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GEVEKE & CO. INTL. v. KOMPANIA DI AWA I ELEKTRISID

December 20, 1979

GEVEKE & CO. INTERNATIONAL, INC., Plaintiff, against KOMPANIA DI AWA I ELEKTRISIDAT DI KORSOU N.V., Defendant.


The opinion of the court was delivered by: WEINFELD

This action is one for payment of $ 381,157.17, the balance due under a contract for the sale of two diesel generators. The parties to the contract are the plaintiff, Geveke & Co. International, Inc. ("Geveke") as seller and the defendant, Kompania Di Awa I Elektrisidat Di Korsou, N.V. ("KAE") as purchaser. Geveke is a New York corporation; KAE is a corporation formed under the laws of the Netherlands Antilles and is wholly-owned by the government of the island of Curacao.

Simultaneously with the commencement of this action Geveke applied for and was granted a writ of attachment pursuant to which the United States Marshal levied upon a diesel generator, part of the subject matter of the contract, title to which had passed to KAE, and which was then temporarily located in Auburn, New York.

Plaintiff has moved for summary judgment and filed its Local Rule 9(g) statement alleging that no dispute exists as to the contract, plaintiff's performance thereunder or the unpaid balance due it from KAE. The defendant concedes that the plaintiff is entitled to the balance due as claimed.

 KAE contends *fn1" that its amenability to suit is governed by the Foreign Sovereign Immunities Act of 1976 (the "Immunities Act") *fn2" , that the Act precludes attachment of the property of a foreign state as a means of obtaining jurisdiction and commencing a lawsuit in the United States, and hence that the Court is without jurisdiction over KAE. *fn3"

 It is undisputed that KAE is a corporation wholly-owned by the government of Curacao and as such is a "foreign state" as that term is defined in 28 U.S.C., section 1603. *fn4"

 While the complaint alleges jurisdiction upon diversity of citizenship and an amount in controversy in excess of $ 10,000 under 28 U.S.C., section 1332(a)(2), given KAE's undisputed status as a foreign state jurisdiction must be based, if it exists at all, upon the jurisdictional statute added to Title 28 by the Immunities Act, 28 U.S.C., section 1330.

 Congress through the Immunities Act sought to provide a comprehensive and exclusive scheme governing when and how parties can maintain a lawsuit against a foreign state or its entities in the courts of the United States and when a foreign state is entitled to sovereign immunity. *fn5" In addition to its provisions codifying the rules of sovereign immunity to suit and to attachment, the Immunities Act also prescribed the jurisdiction of the United States district courts in cases involving foreign states.

 The Immunities Act amended 28 U.S.C., section 1332 to delete references to foreign states that had previously been the source of subject matter jurisdiction in such cases. In place of these deleted references, the Immunities Act added section 1330 which was intended as a comprehensive treatment of district court jurisdiction in actions against foreign states or their entities. *fn6"

 That section in pertinent part provides:

 
(a) The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title As to any claim for relief in personam with respect to which the foreign state is not entitled to immunity (under the Immunities Act).
 
(b) Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title.
 
(emphasis added)

 While adding a measure of liberality to subject matter jurisdiction over actions against foreign states by removing the amount in controversy requirement formerly applicable under section 1332, section 1330(a) specifically limits the district courts' jurisdiction to in personam claims.

 Viewed against the background of the Immunities Act as a whole, this limitation is neither arbitrary nor unintentional. To enforce it strictly not only comports with the clear language of the statute but with the equally clear intent of Congress. The restriction of subject matter jurisdiction to in personam claims stems from and furthers one of the basic objectives of the Immunities Act to replace jurisdiction over foreign state defendants based upon prejudgment ...


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