Merlini v. Canada
Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERIn accordance with the foregoing, defendants motion to dismiss for lack of subject matter jurisdiction (Docket No. 12) is ALLOWED.So ordered.(Caruso, Stephanie)
United States District Court
District of Massachusetts
Cynthia L. Merlini
Civil Action No.
MEMORANDUM & ORDER
Cynthia Merlini (“Merlini” or “plaintiff”) filed this
action against the sovereign nation of Canada (“defendant”) in
She claims that during her employment by the
Consulate General of Canada in Boston, an arm of the Government
of Canada (“the Consulate”), she suffered an injury that left
Pending before this Court is defendant’s motion to dismiss
for lack of jurisdiction.
For the reasons that follow,
defendant’s motion to dismiss will be allowed.
Merlini states that she is a United States citizen living
in Massachusetts and that she is not a Canadian citizen or
She worked for defendant at the Consulate in a
clerical position from 2003 to 2009.
Her duties were
secretarial and included answering the telephone, maintaining
files and typing letters.
Merlini claims that on January 22, 2009, while preparing
coffee and tea for a meeting at the Consulate’s office, she
tripped over an unsecured speakerphone cord and fell, striking a
She alleges that as a result of that accident, she
suffered a serious bodily injury that rendered her unable to
In this action, Merlini seeks damages for physical and
mental pain and suffering, medical expenses, past and future
lost wages, physical dysfunction and loss of earning capacity.
Merlini maintains she received benefits from the Government
of Canada pursuant to Canadian law from March, 2009, until
October, 2009, at which point the Government of Canada stopped
paying her benefits.
She did not appeal the discontinuation of
benefits in Canada.
Merlini brought a claim against defendant in the
Massachusetts Department of Industrial Accidents (“DIA”).
alleged that defendant neither purchased workers’ compensation
insurance nor obtained a license as a self-insurer, in violation
of Massachusetts workers compensation law. M.G.L. c. 152.
administrative law judge (“ALJ”) at DIA found Merlini was
entitled to permanent and total incapacity benefits and other
benefits from the Massachusetts Workers’ Compensation Trust
The DIA reviewing board reversed the ALJ’s decision,
finding that 1) Canada was not within the Commonwealth’s
personal jurisdiction, 2) Canada was not improperly uninsured
because it had immunity under the Foreign Sovereign Immunities
Act (“FSIA”) and 3) Merlini had no claim because she was
entitled to benefits under Canadian law.
Merlini appealed the
reviewing board’s decision to the Massachusetts Appeals Court.
In re Merlini, 154 N.E.3d 606 (Mass. App. Ct. 2016) (unpublished
The Massachusetts Appeals Court held that the
DIA reviewing board correctly reversed the ALJ, concluding the
reviewing board properly found Canadian law applied and that
Merlini’s remedy, if any, was against the Canadian government.
Id. at *2.
The Court did not address the issue of whether the
Canadian government is subject to jurisdiction in the
Commonwealth, id., and Merlini did not petition the
Massachusetts Supreme Judicial Court for further appellate
On March 23, 2017, Merlini filed a complaint in this Court,
alleging defendant violated M.G.L. c. 152, § 66.
defendant is strictly liable for her injuries because defendant
was unlawfully uninsured under the Massachusetts workers’
Defendant filed a motion to dismiss in June, 2017,
contending that 1) this Court lacks subject-matter jurisdiction
to hear Merlini’s claim, 2) the DIA Reviewing Board’s decision
precludes Merlini from bringing this case and 3) Merlini has
failed to state a claim upon which relief can be granted.
Because this Court agrees with defendant that it lacks subjectmatter jurisdiction to hear plaintiff’s case, it will address
only that issue.
Defendant’s Motions to Dismiss for Lack of Subject-Matter
The Foreign Sovereign Immunities Act
Pursuant to Fed. R. Civ. P. 12(h)(3), if this Court
“determines at any time that it lacks subject-matter
jurisdiction the court must dismiss the action.”
may present a defense of lack of subject-matter jurisdiction by
motion. Fed. R. Civ. P. 12(b).
Pursuant to FSIA, 28 U.S.C. § 1602 et seq.,
[s]ubject to existing international agreements to which
the United States is a party at the time of enactment of
this Act a foreign state shall be immune from the
jurisdiction of the courts of the United States and of
28 U.S.C. § 1604.
In other words, a foreign sovereign
defendant is “presumptively immune” from liability in the
federal courts of the United States. Saudi Arabia v.
Nelson, 507 U.S. 349, 355 (1993).
FSIA provides limited exceptions to a foreign
sovereign’s immunity, however, and these exceptions
constitute “the sole basis for obtaining jurisdiction over
a foreign state in the courts of this country.” Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443
Relevant here are the commercial activity and
tortious activity exceptions.
Under the commercial activity exception, a foreign
state is not immune from jurisdiction of the United States
courts when a foreign state’s action is:
[1)] based upon a commercial activity carried on in the
United States; [2)] performed in the United States in
connection with a commercial activity of the foreign
state elsewhere [or 3)] outside the territory of the
United States [and] in connection with a commercial
activity . . . [that] causes a direct effect in the
28 U.S.C. § 1605(a)(2).
Under the tortious activity exception, a foreign state
is not immune from jurisdiction of the United States courts
when “money damages are sought against a foreign state for
personal injury or death . . . occurring in the United
States” that are caused by a tortious act or omission of
that foreign state or its employee while acting withinin
the scope of his/her employment. Id. § 1605(a)(5).
tortious activity exception, however, does not apply to a
based upon the exercise or performance or the failure to
exercise or perform a discretionary function regardless
of whether the discretion be abused.
Id. § 1605(a)(5)(A).
The Commercial Activity Exception
Plaintiff avers that her claim falls within FSIA’s
commercial activity exception to foreign sovereign immunity.
The parties do not dispute that defendant qualifies as a
“foreign state” for purposes of the Act under 28 U.S.C.
Plaintiff relies on the first clause of the
commercial activities exception, claiming that defendant is
liable for its commercial activities in Massachusetts.
An action is “based upon” commercial activity when
that conduct forms the “basis” or “foundation” for a claim,
and that “element of the claim, if proven, would entitle
a plaintiff to relief under his theory of the case.”
Nelson, 507 U.S. at 357.
In assessing whether a certain
activity is commercial, “courts must look to the nature of
the activity rather than its purpose.” Fagot Rodriguez v.
Republic of Costa Rica, 297 F.3d 1, 5-6 (2002) (internal
The court must address whether the foreign state’s
actions, regardless of the motive behind them, “are the
type of actions by which a private party engages in trade
and traffic or commerce.” Republic of Arg. v. Weltover,
Inc., 504 U.S. 607, 614 (1992) (internal citations omitted)
(emphasis in original).
A sovereign state engages in
commercial activity with respect to FSIA when “it exercises
only those powers that can also be exercised by private
citizens” rather than “powers peculiar to sovereigns”.
Nelson, 507 U.S. at 360 (internal quotation marks and
Plaintiff asserts that defendant violated M.G.L. c.
152, § 65(2)(e) by choosing not to purchase workers’
compensation insurance and defendant is therefore strictly
liable for her injuries. Id.
Plaintiff contends that her
claim is “based upon” defendant’s decision to provide its
own system of benefits to its employees. Nelson, 507 U.S.
The determinative question is, therefore, whether
defendant’s decision not to purchase workers’ compensation
insurance is commercial in nature. Weltover, Inc., 504 U.S.
Defendant’s decision to provide its own benefits does
not fall under the commercial activities exception because
the decision to create and organize a workers’ compensation
program is sovereign in nature. See Nelson, 507 U.S. at 361
(concluding abuse of power by police is sovereign in nature
and does not fall within exception); cf. Weltover Inc., 504
U.S. at 614 (holding refinancing bonds is not sovereign in
nature and does fall within exception).
defendant’s decision to offer and structure its own form of
benefits is not comparable to exercising a power that could
also be leveraged by private citizens.
U.S. at 614.
Weltover Inc., 504
Thus, the actions on which the claim is
founded are not commercial in nature and the commercial
activities exception to FSIA does not apply here.
§ 1605(a)(2); Fagot Rodriguez, 297 F.3d at 5-6.
The Tortious Activity Exception
Plaintiff also avers that her claim falls within FSIA’s
tortious activity exception to foreign sovereign immunity. 28
U.S.C. § 1605(a)(5).
She contends that defendant’s failure to
acquire insurance pursuant to M.G.L. c. 152, § 66 comprises the
requisite tortious conduct.
The tortious activity exception does not apply, however, to
claims that involve the exercise of discretion. See Fagot
Rodriguez, 297 F.3d at 8.
A challenged government action is
protected as discretionary if the conduct in question is a
matter of choice or involves an element of judgment and if that
judgment is of the kind that the discretionary function
exception was designed to shield. Fagot Rodriguez, 297 F.3d at
The provision serves to prevent “judicial second guessing”
of public policy decisions. Id.
Defendant does not dispute that its decision to maintain
its own system of workers’ compensation insurance involves an
element of choice. Id.
The issue is whether defendant’s choice
is a legislative or administrative decision grounded in social,
economic or political policy. Id.
In other words, the essential
question here is whether the challenged action is based on “some
plausible policy justification”. Id. at 11.
The decision to provide benefits to workers injured in
their employment is inherently grounded in a social, economic
and political policy and is based on a plausible policy
justification. Id. at 9, 11.
Because plaintiff’s claim is based
on defendant’s decision to provide its own system of benefits
and to remain uninsured in Massachusetts, the claim applies to
discretionary conduct. 23 U.S.C. § 1605(a)(5)(i).
the tortious activity exception to FSIA does not apply to
plaintiff’s claim. Id.
Because plaintiff has failed to demonstrate that one of the
exceptions to FSIA applies here, defendant is presumptively
immune from liability. 28 U.S.C. § 1604.
Court lacks subject matter jurisdiction to hear plaintiff’s case
and declines to address the other arguments raised by defendant.
In accordance with the foregoing, defendant’s motion to
dismiss for lack of subject matter jurisdiction (Docket No. 12)
/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated: December 7, 2017
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