and Carol Sales' derivative claim are "excessive under the circumstances," without saying why that is so or suggesting a different figure. While it is true that the award to Christopher Sales for pain and suffering is in a range generally involving more severe injuries, as Judge Grubin recognized in her opinion at slip op. 24, the amount is not so great as to shock the conscience of a reviewing court. Judge Grubin had the opportunity of observing plaintiff Christopher Sales and forming an opinion as to the extent of his suffering, past, present and future, which given the nature of his injuries is undoubtedly severe.
While I reject certain objections defendants make to Judge Grubin's calculations, I agree with defendants that interest should not run from September 30, 1991, the date of entry of default against the defendants. The default related to liability only, with the amount of damages (upon which interest may then be calculated) to be determined subsequently. Since federal jurisdiction in this case is premised on diversity and the right to interest on a cause of action qualifies as a substantive right, the question is governed by New York law. See Adams v. Lindblad Travel, Inc., 730 F.2d 89, 93 (2d Cir. 1984). The New York rule on personal injury claims is that "no interest at all may be awarded until at least a verdict (in a jury trial) or a decision (in a bench trial) is rendered." Siegal, Practice Commentaries, N.Y.CPLR § 5002 (McKinney's 1992). In the case at bar, Judge Grubin's Report and Recommendation following inquest is the functional equivalent of a verdict or decision setting forth the amount of plaintiffs' damages. The awarding of interest prior to that time is contrary to New York law. The amount involved is approximately $ 266,000. Accordingly, the calculation of plaintiffs' damages for the purpose of posting of security will be reduced by that amount, from $ 2,137,245.26 to $ 1,871,245.26.
I now turn to defendants' motion to be relieved of the necessity of posting security. Because this Court added that condition sua sponte, the parties had not briefed the issue prior to the December 28, 1992 opinion. Accordingly the usual strictures on motions for reargument contained in Civil Rule 3(j) of this Court may be relaxed. I have considered the question de novo.
This Court's order directing the posting of security as a condition for vacatur of the default judgment was based on First Fidelity Bank, N.A. v. The Government of Antigua and Barbuda -- Permanent Mission, 877 F.2d 189, 196 (2d Cir. 1989). That case arose out of a loan to pay for the renovation of Antigua's Permanent Mission to the United States in New York. Antigua, like the Republic of Uganda in the case at bar, is a foreign state. Actions in United States Courts against foreign states are governed by the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1330, 1602-1611.
In First Fidelity the plaintiff bank filed suit in this Court to recover the balance owing on the loan, and served the Government of Antigua in accordance with the provisions of the FSIA. Antigua did not answer the complaint, although it conceded that it was properly served. The circumstances are the same in the case at bar. Plaintiff Christopher Sales having been injured on the premises of the Permanent Mission of Uganda to the United Nations, counsel for plaintiffs in April 1991 caused the Clerk of the Court to send notice of the action as proscribed by the FSIA to the Government of Uganda at its capitol city of Kampala. Uganda has never denied that it was properly served.
In the First Fidelity case, Antigua did not answer the complaint. The bank obtained a default judgment. The then ambassador of Antigua to the United Nations thereupon entered into an acknowledgement of debt and settlement agreement. Upon default of the payments called for by the settlement agreement, the plaintiff bank attached bank accounts of Antigua's Permanent Mission in New York and its embassy in Washington, D.C. These steps prompted the Government of Antigua to take its first direct action. Antigua moved in the district court to dismiss the bank's complaint for lack of subject-matter jurisdiction, on the ground that the then Ambassador lacked the authority to bind his Government to the loan or to the settlement agreement. Those contentions, if correct, would permit Antigua to defend on the ground of sovereign immunity from suit. On the other hand, as the Second Circuit observed, if Antigua was simply "trying to renege on a loan by disowning its agent who borrowed the money," then "the FSIA's commercial activity exception would strip Antigua of its sovereign immunity, and the district court would have subject matter jurisdiction. The default judgment would be valid, and the consent order would be enforceable." 877 F.2d at 195-96.
In these circumstances, the Second Circuit held that the district court should have granted Antigua's motion to set aside the default under Rule 60(b)(6), the catch-all provision permitting consideration of "any other reason justifying relief from the operation of the judgment." Stressing that "courts go to great lengths to avoid default judgments against foreign sovereigns or to permit those judgments to be set aside," and that "the fusion of substantive and jurisdictional issues also militates in favor of settling aside the default judgment" against Antigua, the Second Circuit set aside the default and permitted Antigua to defend on the merits, in an effort to establish its sovereign immunity.
However, the Second Circuit went on to say:
At the same time, First Fidelity's rights must be protected, for there is some evidence that Antigua responded to this lawsuit only when First Fidelity began to grasp its assets. Rule 60(b) provides for relief "upon such terms as are just."
Id. at 196.
Accordingly the court of appeals vacated the default judgment and remanded to the district court for further proceedings "on the condition that Antigua post a bond covering the amount claimed by First Fidelity, including interest." Id.
Uganda's conduct in the case at bar is comparable to that of Antigua in First Fidelity. Uganda made no response to the summons and complaint, properly served upon that Government under the FSIA no later than May 1991. Although not required to do so, in September 1991 Judge Grubin sent to the Government in Kampala a letter advising Uganda of the inquest date of October 24, 1991 and advising Uganda of its right to attend and present evidence. Uganda did nothing in response, except that on October 24, 1991 the permanent mission contacted the United States Mission of the United Nations, asking the United States Mission to "liaise with the relevant authorities as appropriate." Uganda did not move to vacate the default until July 1992.
Uganda has on at least one prior occasion disregarded process issued by a United States court. In Foxworth v. Permanent Mission of the Republic of Uganda to the United Nations, 796 F. Supp. 761 (S.D.N.Y. 1992), an elderly woman was struck by an automobile owned by the Permanent Mission and severely injured. Uganda failed to answer the complaint and Judge Mukasey entered a default judgment in the amount of $ 250,120 which Uganda failed to satisfy. A writ of attachment was subsequently entered against a bank account maintained by the permanent mission in New York City. As Judge Mukasey noted, "evidently, the attachment of its bank account convinced defendant that plaintiff's claim and the proceedings before this Court warranted its attention." Id. at 762. Uganda, with the diplomatic support of the United States Department of State, obtained the lifting of the attachment in accordance with provisions of treaties then in force. Id. at 762-63. Judge Mukasey saw fit to remind Uganda that, despite the lifting of the attachment, "there remains an outstanding judgment pursuant to which it is liable to plaintiff in the amount of $ 250,120." Id. at 764. The Court records reflect that subsequently Judge Mukasey vacated the default, allowed Uganda to defend on the merits, and gave judgment to plaintiff against the Permanent Mission in the amount of some $ 90,000: a judgment which Uganda has thus far failed to pay, although taking no appeal.
Given Uganda's demonstrated propensity to disregard process issued by United States Courts, and its refusal to pay lawful judgments, I think it entirely fair to require that the claims of plaintiffs at bar be secured as a condition to permitting vacatur of the default judgment. It is the same fair result that the Second Circuit reached in granting Rule 60(b) relief to Antigua in First Fidelity. Uganda says that First Fidelity is distinguishable because the damages in that action to recover a loan were liquidated in amount, whereas plaintiffs' tort damages are not liquidated (Uganda having not participated in the inquest before Judge Grubin). But Uganda chose not to participate in that inquest, and cannot profit by its own neglect. While Uganda is entitled to litigate both liability and damages if the default is vacated, the factual and medical evidence before Judge Grubin make it crystal clear that plaintiffs suffered severe damages. Their claims are sufficiently "liquidated" by Judge Grubin's careful findings to justify the giving of security in the amount previously referred to in this Opinion.
Uganda also argues that it should not be required to give security until its defense of sovereign immunity has been tested. But in that regard, this case is no different from First Fidelity, in which Antigua asserted sovereign immunity as the result of its Ambassador's asserted lack of authority to bind the Government. In First Fidelity the Second Circuit, applying concepts of fairness under Rule 60(b), conditioned Antigua's ability to vacate the default and assert sovereign immunity upon its securing the plaintiff's claim. I reach the same result in the case at bar.
Uganda refers in its briefs to the treaties which led to the lifting of the attachment in Foxworth, supra, and to the limitations placed by the FSIA upon attachments of a foreign state's property in aid of execution on judgments. See 28 U.S.C. §§ 1609-1611. The Second Circuit has also suggested that a district court order addressed to a foreign state to post security as a condition of adjourning the enforcement of a foreign arbitral award, as provided for by Article VI of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, see 9 U.S.C. § 201 note (West Supp. 1993), may be regarded as the equivalent of an "attachment" of a foreign state's property within the meaning of the FSIA. Caribbean Trading and Fidelity Corp. v. Nigerian National Petroleum Corp., 948 F.2d 111 (2d Cir. 1991). However, these considerations are not implicated by a foreign state's request for relief from a judgment under Rule 60(b). Such relief may be granted under the rule only "upon such terms as are just," and for the reasons stated I believe the requirement of security as a condition for vacatur is just and fair.
In these circumstances, the defendant Republic of Uganda is directed to post security in the amount of $ 1,871,245.26 as a condition for vacatur of the default judgment entered in this case. Defendant is directed to post that security within thirty (30) days of the date of this Opinion and Order, failing which plaintiffs may submit ex parte a default judgment in that amount. If Uganda posts security, it must respond to the complaint within thirty (30) days thereafter.
The foregoing is SO ORDERED.
Dated: New York, New York
July 9, 1993
CHARLES S. HAIGHT, JR.
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