Haston v. Republic Cuba

ROBIN HASTON, Plaintiff, v. REPUBLIC OF CUBA, Defendant.

Cause No. 1:16-cv-615-WTL-DML

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

November 9, 2017

ENTRY ON MOTION FOR DEFAULT JUDGMENT

This cause is before the Court on the Plaintiff's motion for default judgment (Dkt. No. 16). For the reasons set forth below, the motion must be, and is, DENIED, and this case must be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.

I. FACTUAL BACKGROUND

The facts as alleged by Plaintiff Robin Haston, which are taken as true for the purposes of this ruling, are as follow.

On March 31, 2015, Haston was vacationing at the Holiday Inn Sun Spree resort in Montego Bay, Jamaica with her boyfriend (now husband) Vic Hutchings. The Cuban National Soccer Team, which was in Jamaica for a soccer game against a Jamaican team, was staying at the resort at the same time. While Haston was using a public women's restroom at the resort, four members of the Cuban National Soccer Team—Yoandir Puga Estevez, Tomas Cruz Rodriguez, Yordan Santa Cruz Vora, and Jorge Luis Clavelo—entered the restroom. Estevez, Rodriguez, and Vora took turns raping Haston, who was in a locked stall. When Hutchings grew concerned that Haston had not returned from the restroom and went to check on her, he heard her screaming. He entered the restroom and physically fought off the attackers, who were captured by a video surveillance camera fleeing down a stairwell.

Haston immediately reported the attack to the hotel, and local authorities, the United States Embassy, and medical personnel were summoned. Haston was shown a photo array and identified her attackers. Possible DNA evidence was obtained from Haston and Hutchings and from the crime scene. Estevez, Rodriguez, and Vora were arrested. Each of the men refused to provide DNA samples. Agents of the Cuban government intervened and compromised the investigation. The men were released from custody and allowed to return to Cuba on April 9, 2015. Cuba has refused to cooperate in the criminal investigation.

Haston filed this action against the Republic of Cuba, seeking to hold Cuba liable for the actions of her attackers. She obtained a clerk's entry of default against Cuba, which has been served but has failed to appear in this case. She now seeks entry of default judgment against Cuba.¹

II. APPLICABLE STATUTORY REQUIREMENTS

Pursuant to the Foreign Sovereign Immunities Act ("FSIA"), foreign states are immune from the jurisdiction of U.S. courts except as provided in certain provisions of the FSIA. Haston alleges that this case falls under the FSIA's terrorism exception, which is established in 28 U.S.C. § 1605A. The terrorist exception permits a U.S. court to hear a claim for money damages against a foreign state when certain circumstances are present.²

First, the claim must seek damages for "personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act." 28 U.S.C. § 1605A(a)(1). Here, Haston alleges, and the Court will assume for purposes of this ruling, that the attack she endured was an "act of torture" as that term is used in section 1605A,³ thus satisfying this requirement.

Second, the claim must be brought against a foreign state that was "designated as a state sponsor of terrorism at the time the [act of torture] occurred, or was so designated as a result of such act, and . . . either remains so designated when the claim is filed under this section or was so designated within the 6-month period before the claim is filed under this section." 28 U.S.C. § 1605A(a)(2)(A)(i)(I). This provision is ambiguous. Cuba was designated a state sponsor of terror at the time of the attack, but it is unclear whether that fact alone is sufficient—which is what Haston assumes—or whether one of the conditions after "and" must also be satisfied. If the latter, Haston's claim is untimely, because Cuba was not designated at the time Haston filed her claim or at any time during the six months prior to that date; its designation was removed effective May 29, 2015, and Haston filed this case on March 18, 2016, more than six months later. For purposes of this ruling, the Court will assume that Haston's reading of the statute iscorrect. But see 1 Litigation of International Disputes in U.S. Courts § 3:35 (assuming the opposite).

Finally, to fall under the terrorism exception, the claim must arise out of an action that was "engaged in by an official, employee, or agent of [a] foreign state while acting within the scope of his or her office, employment, or agency." 28 U.S.C. § 1605A(a)(1). The Court has given Haston two opportunities to brief the issue of whether the facts in this case as alleged by Haston support a finding that her attackers were acting within the scope of their employment when the attack occurred. See Dkt. Nos. 8 and 15 (Court's entries); Dkt. Nos. 11 and 17 (Haston's briefs). Having considered Haston's briefs, the Court, as discussed below, determines that they do not.

III. SCOPE OF EMPLOYMENT

Under Indiana law,⁴ an employee is acting within the scope of his or her employment when the employee's conduct is "of the same general nature as that authorized, or incidental to the conduct authorized." Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003) (quoting Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000)). The Indiana Supreme Court has explained that "[a]n act is incidental to authorized conduct when it 'is subordinate to or pertinent to an act which the servant is employed to perform,' or when it is done 'to an appreciable extent, to further his employer's business.'" Bushong, 790 N.E.2d at 473 (citations omitted); see also Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind. 1997) ("The critical inquiry is . . . whether the employee is in the service of the employer.").

By contrast, the Indiana Supreme Court has observed that "[a]n employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer." Barnett v. Clark, 889 N.E.2d 281, 284 (Ind. 2008) (emphasis omitted) (quoting Restatement (Third) of Agency § 7.07(2) (Am. Law Inst. 2006)). Stated differently, "[a]cts done 'on the employee's own initiative, with no intention to perform it as part of or incident to the service for which he is employed' are not 'in the service of the employer' and are thus outside the scope of employment." Warner Trucking, 686 N.E.2d at 105 (quoting Stropes by Taylor v. Heritage House Childrens Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind. 1989)). Furthermore, an employee's acts may fall outside the scope of his or her employment, "even though the particular injury could not have occurred without the facilities afforded by the relation of the servant to [the] master." Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 612 (7th Cir. 2008) (quoting Gomez v. Adams, 462 N.E.2d 212, 223 (Ind. Ct. App. 1984)).

Nevertheless, under Indiana law, an employee's tortious or criminal acts may still be considered within the scope of employment. See, e.g., Stropes, 547 N.E.2d at 250 (nurse aide's sexual assault of disabled patient); Southport Little League v. Vaughan, 734 N.E.2d 261, 273 (Ind. Ct. App. 2000) (equipment manager's sexual molestation of youth baseball participants); Gomez, 462 N.E.2d at 223-27 (private security officer's conversion of personal property); Tippecanoe Beverages v. S.A. El Aguila Brewing Co., 833 F.2d 633 (7th Cir. 1987) (agent's conversion of payment from wholesaler). The Indiana Supreme Court has found such wrongful acts to fall within the scope of employment despite the fact that the acts were "predominantly motivated by an intention to benefit the employee himself," Barnett, 880 N.E.2d at 284 (quoting Stropes, 547 N.E.2d at 247), because the acts "originated in activities so closely associated withthe employment relationship as to fall within its scope." Bushong, 790 N.E.2d at 473 (quoting Stropes, 547 N.E.2d at 247). Thus, Indiana courts have found that some sexual offenses committed by employees may fall within the scope of employment. See Stropes, 547 N.E.2d at 249-50; Southport Little League, 734 N.E.2d at 273. The Indiana Supreme Court has stated:

A blanket rule holding all sexual attacks outside the scope of employment as a matter of law because they satisfy the perpetrators' personal desires would draw an unprincipled distinction between such assaults and other types of crimes which employees may commit in response to other personal motivations, such as anger or financial pressures.

Stropes, 547 N.E.2d at 249. Consequently, the issue of scope of employment "does not turn on the type of act committed[,]" but rather on "how the employment relates to the context in which the commission of the wrongful act arose." Id. ("The fact that this was a sexual assault is not per se determinative of the scope of employment question.").

However, as noted by the Seventh Circuit, Indiana courts have determined that the question of whether an employee's sexual misconduct comes within the scope of employment is "a genuine issue of fact only in cases where the employee's job duties involved extensive physical contact with the alleged victim, such as undressing, bathing, measuring, or fitting." Hansen, 551 F.3d at 612. For example, in Stropes, the Indiana Supreme Court reversed summary judgment for a children's center and held that a jury could determine that a nurse's aide employed by the center was acting within the scope of his employment when he sexually assaulted a mentally disabled fourteen-year-old resident of the center. Id. at 612-13 (citing Stropes, 547 N.E.2d at 250). The aide's responsibilities involved physical contact with residents, including the victim, when he was engaged in feeding,...