Newpoint Financial Corp. v. Bermuda Monetary Authority

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 13, 2025
• Docket: 23-3197
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 13 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NEWPOINT FINANCIAL CORP., No. 23-3197 D.C. No. Plaintiff - Appellant, 2:22-cv-08659-MCS-PVC v. MEMORANDUM* BERMUDA MONETARY AUTHORITY; GERALD GAKUNDI, an individual; SUSAN DAVIS- CROCKWELL, an individual; DOES, 1 through 10, inclusive,

Defendants - Appellees.

Appeal from the United States District Court for the Central District of California Mark C. Scarsi, District Judge, Presiding

Argued and Submitted December 17, 2024 San Francisco, California

Before: BEA, LEE, and KOH, Circuit Judges.

Plaintiff-Appellant Newpoint Financial Corp. appeals the district court’s

order that dismissed its complaint against the Bermuda Monetary Authority

(BMA) and two of its employees on the grounds of sovereign immunity and lack

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. of personal jurisdiction, respectively. We have appellate jurisdiction pursuant to

18 U.S.C. § 1291. Because the parties are familiar with the facts, we recite them

only as necessary to explain our decision.

We review legal questions regarding sovereign immunity de novo. United

States v. PetroSaudi Oil Servs. (Venezuela) Ltd., 70 F.4th 1199, 1206 (9th Cir.

2023). For the reasons below, we affirm entirely on the grounds that all

Defendants are entitled to sovereign immunity.

1. The district court correctly dismissed Newpoint’s claims against BMA on

the grounds that BMA is immune from suit under the Foreign Sovereign

Immunities Act (FSIA). The parties agree that BMA is an “instrumentality” of the

Bermudian government presumptively subject to FSIA immunity. Such an

instrumentality is immune from civil suit in U.S. courts unless one of nine statutory

exceptions applies. See 28 U.S.C. §§ 1603(a), 1604; Joseph v. Off. of Consulate

Gen. of Nigeria, 830 F.2d 1018, 1021 (9th Cir. 1987). Here, the exception at issue

is waiver, either express or implied, and Newpoint argues that BMA’s

implementing statute in Bermuda either expressly or impliedly waived BMA’s

sovereign immunity in the courts of the United States. We disagree. “[W]e have

repeatedly stated that the waiver exception to sovereign immunity must be

narrowly construed.” Corzo v. Banco Cent. De Reserva del Peru, 243 F.3d 519,

523 (9th Cir. 2001). A so-called “sue and be sued clause,” even considered

2 23-3197 alongside other provisions in BMA’s implementing statute that suggest

amenability to suit in Bermuda, “does not by itself evidence an intent on the part of

the sovereign entity to waive immunity from suit in the United States.” Id. Here,

there is no evidence that BMA clearly intended to be subject to suit in the United

States, and it is thus entitled to FSIA immunity. We affirm dismissal of

Newpoint’s claims as to BMA.

2. We also conclude that the individual defendants are entitled to common-law

sovereign immunity under our precedents and therefore affirm the district court’s

dismissal of Newpoint’s claims against the individual defendants. 1 We have held

before that when a complaint against a foreign official asserts claims for relief on

the basis of actions “done under actual or apparent authority, or color of law,” the

defendant official is entitled to common-law sovereign immunity. Doğan v.

Barak, 932 F.3d 888, 894 (9th Cir. 2019) (internal quotation marks omitted). Our

opinion in Doğan controls the outcome here. There, we concluded that “exercising

jurisdiction over [the foreign official] would be to enforce a rule of law against the

1 The district court concluded that the individual defendants were not entitled to common-law sovereign immunity, but dismissed the claims against the individual defendants anyway for lack of personal jurisdiction. We affirm that dismissal on the grounds of common-law sovereign immunity, and we express no view on the district court’s personal jurisdiction analysis. See Cigna Prop. & Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir. 1998) (“In reviewing decisions of the district court, we may affirm on any ground finding support in the record. If the decision below is correct, it must be affirmed, even if the district court relied on the wrong grounds or wrong reasoning.”) (internal quotations and citation omitted).

3 23-3197 sovereign state,” because the official’s actions were taken at the direction and

under authority of the sovereign itself. Id. Newpoint’s complaint establishes that

the individual defendants here also undertook the actions for which Newpoint

seeks relief at the direction and under authority of Bermuda and BMA. The

officials’ conduct—allegedly defamatory statements—was performed within the

scope of the officials’ duty to investigate and take administrative action regarding

foreign transactions involving Bermudian insurance companies. BMA, which is

itself immune from suit as established above, must be allowed to conduct its

sovereign regulatory activities without subjecting its employees to personal suit in

the United States on account of statements made in the course of their work to

which an American company takes exception. Exercising jurisdiction over the

individual defendants in this case would therefore enforce a rule of law against

Bermuda. We conclude the individual defendants are entitled to common-law

sovereign immunity.

AFFIRMED.

4 23-3197