22-1645 Harvey v. Permanent Mission of the Republic of Sierra Leone to the United Nations
In the United States Court of Appeals For the Second Circuit
August Term, 2022 No. 22-1645
JANET HARVEY, JOSEPH HARVEY, Plaintiffs-Appellees,
v.
PERMANENT MISSION OF THE REPUBLIC OF SIERRA LEONE TO THE UNITED NATIONS, Defendant-Cross Defendant-Appellant,
JULES DAVIS, FAIRFIELD CONSTRUCTION ASSOCIATES, LLC, EMPIRE GROUP NYC, LLC, DAVID I. MONTESI, Defendants-Cross Claimants-Cross Defendants.
On Appeal from the United States District Court for the Southern District of New York
ARGUED: JUNE 1, 2023 DECIDED: MARCH 25, 2024
Before: NARDINI, PÉREZ, and KAHN, Circuit Judges. Plaintiffs-Appellees Janet and Joseph Harvey brought several common law tort claims against Defendant-Cross Defendant- Appellant the Permanent Mission of the Republic of Sierra Leone to the United Nations, alleging they were harmed by faulty renovations at the Mission’s headquarters, which is located next door to the Harveys’ home in Manhattan. The Mission moved to dismiss the Harveys’ complaint, arguing that the district court lacked subject matter jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq. The United States District Court for the Southern District of New York (Edgardo Ramos, District Judge) denied the Mission’s motion to dismiss for lack of subject matter jurisdiction, holding that two exceptions to the Mission’s immunity applied: the commercial activity exception, id. § 1605(a)(2), and the tortious activity exception, id. § 1605(a)(5). The Mission filed this interlocutory appeal. We hold that the commercial activity exception applies because the Harveys’ claims are based upon the Mission’s allegedly faulty contractual renovations, and renovating a building is something that a private party can, and often does, do. Accordingly, we AFFIRM.
ANA JARA (Rachel Maimin, on the brief), Lowenstein Sandler LLP, New York, NY, for Plaintiffs-Appellees.
NICHOLAS M. RENZLER (Andrew B. Loewenstein and Christina G. Hioureas, on the brief), Foley Hoag LLP, Boston, MA and New York, NY, for Defendant-Cross Defendant-Appellant.
2 WILLIAM J. NARDINI, Circuit Judge:
Plaintiffs-Appellees Janet and Joseph Harvey brought several
common law tort claims against Defendant-Cross Defendant-
Appellant the Permanent Mission of the Republic of Sierra Leone to
the United Nations, Empire Group NYC, LLC (“Empire”), David I.
Montesi, Fairfield Construction Associates, LLC (“Fairfield”), and
Jules Davis (collectively, “Defendants”), 1 alleging that faulty
renovations at the Mission’s headquarters, which is located next door
to the Harveys’ home in Manhattan, “significantly harmed” them. J.
App’x at 101, ¶ 1. The Mission moved to dismiss the Harveys’
complaint, arguing, among other things, that the district court lacked
subject matter jurisdiction under the Foreign Sovereign Immunities
Act (“FSIA”), 28 U.S.C. § 1602 et seq. The parties do not dispute that
the Mission is an embodiment of the foreign state of Sierra Leone and
is therefore entitled to sovereign immunity under the FSIA unless an
1 Empire, Montesi, Fairfield, and Davis are more fully described as Defendants-Cross Claimants-Cross Defendants.
3 exception to that immunity applies. By order dated July 1, 2022, the
United States District Court for the Southern District of New York
(Edgardo Ramos, District Judge) denied the Mission’s motion to
dismiss for lack of subject matter jurisdiction, holding that two
exceptions to the Mission’s immunity applied: the commercial
activity exception, id. § 1605(a)(2), and the tortious activity exception,
id. § 1605(a)(5). See Harvey v. Permanent Mission of the Republic of Sierra
Leone to the United Nations, No. 21-cv-4368 (ER), 2022 WL 2392101, at
*3–4, 6-9 (S.D.N.Y. July 1, 2022).
The Mission filed this interlocutory appeal, arguing that neither
exception should apply to abrogate its immunity. We hold that the
Harveys’ claims fall within the commercial activity exception, and
therefore AFFIRM the order of the district court to the extent it denied
the Mission’s motion to dismiss for lack of subject matter jurisdiction.
4 I. Background
A. Factual Background
The following facts are drawn from the allegations in the
Harveys’ amended complaint (the “Amended Complaint”), which we
must accept as true for purposes of evaluating the Mission’s motion
to dismiss. Kolbasyuk v. Cap. Mgmt. Servs., LP, 918 F.3d 236, 238 n.1
(2d Cir. 2019) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
The Harveys live in a townhouse located at 243 East 49th Street,
New York, NY. The Mission’s headquarters is a townhouse located
directly next door, at 245 East 49th Street, and the two townhouses
share a party wall. Since 2019, and “with no end in sight,” the Mission
has been renovating its headquarters to “among other things . . . build
two additional floors.” J. App’x at 106, ¶ 23. The Mission hired a
general contractor, which in turn hired a subcontractor, to build out
the construction. Fairfield is the “general contractor for the
renovations.” Id. at 105, ¶ 14. Davis (together with Fairfield, the
“General Contractor Defendants”) “leads Fairfield’s work” at the
5 Mission’s headquarters. Id. at 107, ¶ 25. The General Contractor
Defendants “have held themselves out as agents acting on behalf of
the Mission.” Id. Empire is Fairfield’s subcontractor who has
“performed substantially all of the renovations” at the Mission’s
headquarters during the relevant time. Id. at 104, ¶ 13. Montesi
(together with Empire, the “Subcontractor Defendants”) “leads
Empire’s work” at the Mission’s headquarters and obtained “most of
the active” construction permits from the New York City Department
of Buildings (“DOB”) on behalf of Empire. Id. at 104–05, ¶ 13.
The incomplete renovations at the Mission’s headquarters have
created a number of dangerous conditions in the Harveys’ home.
Among other things, the Harveys allege that (1) the renovations have
resulted in the presence of heavy debris, some of which is flammable,
throughout the Mission’s headquarters; (2) Defendants have failed to
extend the Harveys’ chimney above the two new floors that the
Mission is adding to its headquarters, “creating the potential for the
6 backdraft of products of combustion,” such as “lethal carbon
monoxide,” into the Harveys’ home, id. at 109, ¶ 29; (3) Defendants,
without permission, placed heavy equipment and scaffolding on the
Harveys’ roof, and have failed to properly secure that heavy
equipment and scaffolding; (4) the renovations have left unfilled gaps
in the party wall that the Harveys’ home shares with the Mission’s
headquarters, threatening the “structural integrity” of the Harveys’
home, id. at 112, ¶ 40; and (5) Defendants have failed to adequately
waterproof various parts of the Mission’s headquarters, including the
roof and party wall, resulting in mold throughout the Mission’s
headquarters, which “threatens to compound the mold problem” in
the Harveys’ home, id. at 113, ¶ 49.
The Harveys sought help from the DOB, but despite the DOB’s
many efforts to “cure the dangers posed by the renovations,” the
issues remain. Id. at 115, ¶ 55. Since 2019, the DOB has received
twenty-one complaints concerning the renovations at the Mission’s
7 headquarters, two of which resulted in a partial stop work order and
one of which resulted in a full stop work order. The second partial
stop work order, from April 2021, remains pending, requiring
Defendants to secure the Harveys’ roof. Although the DOB
conducted two follow-up inspections to ensure compliance with the
partial stop work order, “no steps” were taken by Defendants to
secure the Harveys’ roof, resulting in a fine of at least $2,500. Id. at
103, ¶ 8. There are also “seven open Environmental Control Board
violations” related to the renovations, two of which have resulted in
fines for $25,000 each. Id. at 115, ¶ 55. Moreover, the DOB has fined
Montesi at least $61,865 for New York City Construction Code
violations at the Mission’s headquarters. None of the fines have been
paid.
B. Procedural Background
On May 14, 2021, the Harveys sued the Subcontractor
Defendants and the Mission, asserting claims for negligence, private
8 nuisance, trespass, and res ipsa loquitur. On June 7, 2021, the district
court entered a consent order (the “Consent Order”) “directing the
[Subcontractor Defendants] to work with the Harveys to remedy
certain of the alleged deficiencies with the renovation,” including
requiring the Subcontractor Defendants “to create and apply for
approval for plans for a temporary chimney extension to be installed
on the Harveys’ home, to remove certain debris inside the Mission
property, to ensure entry and egress from the street, and to enclose
elevator shaft openings.” Harvey, 2022 WL 2392101, at *2 (footnote
omitted).
On October 22, 2021, the Harveys filed the Amended
Complaint, which is the operative complaint in this case. The
Amended Complaint added the General Contractor Defendants as
defendants and, mirroring the original complaint, asserted claims for
negligence, private nuisance, trespass, and res ipsa loquitur against all
defendants. The Amended Complaint demanded monetary damages
9 “in an amount in excess of $155,020.00, together with pre-judgment
and post-judgment interest, attorneys’ fees,” punitive damages
against the General Contractor and Subcontractor Defendants “for
their egregious disregard of the Harveys’ safety, wellbeing, and
ability to live in their own home,” and injunctive relief against all
Defendants. J. App’x at 129.
On December 14, 2021, the Mission moved to dismiss the
Amended Complaint pursuant to Federal Rules of Civil Procedure
12(b)(1), 12(b)(2), and 12(b)(6), for lack of subject matter jurisdiction,
lack of personal jurisdiction, and failure to state a claim, respectively.
That same day, the Harveys moved for contempt and sanctions
against the Subcontractor Defendants for alleged violations of the
Consent Order, and a preliminary injunction against all Defendants.
On July 1, 2022, the district court entered an omnibus opinion
and order resolving these motions. See generally Harvey, 2022 WL
2392101. Regarding subject matter jurisdiction, the district court held
10 that the commercial activity and tortious activity exceptions, but not
the immoveable property exception, applied to strip the Mission of its
immunity under the FSIA. See id. at *3–9. Regarding personal
jurisdiction, the district court held that the “FSIA also confers
personal jurisdiction.” Id. at *3 (citing 28 U.S.C. § 1330(a), (b)). And,
regarding the Mission’s motion to dismiss for failure to state a claim,
the district court held that the Harveys had “stated a claim as to
negligence and nuisance, but not trespass,” and therefore dismissed
the Harveys’ trespass claim. 2 Id. at *9 (footnotes omitted).
The district court denied the Harveys’ motion for contempt and
sanctions, declining to hold the Subcontractor Defendants in
contempt for failing to comply with the Consent Order. See id. at *12.
The district court found that the Harveys had not presented “clear
2 The district court did not address the Harveys’ res ipsa loquitur claim, and the parties do not address that claim in their briefs before this Court. We assume this is because “the doctrine of res ipsa loquitur does not constitute a separate cause of action.” USAA Cas. Ins. Co. v. Permanent Mission of Republic of Namibia, 681 F.3d 103, 105 n.6 (2d Cir. 2012) (citing Frew v. Hosp. of Albert Einstein Coll. of Med. Div. of Montefiore Hosp. & Med. Ctr., 428 N.Y.S.2d 300, 301 (2d Dep’t 1980)).
11 and convincing evidence” of noncompliance with respect to the
portions of the Consent Order requiring debris removal, ensuring
proper entry and egress, and enclosing openings in the elevator shaft,
and although the Harveys did present clear and convincing evidence
of noncompliance regarding the chimney extension plans, the district
court found “that the Harveys [had] assumed responsibility” for that
part of the Consent Order. Id. at *10–12. The district court also
declined to impose sanctions on the Subcontractor Defendants but
“admonished [them] that any future failure to timely comply with
court orders could” result in sanctions. Id. at *12. Finally, the district
court denied the Harveys’ motion for a preliminary injunction on the
basis that the Harveys had not demonstrated irreparable harm. Id. at
*13–14.
II. Discussion
On appeal, the Mission challenges the district court’s holding
that it was stripped of its sovereign immunity under the FSIA based
on the commercial activity exception and the tortious activity
12 exception. The Mission argues that the commercial activity exception
does not apply because the Harveys’ suit is based on the sovereign
activity of running a mission to the United Nations, and in the
alternative, any commercial activity that might have occurred
through the renovations was carried out by the General Contractor
and Subcontractor Defendants and cannot be imputed to the Mission.
Further, the Mission argues that the tortious activity exception does
not apply because the Harveys did not plead all the elements of any
alleged tort by the Mission. For the reasons below, we conclude that
the commercial activity exception applies.
A. Standard of Review
This Court has jurisdiction to hear this appeal because the
district court’s order denying immunity under the FSIA is
immediately appealable under the collateral order doctrine. Rogers v.
Petroleo Brasileiro, S.A., 673 F.3d 131, 136 (2d Cir. 2012). “[W]e review
de novo the district court’s conclusions of law regarding jurisdiction
13 under the FSIA.” City of New York v. Permanent Mission of India to the
United Nations, 446 F.3d 365, 368 (2d Cir. 2006).
B. The FSIA
“[T]he FSIA provides the sole basis for obtaining jurisdiction
over a foreign state in the courts of this country.” Argentine Republic
v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989). Under the
FSIA, “a foreign state is presumptively immune from the jurisdiction
of United States courts” and “unless a specified exception applies, a
federal court lacks subject-matter jurisdiction over a claim against a
foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). In
relevant part, there are exceptions for commercial activity and
tortious activity that occurs in the United States. See 28 U.S.C.
§§ 1605(a)(2), (5). 3 “A foreign state’s permanent mission to the United
Nations is indisputably the ‘embodiment’ of that state.” USAA Cas.
3Though not at issue in this case, there are also exceptions for waiver; expropriation; succession; arbitration; maritime liens; terrorism; and counterclaims. See 28 U.S.C. §§ 1605(a)(1), (3), (4), (6), 1605(b), 1605A, 1607.
14 Ins. Co. v. Permanent Mission of Republic of Namibia, 681 F.3d 103, 107
(2d Cir. 2012). Therefore, as the parties agree, the Mission is entitled
to immunity unless an exception to the FSIA applies.
1. Commercial Activity Exception
In relevant part, the commercial activity exception provides
that “[a] foreign state shall not be immune from the jurisdiction of
courts of the United States or of the States in any case . . . in which the
action is based upon a commercial activity carried on in the United
States by the foreign state.” 28 U.S.C. § 1605(a)(2).
2. Tortious Activity Exception
The tortious activity exception provides that a foreign state is
not immune from suit in any case “not otherwise encompassed [by
the commercial activity exception], 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 . . . .” 28 U.S.C.
15 § 1605(a)(5). That the tortious activity exception can apply only to
cases “not otherwise encompassed” by the commercial activity
exception suggests that the commercial activity exception and the
tortious activity exception are “mutually exclusive.” De Letelier v.
Republic of Chile, 748 F.2d 790, 795 (2d Cir. 1984). In other words,
activity that is found to be commercial cannot also be found to be
tortious, and vice versa. See id. (“If [a court in another Circuit] lifted
jurisdictional immunity based on its finding that the activities
complained of were tortious, not commercial, it is inconsistent for this
court to lift execution immunity based on a finding that the activities
were commercial.”); accord Republic of Namibia, 681 F.3d at 107–08
(declining to address the commercial activity or the immovable
property exception because it determined that the tortious activity
exception applied); Joseph v. Off. of Consulate General of Nigeria, 830
F.2d 1018, 1025 (9th Cir. 1987) (same).
16 C. Application
We hold that the district court correctly concluded that the
Mission’s conduct underlying the Harveys’ suit qualifies as
“commercial activity.” Because the commercial activity exception
applies, we decline to address the applicability of the tortious activity
exception.
To invoke the commercial activity exception, the Harveys
“must establish that (1) [the Mission] engaged in ‘a commercial
activity,’ (2) ‘the [legal] action is based upon’ that activity, and (3) that
activity ‘cause[d] a direct effect in the United States.’” Daou v. BLC
Bank, S.A.L., 42 F.4th 120, 134 (2d Cir. 2022) (quoting 28 U.S.C.
§ 1605(a)(2)). The third prong of this test is undisputed in this case,
which exclusively involves a construction project in Manhattan.
Therefore, our inquiry revolves around the first two prongs,
prompting the following questions: (1) what specific conduct by the
Mission serves as the basis of the Harveys’ lawsuit, and (2) whether
that conduct is commercial activity.
17 1. The Gravamen of the Harveys’ Suit
Beginning with the first question, under § 1605(a)(2), “an action
is ‘based upon’ the ‘particular conduct’ that constitutes the
‘gravamen’ of the suit.” OBB Personenverkehr AG v. Sachs, 577 U.S. 27,
35 (2015) (quoting Nelson, 507 U.S. at 356–57). Identifying the
gravamen requires “zero[ing] in on the core of [the plaintiffs’] suit” to
determine the “acts that actually injured them.” Id. This is the
“threshold step” for determining whether the commercial activity
exception applies. Chettri v. Nepal Rastra Bank, 834 F.3d 50, 56 (2d Cir.
2016) (quoting Garb v. Republic of Poland, 440 F.3d 579, 586 (2d Cir.
2006)).
The Mission attempts to construe the gravamen of the Harveys’
suit as being based on the sovereign activity of “running the Mission.”
Appellant’s Br. at 31 (emphasis omitted) (quoting J. App’x at 105, ¶ 18
(“[A] foreign state is not immune in a case as this one where the action
is based on a ‘commercial activity carried on in the United States by
18 the foreign state’ namely, as here, running the Mission” (quoting 28
U.S.C. § 1605(a)(2)))). Although the Amended Complaint
purportedly identifies “running the Mission” as the activity upon
which the action is based, J. App’x at 105, ¶ 18, such a construction of
the Harveys’ suit is, in the words of the district court, “too restrictive,”
Harvey, 2022 WL 2392101, at *4. We are bound to evaluate the
substance of the challenged conduct, not the labels any party might
place on that conduct. See Criales v. Am. Airlines, Inc., 105 F.3d 93, 97
(2d Cir. 1997) (“[W]e [do] not permit the choice of labels to distort
substance, especially where the consequences would be so drastic as
to deprive a party of the opportunity to be heard.”). Broadly, the
Amended Complaint identifies three categories of conduct stemming
directly from the renovation activity, relating to: (1) the shared party
wall, (2) the Harveys’ roof, and (3) the Harveys’ chimney. As the
Amended Complaint describes in detail, it is this commercial
construction work that has allegedly injured the Harveys and which
19 therefore forms the basis for the Harveys’ claims. See Sachs, 577 U.S.
at 33 (explaining that a court should identify the “particular conduct”
on which an action is based “by looking to the ‘basis’ or ‘foundation’
for a claim” (quoting Nelson, 507 U.S. at 357)).
As such, the Mission’s reliance on MacArthur Area Citizens Ass’n
v. Republic of Peru, 809 F.2d 918 (D.C. Cir. 1987), is misplaced. In that
case, a neighborhood association sued Peru after Peru purchased a
property in an area zoned for residential occupancy and converted
that property into a chancery for its Naval Attaché. Id. at 919.
Although the association complained, in part, about alterations Peru
made to the property that stripped it of its residential qualities, the
association also complained about “congestion from an increased
number of chancery cars vying for [parking spaces].” Id. (internal
quotation marks omitted). The sum of the complaint was that Peru
“was causing denigration and depreciation of the value of its
members’ residences nearby.” Id. Recognizing that the central issue
20 in the complaint was the existence of the chancery in a residential
neighborhood, the D.C. Circuit held that “operation of a chancery is,
by its nature governmental, not commercial,” and therefore the
commercial activity exception did not apply. Id. at 920 (citation
omitted). Here, in contrast, the Harveys do not take issue with the
mere fact that the Mission is their neighbor or that the Mission
conducts sovereign business from their headquarters; instead, they
“take issue with the Mission’s contractual renovations that are
damaging [their] home.” Appellees’ Br. at 36; see also J. App’x at 101,
¶ 1 (“This action arises from the Defendants’ unlawful and
incompetent efforts to renovate and expand the Mission’s
headquarters.”). Therefore, MacArthur’s analysis has no bearing on
the case at hand.
In sum, we find the gravamen of the Harveys’ suit to be the
Mission’s allegedly faulty construction work at its headquarters,
which it has hired a general contractor to perform.
21 2. Whether the Gravamen of the Harveys’ Suit Is
“Commercial Activity”
The next question is whether the Mission’s conduct related to
its renovation efforts qualifies as “commercial activity.” 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 statute further states that “[t]he commercial
character of an activity shall be determined by reference to the nature
of the course of conduct or particular transaction or act, rather than
by reference to its purpose.” 4 Id. “‘[P]urpose’ is ‘the reason why the
foreign state engages in the activity’ and ‘nature’ is ‘the outward form
of the conduct that the foreign state performs or agrees to perform.’”
Pablo Star Ltd. v. Welsh Gov’t, 961 F.3d 555, 561 (2d Cir. 2020) (emphasis
omitted) (quoting Nelson, 507 U.S. at 361).
4 As the Supreme Court has noted, this definition “leaves the critical term ‘commercial’ largely undefined.” Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612 (1992).
22 “[I]n applying the nature-versus-purpose analysis, ‘the
question is not whether the foreign government is acting with a profit
motive or instead with the aim of fulfilling uniquely sovereign
objectives. Rather, the issue is 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.’” Id. (quoting Republic of Argentina v. Weltover, Inc., 504
U.S. 607, 614 (1992)). Put simply, “a foreign state engages in
commercial activity ‘where it exercises only those powers that can
also be exercised by private citizens, as distinct from those powers
peculiar to sovereigns.’” Id. (quoting Nelson, 507 U.S. at 360 (internal
quotation marks omitted)).
All of the conduct related to the Mission’s renovation efforts are
commercial acts because having a contractor renovate a building is
something that a private party can—and often does—do. See, e.g.,
H.R. Rep. No. 94-1487, at 16 (1976) (in the legislative history of the
23 FSIA, explaining that “a contract by a foreign government . . . to
construct a government building” or “a contract to make repairs on
an embassy building” “constitutes a commercial activity”).
Regardless of the reason the Mission decided to renovate its
headquarters, by engaging a contractor to carry out construction
work, the Mission was acting “‘in the manner of a private player
within’ the market.” Nelson, 507 U.S. at 360 (quoting Weltover, 504
U.S. at 614).
The Mission argues that even if renovating a building is
commercial activity, the Mission itself did not engage in that activity,
but rather it, at most, entered into a contract for the renovations that
the General Contractor and Subcontractor Defendants performed.
The Mission claims that the commercial activity exception is thus
inapplicable because the conduct of the contractors cannot be
imputed to the Mission.
24 But this is a question of substantive liability stemming from the
Mission’s contractual renovations, not one of construing the FSIA.
The overall activity at issue—the construction work—is being
conducted as a result of a routine commercial transaction between the
Mission and a general contractor. Whether the Mission could
successfully resist liability on the ground that any fault lies solely with
the contractor is a merits question, not one that goes to the
applicability of the commercial activity exception. Nevertheless,
because we recognize that the Mission may renew its imputation
argument in the district court, in the interest of judicial efficiency we
explain why it fails.
Upon beginning the renovations, the Mission acquired certain
nondelegable duties, and consequently, it is responsible for the
conduct resulting from the renovations. “The New York Court of
Appeals has repeatedly held that statutes and regulations that
address specific types of safety hazards create nondelegable duties of
25 care.” Republic of Namibia, 681 F.3d at 110. Under New York law, “a
regulation will generally create a nondelegable duty where it contains
a ‘specific positive command,’ but not where it merely incorporates
‘the ordinary tort duty of care,’ using terms like ‘adequate,’ ‘effective,’
or ‘suitable.’” Id. at 110–11 (quoting Morris v. Pavarini Constr., 9
N.Y.3d 47, 50 (2007)). The New York City Construction Codes, which
include the Building Code and Mechanical Code, impose
nondelegable duties relating to the aspects of the renovations
identified in the Amended Complaint—the shared party wall, the
Harveys’ roof, and the Harveys’ chimney.
Specifically, Building Code § 3309.8 provides that “[w]hen any
construction or demolition operation exposes or breaches an
adjoining wall, including . . . party walls . . . , the person causing the
construction” must, among other things, “[m]aintain the structural
integrity of such walls and adjoining structure.” Accord Republic of
Namibia, 681 F.3d at 111 (stating, in the context of holding that the
26 tortious activity exception applied, that Building Code § 3309.8 levies
a nondelegable duty because it “imposes upon the ‘person causing’
the construction the duty to, under specific circumstances, perform a
specific task” (quoting Building Code § 3309.8)). Similarly, Building
Code § 3309.10 imposes upon the “person causing” the construction
the duty to, among other things, protect the roof of an adjoining
building. And Mechanical Code §§ 801.1.1.1–801.1.1.3 impose upon
“the owner” of a building that has increased in height the duty to,
among other things, alter the chimney of a neighboring, shorter
building and obtain consent from the owner of the shorter building to
do the necessary work. Based on these nondelegable duties, the
Mission is responsible for the “commercial activity”—the conduct
related to its renovation efforts—upon which the Harveys’ suit is
based.
III. Conclusion
In sum, we hold as follows:
27 1. The gravamen of the Harveys’ suit is based upon the allegedly faulty contractual renovations at the Mission’s headquarters;
2. All of the complained-of conduct related to the Mission’s contractual renovation efforts involve commercial activity because the Mission is exercising only those powers that can also be exercised by private citizens (i.e., hiring a contractor to renovate a building, which is something that a private party can—and often does— do); and
3. The Mission is responsible for the conduct related to its renovation efforts based on the nondelegable duties it acquired upon beginning the renovations.
Therefore, the commercial activity exception applies in this
case, abrogating the Mission’s immunity under the FSIA.
Accordingly, we AFFIRM the district court’s order to the extent it
denied the Mission’s motion to dismiss for lack of subject matter
jurisdiction.