HASTON v. REPUBLIC OF CUBA

Filing 18

ORDER denying Plaintiff's 16 Motion for Default Judgment. For the reasons set forth above, the Court must conclude that Haston is unable to "establish [her] claim or right to relief by evidence satisfactory to the court" as requir ed by 28 U.S.C. § 1608(e), and therefore she is not entitled to default judgment against the Republic of Cuba. Rather, this case must be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction, because the only asserted basis for this Court's jurisdiction over the Republic of Cuba--the terrorism exception to the FSIA set forth in 28 U.S.C. § 1605A-- cannot be satisfied given the facts of this case. Signed by Judge William T. Lawrence on 11/9/2017. (JDC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ROBIN HASTON,
Plaintiff,
vs.
REPUBLIC OF CUBA,
Defendant.

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) Cause No. 1:16-cv-615-WTL-DML
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ENTRY ON MOTION FOR DEFAULT JUDGMENT
This cause is before the Court on the Plaintiff’s motion for default judgment (Dkt. No.
16). For the reasons set forth below, the motion must be, and is, DENIED, and this case must be
DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
I. FACTUAL BACKGROUND
The facts as alleged by Plaintiff Robin Haston, which are taken as true for the purposes of
this ruling, are as follow.
On March 31, 2015, Haston was vacationing at the Holiday Inn Sun Spree resort in
Montego Bay, Jamaica with her boyfriend (now husband) Vic Hutchings. The Cuban National
Soccer Team, which was in Jamaica for a soccer game against a Jamaican team, was staying at
the resort at the same time. While Haston was using a public women’s restroom at the resort,
four members of the Cuban National Soccer Team—Yoandir Puga Estevez, Tomas Cruz
Rodriguez, Yordan Santa Cruz Vora, and Jorge Luis Clavelo—entered the restroom. Estevez,
Rodriguez, and Vora took turns raping Haston, who was in a locked stall. When Hutchings grew
concerned that Haston had not returned from the restroom and went to check on her, he heard her

screaming. He entered the restroom and physically fought off the attackers, who were captured
by a video surveillance camera fleeing down a stairwell.
Haston immediately reported the attack to the hotel, and local authorities, the United
States Embassy, and medical personnel were summoned. Haston was shown a photo array and
identified her attackers. Possible DNA evidence was obtained from Haston and Hutchings and
from the crime scene. Estevez, Rodriguez, and Vora were arrested. Each of the men refused to
provide DNA samples. Agents of the Cuban government intervened and compromised the
investigation. The men were released from custody and allowed to return to Cuba on April 9,
2015. Cuba has refused to cooperate in the criminal investigation.
Haston filed this action against the Republic of Cuba, seeking to hold Cuba liable for the
actions of her attackers. She obtained a clerk’s entry of default against Cuba, which has been
served but has failed to appear in this case. She now seeks entry of default judgment against
Cuba.1
II. APPLICABLE STATUTORY REQUIREMENTS
Pursuant to the Foreign Sovereign Immunities Act (“FSIA”), foreign states are immune
from the jurisdiction of U.S. courts except as provided in certain provisions of the FSIA. Haston
alleges that this case falls under the FSIA’s terrorism exception, which is established in 28
U.S.C. § 1605A. The terrorist exception permits a U.S. court to hear a claim for money damages
against a foreign state when certain circumstances are present.2

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Unlike a typical case, liability was not established by the entry of default; rather, the
FSIA requires a plaintiff to “establish[] [her] claim or right to relief by evidence satisfactory to
the court” before she is entitled to default judgment. 28 U.S.C. § 1608(e).
2
The issue of the applicability of the terrorist exception is not waivable and must be
addressed by the Court, as it determines whether the Court has subject matter jurisdiction over
this case. Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993) (“[A] foreign state is presumptively
immune from the jurisdiction of United States courts; unless a specified exception applies, a
2

First, the claim must seek damages for “personal injury or death that was caused by an
act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material
support or resources for such an act.” 28 U.S.C. § 1605A(a)(1). Here, Haston alleges, and the
Court will assume for purposes of this ruling, that the attack she endured was an “act of torture”
as that term is used in section 1605A,3 thus satisfying this requirement.
Second, the claim must be brought against a foreign state that was “designated as a state
sponsor of terrorism at the time the [act of torture] occurred, or was so designated as a result of
such act, and . . . either remains so designated when the claim is filed under this section or was so
designated within the 6-month period before the claim is filed under this section.” 28 U.S.C. §
1605A(a)(2)(A)(i)(I). This provision is ambiguous. Cuba was designated a state sponsor of
terror at the time of the attack, but it is unclear whether that fact alone is sufficient—which is
what Haston assumes—or whether one of the conditions after “and” must also be satisfied. If the
latter, Haston’s claim is untimely, because Cuba was not designated at the time Haston filed her
claim or at any time during the six months prior to that date; its designation was removed
effective May 29, 2015, and Haston filed this case on March 18, 2016, more than six months
later. For purposes of this ruling, the Court will assume that Haston’s reading of the statute is

federal court lacks subject-matter jurisdiction over a claim against a foreign state.”). Therefore,
“even if the foreign state does not enter an appearance to assert an immunity defense, a District
Court still must determine that immunity is unavailable under [the FSIA].” Verlinden B.V. v.
Cent. Bank of Nigeria, 461 U.S. 480, 493 n.20 (1983).
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28 U.S.C. § 1605A(h)(7) provides that, for purposes of the Act, the term “torture” has
the meaning given to that term in section 3 of the Torture Victim Protection Act of 1991. That
statute, which is found in the note following 28 U.S.C. § 1350, defines torture as including, as
relevant to this case, “any act, directed against an individual in the offender’s custody or physical
control, by which severe pain or suffering . . . is intentionally inflicted on that individual . . . for
any reason based on discrimination of any kind.” Haston argues that “the gang rape and assault
was discriminatory in that the perpetrators selected Ms. Haston to attack based upon her female
gender and nationality, as it was apparent from looking at and listening to Ms. Haston that she
was an English-speaking American.”
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correct. But see 1 Litigation of International Disputes in U.S. Courts § 3:35 (assuming the
opposite).
Finally, to fall under the terrorism exception, the claim must arise out of an action that
was “engaged in by an official, employee, or agent of [a] foreign state while acting within the
scope of his or her office, employment, or agency.” 28 U.S.C. § 1605A(a)(1). The Court has
given Haston two opportunities to brief the issue of whether the facts in this case as alleged by
Haston support a finding that her attackers were acting within the scope of their employment
when the attack occurred. See Dkt. Nos. 8 and 15 (Court’s entries); Dkt. Nos. 11 and 17
(Haston’s briefs). Having considered Haston’s briefs, the Court, as discussed below, determines
that they do not.
III. SCOPE OF EMPLOYMENT
Under Indiana law,4 an employee is acting within the scope of his or her employment
when the employee’s conduct is “of the same general nature as that authorized, or incidental to
the conduct authorized.” Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003) (quoting
Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000)). The Indiana Supreme
Court has explained that “[a]n act is incidental to authorized conduct when it ‘is subordinate to or
pertinent to an act which the servant is employed to perform,’ or when it is done ‘to an
appreciable extent, to further his employer’s business.’” Bushong, 790 N.E.2d at 473 (citations
omitted); see also Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind.
1997) (“The critical inquiry is . . . whether the employee is in the service of the employer.”).

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Given that Haston argues that Indiana law applies to the scope of employment issue in
this case, the Court sees no reason not to apply Indiana law. Cf. McCoy v. Iberdrola
Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 2014) (“When no party raises the choice of law
issue, the federal court may simply apply the forum state’s substantive law.”).
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By contrast, the Indiana Supreme Court has observed that “[a]n employee’s act is not
within the scope of employment when it occurs within an independent course of conduct not
intended by the employee to serve any purpose of the employer.” Barnett v. Clark, 889 N.E.2d
281, 284 (Ind. 2008) (emphasis omitted) (quoting Restatement (Third) of Agency § 7.07(2) (Am.
Law Inst. 2006)). Stated differently, “[a]cts done ‘on the employee’s own initiative, with no
intention to perform it as part of or incident to the service for which he is employed’ are not ‘in
the service of the employer’ and are thus outside the scope of employment.” Warner Trucking,
686 N.E.2d at 105 (quoting Stropes by Taylor v. Heritage House Childrens Ctr. of Shelbyville,
Inc., 547 N.E.2d 244, 247 (Ind. 1989)). Furthermore, an employee’s acts may fall outside the
scope of his or her employment, “even though the particular injury could not have occurred
without the facilities afforded by the relation of the servant to [the] master.” Hansen v. Bd. of
Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 612 (7th Cir. 2008) (quoting Gomez v. Adams,
462 N.E.2d 212, 223 (Ind. Ct. App. 1984)).
Nevertheless, under Indiana law, an employee’s tortious or criminal acts may still be
considered within the scope of employment. See, e.g., Stropes, 547 N.E.2d at 250 (nurse aide’s
sexual assault of disabled patient); Southport Little League v. Vaughan, 734 N.E.2d 261, 273
(Ind. Ct. App. 2000) (equipment manager’s sexual molestation of youth baseball participants);
Gomez, 462 N.E.2d at 223-27 (private security officer’s conversion of personal property);
Tippecanoe Beverages v. S.A. El Aguila Brewing Co., 833 F.2d 633 (7th Cir. 1987) (agent’s
conversion of payment from wholesaler). The Indiana Supreme Court has found such wrongful
acts to fall within the scope of employment despite the fact that the acts were “predominantly
motivated by an intention to benefit the employee himself,” Barnett, 880 N.E.2d at 284 (quoting
Stropes, 547 N.E.2d at 247), because the acts “originated in activities so closely associated with

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the employment relationship as to fall within its scope.” Bushong, 790 N.E.2d at 473 (quoting
Stropes, 547 N.E.2d at 247). Thus, Indiana courts have found that some sexual offenses
committed by employees may fall within the scope of employment. See Stropes, 547 N.E.2d at
249-50; Southport Little League, 734 N.E.2d at 273. The Indiana Supreme Court has stated:
A blanket rule holding all sexual attacks outside the scope of employment as a
matter of law because they satisfy the perpetrators’ personal desires would draw an
unprincipled distinction between such assaults and other types of crimes which
employees may commit in response to other personal motivations, such as anger or
financial pressures.
Stropes, 547 N.E.2d at 249. Consequently, the issue of scope of employment “does not turn on
the type of act committed[,]” but rather on “how the employment relates to the context in which
the commission of the wrongful act arose.” Id. (“The fact that this was a sexual assault is not per
se determinative of the scope of employment question.”).
However, as noted by the Seventh Circuit, Indiana courts have determined that the
question of whether an employee’s sexual misconduct comes within the scope of employment is
“a genuine issue of fact only in cases where the employee’s job duties involved extensive
physical contact with the alleged victim, such as undressing, bathing, measuring, or fitting.”
Hansen, 551 F.3d at 612. For example, in Stropes, the Indiana Supreme Court reversed
summary judgment for a children’s center and held that a jury could determine that a nurse’s aide
employed by the center was acting within the scope of his employment when he sexually
assaulted a mentally disabled fourteen-year-old resident of the center. Id. at 612-13 (citing
Stropes, 547 N.E.2d at 250). The aide’s responsibilities involved physical contact with residents,
including the victim, when he was engaged in feeding, bathing, and changing bedding and
clothes. Stropes, 547 N.E.2d at 249. These acts were fully authorized by the center and
“unquestionably within the scope of his employment.” Id. While changing the victim’s bed

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sheets, the aide sexually assaulted him and then finished changing the bed and the victim’s
clothes. Id. The court reasoned that because the aide “acted to an appreciable extent to further
his [employer’s] business” and his acts were, “at least for a time, authorized by his employer . . .
and motivated to an extent by [his employer’s] interests,” the facts could be construed to show
that the aide’s criminal acts occurred within his scope of employment. Id. at 250 (citations
omitted). The Stropes court concluded that the plaintiff had demonstrated that “[t]he nature of
the [aide’s] acts were, at the very least, sufficiently associated with [his] authorized duties” to
create a material issue of fact and thus avoid summary judgment. Id. Likewise, in Southport
Little League, the Indiana Court of Appeals affirmed a jury verdict in favor of the plaintiff
because the facts supported the inference that an equipment manager’s sexual molestation of
youth baseball participants was sufficiently associated with his responsibilities, authorized by the
league, so as to fall within his scope of employment. 734 N.E.2d 261 at 269-70. The equipment
manager’s authorized duties involved some physical contact with youth participants when
measuring and fitting baseball uniforms. Id.
In contrast, when an employee’s authorized responsibilities do not involve physical
contact with the victim, Indiana courts have refused to find an employee’s sexual offenses within
his or her scope of employment. Hansen, 551 F.3d at 613; see also Barnett, 889 N.E.2d at 286;
Doe v. Lafayette Sch. Corp., 846 N.E.2d 691, 702 (Ind. Ct. App.), abrogated on other grounds
by State Farm Mut. Auto. Ins. Co. v. Jakupko, 881 N.E.2d 654 (Ind. 2008); Konkle v. Henson,
672 N.E.2d 450 (Ind. Ct. App. 1996). For instance, in Konkle, the Indiana Court of Appeals
affirmed summary judgment and held that a minister’s acts of child molestation did not occur
within the scope of his employment. 672 N.E.2d at 457. The Konkle court reasoned that these
acts were outside the scope because there was no evidence that at the time of the sexual

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misconduct the minister was engaging in authorized acts nor were the acts similar to his duties as
a minister, even though many of the acts occurred in the church’s building. Id.
Analyzing Indiana law, the Seventh Circuit has stated that the critical inquiry in sexual
misconduct cases “is whether the employee’s wrongful acts are sufficiently associated with the
nature of that employee’s duties and authority.” Hansen, 551 F.3d at 614 (quoting Barnett, 889
N.E.2d at 285). Specifically, “a court should examine the nature of the employee’s authorized
duties and the extent to which they involve physical contact or duties similar to those of the
nurse’s aide in Stropes.” Id. In Barnett, the Indiana Supreme Court affirmed summary judgment
for the defendant trustee because the wrongful acts of the trustee’s employee were not
sufficiently associated with his authorized duties to come within the scope of his employment.
889 N.E.2d at 286. The trustee’s employee had sexually assaulted an applicant seeking public
assistance after advising her that she would have to do some bookwork for him to receive
assistance. Id. at 283. The Barnett court elaborated that the employee’s actions did not involve
authorized physical contact by the employer trustee, were not incidental to his authorized duties,
did not further his employer’s business, and were not motivated to any extent by his employer’s
interests. Id. at 286. Similarly, applying Indiana law, the Seventh Circuit in Hansen held that a
band instructor’s sexual misconduct against a student did not fall within the scope of his
employment because it was not sufficiently associated with his duties as a band instructor and his
authorized duties did not involve physical contact with students. 551 F.3d at 614. The Hansen
court affirmed summary judgment for the defendant school district despite the fact that the
instructor’s position provided him with access to students and to the practice rooms in which the
acts of sexual misconduct were committed. Id. at 614-15.

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In the present case, Haston argues that her attackers, as employees of the Republic of
Cuba, were acting within the scope of their employment when they assaulted her. She primarily
relies on the Indiana Supreme Court’s decision in Stropes to support her argument. However,
Stropes clearly is distinguishable. In Stropes, the employee’s authorized responsibilities
involved physical contact with the victim, such as bathing and clothing him. Here, the attacker’s
duties as soccer players did not include any contact with Haston.
Haston concedes that her attackers’ employment duties did not include those enumerated
by the Stropes court. However, she argues that their misconduct fell within the scope of their
employment because the Republic of Cuba directed them to travel to Jamaica, provided material
support for their travel and accommodations, and, generally, exerted control over them.
However, as noted above, under Indiana law, although “‘the particular injury could not have
occurred without the facilities afforded by the relation of the servant to [the] master,’” that is not
sufficient to bring the attacks within the scope of the attackers’ employment. Hansen, 551 F.3d
at 614 (quoting Gomez, 462 N.E.2d at 223); see also Lafayette Sch. Corp., 846 N.E.2d at 702
(declining to find teacher’s sexual molestation of student within scope of employment because it
was not authorized nor incidental to service to school despite teacher’s use of school equipment
and facilities to initiate inappropriate relationship). The fact that the attackers’ presence at the
resort, and therefore their access to Haston, was because of their employment is simply not
sufficient to hold the Republic of Cuba liable for actions that bore no relationship to their job
duties. Accordingly, the facts alleged by Haston cannot support a finding that her attackers were
acting within the scope of their employment as soccer players when they assaulted her.

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IV. CONCLUSION
For the reasons set forth above, the Court must conclude that Haston is unable to
“establish[] [her] claim or right to relief by evidence satisfactory to the court” as required by 28
U.S.C. § 1608(e), and therefore she is not entitled to default judgment against the Republic of
Cuba. Rather, this case must be DISMISSED WITHOUT PREJUDICE for lack of subject
matter jurisdiction, because the only asserted basis for this Court’s jurisdiction over the Republic
of Cuba—the terrorism exception to the FSIA set forth in 28 U.S.C. § 1605A—cannot be
satisfied given the facts of this case.
SO ORDERED: 11/9/17

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

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