Lambros v. Federative Republic of Brazil

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JOHN GREGORY LAMBROS, )
)
Plaintiff, )
)
v. ) Civil Action No. 19-cv-1929 (TSC)
)
FEDERATIVE REPUBLIC OF BRAZIL )
et al., )
)
Defendants. )
)
)
MEMORANDUM OPINION
This lawsuit, brought pro se, stems from Plaintiff’s extradition from Brazil to the
United States, where he was convicted of federal drug offenses. Defendants Brazil and
political sub-division Rio de Janeiro State have moved to dismiss. For the reasons
explained below, Defendants’ motion will be GRANTED.
I. BACKGROUND
In May 1989, Plaintiff was indicted on four counts “stemming from a cocaine
importing conspiracy.” United States v. Lambros, 65 F.3d 698, 699 (8th Cir. 1995). He
“fled the country, and was arrested in Brazil in May 1991.” Id. In June 1992, after
contesting extradition, Plaintiff was remanded to the United States’ custody. In January
1993, he was convicted of all counts in the United States District Court for the District
of Minnesota. Id.On February 10, 2017, Plaintiff filed the instant civil suit in the Superior Court
of the District Columbia, which Defendants removed to this court on June 27, 2019.
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See Order, ECF No. 25 (denying motion for remand and vacating entry of default). The
prolix Complaint, consisting of 491 paragraphs, is wide-ranging but essentially
challenges Plaintiff’s extradition proceedings in the Brazilian court and the conditions
of his confinement in Brazil. Plaintiff alleges, among other things, that while awaiting
extradition he was tortured and subjected to bizarre mind-control procedures by
Brazilian authorities, apparently with the United States’ consent, assistance, and/or
indifference. See Compl. ¶¶ 4-17, ECF No. 1-3; cf. Lambros, 65 F.3d at 701(referencing “persuasive indirect evidence that Lambros was not mistreated in Brazil”).
Defendants identify the following claims and requests for relief: (1) unlawful
trade practices, fraud and artifice, Compl. ¶¶ 80-134, 472; (2) fraud, id. ¶¶ 135-165,
473; (3) negligent misrepresentation, id. ¶¶ 166-171, 474; (4) negligence, id. ¶¶ 172-
181, 475; (5) breach of contract, id. ¶¶ 182-192, 476; (6) breach of fiduciary duty, id. ¶¶
193-218, 477; (7) intentional infliction of emotional distress, id. ¶¶ 219-228, 478; (8)
false arrest and false imprisonment, id. ¶¶ 229-266, 479; (9) assault and/or battery, id.
¶¶ 267-298, 480; (10) civil conspiracy, id. ¶¶ 299-311, 481; (11) violations of the
Racketeering Influence and Corrupt Organizations Act (“RICO Act”), id. ¶¶ 331-469,
483; (12) a request for a declaratory judgment, id. ¶¶ 312-330, 482; (13) a request for
medical monitoring, id. ¶ 485; and (14) injunctive relief, id. 1-3 ¶¶ 488-489. Mem. of
P. & A (“Mem.”) at 16, ECF No. 26-1.
II. LEGAL STANDARD
Defendants seek dismissal first under Federal Rule of Civil Procedure 12(b)(1),
for lack of subject-matter jurisdiction. “Federal district courts are courts of limited
jurisdiction. They possess only that power authorized by Constitution and statute,
which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of
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Am., 511 U.S. 375, 377 (1994) (internal citations omitted). “Subject-matter jurisdiction
can never be waived or forfeited” because it “goes to the foundation of the court’s
power to resolve a case.” Gonzalez v. Thaler, 565 U.S. 134,141 (2012); Doe ex rel.
Fein v. District of Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996). Before proceeding to
the merits of a claim, a court must satisfy itself that it has subject-matter jurisdiction to
consider the claim. See Brown v. Jewell, 134 F. Supp. 3d 170, 176 (D.D.C. 2015)
(courts “‘have an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party’”) (quoting
Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)).
In evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject-matter
jurisdiction, the court must “assume the truth of all material factual allegations in the
complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all
inferences that can be derived from the facts alleged.’” Am. Nat'l Ins. Co. v. FDIC, 642
F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C.
Cir. 2005)). Nevertheless, “‘the court need not accept factual inferences drawn by
plaintiffs if those inferences are not supported by facts alleged in the complaint, nor
must the Court accept plaintiff's legal conclusions.’” Disner v. United States, 888 F.
Supp. 2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United States, 461 F. Supp. 2d 71,
73 (D.D.C. 2006)). And while courts construe pro se filings liberally, see Richardson
v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999), the non-justiciability of the case
and the absence of jurisdiction cannot be overcome by liberal construction of the
complaint.
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III. ANALYSIS
Defendants argue that Plaintiff has not met his burden of establishing jurisdiction
under the Foreign Sovereign Immunities Act (FSIA). Mem. at 17-27. The court agrees.
The FSIA “holds foreign states and their instrumentalities immune from the
jurisdiction of federal and state courts,” save exceptions set out in the Act, Opati v.
Republic of Sudan, 140 S. Ct. 1601, 1605 (2020), or where “an [existing] international
agreement” to which the United States was a party at the time of the FSIA’s enactment
in 1976 provides otherwise, Peterson v. Royal Kingdom of Saudi Arabia, 416 F.3d 83,
86 (D.C. Cir. 2005) (citations omitted); see Roeder v. Islamic Republic of Iran, 646
F.3d 56, 58 (D.C. Cir. 2011) (“The FSIA provides generally that a foreign state is
immune from the jurisdiction of the United States courts unless one of the exceptions
listed in 28 U.S.C. § 1605(a) applies”) (internal quotation marks and citation omitted));
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 442 (1989)
(exception under 28 U.S.C. § 1604 “applies when international agreements ‘expressly
conflic[t]’ with the immunity provisions of the FSIA”). A foreign state cannot “waive
its immunity under § 1605(a)(1) by signing an international agreement that contains no
mention of a waiver of immunity to suit in United States courts or even the availability
of a cause of action in the United States.” Argentine Republic, 488 U.S. at 442.
Plaintiff relies on Article XII of the Brazil/United States Treaty of Peace,
Friendship, Commerce and Navigation, Dec. 12, 1828, 8 Stat. 390, T.S. 34, 5 Bevans
792 (“Amity Treaty”), available at http://avalon.law.yale.edu/19th_century/
brazil01.asp., see Opp’n at 15 ¶ 40, ECF No. 34, and Article XI of the Treaty of
Extradition between the United States and Brazil, Jan. 13, 1961,15 U.S.T. 2093,
T.I.A.S. 5691, 532 U.N.T.S. 177, see Compl. ¶¶ 22, 26.
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Article XII of the Amity Treaty states:
Both the contracting parties promise and engage formally to
give their special protection to the persons and property of the
citizens and subjects of each other, of all occupations, who
may be in their territories, subject to the jurisdiction of the
one or the other, transient or dwelling therein, leaving open
and free to them the tribunals of justice for their judicial
intercourse, on the same terms which are usual and customary
with the natives or citizens and subjects of the country in
which they may be; for which they may employ, in defence of
their rights, such advocates, solicitors, notaries, agents and
factors, as they may judge proper in all their trials at law.
(Emphases added.) Article XI of the Extradition Treaty states:
The determination that extradition based upon the request
therefor should or should not be granted shall be made in
accordance with the domestic law of the requested State, and
the person whose extradition is desired shall have the right to
use such remedies and recourses as are authorized by such
law.
Neither provision mentions immunity, and “treaties do not generally create rights that
are privately enforceable in the federal courts.” United States v. Li, 206 F.3d 56, 60–61
(1st Cir. 2000) (citing Head Money Cases, 112 U.S. 580, 598 (1884) (other citations
omitted)). In Argentine Republic, the Supreme Court examined similar reciprocity
language in an amity treaty between the United States and Liberia providing that
nationals of each country “shall enjoy freedom of access to the courts of justice of the
other on conforming to the local laws.” 488 U.S. at 443. The Court explained that
because the FSIA “is clearly one of the ‘local laws’ to which respondents must
‘conform’ before bringing suit in United States courts,” no exception under the Act
applied. Id. Plaintiff has asserted nothing to compel a different result here.
Plaintiff also suggests that immunity is waived under the FSIA’s commercial
activity exception and its noncommercial tort exception. Neither exception applies
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here, however.
The FSIA waives immunity for claims based on
commercial activity carried on in the United States by the
foreign state; or upon an act performed in the United States in
connection with a commercial activity of the foreign state
elsewhere; or upon an act outside the territory of the United
States in connection with a commercial activity of the foreign
state elsewhere and that act causes a direct effect in the United
States;
28 U.S.C. § 1605(a)(2) (“commercial activity exception”), and claims
not otherwise encompassed in paragraph (2) above, in which
money damages against a foreign state for personal injury or
death, or damage to or loss of property, occurring in the
United States and caused by the tortious act or omission of
that foreign state 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 apply to—
(A) any claim based upon the exercise or performance
or the failure to exercise or perform a discretionary function
regardless of whether the discretion be abused, or
(B) any claim arising out of malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights[.]
28 U.S.C. § 1605(a)(5) (“tortious conduct exception”) (emphases added)).
A. Commercial Activity
“A state is immune from the jurisdiction of foreign courts as to its sovereign or
public acts (jure imperii ), but not as to those that are private or commercial in
character (jure gestionis). Saudi Arabia v. Nelson, 507 U.S. 349, 359-60 (1993).
Commercial activity occurs when a foreign state “acts ‘in the manner of a private player
within’ the market.” Id. at 360 (citation omitted). Extradition, which is the
overarching issue in this case, is a quintessential “sovereign act,” United States v.
Trabelsi, 845 F. 3d 1181, 1187 (D.C. Cir. 2017) (internal quotation marks and citation
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omitted), and the Supreme Court has explicitly held that allegations of “personal injury
resulting from unlawful detention and torture by [a foreign government] is not ‘based
upon a commercial activity’ within the meaning of the Act,” Nelson, 507 U.S. at 351.
B. Noncommercial Torts
Plaintiff’s Complaint fares no better under the tortious conduct exception for the
simple reason that the behavior leading to Plaintiff’s injuries was allegedly undertaken
in Brazil by Brazilian authorities, and “the law is clear that the entire tort—including
not only the injury but also the act precipitating that injury—must occur in the United
States.” Jerez v. Republic of Cuba, 775 F.3d 419, 424 (D.C. Cir. 2014); see Argentine
Republic, 488 U.S. at 441 (“the exception in §1605(a)(5) covers only torts occurring
within the territorial jurisdiction of the United States”). Furthermore, as set out above
in subparagraph (B), Plaintiff’s claims of fraud, misrepresentation, breach of contract,
breach of fiduciary duty, false arrest, and false imprisonment are explicitly excluded
from the tortious conduct exception.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss for want of
jurisdiction will be GRANTED, and Plaintiff’s pending motion for an appointment of
counsel will be denied as moot. A corresponding order will issue separately.
Date: May 6, 2021
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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