Marlon Rosasen v. Kingdom of Norway

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2024
• Docket: 22-55980
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 15 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARLON ABRAHAM ROSASEN, No. 22-55980

Plaintiff-Appellant, D.C. No. 2:21-cv-06811-SPG-SP and

DTR, a minor; LAR, a minor, MEMORANDUM*

Plaintiffs,

v.

KINGDOM OF NORWAY, as Responsible Party for the Following Agencies and Instrumentalities; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Sherilyn Peace Garnett, District Judge, Presiding

Submitted April 15, 2024**

Before: BENNETT, BADE, and COLLINS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Plaintiff-Appellant Marlon Abraham Rosasen appeals pro se from the

district court’s order dismissing his First Amended Complaint (FAC) against

Defendant-Appellee Kingdom of Norway.1 We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

We review de novo the dismissal of a complaint for failure to allege

jurisdiction under the Foreign Sovereign Immunities Act (FSIA). Broidy Cap.

Mgmt., LLC v. State of Qatar, 982 F.3d 582, 586 (9th Cir. 2020). We conclude

Norway is immune from suit under the FSIA because Rosasen has not pointed to

any applicable exception to sovereign immunity.

1. The district court appropriately addressed sovereign immunity sua sponte

because “federal jurisdiction does not exist unless one of the exceptions to

immunity from suit applies.” Peterson v. Islamic Republic of Iran, 627 F.3d 1117,

1125 (9th Cir. 2010); see also Fed R. Civ. P. 12(h)(3). Rosasen contends the

district court erred by litigating on Norway’s behalf, but “even if the foreign state

does not enter an appearance to assert an immunity defense, a District Court still

must determine that immunity is unavailable.” Peterson, 627 F.3d at 1125

(quoting Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493 n.20 (1983)).

1 When we refer to “Norway,” we also refer to the defendant agencies and instrumentalities of Norway. See 28 U.S.C. § 1603(a), (b)(2). Rosasen does not contest the district court’s dismissal of all individual defendants, so that issue is waived. See Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1033 (9th Cir. 2008).

2 The plaintiff must “prove that immunity does not exist.” Id.

Rosasen asserts that the FSIA’s domestic tort exception to immunity applies

to his claims. See 28 U.S.C. § 1605(a)(5). But that exception does not apply to

“any claim arising out of malicious prosecution [or] abuse of process.” Id.

§ 1605(a)(5)(B). Rosasen alleged that Norway instigated and supported his wife’s

custody petition under the Hague Convention and the International Child

Abduction Remedies Act, which resulted in his wife obtaining custody of their

children. See Rosasen v. Rosasen, No. 20-55459, 2023 WL 128617 (9th Cir. Jan.

9, 2023). Although Rosasen did not plead malicious prosecution or abuse of

process claims, the gravamen of his claims is that Norway “misused legal

procedures” to return his children to Norway. Blaxland v. Commonwealth Dir. of

Pub. Prosecutions, 323 F.3d 1198, 1206 (9th Cir. 2003). Because Rosasen’s

claims are all predicated on Norway’s alleged “wrongful use of legal process,” the

exception in § 1605(a)(5) does not apply. Id. at 1204; see also id. at 1203 (holding

that the defendant was immune from emotional distress and loss of consortium

claims because those claims “derive from the same corpus of allegations” as abuse

of process and malicious prosecution claims). Rosasen’s use of labels such as

kidnapping, deprivation of rights, or conspiracy is insufficient to apply the

exception because “[w]e look beyond the complaint’s characterization to the

conduct on which the claim is based.” Id. at 1203 (alterations omitted) (quoting

3 Mt. Homes, Inc. v. United States, 912 F.2d 352, 356 (9th Cir. 1990)). A plaintiff

“cannot overcome sovereign immunity for claims of malicious prosecution and

abuse of process by calling them a different name.” Id. at 1206.

We also reject Rosasen’s argument that Norway’s alleged acts fall under the

commercial tort exception in 28 U.S.C. § 1605(a)(2). Rosasen’s suit is not “based

upon,” id., commercial acts by Norway, such as hiring a law firm, because even if

the commercial acts were proven, “those facts alone entitle [Rosasen] to nothing

under [his] theory of the case.” Saudi Arabia v. Nelson, 507 U.S. 349, 358 (1993);

see also Broidy, 982 F.3d at 594 (concluding that claims were not based on

commercial activity when there was merely a connection between noncommercial

torts and commercial conduct, “such as the hiring of a public relations firm”).

Absent any applicable exception to sovereign immunity, the district court properly

dismissed the FAC for lack of jurisdiction.

2. Because Rosasen’s claims all arise from alleged conduct for which Norway

is immune, “it is clear on de novo review that the complaint could not be saved by

amendment,” and the district court properly denied leave to amend. Webb v.

Trader Joe’s Co., 999 F.3d 1196, 1204 (9th Cir. 2021) (quoting Eminence Cap.,

LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam)). Without

any likelihood of success on the merits, the district court did not abuse its

discretion by declining to appoint counsel. See Palmer v. Valdez, 560 F.3d 965,

4 970 (9th Cir. 2009). We also reject Rosasen’s argument that the district court

committed reversible error by failing to order the clerk of court to effectuate

service on Norway, see 28 U.S.C. § 1608(a)(3), because his claims fail regardless

of whether Norway was served, see Fed. R. Civ. P. 12(h)(3).

AFFIRMED.2

2 We deny as moot the motions to file supplemental exhibits and a supplemental brief. Dkts. 7, 15.