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Park v. Korean Broadcasting System

October 24, 2008

JUNE WOO PARK AND JINHEE CHOO, PLAINTIFFS,
v.
KOREAN BROADCASTING SYSTEM AND KBS AMERICA, INC., DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

ORDER

The plaintiffs, June Woo Park ("Park") and Jinhee Choo, are citizens of South Korea who, at all relevant times, resided in Champaign, Illinois. They allege that defendants Korean Broadcasting System (KBS) and KBS America, Inc. ("KBSAmerica"), both South Korean corporations, are in the business of preparing and broadcasting television programming, which is also available to subscribers through the internet. The defendants offer a program called The Knowledge Sponge, which is available to their subscribers.

On February 12, 2006, Park watched an internet broadcast of The Knowledge Sponge. The show demonstrated the preparation of a homemade insecticide for use on dust mites. Park prepared the mixture as shown on The Knowledge Sponge. The mixture caught fire, and Park sustained significant burns and other injuries from the fire.

The plaintiffs allege that, at some point prior to broadcasting, one or more safety instructions were edited from the program. They claim that the defendants negligently broadcast inadequate instructions and failed to warn viewers of the risks of following the instructions shown on the program.

KBSAmerica has filed an answer and asserted numerous affirmative defenses. KBS has filed several motions to dismiss, arguing that the court lacks subject matter jurisdiction over this case [25] and personal jurisdiction over KBS [27], and that venue is improper [30].

For the following reasons, the court agrees that it lacks subject matter jurisdiction over this case, at least in regard to defendant KBS.

ANALYSIS

The purpose of a Rule 12(b)(1) motion is to seek dismissal of claims for which the court lacks subject matter jurisdiction. On a Rule 12(b)(1) motion, the non-movant bears the burden to show that subject matter jurisdiction exists. Kontos v. United States Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987). When a defendant files a Rule 12(b)(1) motion, the plaintiff must support its jurisdictional allegations with competent proof of jurisdictional facts -- "affidavits and other relevant evidence to resolve the factual dispute[.]" Kontos, 826 F.2d at 576.

I.

The complaint alleges that the court has subject matter jurisdiction pursuant to the Alien Tort Claim Act, 28 U.S.C. § 1350: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations [i.e., customary international law]*fn1 or a treaty of the United States."

KBS argues that subject matter jurisdiction does not exist under 28 U.S.C. § 1350; the plaintiffs do not assert any claims that are related to a treaty between the United States and South Korea, nor any issues pertaining to international law. Other than a conclusory statement that jurisdiction is based on that statute, the plaintiff does not attempt to explain how the jurisdictional basis alleged in the complaint is proper. The court agrees with KBS that the Alien Tort Claim Act does not confer jurisdiction over this case.

II.

KBS also argues that the court lacks subject matter jurisdiction because, as a sovereign entity, it is immune from suit under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq. Under the FSIA, "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States," subject to certain exceptions. 28 U.S.C. § 1604. A "foreign state" includes its agencies or instrumentalities. 28 U.S.C. § 1603(a). KBS states that it is an agency or instrumentality of the Republic of Korea because it is a ...


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