United States Court of Appeals,
Fifth Circuit.
No. 93-7647.
Dennis MORAN, Plaintiff-Appellant,
v.
The KINGDOM OF SAUDI ARABIA, et al., Defendants-Appellees.
July 29, 1994.
Appeal from the United States District Court for the Southern
District of Mississippi.
Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Appellant Dennis Moran ("Moran") appeals the district court's
granting of The Kingdom of Saudi Arabia's ("Saudi Arabia") motion
to dismiss Moran's complaint pursuant to FED.R.CIV.P. 12(b)(1). The
motion was predicated upon lack of subject matter and personal
jurisdiction under the Foreign Sovereign Immunities Act of 1976
("FSIA"), 28 U.S.C. § 1602, et seq. The court dismissed Moran's
complaint, finding that none of the exceptions to the FSIA applied
to the facts of the case, and that Saudi Arabia was therefore
immune from the court's jurisdiction. WE AFFIRM.
FACTS AND PROCEDURAL HISTORY
On December 21, 1987 Master Sergeant Al-Shareef ("Al-Shareef")
was driving an automobile owned by Master Sergeant Al-Qahtani ("Al-
Qahtani") on Keesler Air Force Base ("Keesler") in Biloxi,
Mississippi when he apparently failed to yield the right of way in
disregard of the traffic signal at an intersection and struck the
side of another automobile driven by Moran, a civilian barber
1
employed at Keesler by the United States Department of Defense.
Moran was seriously injured in the accident, having suffered
permanent injuries to his head, neck and back.
Both Al-Shareef and Al-Qahtani are airmen in the Royal Saudi
Arabian Air Force temporarily assigned to Keesler by the Saudi
Arabian Air Force to receive air traffic controller training
pursuant to a contract that Saudi Arabia had entered into with the
United States Air Force. At the time of the accident, Al-Shareef
was driving from his dormitory to the base hospital in order to
make a doctor's appointment for an alleged "personal illness,"
which had been scheduled during a break from his training classes
that day. By virtue of their assignment to Keesler, Al-Shareef and
Al-Qahtani were entitled to receive medical benefits and health
care at the base hospital, although they were instructed during
their orientation at Keesler to schedule "routine" doctor
appointments during non-training hours.
Al-Shareef and Al-Qahtani were authorized to own personal
vehicles, but they were instructed that if they chose to do so they
were required to maintain insurance and to agree to obey base
traffic laws and regulations. Al-Shareef and Al-Qahtani obtained
automobile insurance and license tags, and each contributed his own
money to pay for the automobile expenses. Neither the United
States nor the Saudi Arabian government ever reimbursed them for
the purchase price of the automobile or for any expenses relating
to it. Both Al-Shareef and Al-Qahtani used the automobile for
personal reasons.
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Moran filed suit against the United States Department of the
Air Force, the United States Secretary of Defense, Saudi Arabia,
Al-Shareef and Al-Qahtani based on personal injury and other
related claims arising out of Al-Shareef's negligent failure to
obey traffic signals and Al-Qahtani's negligent entrustment of his
vehicle to Al-Shareef. Moran further alleged that Saudi Arabia was
liable under the doctrine of respondeat superior for the negligence
of Al-Shareef and Al-Qahtani. After allowing discovery on the
jurisdictional issue, the district court dismissed the complaint
against Saudi Arabia pursuant to Rule 12(b)(1) for lack of subject
matter and personal jurisdiction, denying Moran's request for an
evidentiary hearing.1 The court found that none of the exceptions
to the Foreign Sovereign Immunities Act applied to the facts of the
case, and that Saudi Arabia was therefore immune from the court's
jurisdiction.
STANDARD OF REVIEW
We review de novo the district court's granting of Saudi
Arabia's motion to dismiss for lack of subject matter and personal
jurisdiction due to Saudi Arabia's immunity under the FSIA. Walter
Fuller Aircraft Sales v. Rep. of Philippines, 965 F.2d 1375, 1383
(5th Cir.1992). The court's denial of an evidentiary hearing is
subject to an abuse of discretion standard of review. Wichita
Falls Office Associates v. Banc One Corp., 978 F.2d 915, 918 (5th
Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2340, 124 L.Ed.2d
1
The district court also dismissed Moran's claims against
the United States Department of the Air Force and the Secretary
of Defense. However, Moran does not seek appeal on that ruling.
3
251 (1993). The court's factual determinations may be set aside
only if clearly erroneous. Villar v. Crowley Maritime Corp., 990
F.2d 1489, 1497 (5th Cir.1993), cert. denied, --- U.S. ----, 114
S.Ct. 690, 126 L.Ed.2d 658 (1994).
JURISDICTIONAL IMMUNITY UNDER THE FSIA
The general rule under the FSIA is that foreign states are
immune from the jurisdiction of the United States Courts. 28
U.S.C. § 1604 (1994). However, a district court can exercise
subject matter jurisdiction over a foreign state if one of the
statute's exceptions apply. Id. The foreign state bears the
burden of persuasion on the issue of immunity under the FSIA, but
once a prima facie showing of immunity has been made, the plaintiff
seeking to litigate in the district court bears the burden of
coming forward with facts showing that an exception applies.
Walter Fuller Aircraft Sales, 965 F.2d at 1383.
Moran contends that the district court erred in dismissing his
complaint for lack of subject matter and personal jurisdiction
because the disputed jurisdictional facts concerning immunity under
the FSIA were inextricably intertwined with the merits of
respondeat superior liability alleged in his claim. He argues that
the district court erroneously applied a 12(b)(1) standard to
resolve the jurisdictional issue on the basis of facts dispositive
of the merits as well as the jurisdictional issue, and that instead
the court should have applied a summary judgment standard. Because
the affidavits submitted to the court contained disputed facts, the
application of the summary judgment standard would have resulted in
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the court's denial of Saudi Arabia's motion to dismiss.
The Sixth Circuit has been the only circuit thus far to
resolve the issue of the standard to be applied by the district
court in resolution of the issue of jurisdictional immunity under
the FSIA. In Gould, Inc. v. Pechiney Ugine Kuhlmann,2 the Court
reasoned that because sovereign immunity under the FSIA is immunity
from suit, not just from liability, "postponing the determination
of subject matter jurisdiction until some point during or after
trial would be inappropriate." Gould, 853 F.2d at 451. Indeed,
this Court has previously held that immunity under the FSIA is
effectively lost if a case is permitted to go to trial. See Stena
Rederi AB v. Comision de Contratos del Comite Ejecutivo General,
923 F.2d 380, 385 (5th Cir.1991).
A FED.R.CIV.P. 12(b)(1) motion for lack of subject matter and
personal jurisdiction must be considered by the district court
before other challenges "since the court must find jurisdiction
before determining the validity of a claim." Gould, 853 F.2d at
450, citing Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90
L.Ed. 939 (1946). When a party challenges subject matter
jurisdiction, the court is given the authority to resolve factual
disputes, along with the discretion to devise a method for making
a determination with regard to the jurisdictional issue. See Land
v. Dollar, 330 U.S. 731, 735 and n. 4, 67 S.Ct. 1009, 1011 and n.
4, 91 L.Ed. 1209 (1947); see also Williamson v. Tucker, 645 F.2d
404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70
2
853 F.2d 445, 450 (6th Cir.1988).
5
L.Ed.2d 212 (1981). The court's authority to consider evidence
presented beyond the pleadings allows it to devise a procedure
which may include considering affidavits, allowing further
discovery, hearing oral testimony, conducting an evidentiary
hearing. See Gould, 853 F.2d at 451. If the court chooses to
allow additional discovery, it should be limited to only that which
is necessary to determine the preliminary jurisdictional issue.
Id.
In reviewing Saudi Arabia's 12(b)(1) motion to dismiss, the
district court devised a procedure allowing additional limited
discovery on the issue of jurisdictional immunity under the FSIA.
After discovery was complete, the district court considered the
allegations of the complaint along with the evidence produced
during discovery including: Moran's affidavit, Al-Shareef's
declaration and a witness's deposition. Therefore, we find that
the district court did not err in applying a 12(b)(1) standard in
determining the jurisdictional immunity issue under the FSIA.
Further, the district court did not abuse its discretion in denying
Moran's request for an evidentiary hearing. A court "may" consider
oral evidence along with written, but an evidentiary hearing is not
required. Williamson, 645 F.2d at 413. The court's consideration
of the availability of Al-Shareef and Al-Qahtani to testify, having
already returned to Saudi Arabia, and the ample written evidence
before the court support its decision to deny Moran's request for
an evidentiary hearing.
TORTIOUS ACTIVITY EXCEPTION
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Moran asserts that the "tortious activities" exception to the
general rule of immunity under the FSIA applies in this case. This
exception provides that a foreign state is not immune from suit
where money damages are sought for losses of property or personal
injury caused by the tortious acts or omissions of its officers or
employees. De Sanchez v. Banco Central De Nicaragua, 770 F.2d
1385, 1398 (5th Cir.1985).3 However, a foreign state does not lose
its presumed immunity from jurisdiction merely because one of its
officers or employees commits a tortious act or omission. The
exception can only be met if the officer or employee of the foreign
state was acting within the scope of his employment at the time he
committed the tortious act or omission. Liu v. Republic of China,
892 F.2d 1419, 1425 (9th Cir.1989), cert. dismissed, 497 U.S. 1058,
111 S.Ct. 27, 111 L.Ed.2d 840 (1990). Therefore, the "scope of
employment" provision of the "tortious activity" exception requires
a finding that the doctrine of respondeat superior applies to the
tortious act or omission committed by the officer or employee of
3
The "tortious activities" exception provides in pertinent
part:
(a) A foreign states shall not be immune from the
jurisdiction of the courts of the United States or of
the States in any case—
(5) ... in which money damages are sought against a
foreign state for personal injury or death, or damage
to or loss of property, occurring in the United States
and caused by the tortious act or omission of that
foreign state or of any official or employee of that
foreign state while acting within the scope of his
office or employment....
28 U.S.C. § 1605(a)(5) (1994).
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the foreign state. Id., citing Joseph v. Office of Consulate
General of Nigeria, 830 F.2d 1018, 1025 (9th Cir.1987), cert.
denied, 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236 (1988).
The district court properly applied Mississippi law in
determining whether, at the time of the accident, Al-Shareef's act
of driving to the hospital on Keesler for a doctor's appointment
was within the scope of his employment as required by the "tortious
activity" exception under the FSIA. State law, not federal common
law, governs whether an officer's or employee's action is within
the scope of employment in determining the applicability of the
FSIA. First Nat'l City Bank v. Banco Para el Comercio Exterior de
Cuba, 462 U.S. 611, 622 n. 11, 103 S.Ct. 2591, 2598 n. 11, 77
L.Ed.2d 46 (1983); Liu, 892 F.2d at 1425. Under Mississippi law,
a determination that an employee's conduct falls within the scope
of employment under the doctrine of respondeat superior requires a
finding that the conduct was performed "incident to the ultimate
purpose which constitutes [the employee's] job." Marter v. Scott,
514 So.2d 1240, 1242 (Miss.1987).
Moran argues that Al-Shareef's act of driving to the base
hospital during duty hours to receive medical attention was
incidental to his training assignment because he was assisting his
employer by ensuring he would be able to perform his duty to attend
training classes. At the time of the accident, he had a duty to
obey military regulations on base, including traffic signals.
Therefore, his trip to the base hospital during normal training
hours constituted, at most, a minor deviation which did not take
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his actions outside the scope of his employment.
Acting on its authority to resolve disputed facts, the
district court found that at the time of the accident Al-Shareef
was driving to the hospital on Keesler for personal reasons. The
court's findings contain a detailed account of the substantial
amount of supporting evidence. Therefore, we hold that the
district court's resolution of disputed facts regarding the reason
why Al-Shareef was driving to the hospital on Keesler was not
clearly erroneous. Further, we hold that the district court did
not err in concluding that Al-Shareef's trip to the base hospital
for personal reasons was outside the scope of his employment. Al-
Shareef's duty was to receive training on Keesler, not to make
trips to the base hospital. Even if he was required to seek
medical attention at the time of the accident, he was in control of
all the details surrounding the task assigned: he was free to
choose how to get medical treatment; where to get it; and when to
get it.
CONCLUSION
For the reasons stated above, the judgment of the district
court is AFFIRMED.
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