontested nature of Jerez’s proceedings in the

state and federal courts in Florida and the lack of any inquiry

by either of those courts into their jurisdiction under the FSIA,

the magistrate judge properly exercised his discretion and

examined the basis for subject matter jurisdiction. Jerez’s

objection to the magistrate judge’s scope of review will be

overruled.

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III. OTHER OBJECTIONS

Jerez makes three additional objections to the magistrate

judge’s decision. First, Jerez argues that the writ of

attachment is enforceable because his claim falls under an

exception to the Cuban Assets Control Regulations’ general

prohibition against attachments of this nature. Pl.’s Objs. at

32-35. Second, Jerez argues that the magistrate judge clearly

erred by concluding that the trademark for Cuban cigars was not

subject to an equitable lien. Id. at 35-40. Third, Jerez argues

that the magistrate judge should have ordered the appropriate

remedy: the foreclosure of the applicable patents assigned to the

defendants. Id. at 40-41. However, all of these objections are

moot in light of the absence of subject matter jurisdiction.

CONCLUSION

The magistrate judge did not err in considering subject

matter jurisdiction and correctly found that the Florida state

court did not have subject matter jurisdiction under FSIA.

Jerez’s remaining objections are moot in light of the absence of

subject matter jurisdiction. Jerez’s objections will be

overruled. An appropriate order accompanies this memorandum

opinion.

SIGNED this 29th day of August, 2013.

/s/

RICHARD W. ROBERTS

Chief Judge