The opinion of the court was delivered by: Grady, District Judge.
Plaintiff, a Taiwanese national, has brought this medical
malpractice action against Northwestern Memorial Hospital and
Dr. Robert Turner. Jurisdiction is based on diversity of
citizenship. Defendants have filed a motion to dismiss,
alleging that plaintiff is not a citizen of a "foreign state"
recognized by the United States for purposes of diversity
jurisdiction. In addition, it is argued that this court should
refuse to hear this case under the doctrine of abstention,
since an identical lawsuit was subsequently filed in state
court. We will deny the motion.
The facts in this case read like a law school examination.
On February 7, 1977, plaintiff was allegedly given an
injection of actinomycin — D in her right hand, causing serious
nerve damage. She was at this time a patient at Northwestern
Memorial Hospital. Plaintiff, a citizen of Taipei, Taiwan,
commenced this instant action in federal court on January 12,
1979, some 12 days after President Carter broke off official
diplomatic relations with Taiwan in favor of recognition of the
People's Republic of China "as the sole legal government of
China." Presidential Memorandum of December 30, 1978,
3195-01-M, 44 Federal Register 1075 (Jan. 4, 1979). Defendants
Northwestern Memorial Hospital and Dr. Turner are residents of
Illinois. For purposes of tolling the statute of limitations,
plaintiff filed the identical action in state court on March
12, 1979. See Plaintiff's Supplemental Memorandum in Reply to
Defendant's Supplemental Memo in Support of their Motion to
Dismiss, p. 3.
Article III, section 2 of the United States Constitution
[t]he judicial Power shall extend to all
Cases . . . between a State, or the Citizens
thereof, and foreign States, Citizens or Subjects.
Section 1332(a)(2) of Title 28 of the United States Code
implements this provision, vesting the district courts with
jurisdiction over civil actions between state citizens and
citizens of foreign countries. This power has
been referred to as alienage jurisdiction.*fn1 Sadat v.
Mertes, 615 F.2d 1176, 1182 (7th Cir. 1980).
The generally accepted test for determining if a plaintiff
can sue in the federal court is whether he or she is a citizen
of a foreign state recognized by the United States government
at the time of the commencement of the suit. Land
Oberoesterreich v. Gude, 109 F.2d 635, 637 (2d Cir. 1940);
Windert Watch Co., Inc. v. Remex Electronics Ltd., 468 F. Supp. 1242,
1244 (S.D.N.Y. 1979); Klausner v. Levy, 83 F. Supp. 599,
600 (E.D.Va. 1949).*fn2 It is the President who has the
constitutional authority to recognize and derecognize nations.
Goldwater v. Carter, 617 F.2d 697, 707-708 (D.C. Cir. 1979),
vacated on other grounds, 444 U.S. 996, 100 S.Ct. 533, 62
L.Ed.2d 428 (1979); Banco National de Cuba v. Sabbatino,
376 U.S. 398, 410, 84 S.Ct. 923, 930, 11 L.Ed.2d 804 (1964); United
States v. Pink, 315 U.S. 203, 228-230, 62 S.Ct. 552, 564-565,
86 L.Ed. 796 (1942); U.S. Const. art. II, § 3 (The President
"shall receive Ambassadors and other public Ministers").
Article VI, § 4 of the 1948 Treaty of Friendship, Commerce
and Navigation between the United States of America and the
Republic of China, 63 Stat. 1300 states in relevant part:
The nationals, corporations and associations of
either High Contracting Party shall enjoy freedom
of access to the courts of justice and to
administrative tribunals and agencies in the
territories of the other High Contracting Party,
in all degrees of jurisdiction established by
law, both in pursuit and in defense of their
The Taiwanese Relations Act was enacted on April 10, 1979.
P.L. 96-8, 93 Stat. 14. While not conferring any new
jurisdiction on the federal courts, the Act explicitly
[t]he capacity of Taiwan to sue and be sued in
courts in the United States, in accordance with
the laws of the United States, shall not be
abrogated, infringed, modified, denied, or
otherwise affected in any way by the absence of
diplomatic relations or recognition.
93 Stat. at 16, Sect. 4(b)(6). "Taiwan" includes the "islands
of Taiwan and the Pescadores, the people on those
islands. . . ." 93 Stat. at 20-21, Sect. 15(2). We reject
defendants' hypertechnical argument that the plaintiff is not
covered by this definition because she was not physically
present on the island when she sustained the injury and filed
Finally, the President issued Executive Order 12143 on June
22, 1979, "superced[ing]" the earlier presidential memorandum
of December 30, 1978. 44 Federal Register 37191, 37192.
Defendants contend that this order abolished any existing
rights of Taiwanese citizens to sue in the federal courts. A
close examination of this order, however, does not support