Haston v. Republic of Cuba

          ENTRY ON MOTION FOR DEFAULT JUDGMENT

          William T. Lawrence, Judge

         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]

         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 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 ...