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Fraser v. Rodriguez-Espinoza

United States District Court, N.D. Illinois, Eastern Division

September 24, 2014

HEATHER M. FRASER, and STEVEN BERRY, Plaintiffs,
v.
JESUS A. RODRIGUEZ-ESPINOZA, THE CONSULATE GENERAL OF THE BOLIVARIAN REPUBLIC OF VENEZUELA IN CHICAGO, and STATE FARM MUTUAL AUTOMOBILE INSURANCE, CO., Defendants.

MEMORANDUM OPINION AND ORDER

MANISH S. SHAH, District Judge.

Heather Fraser was riding a bicycle when she collided with a car driven by Jesus Rodriguez-Espinoza. Fraser sued Rodriguez-Espinoza for negligence, in state court. But Rodriguez-Espinoza is a consul of a foreign state, and state courts lack subject-matter jurisdiction over civil suits against consuls. Fraser voluntarily dismissed her state suit and filed suit here.

Although her state suit named only Rodriguez-Espinoza, Fraser's federal suit named two additional defendants: the Consulate General of the Bolivarian Republic of Venezuela in Chicago (the registered owner of the car) and State Farm Mutual Automobile Insurance Company (the insurer of the car).

Defendants move for summary judgment, arguing that the statute of limitations ran before this federal suit was filed. For the reasons discussed below, that motion is granted as to defendant State Farm but denied as to Rodriguez-Espinoza. Defendants' related motion for judicial notice is denied as moot. Although I conclude that the statute of limitations also bars the claim against the Consulate, I dismiss that claim for lack of subject-matter jurisdiction. The Consulate is a foreign state, and no exception to its foreign sovereign immunity applies.

I. Legal Standards

Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). A genuine dispute as to any material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether a genuine issue of material fact exists, the court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party. See CTL ex rel. Trebatoski v. Ashland School District, 743 F.3d 524, 528 (7th Cir. 2014).

II. Facts[1]

Fraser alleges that she was injured when her bicycle collided with a car driven by Rodriguez-Espinoza. DSOF ¶ 6. The collision happened on May 19, 2011. DSOF ¶ 6. On May 17, 2013, Fraser sued Rodriguez-Espinoza for negligence, in the Circuit Court of Cook County. DSOF ¶¶ 11-12.[2] Rodriguez-Espinoza is the Consul General of the Bolivarian Republic of Venezuela in Chicago. DSOF ¶ 2. Because federal courts have exclusive jurisdiction over suits against foreign consuls, Rodriguez-Espinoza moved to dismiss the state court action. DSOF ¶ 14. On February 10, 2014, Fraser voluntarily dismissed the state court action. DSOF ¶ 15. Three days later, Fraser filed this federal suit. DSOF ¶ 16.

Although Fraser's state suit named only Rodriguez-Espinoza, her federal suit named two additional defendants: (1) the Consulate General of the Bolivarian Republic of Venezuela in Chicago; and (2) State Farm Mutual Automobile Insurance Company. DSOF ¶¶ 3-4. At the time of the collision, the car was: (1) owned by and registered to the Consulate; and (2) insured by State Farm. DSOF ¶¶ 9-10; PSOF ¶ 5. The Consulate is a foreign state. DSOF ¶ 3.

III. Analysis

A. Subject-matter Jurisdiction over Claims Against the Consulate

Though no party raised the issue, I have an independent obligation to consider subject-matter jurisdiction. Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 593 (2004); Wellness Int'l Network, Ltd. v. Sharif, 727 F.3d 751, 768 (7th Cir. 2013). As Fraser acknowledges (DSOF ¶ 3), the Consulate is a foreign state. 28 U.S.C. § 1603; Bruce v. Consulate of Venez., 2005 U.S. Dist. LEXIS 18898 (D.D.C. 2005). Under the Foreign Sovereign Immunities Act (28 U.S.C. §§ 1602 et seq. ), foreign states are immune from suit unless a statutory exception applies. Republic of Aus. v. Altmann, 541 U.S. 677, 691 (2004) ("[T]he court must satisfy itself that one of the exceptions applies, as subject-matter jurisdiction in any such action depends on that application.") (internal quotation marks and alterations omitted). The exceptions are codified in 28 U.S.C. §§ 1605-1607 and 1605A. Only some are relevant here.

First, a foreign state may waive its immunity. 28 U.S.C. § 1605(a)(1). Though the Consulate has not explicitly waived immunity, waiver can be implicit. E.g., Autotech Techs. LP v. Integral Research & Dev. Corp., 499 F.3d 737, 743 (7th Cir. 2007). In particular, "[f]ailing to raise sovereign immunity and then participating fully in a court proceeding amount to an implied waiver of immunity." Id. at 743. In Autotech, the defendant claimed immunity during contempt proceedings, after participating in the case through entry of a consent order. Id. at 740, 743. The Consulate has done much less in the present case, though notably it has filed and briefed the present motion for summary judgment.

The Seventh Circuit has stated that "[i]f a sovereign files a responsive pleading without raising the defense of sovereign immunity, then the immunity defense is waived." Haven v. Rzeczpospolita Polska, 215 F.3d 727, 731 (7th Cir. 2000). In Haven, the Republic of Poland was named as a defendant. Id. at 730. The Polish Consulate in Chicago delivered a letter to the district court, complaining that service of process had not been properly accomplished. Id. The Seventh Circuit stated that "[t]he letter sent by the Polish Consulate to the district court did not raise any sovereign immunity defense; therefore, if the letter was a responsive pleading, sovereign immunity has been waived." Id. at 731-32. The court treated the letter as a motion to dismiss, but construed "responsive pleading" narrowly, excluding motions to dismiss. Id. at 732 ("Rule 7 of the Federal Rules of Civil Procedure explains that only certain filings may be considered responsive pleadings, including a complaint, an answer, a reply to a counterclaim, an answer to a ...


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