Chen v. Ma et al
MEMORANDUM AND ORDER re: 9 MOTION for Entry of Default as to Ying-jeou Ma; Hsi-lung Lee filed by Weiming Chen, 15 MOTION for Default Judgment as to filed by Weiming Chen, 20 MOTION to Vacate 8 Certificate of Clerk, MOTION to Dismiss Compla int filed by Hsi-lung Lee, Ying-jeou Ma. For the foregoing reasons, plaintiff's motions for entry of default judgment (Dkt. Nos. 9 and 15) are denied, and defendants motion to vacate the Clerk of Court's certificate of default and to dismiss the complaint (Dkt. No. 20) is granted. (Signed by Judge Naomi Reice Buchwald on 8/19/2013) Copies Mailed By Chambers. (ft) Modified on 8/20/2013 (ft).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- against -
MEMORANDUM AND ORDER
YING-JEOU MA, President of the Republic
of China, Taiwan (ROC); HSI-LUNG LEE,
Chief of the Bureau of Civil Affairs,
Government of Kinmen County; and JOHN
DOES and MARY ROES,
12 Civ. 5232 (NRB)
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff Weiming Chen (“plaintiff”) filed this breach of
contract action against the current President of the Republic
of China (Taiwan), Ying-jeou Ma (“President Ma”), and the Chief
of the Bureau of Civil Affairs of the Government of Kinmen
County, Hsi-Lung Lee (“Chief Lee” and, together with President
In the motions before the Court, plaintiff
defendants seek to (1) set aside the Clerk’s certificate of
default and (2) dismiss plaintiff’s complaint on the basis of,
Although plaintiff requested oral argument on these motions, we find
that oral argument is unnecessary in light of the purely legal nature of the
dismissing plaintiff’s complaint.
Democracy Statue (Foundation) (the “Foundation”) entered into a
County”), with plaintiff signing on behalf of the Foundation,
¶ 31; Koplovitz Decl. Ex. 2, at 3.3)
Under the terms of the
agreement, plaintiff -- who professes to be a “worldly famous
sculpture artist” (Compl. ¶ 5) -- undertook to design and build
a 32-meter “Statue of Democracy” (id. ¶ 32).
Kinmen County agreed to fund 25 to 30 percent of the project
(Koplovitz Decl. Ex. 2, at 3) and to construct a 32-meter base
building on the shores of Kinmen Island (id.; Compl. ¶¶ 5, 32).
According to plaintiff, the day after the contract was
executed, unnamed employees of the Bureau of Cultural Affairs
(Compl. ¶ 42.)
Plaintiff alleges that, approximately two weeks
This background is derived from the complaint (“Compl.”), filed July
5, 2012, and the Declaration of Deborah B. Koplovitz (“Koplovitz Decl.”),
filed January 25, 2013, and the exhibits annexed thereto.
When citing to specific pages of the exhibits annexed to the Koplovitz
Declaration, we refer to the page numbers provided in the ECF header.
“rescinded and cancelled” the contract.
(Id. ¶ 43.)
received any formal and official correspondence” from Kinmen
Accordingly, plaintiff continued to perform
President Ma and other “Kinmen-Taiwan authorities” but received
Based on the foregoing, plaintiff asserts claims against
(contractual) relations, and civil conspiracy.
(Id. ¶¶ 52-54.)
Although plaintiff predicates this action on acts defendants
purportedly took in their official capacities (see, e.g., id.
¶¶ 30-31, 42-43, 46-47, 51), plaintiff sues defendants in their
personal capacities (see id. at “Prayer for Relief” (seeking to
hold defendants jointly and severally liable for compensatory
plaintiff “seeks damages from the pockets of President Ma and
Chief Lee as individuals”)).
According to plaintiff, Chief Lee
alleged breach under a theory of respondeat superior.
On October 4, 2012, the Clerk of Court mailed copies of
the summons and complaint to defendants by registered mail,
return receipt requested, pursuant Rule 4(f)(2)(c)(ii) of the
Federal Rules of Civil Procedure.
(Dkt. Nos. 2-3.)
day, plaintiff allegedly delivered copies of the summons and
complaint to the Taipei Economic and Cultural Office in New
York (“TECO-New York”).4
(Dkt. No. 4.)
On October 25, 2012,
Institute in Taiwan (“AIT”), requesting that the United States
President Ma and Chief Lee “have foreign official immunity.”
otherwise appear in this action.
certificate of default against defendants (Dkt. No. 8), and
following day, an AIT representative notified TECRO via email
Plaintiff has not filed proof of service on TECO-New York.
Plaintiff filed a second motion for entry of default judgment
December 21, 2012. (Dkt. No. 15.)
that the United States generally does not decide “whether to
intervene in this kind of litigation before other avenues to
seek dismissal of the case have been pursued.”
Decl. Ex. 4.)
On December 19, 2012, defendants filed notices
of appearance in this action.
(Dkt. Nos. 11-12.)
now move to (1) set aside the Clerk’s entry of default for
“good cause” pursuant to Rule 55(c) of the Federal Rules of
12(b)(7) of the Federal Rules of Civil Procedure.
Fed. R. Civ. P. 55(c).
In determining whether “good
cause” exists, “a district court must consider three factors:
(1) whether the default was willful; (2) whether setting the
default aside would prejudice the adversary; and (3) whether a
meritorious defense is presented.”
F.3d 123, 142 (2d Cir. 2010).
Swarna v. Al-Awadi, 622
“Because there is a preference
for resolving disputes on the merits, doubts should be resolved
in favor of the defaulting party.”
Powerserve Int’l, Inc. v.
Lavi, 239 F.3d 508, 514 (2d Cir. 2001) (internal quotation
marks omitted); see also Enron Oil Corp. v. Diakuhara, 10 F.3d
90, 96 (2d Cir. 1993) (stating that defaults are “generally
disfavored” and “reserved for rare occasions”).
Where, as here, a party sues a foreign
official in his or her “personal capacity,” the question of
immunity “is properly governed by the common law,” rather than
by the Foreign Sovereign Immunities Act (the “FSIA”), 28 U.S.C.
§§ 1602-11 (1976).
Samantar v. Yousuf, 560 U.S. 305, 130 S.Ct.
2278, 2292 (2010); see also Hua Chen v. Honghui Shi, No. 09
Civ. 8920 (RJS), 2013 WL 3963735, at *3 (S.D.N.Y. Aug. 1, 2013)
(noting that “Samantar did not foreclose the possibility that”
a foreign official “may be entitled to immunity under common
position with respect to defendants’ purported immunity under
the common law (Koplovitz Decl. Ex. 4), the Court may “decide
for itself” whether such immunity exists.
Samantar, 130 S.Ct.
at 2284 (quoting Ex parte Republic of Peru, 318 U.S. 578, 587
Moreover, we note that the Foundation, and not plaintiff, is the party
in fact to the contract. (Koplovitz Decl. Ex. 2.) Therefore, to the extent
that New York law controls, it would be far from clear whether plaintiff has
standing. See, e.g., Premium Mortg. Corp. v. Equifax, Inc., 583 F.3d 103,
108 (2d Cir. 2009) (“A non-party to a contract governed by New York law
lacks standing to enforce the agreement in the absence of terms that clearly
evidence an intent to permit enforcement by the third party in question.”
(internal quotation marks and alteration omitted)).
(1943)) (internal quotation marks omitted); see also Heaney v.
Gov’t of Spain, 445 F.2d 501, 504-05 (2d Cir. 1971).
Doing so, we find that President Ma is immune from this
Court’s jurisdiction as a sitting head of state.
common law doctrine of head-of-state immunity, “[a] head-ofstate recognized by the United States government is absolutely
foreign government recognized by the United States.”
ANGOP, Angola Press Agency, No. 11 Civ. 580 (DLI), 2012 WL
3637453, at *7 (E.D.N.Y. Aug. 22, 2012) (quoting Lafontant v.
Aristide, 844 F. Supp. 128, 131-32 (E.D.N.Y. 1994)) (internal
quotation marks omitted).
In this case, it is undisputed that
President Ma is the current head of state of Taiwan, which has
not waived the President’s immunity.
In this circumstance,
application of the head-of-state doctrine serves to “promote
comity” between the United States and Taiwan by ensuring that
President Ma can perform his duties “without being subject to
detention, arrest or embarrassment.” Yousuf v. Samantar, 699
Nevertheless, plaintiff suggests that President Ma is not
entitled to head-of-state immunity because the United States
withdrew diplomatic recognition of Taiwan in 1979.
Exec. Order No. 12143, 44 Fed. Reg. 37191, 1979 WL 211436 (June
22, 1979) (recognizing the People’s Republic of China “as the
sole legal government of China”).
However, under the Taiwan
Relations Act, 22 U.S.C. §§ 3301-3316 (1979), the United States
See id. § 3303(b)(1) (“Whenever the laws of the
United States refer or relate to foreign countries, nations,
include and such laws shall apply with respect to Taiwan.”);
see also N.Y. Chinese TV Programs, Inc. v. U.E. Enters., Inc.,
954 F.2d 847, 852 (2d Cir. 1992) (stating that “both Congress
and the Executive Branch have, with rare clarity, determined
that the United States must continue to honor” treaties with
Therefore, just as an “instrumentality” of Taiwan is eligible
for foreign sovereign immunity under the FSIA, see
Shipping Co., S.A. v. China Steel Corp., 816 F. Supp. 910, 914
n.5 (S.D.N.Y. 1993), so too is the President of Taiwan entitled
to head-of-state immunity under the common law.
Moreover, President Ma and Chief Lee are both immune from
this Court’s jurisdiction on the separate ground that plaintiff
Under the common law, an individual foreign official is
Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009)
(internal quotation marks omitted); accord Yousuf, 699 F.3d at
As plaintiff concedes, defendants were acting in their
official capacities when they executed (and allegedly breached)
the contract at issue here.
(Compl. ¶¶ 30-31, 42-43, 46-47,
Thus, defendants’ foreign official immunity imposes an
See, e.g., Heaney, 445 F.2d at 504 (finding that
plaintiff’s concession that the individual defendant was “at
all relevant times ‘an employee and agent of the defendant
Spanish Government’” sufficed to dispose of plaintiff’s claim).
activity exception to foreign sovereign immunity, as codified
assuming, arguendo, that this exception permitted the Court to
recognized that a foreign official’s immunity under the common
law is not coextensive with the state’s immunity under the
Samantar, 130 S.Ct. at 2290; see also Br. of U.S. as
Amicus Curiae at 8, Kensington Int’l Ltd. v. Itoua, Nos. 061663, 06-2216 (2d Cir. May 23, 2007) (stating that a foreign
official’s immunity at common law “did not merely match, but
rather exceeded, that of the state:
even if the state could be
sued for an official’s acts under the restrictive theory, the
official himself could not be”).
There is authority for the proposition that the commercial
activity exception does not apply to a foreign official who has
undertaken a commercial transaction on behalf of his state.
See Greenspan v. Crosbie, No. 74 Civ. 4734 (GLG), 1976 WL 841,
at *2 (S.D.N.Y. Nov. 23, 1976) (deferring to the Department of
State’s suggestion of immunity for foreign officials involved
in state commercial activity even though the state itself was
not immune); see also Chimène I. Keitner, The Common Law of
Foreign Official Immunity, 14 Green Bag 61, 68 (2010) (“Foreign
officials will generally not bear individual responsibility for
[commercial activities], and will thus be deemed immune from
suit, even though the foreign state itself will not be immune
under the ‘restrictive theory’ of sovereign immunity codified
by the FSIA.”).
This result is particularly appropriate here,
where plaintiff has not plausibly alleged any unlawful or ultra
For the foregoing reasons, plaintiff’s motions for entry
defendants’ motion to vacate the Clerk of Court’s certificate
622 F.3d at 141
jurisdiction to enter a
Barbuda Permanent Mission, 877 F.2d 189, 196
(stating that a
(2d Cir. 1989)
jurisdiction must be accompanied by dismissal of the action.")
New York, New York
August 19, 2013
UNITED STATES DISTRICT JUDGE
Because we find that defendants are
from this Court's
jurisdiction, we need not, and do not, address any other potential bases for
dismissing this action, including improper service of process.
we note that, contrary to plaintiff's representations (Dkt. No.4), no one
in this Chambers advised plaintiff as to the validity of service.
contrary, a law clerk in this Chambers simply referred plaintiff to the
Department of State's website and to the Hague Convention on the Service of
Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov.
15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163.
Copies of the foregoing Memorandum and Order have been mailed
on this date to the following:
Attorney for Plaintiff
Ning Ye, Esq.
Law Office of Ning Ye
36-26A Union Street, #3 F
Flushing, NY 11354
Attorneys for Defendants
Deborah B. Koplovitz, Esq.
Peter I. Livingston, Esq.
Rosen & Livingston
275 Madison Avenue, Suite 500
New York, NY 10016
Thomas G. Corcoran, Jr., Esq.
Laina C. Lopez, Esq.
Berliner, Corcoran & Rowe, LLP
1101 Seventeenth Street, N.W., Suite 1100
Washington, D.C. 20036
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