United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON MOTION FOR DEFAULT JUDGMENT
William T. Lawrence, Judge
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.
facts as alleged by Plaintiff Robin Haston, which are taken
as true for the purposes of this ruling, are as follow.
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.
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.
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
APPLICABLE STATUTORY REQUIREMENTS
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.
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,  thus satisfying this
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 correct. But
see 1 Litigation of International Disputes in U.S.
Courts § 3:35 (assuming the opposite).
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.
SCOPE OF EMPLOYMENT
Indiana law,  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 ...