UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NINA ANSARY,
Plaintiff,
v. Civil Action No. 23-cv-134 (TSC) CENTRAL BANK OF CURACAO AND SINT MAARTEN,
Defendant.
MEMORANDUM OPINION
Plaintiff Dr. Nina Ansary sued Curaçao’s banking regulator, Central Bank of Curaçao
and Sint Marteen (“Central Bank”), alleging that it violated contract, tort, and international law
by mismanaging insurance subsidiaries of a Curaçao company in which she holds stock,
following a regulatory takeover. Defendant moved to dismiss, alleging preclusion, lack of
subject matter jurisdiction, lack of personal jurisdiction, and forum non conveniens. Mot. to
Dismiss, ECF No. 23 (“Motion”). Having reviewed the record and the briefs, the court will
GRANT Defendant’s Motion, finding that Defendant is entitled to foreign sovereign immunity.
I. BACKGROUND
A. Factual Background
Plaintiff holds a 15.9% stake in Parman International B.V. (“Parman”). Am. Compl.,
ECF No. 22 ¶ 2. Parman owns a consortium of insurance assets known as the Ennia Group
(“Ennia”), along with beachfront real estate and financial services entities. Id. ¶¶ 36–38. In
2015, Central Bank adopted new insurance regulations that caused Ennia to be out of compliance
with regulatory requirements. Id. ¶ 45. Central Bank initially gave Ennia until 2019 to come
Page 1 of 20 into compliance, but changed its mind in 2018 after a major shareholder of one of the insurance
assets withdrew $100 million from that asset and transferred it to his own privately held
company. Id. ¶¶ 46–49.
Central Bank then seized Ennia pursuant to a Curaçao law that allows it to petition a
Curaçao court for control of any “insurance business” that is “in serious financial distress for the
purpose of restructuring it.” Id. ¶¶ 2, 32, 35, 50–54. Plaintiff alleges that Central Bank seized
Ennia through a “pretextual ‘restructuring’” despite a complete lack of evidence that they were
insolvent or at risk of defaulting on any of its obligations and despite Central Bank’s assurance
that the insurance assets had until 2019 to come into regulatory compliance. Id. ¶¶ 3, 46.
Nevertheless, Central Bank “publicly assured” its shareholders that its seizure would be “short-
lived” and “limited to an internal re-ordering of the ownership of the assets within [its] insurance
businesses.” Id. ¶¶ 3, 60. In furtherance of the “restructuring,” Central Bank caused Ennia to
petition for approval in a U.S. bankruptcy court to utilize $280 million of Parman’s liquid
investments in New York. Id. ¶¶ 4, 77–80.
Plaintiff alleges that Central Bank still refuses to “let go of its grip on” Parman’s assets,
even though Parman is financially stable and in compliance with regulations; Central Bank did
not use the $280 million to complete the restructuring; and Central Bank has not filed required
financial disclosures. Id. ¶¶ 4, 7–8, 82, 89–92, 102–05. Moreover, Plaintiff claims that Central
Bank exercised its authority over Ennia to control Parman’s non-regulated assets, and “embarked
on a scheme to plunder the [Parman] businesses,” which included selling its profitable financial
services entities and attempting to exploit its real estate entities. Id. ¶¶ 4–5, 57, 61, 106–27. In
response, Central Bank’s Supervisory Board has launched an internal investigation and “fired
one of the regulators at the center of the pretextual ‘restructuring.’” Id. ¶ 9. Plaintiff alleges that
Page 2 of 20 Central Bank’s actions have rendered her shares in Parman “useless,” as Parman is now “the
equivalent of an empty shell.” Id. ¶ 10; accord id. ¶ 31; see Compl., ECF No. 1.
B. Related Litigation
There have been several related suits filed in Curaçao and the United States. First, in
2019 and 2021, Parman instituted proceedings in Curaçao seeking to terminate Central Bank’s
seizure of Ennia. Am. Compl. ¶¶ 71–72. In both cases, the court “refused to place any
timeframe on Central Bank’s seizure of the insurance assets or define which assets could be
liquidated.” Id. ¶ 71. According to Plaintiff, these decisions “were not ‘final and binding’ under
the law of Curaçao and the Netherlands, and therefore [are] without preclusive effect in any other
proceeding.” Id. ¶ 72. Plaintiff did not participate in either proceeding. Id.
Second, Central Bank sued the directors of Parman’s companies—including Plaintiff—in
Curaçao “to punish and deter [them] from interfering with its plans to expropriate [Parman’s]
assets.” Id. ¶ 73. Plaintiff claims that the court “issued a deeply flawed judgment” after a sham
trial, holding that the directors were liable for “hundreds of millions of dollars in compensation”
to Parman’s companies. Id. ¶ 74. Plaintiff appealed that judgment, id. ¶ 75, and the appellate
court preliminarily affirmed in part and reversed in part, see Status Report, ECF No. 26 at 1–2.
The appellate court reversed as to Plaintiff, concluding that “[n]o serious blame can be put on
[Plaintiff] for the improper performance of her duties,” and she was not “negligent.” Excerpt of
Appellate Decision, ECF No. 26-2 at 4. The court did note, however, that Plaintiff “may owe
certain amounts” to one of the insurance assets for “unjust enrichment.” Id.
Finally, Central Bank sought to enforce the Curaçao court’s judgment by causing Ennia
to initiate lawsuits in the Central District of California and the Southern District of Texas. Am.
Compl. ¶¶ 84–85; see Altena v. Ansary, No. 21-cv-10013 (C.D. Cal.); Altena v. Ansary, No. 21-
Page 3 of 20 cv-4159 (S.D. Tex.). The California action named Plaintiff as a defendant, Am. Compl. ¶ 87, but
was voluntarily dismissed without prejudice following the Curaçao appellate decision, see ECF
Nos. 79, 80, Altena v. Ansary, No. 21-cv-10013 (C.D. Cal.). The Texas action is currently stayed
with the consent of the parties pending a final decision from the Curaçao appellate court. See Tr.
of Proceedings, ECF No. 102 at 7:12–24, Altena v. Ansary, No. 21-cv-4159 (S.D. Tex.).
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(1), a defendant to move to dismiss a claim
for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Foreign sovereign immunity
is an issue of subject matter jurisdiction. Foremost-McKesson, Inc. v. Islamic Republic of Iran,
905 F.2d 438, 442 (D.C. Cir. 1990) (“District courts in a civil action against a foreign state, or
the agency or instrumentality of a foreign state, lack subject matter jurisdiction unless one of the
exceptions to immunity applies.”). To survive a Rule 12(b)(1) motion, the plaintiff must
establish that the court has subject matter jurisdiction as to each claim, not just one. See Town of
Chester v. Laroe Ests., Inc., 581 U.S. 433, 439 (2017).
In assessing a motion to dismiss, the court must “accept all of the factual allegations in
the complaint as true,” Jerome Stevens Pharms. Inc. v. FDA, 402 F.3d 1249, 1250 (D.C. Cir.
2005) (citation omitted), and construe the complaint “in the light most favorable to” the non-
moving party, Navab-Safavi v. Glassman, 637 F.3d 311, 316 (D.C. Cir. 2011). That said,
because the court has “an affirmative obligation to ensure that it is acting within the scope of its
jurisdictional authority,” the “factual allegations in the complaint . . . will bear closer scrutiny
[than those allegations would] in resolving a 12(b)(6) motion for failure to state a claim.” Grand
Lodge of Fraternal Ord. of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001)
(quotation marks and citation omitted). Moreover, the court need not accept “legal conclusions
Page 4 of 20 that are cast as factual allegations.” Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 65
(D.D.C. 2011) (citation omitted).
III. ANALYSIS
The Foreign Sovereign Immunities Act (“FSIA”) “affords the ‘sole basis for obtaining
jurisdiction over a foreign state’ in United States courts.” Wye Oak Tech., Inc. v. Republic of
Iraq, 24 F.4th 686, 690 (D.C. Cir. 2022) (citation omitted). It provides: “Subject to existing
international agreements to which the United States is a party at the time of the enactment of this
Act a foreign state shall be immune from the jurisdiction of the courts of the United States.” 28
U.S.C. § 1604. “In order to preserve the full scope of that immunity, the district court must
make the ‘critical preliminary determination’ of its own jurisdiction as early in the litigation as
possible.” Phx. Consulting Inc. v. Republic of Angola, 216 F.3d 36, 39 (D.C. Cir. 2000) (citation
omitted). “The FSIA begins with a presumption of immunity, which the plaintiff bears the initial
burden to overcome by producing evidence that an exception applies,” at which point “the
sovereign bears the ultimate burden of persuasion to show the exception does not apply.” Wye
Oak Tech., Inc., 21 F.4th at 696 (citation omitted).
Plaintiff concedes that Defendant qualifies as a “foreign state” entitled to foreign
sovereign immunity. Am. Compl. ¶ 13; Mem. in Opp’n to Mot. to Dismiss, ECF No. 24 at 24–
25 (“Opp’n”); see 28 U.S.C. § 1603(a)–(b) (explaining that a foreign state includes its agencies
and instrumentalities). But she contends that several exceptions to foreign sovereign immunity
apply here: the implicit waiver exception, the commercial activities exceptions, and the
expropriation exceptions. See Am. Compl. ¶¶ 15–21. Because Defendant “challenges only the
legal sufficiency of the plaintiff’s jurisdictional allegations,” the court will “take the plaintiff’s
factual allegations as true and determine whether they bring the case within any of the exceptions
to immunity invoked.” See Phx. Consulting Inc., 216 F.3d at 40. Page 5 of 20 A. Implicit Waiver Exception
i. Legal framework
A foreign state is not immune from suit if it “has waived its immunity either explicitly or
by implication.” 28 U.S.C. § 1605(a)(1). The statute “does not define” implicit waiver, Wye
Oak Tech., Inc., 24 F.4th at 691, but the D.C. Circuit construes this provision “narrowly,”
Khockinsky v. Republic of Poland, 1 F.4th 1, 8 (D.C. Cir. 2021) (citation omitted). Finding
implicit waiver requires “strong evidence” “that the foreign state . . . intended to waive its
sovereign immunity.” Id. (citations omitted; emphasis in original). Consequently, the D.C.
Circuit has found implicit waiver “in only three circumstances: (i) the state’s executing a contract
containing a choice-of-law clause designating the laws of the United States as applicable; (ii) the
state’s filing a responsive pleading without asserting sovereign immunity; or (iii) the state’s
agreeing to submit a dispute to arbitration in the United States.” Id. at 8–9 (citation and internal
quotation marks omitted). Although these three circumstances are “not necessarily exhaustive,”
Human v. Czech Republic Ministry of Health, 824 F.3d 131, 140 (D.C. Cir. 2016) (Sentelle, S.J.,
dissenting), “courts have been reluctant to stray beyond these examples when considering claims
that a nation has implicit waived its defense of sovereign immunity,” Khockinsky, 1 F.4th at 9
(citation omitted).
The D.C. Circuit has not directly addressed whether a foreign state’s actions in related
proceedings can implicitly waive sovereign immunity. But cf. Broidy v. Cap. Mgmt. LLC v.
Muzin, 61 F.4th 984, 996–97 (D.C. Cir. 2023) (concluding that the waiver exception does not
apply when a foreign sovereign intervenes in an action because “mere intervention would not
‘standing alone, fit in the selective company of implied waiver cases’” (citation omitted)). The
Second and Ninth Circuits, however, have held that a foreign state may implicitly waive
Page 6 of 20 sovereign immunity by initiating a related proceeding in a U.S. court if the related proceeding
contains a “direct connection” to the claims in the instant action. Cabiri v. Gov’t of Republic of
Ghana, 165 F.3d 193, 202 (2d Cir. 1999); see Blaxland v. Commonwealth Dir. of Pub.
Prosecutions, 323 F.3d 1198, 1207 (9th Cir. 2003) (“To support a finding of implied waiver . . .
there must exist a direct connection between the sovereign’s activities in our courts and the
plaintiff’s claims for relief.” (citation omitted)). Cf. Siderman de Blake v. Republic of Argentina,
965 F.2d 699, 721–22 (9th Cir. 1992) (“[T]he essential inquiry . . . is whether a sovereign
contemplated the involvement of United States courts in the affair in issue.”).
These courts construe this standard narrowly. For example, in Cabiri, 165 F.3d at 195–
96, plaintiff Cabiri, a trade representative of Ghana to the United States, sued Ghana, claiming he
was detained and tortured in Ghana for approximately a year. During that time, his family—also
plaintiffs to the suit—lived in a New York home that Ghana provided him during his
employment. Id. After Cabiri was released from detention, Ghana brought an eviction
proceeding in New York, seeking to remove him and his family from the New York home. Id. at
196. The Second Circuit held that “Ghana’s commencement of proceedings in New York to
evict plaintiffs” was not an implied waiver of its sovereign immunity in the wrongful detention
and torture lawsuit, “even if occupancy is arguably the contractual perquisite of an employment
relationship frustrated by Ghana’s wrongful detention and torture of its employee in Ghana.” Id.
at 202. Plaintiffs argued that the eviction proceeding was “a step in Ghana’s scheme to persecute
and torture” them, but the court noted that eviction would have resulted in them leaving the
home, not returning to Ghana where Cabiri was detained and tortured, and that the eviction
proceeding postdated those events. Id. Similarly, in Shapiro v. Republic of Bolivia, 930 F.2d
1013, 1018 (2d Cir. 1991), the Second Circuit explained that, even if it recognized that related
Page 7 of 20 suits could lead to waivers of sovereign immunity, there was no implied waiver in that case
because the actions “involve[d] a different set of rights and obligations” between the parties,
even though they arose from the same promissory notes.
ii. Application
Plaintiff has not met her burden to show the implied waiver exception applies here. None
of the three key examples of implied waiver are present. Plaintiff does not assert that there is a
contractual choice of law clause between Plaintiff and Defendant selecting the laws of the United
States; that Defendant filed a responsive pleading in this suit without asserting sovereign
immunity; or that there is any arbitration agreement. See Khockinsky, 1 F.4th at 8–9.
Plaintiff argues—for the first time, in her opposition—that “Central Bank’s actions
qualify under all three waiver examples.” Opp’n at 26. But in her Complaint, Plaintiff alleged
only that the implied waiver exception applied because of the related proceedings in U.S. courts.
Am. Compl. ¶ 15. And “it is axiomatic that a complaint may not be amended by the briefs in
opposition to a motion to dismiss.” Statewide Bonding, Inc. v. U.S. Dep’t of Homeland Sec., 980
F.3d 109, 117 n.5 (D.C. Cir. 2020). Moreover, Plaintiff only makes arguments regarding two of
the three waiver examples—choice of law and failure to assert sovereign immunity—both of
which fail on the merits. See Opp’n at 26–27. Plaintiff again relies on the related proceedings,
arguing that Defendant chose U.S. law when Ennia initiated those proceedings and did not assert
sovereign immunity in those proceedings. Not only has the D.C. Circuit never applied these
exceptions in similar circumstances, but, as explained infra (at 9–10), even if Ennia’s lawsuits
can be imputed to Defendant, the related proceedings did not bear a “direct connection” to this
suit, see Cabiri, 165 F.3d at 202; Blaxland, 323 F.3d at 1207.
Page 8 of 20 Nor did the related actions implicitly waive Defendant’s sovereign immunity. At the
outset, it is not clear that the foreign representative who initiated these suits was capable of
waiving Defendant’s sovereign immunity. For purposes of the FSIA, a “foreign state” capable of
waiving immunity includes agencies or instrumentalities. 28 U.S.C. § 1603(a). But to be an
“agency or instrumentality,” an entity must be “an organ of a foreign state or political
subdivision thereof, or a majority of whose shares or other ownership interest is owned by a
foreign state or political subdivision thereof.” Id. § 1603(b)(2). The foreign representative
brought these suits on behalf of Ennia—Parman’s insurance entities presently controlled by
Defendant—not Defendant itself. See, e.g., Compl., ECF No. 1 ¶ 7, Altena v. Ansary, No. 21-cv-
10013 (C.D. Cal.) (“Sabine Altena is an individual . . . duly appointed Foreign Representative,
with authority to bring suit in the United States on behalf of ENNIA.”). And Defendant itself
“was not a party to any of the U.S. actions.” Reply in Supp. of Mot. to Dismiss, ECF No. 25
at 10 (“Reply”). Thus, although Ennia was arguably an agent of Defendant’s, it has a much less
direct relationship to Curaçao itself. For example, in Foremost-McKesson, Inc., 905 F.2d at 448,
the D.C. Circuit remanded to the district court to consider whether Pak Dairy was an agent of
Iran, concluding that “the showing required to support a claim of attribution [was] far from
straightforward” because “Iran’s alleged control over Pak Dairy was exercised through entities
on Pak Dairy’s Board, which were in turn allegedly controlled by Iran.” Consequently, it was
not clear that the foreign representative bore a close enough relationship to the foreign state to
waive its immunity. See id.
Even if Ennia’s actions can be imputed to Defendant, however, the related suits do not
waive Defendant’s sovereign immunity because they do not bear a “direct connection” to this
case. In the bankruptcy proceeding Plaintiff cites, Ennia sought approval to utilize $280 million
Page 9 of 20 of Parman’s liquid investments in New York in furtherance of its restructuring. Am. Compl.
¶¶ 4, 77–80. As in Cabiri, 165 F.3d at 202, Plaintiff alleges that the bankruptcy proceeding was
“a step in [Defendant’s] scheme.” But that connection alone is insufficient to waive Defendant’s
sovereign immunity, and there are far more differences than similarities between the suits. See
id. In the Texas and California actions, Ennia sought to collect against a nonparty individual and
Plaintiff, respectively, pursuant to the Curaçao decision. Compl. ¶¶ 27–35, Altena v. Ansary,
No. 21-cv-10013 (C.D. Cal.); Compl., ECF No. 1 ¶¶ 27–38, Altena v. Ansary, No. 21-cv-4159
(S.D. Tex.). Importantly, the parties have not, and will not, litigate the merits of the Curaçao
decision in those actions. Rather, Ennia sought to collect under state laws that recognize and
enforce the validity of foreign judgments. See Cal. Code Civ. Proc. §§ 1715(a), 1716(a); Tex.
Civil Prac. & Rem. Code § 36A.007. What is more, the Curaçao decision addressed only some
of the same issues Plaintiff raises in this case. See Cabiri, 165 F.3d at 202. In Curaçao, Central
Bank sued the directors of Parman’s companies—including Plaintiff—alleging they performed
improperly and were liable to Parman for negligence. Am. Compl. ¶¶ 73–74. Plaintiff here does
not allege that Parman’s directors or shareholders acted improperly, but rather that Central Bank
was the bad actor. See id. ¶¶ 4, 7–8, 82, 89–92, 102–05. In sum, the implied waiver exception to
the FSIA does not apply in this case.
B. Commercial Activity Exceptions
The commercial activity exception provides that a foreign state is not immune from suit
in three circumstances: (1) if “the action is based upon a commercial activity carried on in the
United States by the foreign state”; (2) if the action is based “upon an act performed in the
United States in connection with a commercial activity of the foreign state elsewhere”; or (3) if
the action is based “upon an act outside the territory of the United States in connection with a
Page 10 of 20 commercial activity of the foreign state elsewhere and that act causes a direct effect in the United
States.” 28 U.S.C. § 1605(a)(2). Each clause requires that the foreign state be engaged in
commercial activity, rather than regulatory activity, and that the suit is “based upon” that
activity. See id. Once those elements are established, the court analyzes, under each clause,
whether the defendant’s alleged commercial activity has the necessary nexus with the United
States. See id.
i. Whether Plaintiff’s suit is “based upon” “commercial activity”
The analysis “begin[s]” “by identifying the particular conduct on which the [suit’s] action
is ‘based’ for purposes of the Act.” Saudia Arabia v. Nelson, 507 U.S. 349, 356 (1993). The
FSIA does not define “based upon,” but the Supreme Court has held that “the phrase is read most
naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief
under his theory of the case.” Id. at 357. The phrase “calls for something more than a mere
connection with, or relation to, commercial activity,” id. at 358, and the activity must establish
more than “a single element of the claim,” OBB Personenverkehr AG v. Sachs, 577 U.S. 27, 34
(2015). In Nelson, 507 U.S. at 357, for example, the Court held that plaintiffs’ suit was not
“based upon” commercial activity even though they sued for personal injuries they experienced
while working for defendants. Even though Defendants “recruited [plaintiff] Nelson for work at
the hospital, signed an employment contract with him, and subsequently employed him”—all
“arguable” commercial activities—and “those activities led to the conduct that eventually injured
the Nelsons,” it was the personal injury torts, “and not the arguable commercial activities that
preceded their commission,” that were the “basis for the Nelsons’ suit.” Id.
Once the court identifies “the gravamen of the Plaintiffs’ action,” it “must next
determine whether it constitutes ‘commercial activity.’” Rosenkrantz v. Inter-American Dev.
Page 11 of 20 Bank, 35 F.4th 854, 864 (D.C. Cir. 2022). The FSIA defines “commercial activity” as “either a
regular course of commercial conduct or a particular commercial transaction or act.” 28 U.S.C.
§ 1603(d). The Supreme Court has interpreted this definition as “restrictive,” and held that “a
foreign state engages in commercial activity . . . only where it acts ‘in the manner of a private
player within’ the market.” Nelson, 507 U.S. at 359–60 (quoting Republic of Argentina v.
Weltover, Inc., 504 U.S. 607, 614 (1992)). “[T]he question is not whether the foreign
government is acting with a profit motive,” but “whether the particular actions that the foreign
state performs (whatever the motive behind them) are the type of actions by which a private party
engages in ‘trade and traffic or commerce.’” Weltover, Inc., 504 U.S. at 614 (citation omitted).
For example, in Weltover, id. at 615–17, the Court concluded that Argentina engaged in
commercial activity in refinancing bonds because the bonds were “in almost all respects garden-
variety debt instruments.” Accord Janini v. Kuwait Univ., 43 F.3d 1534, 1537 (D.C. Cir. 1995)
(foreign state’s decision to terminate an employment contract was commercial activity because
“[p]rivate parties often repudiate contracts in everyday commerce”). By contrast, in Nelson, 507
U.S. at 361–62, the Supreme Court held that “the Saudi Government’s wrongful arrest,
imprisonment, and torture of Nelson” was not commercial activity because it “boil[ed] down to
abuse of the power of [the] police,” which is “peculiarly sovereign in nature” and “not the sort of
action by which private parties can engage in commerce.” Accord Mwani v. bin Laden, 417 F.3d
1, 17 (D.C. Cir. 2005) (“Granting refuge to terrorist training camps is a uniquely sovereign act; it
is not the sort of benefit that a commercial landlord can bestow upon a commercial tenant.”).
Determining whether conduct constitutes “commercial activity” is especially complicated
in cases involving state expropriation of private entities. On one hand, the D.C. Circuit has held
that a foreign state’s “alleged breach of bailment agreements easily satisfie[d]” the commercial
Page 12 of 20 activity requirement” even though the entity that defendant controlled was initially expropriated
because the conduct the suit was “based” upon was “not the initial expropriation . . . but instead
Hungary’s creation and repudiation of subsequently formed bailment agreements.” de Csepel v.
Republic of Hungary, 714 F.3d 591, 599–600 (D.C. Cir. 2013) (“de Csepel I”). On the other, the
Court held that a foreign state’s “takeover and management of [a] company” was not commercial
activity because it “flow[ed] from” a state declaration and was therefore “an act that can be taken
only be a sovereign,” rather than a “corporate takeover.” Rong v. Liaoning Province Gov’t, 452
F.3d 883, 889–90 (D.C. Cir. 2006). Harmonizing de Csepel I and Rong, “claims arising from the
original expropriation” do not fall within the commercial activity exception, but “subsequent
commercial transactions” involving the expropriated entity do. See Garb v. Republic of Poland,
440 F.3d 579, 587–88 (2d Cir. 2006) (creating a similar standard).
Plaintiff’s suit includes nine claims against Defendant: (1) conversion of Plaintiff’s
ownership interest in Parman, Am. Compl. ¶¶ 130–35; (2) unjust enrichment by profiting off its
control over Parman at Plaintiff’s expense, id. ¶¶ 136–41; (3) breach of fiduciary duty by selling
Parman’s financial services arm “at a below-market value” and attempting to sell the real estate
arm’s “most valuable asset at a fire sale price,” id. ¶¶ 142–48; (4) violating customary
international law by expropriating Plaintiff’s interest in Parman, id. ¶¶ 149–63; (5) violating the
Duty-American Friendship Treaty (“Treaty”) by treating Parman’s investors unfairly, id. ¶¶ 164–
70; (6) violating the Treaty by failing to protect Plaintiff’s investment, id. ¶¶ 171–76;
(7) violating the Treaty by taking unreasonable and discriminatory actions in controlling the
Ennia Group, id. ¶¶ 177–82; (8) violating the Treaty by expropriating Plaintiff’s interest in
Parman, id. ¶¶ 183–97; and (9) violating the Treaty by failing to provide Plaintiff with equitable
treatment, id. ¶¶ 198–205. The parties agree that the gravamen of each claim is Defendant’s
Page 13 of 20 alleged mismanagement of Parman’s assets during its regulatory takeover of Ennia. See Opp’n
at 31 (explaining that the “gravamen” of most of Plaintiff’s claims is the sale of the financial
services arm and Defendant’s efforts to sell the real estate arm); id. at 32–33 (other causes of
action are “based on” Defendant’s management of Ennia); Reply at 18.
Whether this conduct is commercial activity is a close question. One could argue that,
although Defendant’s decisions in managing Parman, including selling Parman’s financial
services arm, may “seem commercial,” “all of these acts flow from” the Emergency Regulation
that authorized Defendant to take control of Parman—“an act that can be taken only by a
sovereign.” Rong, 452 F.3d at 889. And, just like in Rong, the sovereign “did not assume
control over [the company] by purchasing the majority of [its] stock . . . as a private party would;
instead, it . . . claimed them, as does a sovereign.” Id. at 890; see Am. Compl. ¶¶ 50–54. No
private party could similarly seize Parman’s assets. See Weltover, Inc., 504 U.S. at 614. But, at
bottom, Plaintiff does not challenge Defendant’s decision to expropriate Parman pursuant to the
Emergency Regulation itself. Rather, Plaintiff challenges Defendant’s “subsequent[]”
management decisions, and the effects those decisions had on Parman’s stock. See de Csepel I,
714 F.3d at 600. The court need not decide, however, whether Defendant’s alleged conduct
constituted “commercial activity,” because even if it did, Plaintiff has not alleged the necessary
nexus with the United States under any clause of the commercial activity exception. Infra at 15–
17.
ii. Whether Plaintiff’s suit bears the necessary nexus with the United States
Each clause of the commercial activity exception requires a different nexus with the
United States. Under the first clause, the suit must be “based upon a commercial activity carried
on in the United States.” 28 U.S.C. § 1605(a)(2). Relatedly, under the second clause, the suit
Page 14 of 20 must be based “upon an act performed in the United States in connection with a commercial
activity” elsewhere. Id.
Plaintiff alleges that the case is “based upon” “several commercial activities carried on in
the United States”: that Defendant operates and manages Parman’s assets in the United States;
that Parman’s assets are owned by U.S. shareholders; that Defendant liquidated investments in
New York as part of the reorganization; that Defendant retained a Miami-based investment
banking firm to orchestrate the sale of Parman’s financial services arm; and that Defendant
denied Plaintiff, a U.S. national, her ownership rights in Parman. Am. Compl. ¶ 17. She also
claims that Defendant performed several overlapping acts in the United States in connection with
its commercial activity abroad: Defendant arranged for Ennia to seek liquidation of the New
York assets; initiated enforcement actions in the United States (the Texas and California
actions); and retained an American firm “to facilitate the commercial sale of” the financial
services arm. Id. ¶ 18. But, as Plaintiff admits, none of these allegations are the “gravamen” of
her claims. See Opp’n at 31–33; supra at 13–14 (the gravamen of Plaintiff’s claims is
Defendant’s alleged mismanagement of Parman’s assets during its regulatory takeover). The
closest is Plaintiff’s allegation that Defendant liquidated Ennia’s assets in the United States and
then did not use those assets, but that allegation is alone not the basis of Plaintiff’s suit.
Consequently, neither the first nor second clause exempts Defendant from sovereign immunity.
Finally, under the third clause of the commercial activity exception, the suit must be
based on an act that occurs elsewhere, in connection with commercial activity elsewhere, and
“that act causes a direct effect in the United States.” 28 U.S.C. § 1605(a)(2). A direct effect
“need not be ‘substantial’ or ‘foreseeable’ so long as it is more than ‘purely trivial’ and ‘it
follows as an immediate consequence of the defendant’s activity.’” Princz v. Federal Republic
Page 15 of 20 of Germany, 26 F.3d 1166, 1172 (D.C. Cir. 1994) (citation omitted). Applying this framework,
the Court in Weltover, 504 U.S. at 618–19, held that Argentina’s decision to reschedule the
bonds’ maturity dates had a direct effect in the United States because U.S. bank accounts were
the place of payment for the bonds, making it the “place of performance for Argentina’s ultimate
contractual obligations.” By contrast, the D.C. Circuit in Princz, 26 F.3d at 1172, concluded that
all of plaintiff’s alleged effects in the United States were not “direct” because “[m]any events
and actors necessarily intervened between” defendant’s alleged actions “and any effect felt in the
United States.” Moreover, “loss to an American individual . . . resulting from a foreign tort” is
insufficient “standing alone to satisfy the direct effect requirement” because, were that not the
case, “the commercial activity exception would in large part eviscerate the FSIA’s provision of
immunity.” Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1184 (D.C.
Cir. 2013) (citation omitted).
Plaintiff alleges that the “direct effects” felt in the United States are the property rights
and financial losses for U.S. shareholders resulting from Defendant’s mismanagement of
Parman’s assets and Ennia initiating the Texas and California actions. Am. Compl. ¶ 19.
Neither of these “effects,” however, is “direct” within the meaning of the FSIA. First, the losses
felt by shareholders in the United States are insufficient to satisfy the direct effect requirement
under Bell Helicopter Textron, Inc., 734 F.3d at 1184. As Defendant notes, it “merely exercised
regulatory authority of Curaçao entities owned by another Curaçao corporation that happened to
already have U.S. investors.” Reply at 13. Second, the enforcement actions in the United States
were not an immediate consequence of the Curaçao suit against the U.S. directors. Rather, Ennia
chose to bring those actions to assist it in collecting on the judgments. Moreover, Plaintiff’s suit
Page 16 of 20 is not “based upon” the Curaçao suit. As the court has already explained, supra at 9–10, the
Curaçao litigation does not even bear a direct connection to this suit.
Consequently, Defendant is not subject to suit in the United States under any of the
commercial activity exceptions.
C. Expropriation Exceptions
The final exceptions to sovereign immunity that Plaintiff invokes are the expropriation
exceptions. See 28 U.S.C. § 1605(a)(3). These apply in two scenarios: (1) when “rights in
property taken in violation of international law are in issue and that property or any property
exchanged for such property is present in the United States in connection with a commercial
activity carried on in the United States by the foreign state,” and (2) when “rights in property
taken in violation of international law are in issue and . . . that property or any property
exchanged for such property is owned or operated by an agency or instrumentality of the foreign
state and that agency or instrumentality is engaged in a commercial activity in the United States.”
Id.
The D.C. Circuit has held that the first clause applies only to a foreign state itself and the
second clause applies only to an agency or instrumentality of a foreign state. See De Csepel v.
Republic of Hungary, 27 F.4th 736, 743 (D.C. Cir. 2022) (citation omitted) (“De Csepel II”).
Consequently, the court must first analyze whether Defendant is the “foreign state” itself subject
to the first clause or an “agency or instrumentality” of the foreign state subject to the second
clause. See id.
To determine whether an entity is an agency or instrumentality of a foreign state or the
foreign state itself, courts consider “whether its ‘core functions are governmental or
commercial.’” Id. (citation omitted). Applying this test, the D.C. Circuit has held that Bolivia’s
Page 17 of 20 Air Force and Iran’s Ministry of Foreign Affairs were the foreign states themselves, reasoning
that “powers to declare and wage war are among the necessary concomitants of sovereignty” and
“foreign affairs is an important and indispensable government function.” Id. at 743–44. In De
Csepel II, however, the court concluded that defendant was an agency or instrumentality of
Hungary, rather than Hungary itself, because its “management of companies, movable property,
and real property” was “overwhelmingly commercial in nature.” Id. at 745.
Defendant here “manages the foreign exchange reserves of Curaçao and Sint Maarten,
including the regulation of transfer of payments between residents . . . and non-residents,” Am.
Compl. ¶ 13, “is responsible for supervising and licensing ‘insurers’ in Curaçao and ensuring
they remain solvent,” id. ¶ 33, and has authority to “adopt[] new regulations” governing insurers,
id. ¶ 45. No private company could perform those functions. In De Csepel II, 27 F.4th at 745,
by contrast, the D.C. Circuit explained that there was “nothing inherently sovereign about
managing energy, gambling, or waste,” “maintaining and lending road vehicles, musical
instruments, or art pieces,” merely because those items belonged to a sovereign. Accordingly,
Defendant is better characterized as the foreign state rather than an agency or instrumentality.
But even if Defendant were an agency or instrumentality of Curaçao, rather than Curaçao itself,
it would not qualify for either expropriation exception.
At the threshold, a plaintiff must show that they have rights in property that were taken in
violation of international law under either clause. See 28 U.S.C. § 1605(a)(3). The Supreme
Court has concluded that “the expropriation exception is best read as referencing the
international law of expropriation.” Federal Republic of Germany v. Philipp, 592 U.S. 169, 180
(2021). Consequently, “the court looks to customary international law” in analyzing whether a
Page 18 of 20 plaintiff “has a property right that was taken.” Exxon Mobil Corp. v. Corporación CIMEX S.A.,
534 F. Supp. 3d 1, 26–27 (D.D.C. 2021) (citing Philipp, 592 U.S. at 180).
“International law undisputedly protects the ‘direct rights’ shareholders enjoy in
connection with corporate ownership, including ‘the right to any declared dividend, the right to
attend and vote at general meetings, and the right to share in the residual assets of the company
in liquidation.’” Helmerich & Payne Int’l Drilling Co. v. Bolvarian Republic of Venezuela, 743
F. App’x 442, 454 (D.C. Cir. 2018). A foreign state may “take” that property without “formally
divest[ing] the shareholder of its shares” when it “permanently takes over management and
control of a foreign shareholder’s business, completely destroying the beneficial and productive
value of the shareholder’s ownership of their company, and leaving the shareholder with shares
that have been rendered useless.” Id. For example, in Helmerich, the D.C. Circuit found that
defendants took over plaintiff’s “entire business,” depriving plaintiffs of “the entirety of” their
“ownership and control of” the entity. Id. at 455 (citations omitted).
But “not every state action that has a detrimental impact on a shareholder’s interests
amounts to an indirect expropriation of the shareholder’s ownership rights.” Id. at 454. If “a
state’s expropriation of a corporation’s property . . . does not result in the expropriation of the
entire enterprise,” the foreign state has not expropriated the shareholder’s rights under customary
international law, “even if it reduces the value of the shares to zero.” Exxon Mobil Corp., 534
F. Supp. 3d at 27 (citation omitted). Applying this framework, a court in this district held that
Cuba’s expropriation of Exxon Mobil’s subsidiary did not “render[] Exxon’s shares” in its
subsidiary “useless” because there was evidence indicating the subsidiary continued to operate
after the expropriation. Id. at 28.
Page 19 of 20 Plaintiff alleges that her shares in Parman are “rights in property” that were taken in
violation of international law because Defendant’s “actions have destroyed all value in them.”
Am. Compl. ¶ 21. But there are two clear distinctions between the facts in this case and those in
cases where courts have indicated that the expropriation exception may apply. First, Plaintiff
owns only a 15.9% stake—she is not a majority shareholder. Id. ¶ 2. And second, Plaintiff’s
interest is in Parman—not Ennia, the entity Defendant seized. See id. But even assuming
Plaintiff has the kind of property interest that Defendant’s seizure of Ennia could render
“useless” under international law, that did not happen here. See Schmidt, 826 F. Supp. 2d at 65
(courts need not accept “legal conclusions that are cast as factual allegations” in the pleadings
(citation omitted)). Just like in Exxon Mobil, 534 F. Supp. 3d at 28, Ennia continues to operate.
In fact, Plaintiff alleges that Defendant has poorly managed Ennia—not that it has “dissolved” it
or destroyed its stock value. See id. Consequently, Defendant has not “taken” Plaintiff’s shares
in Ennia in violation of customary international law, and the expropriation exceptions do not
apply. And because no exception to the FSIA applies, Defendant “shall be immune from the
jurisdiction of the courts of the United States.” 28 U.S.C. § 1604.
IV. CONCLUSION
For the foregoing reasons, the court will GRANT Defendant’s Motion to Dismiss, ECF
No. 23. An Order will accompany this Memorandum Opinion.
Date: May 30, 2024
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge
Page 20 of 20