Comparelli et al v. Republica Bolivariana De Venezuela et al
Filing
257
ORDER GRANTING DEFENDANT'S MOTION TO QUASH PLAINTIFFS' SUBPOENA OF ELADIO RAMON APONTE APONTE. Signed by Magistrate Judge Chris M. McAliley on 8/13/2021. See attached document for full details. (rr00)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 14-24414-CIV-WILLIAMS/MCALILEY
CARMINA COMPARELLI, et al.,
Plaintiffs,
vs.
BOLIVARIAN REPUBLIC OF
VENEZUELA, et al.,
Defendants.
_________________________________/
ORDER GRANTING DEFENDANT’S MOTION TO QUASH
PLAINTIFFS’ SUBPOENA OF ELADIO RAMON APONTE APONTE
Defendant the Bolivarian Republic of Venezuela (the “Republic”) filed a Motion to
Quash Plaintiffs’ Subpoena of Eladio Ramón Aponte Aponte (the “Motion”). (ECF
No. 229). Plaintiffs filed a response, and Defendant a reply, memoranda. (ECF Nos. 241,
252). On August 10, 2021, the Court held a hearing on the Motion. For the following
reasons, the Court grants the Motion.
I.
Background
Plaintiffs, who lived in Venezuela and owned and operated businesses there, sue the
Republic and two of its alleged agencies, for damages that arise from Defendants’ alleged
expropriation of Plaintiffs’ businesses and property, without compensation, in violation of
international law, and the laws of Venezuela and this country. (Am. Compl., ECF No. 85).
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The central issue before this Court is whether it has jurisdiction over this action. The
Foreign Sovereign Immunities Act (“FSIA”) provides that foreign states, and their agencies
or instrumentalities, are immune from the jurisdiction of United States courts, unless one
of FSIA’s exceptions applies. 28 U.S.C. §§ 1604, 1605. Plaintiffs have the burden to prove
the applicability of a FSIA exception and thus subject matter jurisdiction. Comparelli v.
Republica Bolivariana de Venezuela, 891 F.3d 1311, 1319 (11th Cir. 2018). Plaintiffs
argue that FSIA’s expropriation exception applies here and therefore this Court has
jurisdiction over this suit. Defendants dispute jurisdiction and have filed motions to dismiss
this action on this basis. The parties are currently engaging in jurisdictional discovery.
Plaintiffs issued a subpoena to a former Justice of the Venezuelan Supreme Court,
Eladio Ramón Aponte Aponte (“Aponte”), to testify at a deposition. In its Motion, the
Republic asserts that the common law doctrine of foreign sovereign immunity protects
Aponte from giving that testimony, and it thus asks this Court to quash the subpoena. As a
first step in resolving the Motion, the Court turns to the different scope of FSIA’s statutory
immunity and the common law doctrine of foreign sovereign immunity.
II.
Statutory vs. common law immunity
In Samantar v. Yousuf, 560 U.S. 305 (2010), the Supreme Court held that FSIA
governs immunity granted to foreign states from suits in United States courts, while the
common law doctrine of foreign sovereign immunity – which was developed long before
FSIA was enacted – governs immunity from suit accorded to officials of foreign states. It
is thus clear that the question that this Court will soon decide – whether Plaintiffs can
establish the expropriation exception to FSIA such that its suit may proceed against
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Defendants – is governed by FSIA, and the question raised by the Motion to Quash –
whether Aponte may be deposed – is governed by the common law doctrine of foreign
sovereign immunity.
The common law sovereign immunity is “a matter of grace and comity” toward
foreign nations. Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134, 140 (2014)
(citation omitted). It reflects concern that U.S. practices can influence how foreign courts
handle claims against this country and its citizens. Giraldo v. Drummond Co. Inc., 808
F. Supp. 2d 247, 251 (D.D.C. 2011) (“[P]rinciples of comity dictate that we accord the
same respect to foreign officials as we do to our own.”) (quotation marks and citation
omitted), aff’d 493 F. App’x 106 (D.C. Cir. 2012), cert. denied, 568 U.S. 1250 (2013).
The common law doctrine requires application of a two-part test. In the first step,
the foreign sovereign state (here, the Republic) may request a “suggestion of immunity”
from the State Department. Samantar, 560 U.S. at 311 (citation omitted). If the State
Department issues a suggestion of immunity, then this Court must “surrender[] its
jurisdiction.” Id. (citations omitted). In furtherance of that first step, this Court issued an
Order that invited the State Department to provide this Court with any opinion or
information it might wish to share regarding the application of foreign sovereign immunity
to Aponte. (ECF No. 236). The United States responded with a Notice that it “declines to
file a Statement of Interest in this matter at this time.” (ECF No. 254).
This leads the Court to the second step of the analysis, which is to “decide for itself
whether all the requisites for [common law] immunity exist[s].” Samantar, 560 U.S. at 311
(citations omitted). This requires the Court to ask, “whether the ground of immunity is one
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which it is the established policy of the [State Department] to recognize.” Id. at 312
(quoting Republic of Mexico v. Hoffman, 324 U.S. 30, 36 (1945)). The Court therefore
looks to some of the fundamental principles of the common law immunity that courts have
confirmed the State Department recognizes.
One such principle is that “the ‘immunity protecting foreign officials for their
official acts ultimately belongs to the sovereign rather than the official.’” Wultz v. Bank of
China Ltd., 32 F. Supp. 3d 486, 494 (S.D.N.Y. 2014) (quoting the Statement of Interest the
United States filed with the District Court in Yousef v. Samantar, No. 04 Civ. 1360 (E.D.
Va. Feb. 14, 2011)). It is also true that the sovereign’s right to claim immunity does not
expire when the individual leaves public office. Giraldo, 808 F. Supp. 2d at 249 (common
law sovereign immunity protected former President of Colombia from deposition regarding
acts taken in his official capacity); Wultz, 32 F. Supp. 3d at 496 (“foreign official immunity
does not depend on tenure in office and extends to former officials”) (quotation marks and
citation omitted). Further, common law immunity not only protects former foreign officers
from being named as a defendant, but it also immunizes them from being called as a witness
in an action in United States courts. See Wultz, 32 F. Supp. 3d at 496 (“[O]fficial immunity
operates not only as [a] shield from accusations or claims of wrongdoing. It also offers
broad protection from a domestic court’s jurisdiction.”) (citation omitted); see also
Giraldo, 808 F. Supp. 2d at 250-51.
Importantly, the scope of common law immunity is limited to information about
acts the foreign official took in his official capacity, even if those acts were unlawful.
Giraldo, 808 F. Supp. 2d at 249; see also Lewis v. Mutond, 918 F.3d 142, 145 (D.C. Cir.
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2019) (common law sovereign immunity for officials or agents of foreign states is conductbased; it is limited to acts the officials performed in their official capacity) (citations
omitted).
III.
Aponte is immune from testifying
In their memorandum in response to the Motion to Quash, Plaintiffs make one
argument: that the Republic, under FSIA, is not immune from the jurisdiction of this Court,
and therefore it is in no position, as a sovereign, to claim immunity on behalf of its former
official, Aponte. (ECF No. 241). This is plainly wrong. The Court has not decided whether
the Republic is, or is not, immune from suit under FSIA. In fact, Defendants’ Motions to
Dismiss, which claim they are immune from suit under FSIA, are pending before the Court
and the parties are engaging in jurisdictional discovery in preparation for the Court’s
resolution of that very question. Plaintiffs hope this Court will find that they prove that one
of FSIA’s exceptions to immunity apply to the Republic. But the Court has not made that
decision.1
Turning to the second step of the Samantar analysis, it leads to the conclusion that
the doctrine of common law immunity applies to Aponte here. Plaintiffs intend to question
Aponte about official acts he took on behalf of the Republic, something they confirm in
1
Plaintiffs make one other argument in their response: that in none of the cases the Republic cited
regarding the common law doctrine, was the sovereign – that asserted immunity on behalf of its
former official – also named as a defendant in that suit. (ECF No. 241 at 3). This distinction is
inconsequential for the analysis mandated by the Supreme Court in Samantar, 560 U.S. 305.
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their response memorandum.2 Specifically, Plaintiffs want to ask Aponte about an order he
joined in, while a Justice of the Venezuelan Court, that
affirm[ed] a lower court’s order (i) issuing a warrant for the arrest of
Plaintiffs and (ii) seeking the extradition of two of the Plaintiffs relatives
from Costa Rica. Justice Aponte played a key role in the very same bogus
criminal proceeding that was filed against Plaintiffs for the sole purpose of
expropriating their property in violation of Venezuelan and international law.
(ECF No. 241 at 4); see also (Am. Compl., ECF No. 85 at 16 ¶ 35). As noted above,
common law immunity is limited to information about acts the foreign official took in his
official capacity, and that is the nature of Plaintiffs’ inquiry here. Giraldo, 808 F. Supp. 2d
at 249; Lewis, 918 F.3d at 145.
Moreover, as already noted, the doctrine extends to Aponte, as a former official of
a foreign sovereign. Giraldo, 808 F. Supp. 2d at 249; Wultz, 32 F. Supp. 3d at 496. Plaintiffs
nonetheless argue that the Court should allow Aponte to testify, as he now lives in Florida,
no longer works for the Venezuelan government, and is willing to testify at deposition.
Again, the law is clear that the sovereign holds the claim to immunity of its former official,
and the Republic has asserted that claim here. It has the right to do so, regardless of
Aponte’s willingness to testify. Wultz, 32 F. Supp. 3d at 494 (citations omitted).
At oral argument Plaintiffs made additional arguments, all of which I considered
and rejected.3 Principal, among them, is an equitable argument, that Plaintiffs have been
2
Plaintiffs also conceded this at the hearing.
3
At the hearing I cautioned Plaintiffs that the Court expects the parties to raise their arguments in
their legal memoranda and should not expect the Court to consider arguments first raised at oral
argument. I nonetheless listened to those arguments and I incorporate here, by reference, the
reasons I stated at that hearing for rejecting Plaintiffs’ arguments.
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hampered in their efforts to gather evidence in support of their claim that FSIA’s
expropriation exception applies to this case, because of the competing presidencies and
governments in Venezuela, and that testimony from Aponte may thus take on greater
importance in Plaintiffs’ efforts to establish subject matter jurisdiction. The Court is not
unsympathetic to the difficulties Plaintiffs have experienced in the jurisdictional discovery
process. But Plaintiffs have provided this Court with no authority for the notion that the
State Department recognizes such an equitable exception to the doctrine of common law
immunity.
IV.
Conclusion
For these reasons, the Court GRANTS Defendant’s Motion to Quash Plaintiffs’
Subpoena of Eladio Ramón Aponte Aponte. (ECF No. 229).
DONE AND ORDERED in Miami, Florida this 13th day of August 2021.
_______________________________
CHRIS MCALILEY
UNITED STATES MAGISTRATE JUDGE
cc:
The Honorable Kathleen M. Williams
Counsel of record
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