                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


HARVEY RISHIKOF,
As personal representative of the estate of
Trudith N. Rishikof, deceased,

       Plaintiff,
                                                     Civil Action No. 11-2284 (BJR)
               v.
                                                     ORDER GRANTING MOTION TO
KAMAL MORTADA and
                                                     DISMISS
SWISS CONFEDERATION,

       Defendants.


                                    I.     INTRODUCTION

       Defendants’ Motion to Dismiss Kamal Mortada for Lack of Jurisdiction [Dkt. No. 26]

was referred to Magistrate Judge Alan Kay for a report and recommendation pursuant to Local

Civil Rule 72. Magistrate Judge Kay filed a Report and Recommendation on June 10, 2014 [Dkt.

No. 33]. He recommended that this Court find that Defendant Mortada does not qualify for

common law foreign immunity, and therefore, further recommended that this Court deny

Defendants’ motion to dismiss. Defendants filed objections to the Report and Recommendation

on June 24, 2014 [Dkt. No. 34].

       Having reviewed the Report and Recommendation, Defendants’ objections, Plaintiff’s

response thereto, and the underlying record, the Court HEREBY concludes that Defendant

Mortada is entitled to immunity under the common law, and therefore, DECLINES TO ADOPT

the Report and Recommendation, and further, GRANTS Defendants’ motion to dismiss. The

reasoning for this Court’s decision is set forth below.




                                                 1
                                     II.      BACKGROUND

       Plaintiff Harvey Rishikof (“Plaintiff”) is the personal representative for the estate of his

late wife, Trudith N. Rishikof. On October 6, 2011, Defendant Kamal Mortada (“Mortada”) was

driving a vehicle owned by Defendant Swiss Confederation while he was in the process of

delivering a package from the Swiss Embassy to the World Bank. Mortada, who Plaintiff alleges

is a legal resident of Washington, D.C., was employed as a driver and messenger by the Swiss

Confederation. Dkt. No. 1 “Compl.” at ¶¶ 1, 6. As Mortada was making a turn, his vehicle struck

and killed Ms. Rishikof, who was walking in a crosswalk. Id.

       On December 22, 2011, Plaintiff filed this civil lawsuit alleging claims of motor vehicle

negligence and recklessness against Mortada and the Swiss Confederation, jointly and severally.

Id. at ¶ 2. Plaintiff alleges that this Court has jurisdiction over the Swiss Confederation pursuant

to 28 U.S.C. §§ 1605(a)(5) and 1330. Id. He further asserts that this Court has supplemental

jurisdiction over the claims arising under District of Columbia law pursuant to 28 U.S.C. § 1367.

Id.

       The Swiss Confederation concedes that Mortada is an employee of Switzerland and that

he was acting within the scope of his employment at the time of the tragic accident. See Dkt. No.

26-2. In addition, the Swiss Confederation has agreed to “accept any legal liability for Mr.

Mortada’s actions that arises out of the claims” in this lawsuit. Id.

                                       III.    DISCUSSION

       Rule 72(b) of the Federal Rules of Civil Procedure authorizes the referral of dispositive

motions to a magistrate judge for a report and recommendation. When a party files written

objections to any part of the magistrate judge’s recommendation, the court considers de novo




                                                  2
those portions of the recommendation to which objections have been made, and “may accept,

reject, or modify the recommended decision[.]” Fed. R. Civ. P. 72(b).

        Defendants move to dismiss Plaintiff’s claims against Mortada for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the grounds that: (1) Mortada is

immune under common law foreign immunity, and (2) the Swiss Confederation is the real party

in interest. Defendants argue that Mortada is entitled to common law immunity from this lawsuit

because the acts underlying Plaintiff’s claims are admitted to be official acts taken within the

scope of Mortada’s individual duties as an agent of the Swiss Confederation, and the Swiss

Confederation has accepted responsibility for the acts at issue. 1 Alternatively, Defendants argue

that because Plaintiff seeks $10 million in damages from the Swiss Confederation for the official

actions of its agent—Mortada—this suit should be treated as an action against the Swiss

Confederation and the claims against Mortada should be dismissed. In addition, if this Court fails

to dismiss Mortada from this lawsuit, Defendants request that this Court strike Plaintiff’s jury

demand because the Swiss Confederation cannot be subject to a jury trial or jury verdict.

        A.       Standard of Review

        When a party files a motion to dismiss for lack of subject matter jurisdiction under Rule

12(b)(1), “the plaintiff[ ] bear[s] the burden of proving by a preponderance of the evidence that

the Court has subject matter jurisdiction.” Bank of Am., N.A., v. F.D.I.C., 908 F. Supp. 2d 60, 76

(D.D.C. 2012) (citing Biton v. Palestinian Interim Self–Gov’t Auth., 310 F. Supp. 2d 172, 176

(D.D.C. 2004)). Because subject matter jurisdiction focuses on a court’s power to hear the

plaintiff’s claim, a Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure




1
         Mortada is not an accredited member of the Swiss Confederation’s foreign diplomatic personnel. Dkt. No.
26-1 at 3. Accordingly, Defendants concede that he is not entitled to immunity under the Vienna Convention. Id.

                                                        3
that it is acting within the scope of its jurisdictional authority. Grand Lodge of Fraternal Order

of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001).

        B.       Common Law Foreign Immunity

        In Samantar v. Yousuf, 560 U.S. 305 (2010), the Supreme Court held that a foreign

official sued for conduct undertaken in his or her official capacity is not a “foreign state” entitled

to immunity from suit under the Foreign Sovereign Immunity Act (“FSIA”). Id. at 325-26.

However, the foreign official may be entitled to immunity under the common law. Id. at 325.

The Court noted that “[a]lthough Congress clearly intended to supersede the common-law

regime for claims against foreign states, we find nothing in [FSIA’s] origin or aims to indicate

that Congress similarly wanted to codify the law of foreign official immunity.” Id.

        Under common law foreign immunity, a foreign official is entitled to one of two different

types of immunity: status-based or conduct-based immunity. Yousuf v. Samantar, 699 F.3d 763,

774 (4th Cir. 2012); Sikhs for Justice v. Singh, 2014 WL 4068629, at *2 (D.D.C. Aug. 19, 2014).

Here, the issue is whether Mortada is entitled to conduct-based immunity. 2 Conduct-based

immunity is available to “any [] [p]ublic minister, official, or agent of the [foreign] state with

respect to acts performed in his official capacity if the effect of exercising jurisdiction would be

to enforce a rule of law against the state.” Restatement (Second) of Foreign Relations Law of the

United States § 66 (1986) (emphasis added); Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009)

(quoting Restatement (Second) of Foreign Relations Law of the United States § 66(f) (1965)

(“the common law of foreign sovereign immunity recognize[s] an individual official’s

entitlement to immunity for ‘acts performed in his official capacity.’”).



2
        The parties do not dispute that Mortada is not entitled to status-based immunity, which is limited to
diplomats and sitting heads-of-state. See Sikhs for Justice v. Singh, 2014 WL 4068620, at *2 (D.D.C. August 19,
2014); Chimene I. Keitner, The Common Law of Foreign Official Immunity, 14 Green Bag 2d 61, 63 (2010).

                                                         4
       According to the common law, immunity is determined through “a two-step procedure.”

Samantar, 560 U.S. at 311. The official can “request a suggestion of immunity from the State

Department.” Id. (internal quotation marks omitted). If the State Department takes no action, “a

district court ha[s] authority to decide for itself whether all the requisites for such immunity

exist[].” Id. (internal quotation marks omitted). Here, there is no indication that Mortada or the

Swiss Confederation requested a suggestion of immunity from the State Department.

Accordingly, this Court must determine whether “all the requisites for immunity exist.” Id.

       As stated above, the “requisites for [conduct-based] immunity” are: (1) the actor must be

a “[p]ublic minister, official, or agent of the [foreign] state”; (2) the act must have been

performed as part of the actor’s “official duty”; and (3) “exercising jurisdiction” would have the

effect of “enforce[ing] a rule of law against the [foreign] state.” See Restatement (Second) of

Foreign Relations Law of the United States § 66 (1986). The Court will address each

requirement in turn.

               1.      Whether Mortada Is an Agent of the Swiss Confederation for
                       Purposes of Common Law Foreign Immunity

       Plaintiff alleges and Defendants concede that Mortada is an agent of the Swiss

Confederation. See Compl. at ¶ 6. Nevertheless, Plaintiff charges that Mortada’s status “as a low-

level deliveryman [] renders him ineligible to invoke ‘foreign official immunity’” under the

common law. Dkt. No. 35 at 5. Magistrate Judge Kay agreed with Plaintiff, recommending that

this Court deny immunity to Mortada due to Mortada’s lack of authority to act in a decision-

making capacity on behalf of the Swiss Confederation. See Report and Recommendation, Dkt.

No. 33 at 6 (stating that because Mortada does not have “authority to make decisions on behalf

of the Swiss Confederation,” he does not fit within the definition of “foreign official” for

purposes of common law foreign immunity).


                                                  5
       Magistrate Judge Kay’s conclusion is understandable given that the majority of cases that

address common law conduct-based immunity involve foreign officials with clear decision-

making authority. See, e.g., Belhas v. Ya’alon, 515 F.3d 1279, 1282 (D.C. Cir. 2008) (defendant

was a former head of Israeli Army Intelligence); Yousuf, 699 F.3d 763 (defendant was “a high-

ranking government official in Somalia”); Sikhs for Justice v. Singh, 2014 WL 4068629, at *2

(D.D.C. Aug. 19, 2014) (defendant was the former Prime Minister of India). In fact, the only

case to which the parties cite that does not involve a high level official is Richardson v. Attorney

General of the British Virgin Islands, 2013 WL 4494975 (D.V.I. Aug. 20, 2013). Richardson

involved a motor vehicle negligence action against a foreign customs officer. The Richardson

court concluded that the customs officer was entitled to common law immunity because the

“alleged actions which [gave] rise to the [Plaintiffs’] complaint were undertaken within the scope

of his duty and thus fit neatly within the general contours of official-act immunity.” Id. at *16.

Magistrate Judge Kay distinguished the Richardson case from the present case, noting that,

unlike Mortada, the customs official in Richardson had authority to make decisions on behalf of

the British Virgin Islands.

       This Court finds that it is more in keeping with the common law to conclude that

decision-making authority is not a required element. First, the Supreme Court noted in Samantar

that conduct-based immunity may extend to an “agent” of a foreign state. Samantar, 560 U.S. at

321 (quoting Restatement (Second) of Foreign Relations Law of the United States at § 66); see

also, Yousuf, 699 F.3d at 774 (noting that “numerous domestic courts [have] embraced the

notion, stemming from international law, that the “immunity of a foreign state … extends to …

any … public minister, official, or agent of the state with respect to acts performed in his official




                                                  6
capacity”) (quoting Restatement (Second) of Foreign Relations Law of the United States at § 66)

(emphasis added)).

       Second, past case law has not focused on the degree of an official’s “authority” to act on

behalf of the foreign state. Rather, it has been the act itself and whether the act was performed on

behalf of the foreign state and thus attributable to the state that has been the focus of the courts’

holdings. The rank of the agent who performed the act was not the determining factor. See, e.g.,

Yousuf, 699 F.3d at 774 (conduct-based immunity “stands on the foreign official’s actions, not

his or her status”); Matar, 563 F.3d at 14 (“An immunity based on acts—rather than status—

does not depend on tenure in office.”); see also, Hazel Fox, The Law of State Immunity at 455

(2d. ed. 2008) (“The doctrine of the imputability of the acts of the individual to the State … in

classical law… imputes the act solely to the state, who alone is responsible for its consequence.

[Therefore] any act performed by the individual as an act of the State enjoys the immunity which

the State enjoys.”) (emphasis added).

               2.      Whether Mortada Was Acting within the Scope of his Employment
                       for Purposes of Common Law Foreign Immunity

       The second required element for common law foreign immunity is that the challenged act

must have been one that was performed as part of the agent’s “official duty.” Here, the

Complaint charges that the tragic accident occurred while Mortada was acting within the scope

of his employment. Compl. at ¶ 6; see also, Plaintiff’s Opposition to Defendants’ Motion to

Dismiss, Dkt. No. 27 at 2 (“it is beyond dispute that Mortada was within the scope of his

employment with the Swiss when he killed Ms. Rishikof”). Defendants do not challenge

Plaintiff’s assertion; indeed, the Swiss Confederation has acknowledged that it is responsible for

Mortada’s actions. See Letter from the Ambassador of Switzerland to the United States dated

December 19, 2013, Dkt. No. 26-2, (confirming that the Swiss Confederation will “accept any


                                                  7
legal liability for Mr. Mortada’s actions”). Nevertheless, Plaintiff now attempts to retreat from

his assertion that Mortada was conducting Embassy business when the accident occurred,

suggesting instead that Mortada was actually on his way to visit his wife. Dkt. No. 27 at 2.

        “Where a plaintiff blatantly changes his statement of facts in order to respond to the

defendants[’s] motion to dismiss…[and] directly contradicts the facts set forth in his original

complaint, a court is authorized to accept the facts described in the original complaint as true.”

Hourani v. Mirtchev, 943 F. Supp. 2d 159, 171 (D.D.C. 2013) (quoting Colliton v. Cravath,

Swaine & Moore LLP, 2008 WL 4386764, at *6 (S.D.N.Y. Sept. 24, 2008)); see also, Teltschik

v. Williams & Jensen, PLLC, 683 F. Supp. 2d 33, 41 (D.D.C. 2010) (“A plaintiff may not assert

new allegations at the summary judgment stage if such allegations amount to a ‘fundamental

change’ in the nature of plaintiff’s claims.”). This Court rejects Plaintiff’s attempt to circumvent

the clear allegations in his Complaint—Mortada was acting within the scope of his employment

when the tragic accident occurred.

       Moreover, Plaintiff’s revised version of the facts, even if accepted by this Court, would

not support Plaintiff’s argument against dismissal. To the contrary, the revised fact scenario

would warrant dismissal of this case in its entirety. This is because Plaintiff alleges, and the

Swiss Confederation concedes, that this Court has jurisdiction over Switzerland pursuant to the

tortious activity exception to the Foreign Sovereignty Immunity Act (“FSIA”). The tortious

activity exception to the FSIA provides jurisdiction over noncommercial tort actions “in which

money damages are sought against a foreign state for ... damage to or loss of property, occurring

in the United States and caused by the tortious act or omission of that foreign state.” 28 U.S.C. §

1605(a)(5). In order to find that a foreign state can be sued under the tortious activity exception,

a court must find: (1) that the tortious acts of individual employees of the sovereign were



                                                  8
undertaken within the scope of employment, and (2) that the claim is not based upon the exercise

or failure to exercise a discretionary function. Id. Therefore, if indeed Mortada was acting

outside the scope of his employment, then the tortious activity exception would not apply, this

Court would lack jurisdiction over the Swiss Confederation, and the claims against the Swiss

Confederation would have to be dismissed. See Moran v. Kingdom of Saudi Arabia, 27 F.3d 169,

173 (5th Cir. 1994) (citing Joseph v. Office of Consulate General of Nigeria, 830 F.2d 1018,

1025 (9th Cir. 1987), cert. denied, 485 U.S. 905 (1988)) (noting that the tortious activity

exception to the FSIA “requires a finding that the doctrine of respondent superior applies to the

tortious act [] committed by the employee of the foreign state”). Further, because the only basis

for this Court’s jurisdiction over the state law claims in this lawsuit is supplemental jurisdiction,

those claims should be dismissed if the Swiss Confederation was no longer a defendant in the

lawsuit. Without the Swiss Confederation, this lawsuit would simply be a dispute between

District residents over matters governed by District law, which present no federal claim or other

independent basis for federal jurisdiction. See, e.g., Cave v. E. Meadow Union Free Sch. Dist.,

514 F.3d 240, 250 (2d. Cir. 2008) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

726 (1966)) (“Certainly, if the federal claims are dismissed before trial … the state claims should

be dismissed as well.”); Heatherly v. Malika, 2013 WL 5754106, at *2 (N.D. Cal. Oct. 23, 2013)

(quoting Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (“The Supreme

Court has stated, and we have often repeated, that ‘in the usual case in which all federal-law

claims are eliminated before trial, the balance of factors ... will point toward declining to exercise

jurisdiction over the remaining state law claims.’”).

               3.      Whether Exercising Jurisdiction Will Have the Effect of Enforcing a
                       Rule of Law against the Swiss Confederation




                                                  9
         The final requirement for establishing entitlement to common law immunity is whether,

if this Court exercises jurisdiction over Mortada, it will have the effect of enforcing a rule of law

against the Swiss Confederation. Plaintiff argues that it will not. In Plaintiff’s view, this is a

simple traffic accident case; therefore, if this Court were to “exercise[e] jurisdiction over

Mortada, it would be to “[e]nforc[e] the rules of American roads,” the effect of which would not

“impinge on the sovereignty of [Switzerland].” Dkt. No. 35 at 4. Defendants counter that because

Plaintiff sued for joint and several liability, the relief sought by Plaintiff could run directly

against the Swiss Confederation. Therefore, according to Defendants, exercising jurisdiction

would have the effect of enforcing a rule of law against a foreign state. Dkt. No. 26 at 6.

         The Court finds Defendants’ argument persuasive. The salient fact is that Plaintiff seeks

to hold the Swiss Confederation jointly and severally liable for Mortada’s actions. By claiming

that the Swiss Confederation is liable for Mortada’s actions, Plaintiff—by definition—is seeking

to enforce a rule of law against the Swiss Confederation. See, e.g., Brown v. Argenbright

Security, Inc., 782 A.2d 752, 757 (D.C. 2001) (quoting Boykin v. District of Columbia, 484 A.2d

560, 561 (D.C. 1984)) (“Under the doctrine of respondeat superior, an employer may be held

liable for the acts of his employees committed within the scope of their employment.”); District

of Columbia v. Evans, 644 A.2d 1008, 1023 (D.C. 1994) (stating that “[i]f the plaintiff prevails

against the [District’s] police officers on a negligence theory, the District may also be subject to

liability for negligence under the doctrine of respondeat superior”). 3 Therefore, if this Court




3
          The Court notes that the Complaint does not specifically allege that the Swiss Confederation is liable under
the doctrine of respondeat superior. However, taking the allegations in the Complaint as a whole, it is clear that this
is the theory under which Plaintiff holds the Swiss Confederation accountable. Plaintiff does not allege that the
Swiss Confederation, itself, committed a negligent act that was a proximate cause of the injury; rather, Plaintiff
asserts that the Swiss Confederation is liable for Plaintiff’s damages based on the nature of its relationship with
Mortada (i.e., employer/employee relationship).


                                                          10
were to exercise jurisdiction over Mortada, it would have the effect of “enforce[ing] a rule of law

against [Switzerland].”

       If, on the other hand, Plaintiff had not sued the Swiss Confederation for joint and several

liability, but instead chose to proceed exclusively against Mortada, then Mortada would not be

entitled to immunity. Indeed, the Restatement addresses this very factual situation:

               X is an employee of the naturalization service of state A employed
               in state B for the purpose of inspecting the credentials of
               prospective migrants from B to A. While driving a car on an
               official mission, he injures Y, a national of B. Y sues X in B,
               alleging that his injury was due to the negligence of X. X is not
               entitled to the immunity of A under § 65.

Restatement § 66, illustration 3. In this illustration, Y only sues X; therefore, X is not entitled to

immunity (because exercising jurisdiction would have no effect on State A). If Y had also sued

State A for joint and several liability, then X would be entitled to immunity (because exercising

jurisdiction would have the effect of enforcing a rule of law against State A).

       C.      The Jury Trial Prohibition under the FSIA

       As discussed above, this Court has jurisdiction over the Swiss Confederation pursuant to

the tort activities exception under the FSIA, something the parties do not dispute. See 28 U.S.C.

§ 1605(a)(5)(B). The Supreme Court has recognized that “Congress’ primary purpose in enacting

[the tort activities exception] was to eliminate a foreign state’s immunity for traffic accidents and

other torts committed in the United States[.]” Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428, 439-40 (1989). However, in crafting this exception to sovereign immunity,

Congress was careful to maintain the international standard that a foreign state shall not be

subject to a jury trial. See, e.g., Arango v. Guzman Travel Advisors, 761 F.2d 1527, 1532 (11th

Cir.1985) (finding that “[b]y their express terms, 28 U.S.C. §§ 1330 and 1441(d) prohibit a case

brought against a foreign state, as defined in section 1603, from being tried before a jury ....


                                                  11
[and] efforts to circumvent this prohibition against jury trials” have been rejected in other

circuits). If this Court were to exercise jurisdiction over Mortada as well as the Swiss

Confederation, and Plaintiff obtained a jury verdict against Mortada for which the Swiss

Confederation was liable, Mortada would have circumvented Congress’ prohibition against

subjecting foreign states to jury verdicts. Therefore, Plaintiff has a choice. He can proceed

exclusively against Mortada and have a jury trial or he can proceed exclusively against the Swiss

Confederation and have a bench trial. What he cannot do is proceed against both under a theory

of joint and several liability.

                                            IV.      CONCLUSION

         Based on the foregoing, this Court concludes that the relevant inquiry into whether

Mortada is entitled to common law foreign immunity is whether Mortada is an agent of the Swiss

Confederation, whether the conduct giving rise to Plaintiff’s claims occurred in the scope of that

agency, and whether enforcing the claims would have the effect of enforcing claims against the

Swiss Confederation. The answer to each of these questions is “yes”; therefore, Mortada is

entitled to conduct-based immunity under the common law. 4 This Court DECLINES to adopt the

Report and Recommendation and, instead, GRANTS Defendants’ motion to dismiss Defendant

Mortada from this action with prejudice.

         Dated this 29th day of September, 2014.

4
          Plaintiff also argues that Defendants waived Mortada’s right to immunity because they failed to “rais[e] the
defense” in their “responsive pleading.” Dkt. No. 27 at 5. Plaintiff fails to cite to any authority where a court has
determined that an individual waived his common-law immunity defense by filing an answer and participating in
discovery. To the contrary, immunity is an issue of subject-matter jurisdiction and, pursuant to the Federal Rules of
Civil Procedure, “[i]f the court determines at any time that it lacks subject jurisdiction, the court must dismiss the
action.” Fed.R.Civ.P 12(h)(3) (emphasis added). The FSIA cases to which Plaintiff cites are inapposite because the
statute explicitly provides that foreign sovereign immunity under the FSIA may be waived. See 28 U.S.C. §
1605(a)(1); Canadian Overseas Ores Ltd v. Compania de Acero del Pacifico S.A., 727 F.2d 274, 277 (2d Cir. 1984)
(noting that “[u]nlike other questions of subject matter jurisdiction,” foreign sovereign immunity pursuant to the
FSIA “is a question of statutory subject matter jurisdiction” that “can be waived either explicitly or by
implication.”). Absent a statutory limitation such as section 1605(a)(1), a party may raise a subject-matter
jurisdiction at any stage in the litigation.

                                                         12
     A
     Barbara Jacobs Rothstein
     U.S. District Court Judge




13
