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CHANG v. NORTHWESTERN MEMORIAL HOSPITAL

November 3, 1980

CINDY CHANG, PLAINTIFF,
v.
NORTHWESTERN MEMORIAL HOSPITAL ET AL., DEFENDANTS.



The opinion of the court was delivered by: Grady, District Judge.

MEMORANDUM OPINION

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 provides that

  [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
  rights.

On December 30, 1978, President Carter issued a memorandum on "Relations with the People of Taiwan." Presidential Memorandum of December 30, 1978, 3195-01-M, 44 Federal Register 1075 (Jan. 4, 1979). Pursuant to this document, official diplomatic relations with the Republic of China were terminated as of January 1, 1979. Nonetheless, the President declared that "[e]xisting international agreements and arrangements in force between the United States and Taiwan" shall remain "in force." Id.

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 recognizes that

  [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 her suit.

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 this ...


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