UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) VIPULA D. VALAMBHIA, et al., ) ) ) Plaintiffs, ) ) v. ) Civil Action No. 18-cv-370 (TSC) ) UNITED REPUBLIC OF TANZANIA, et ) al., ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiffs Vipula D. Valambhia, Priscilla D. Valambhia, Bhavna D. Valambhia, Punita D.

Valambhia, and Krishnakant D. Valambhia, bring this action under the District of Columbia’s

Uniform Foreign-Country Money Judgments Recognition Act,

to 15-371,

against Defendants United Republic of Tanzania, the Bank of Tanzania, and the Ministry of

Defence and National Service, for recognition and enforcement of a foreign money judgment

rendered in Tanzania against Defendants. Currently pending before the court is Defendants’

Motion to Dismiss, ECF No. 13, pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of

subject matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim upon which relief can be granted.

For the reasons explained below, the court will GRANT Defendants’ motion. Because

the court finds that it does not have subject matter jurisdiction, it need not reach Defendants’

Rule 12(b)(6) argument.

Page 1 of 8 I. BACKGROUND

In 1985, the Tanzanian Ministry of Defence, on behalf of Tanzania, ordered troop

carriers, tanks, and other military equipment as part of a contract with Transport Equipment Ltd.

(“TEL”), an Irish corporation. Plaintiffs’ First Amended Complaint ¶ 12, ECF No. 12 (“Am.

Compl.”). The Plaintiffs’ decedent, Devram Valambhia (“Valambhia”), was the Director

General of TEL.

Valambhia’s family has lived in the United States since 1981.

Tanzania paid the amounts due under the military equipment contract through the Bank

of Tanzania (“the Bank”) from 1986 to 1989.

. After some dispute, TEL and Valambhia

entered into an Irrevocable Agreement on January 4, 1989, stating that Valambhia should receive

45% of the total amount due under the contract.

¶¶ 13–14. On June 10, 1989, Tanzania

signed a new contract acknowledging the Irrevocable Agreement between TEL and Valambhia

and pledging to pay Valambhia in U.S. dollars the amount due to him under the initial contract.

. Tanzania began to make payments to Valambhia from its Federal Reserve Bank of New

York account in the United States.

Tanzania then tried to challenge the validity of these agreements through a long, highly-

publicized series of court cases that lasted over fourteen years. See

¶¶ 17–23; Decl. of

Meredith B. Parenti, Ex. F, ECF No. 12-1, Richard Mgamba, “Revealed: The most expensive

legal suit in Dar’s history,” THE GUARDIAN, June 28, 2009, at 1–2. In 1991, the High Court of

Tanzania entered a High Court Decree which stated that Valambhia and his family were entitled

to 45% of the amount unpaid on the contract between Tanzania and TEL. Am. Compl. ¶ 18. In

2001, after roughly a decade of further litigation, the High Court of Tanzania entered a

Garnishee Order that required the Bank of Tanzania to pay Valambhia the amount owed under

the High Court Decree.

. The Bank challenged the validity of the Garnishee Order, but

Page 2 of 8 the High Court found it to be proper.

. The Bank then appealed this ruling in the Court

of Appeal of Tanzania, the country’s highest court.

. In 2003, the Court of Appeal held

that the Garnishee Order was “final and conclusive” and denied the Bank any right to appeal.

Nonetheless, the Bank continued to refuse to comply with the Garnishee Order, and the

High Court issued against the Bank of Tanzania an order to show cause why it should not be held

in contempt.

. After rejecting the Bank’s argument regarding its inability to pay the

amounts due to Valambhia and his family, the High Court held the Bank’s Governor in contempt

and ordered him to pay a fine or serve a term of imprisonment.

Valambhia died in Tanzania

in 2005,

, and the Bank has never paid his family,

.

The Valambhia family, Devram Valambhia’s sole heirs, now files this suit under the D.C.

Uniform Foreign-Country Money Judgments Recognition Act,

to 15-371,

to recognize and enforce the foreign money judgment rendered in Tanzania.

.

II. LEGAL STANDARD FOR RULE 12(B)(1)

A defendant may move to dismiss a complaint for lack of subject matter jurisdiction

under Fed. R. Civ. P. 12(b)(1). “It is the burden of the party claiming subject matter jurisdiction

to demonstrate that it exists.” Georgiades v. Martin–Trigona,

, 833 n.4 (D.C. Cir.

1984) (citation omitted). The court “assume[s] the truth of all material factual allegations in the

complaint and construe[s] the complaint liberally, granting plaintiff the benefit of all inferences

that can be derived from the facts alleged, and upon such facts determine[s] jurisdictional

questions.” American National Ins. Co. v. FDIC,

(D.C. Cir. 2011)

(quotations marks and citations omitted). A court “may consider materials outside the pleadings

in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens

Pharm., Inc. v. FDA,

(D.C. Cir. 2005) (citation omitted).

Page 3 of 8 III. ANALYSIS

The Foreign Sovereign Immunities Act,

et seq. (“FSIA”) “entitles

foreign states to immunity from the jurisdiction of courts in the United States, subject to certain

enumerated exceptions.” Saudi Arabia v. Nelson,

(1993) (citations omitted).

The FSIA provides the “sole basis for obtaining jurisdiction over a foreign state in the courts of

this country.”

. “Courts may hear a case only if one of the [FSIA] exceptions applies

because subject-matter jurisdiction in any such action depends on that application.” Simon v.

Republic of Hungary,

(D.C. Cir. 2018) (quotation marks and citations

omitted).

Plaintiffs concede that Defendants are foreign sovereigns. Am. Compl. ¶¶ 5-7.

Therefore, to establish this court’s subject matter jurisdiction over Defendants, Plaintiffs must

demonstrate that one of the FSIA exceptions to immunity applies. Relevant to this case is the so-

called “commercial activities exception.” See

(a)(2). 1 As the D.C. Circuit has

noted, the commercial activities exception has three operative clauses:

[T]he commercial activity exception . . . permits a suit when “the action is based [1] upon a commercial activity carried on in the United States by the foreign state; or [2] upon an

1 The commercial-activities exception states:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case — …

in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.

(a)(2). Page 4 of 8 act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [3] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.”

Odhiambo v. Republic of Kenya,

(D.C. Cir. 2014) (quoting

(a)(2) (alterations in original)); see also OBB Personenverkehr AG v. Sachs,

,

394 n.1 (2015) (“Section 1605(a)(2) contains three separate clauses.”).

Plaintiffs contend that this court has jurisdiction pursuant to the second and third clauses

of the commercial activities exception. Am. Compl. ¶ 9. 2 Both clauses require that an action be

“based upon” an act in connection with a commercial activity of the foreign state.

In Saudi Arabia v. Nelson, an American doctor brought a tort action against Saudi Arabia

under the first clause of the commercial-activities exception. Nelson,

. The

Supreme Court held that the phrase “based upon” in the first clause means “those elements of a

claim that, if proven, would entitle a plaintiff to relief under his theory of the case.”

(citations omitted). Therefore, Nelson’s action was not “based upon . . . a commercial activity

carried on in the United States” because the tort actions which formed Nelson’s cause of action

occurred in Saudi Arabia, not the United States.

. See OBB Personenverkehr AG v.

Sachs,

(2015) (“[A]n action is ‘based upon’ the ‘particular conduct’ that

constitutes the ‘gravamen’ of the suit.”).

In Odhiambo, the D.C. Circuit held that Nelson’s definition of “based upon” in the first

clause applies to the second clause as well.

. The Court explained that “the

virtually identical statutory text and structure of clauses one and two lead us to conclude that

2 The parties agree that the first clause of the commercial activities exception does not apply to this case. See Mem. Supp. Defs.’ Mot. to Dismiss at 4, ECF No. 13-1; Pls.’ Mem. Opp’n. Mot. to Dismiss at 7, ECF No. 15. Page 5 of 8 ‘based upon’ means the same thing in both clauses.”

(citations omitted). Accordingly,

the Court held that “a suit against a foreign sovereign may proceed under clause two only if the

‘act performed in the United States in connection with a commercial activity of the foreign state

elsewhere’ establishes a fact without which the plaintiff will lose.”

at 38 (quoting Nelson,

).

The parties agree that the definition of “based upon” is the same in all three clauses of

commercial activities exception. See Pls.’ Mem. Opp’n. Mot. to Dismiss at 14, ECF No. 15;

Reply Mem. Supp. Defs.’ Mot. to Dismiss at 3 n.1, ECF No. 17. In Odhiambo, the D.C. Circuit

concluded that Odhiambo’s action under the third clause was “based . . . upon an act outside the

territory of the United States in connection with a commercial activity of the foreign state

elsewhere,” because in Odhiambo’s suit for breach of contract, the breach was a commercial

activity of the foreign government and constituted a fact without which Odhiambo would lose.

.

The question in this case is whether a court, in determining if a claim for recognition of a

foreign judgment is “based upon” an act performed in connection with a commercial activity,

may consider the underlying commercial conduct that gave rise to the foreign judgment.

Odhiambo and Nelson compel the conclusion that the answer is no. The elements of a claim for

the recognition of a foreign judgment are: 1) the foreign court had personal and subject matter

jurisdiction over the defendant and underlying subject matter; 2) the foreign court had sufficient

due process safeguards; and 3) a fully enforceable judgment exists in the foreign country. See

(a), 15-364(b). Therefore, any underlying commercial conduct alleged in

Plaintiffs’ Complaint is not an “element[] of a claim” for recognition of a foreign judgment,

Page 6 of 8 Nelson,

, or “a fact without which the plaintiff will lose,” Odhiambo,

.

Plaintiffs contend that this court should follow guidance from an unpublished Second

Circuit decision, which states that “[i]n applying the commercial activity exception to an action

for recognition of a foreign judgment, we look to the underlying conduct that gave rise to the

judgment.” SerVaas Inc. v. Republic of Iraq, 653 Fed. App’x 22, 23-24 (2d Cir. 2011) (citation

omitted). However, SerVaas relied on a prior Second Circuit case, International Housing Ltd. v.

Rafidain Bank Iraq,

(2d Cir. 1989), which was decided before the Supreme Court’s

decision in Nelson. In fact, the Second Circuit has acknowledged that SerVaas “is in some

tension with a literal reading of the definition of ‘based upon’ used by the Supreme Court

in Nelson.” Transatlantic Shiffahrtskontor GmbH v. Shanghai Foreign Trade Corp.,

, 389 n.4 (2d Cir. 2000).

This court recognizes that its literal application of the meaning of “based upon” from

Odhiambo and Nelson, neither of which involved an action to enforce a judgment, effectively

makes a dead letter of an action to recognize a foreign court judgment brought against a foreign

sovereign under the commercial activities exception to the FSIA. 3 Nonetheless, a faithful

interpretation of Odhiambo and Nelson requires this court to dismiss the complaint for lack of

subject matter jurisdiction.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss, ECF No. 13, is

GRANTED.

3 A foreign state may waive its immunity. See

(a)(1).

Page 7 of 8 A corresponding Order will issue separately.

Date: March 31, 2019

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

Page 8 of 8