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BYBEE v. OPER DER STANDT BONN

October 3, 1995

LURETTA BYBEE, Plaintiff, against OPER DER STANDT BONN (the Bonn Opera Company) and GIAN-CARLO DEL MONACO, Defendants.


The opinion of the court was delivered by: STEIN

 SIDNEY H. STEIN, U.S. District Judge:

 Defendants Oper der Standt Bonn (the "Bonn Opera Company") and Gian-Carlo del Monaco have moved to dismiss the amended complaint in this action for lack of subject matter and personal jurisdiction and pursuant to the doctrine of forum non conveniens. Plaintiff Luretta Bybee has filed a cross-motion for leave to re-serve the amended complaint. Defendants' motion to dismiss the amended complaint on the grounds of forum non conveniens is granted and plaintiff's cross-motion for leave to re-serve the amended complaint is denied for the reasons set forth below.

 I. Background

 Bybee is an opera singer residing in New York City. She became acquainted with defendants Bonn Opera Company and its "Intendant" - General Manager - del Monaco in March 1991 when she auditioned in New York for a position with that opera company. Del Monaco conducted the audition and later attended a birthday party at Bybee's home. Bybee alleges that she was subsequently offered a position by del Monaco to perform for the Bonn Opera Company in Germany. Bybee's husband, who is also an opera singer, was offered a position by the defendants, but chose not to join the opera company. Bybee claims that the defendants refused to honor her contract as a result of her husband's decision. In addition to that breach of contract claim, Bybee asserts claims for intentional and negligent misrepresentation, negligent hiring, defamation, and intentional and negligent interference with prospective contractual relations.

 Bybee filed her complaint in May of 1993. The Court appointed an international process server to serve the defendants in Germany in accordance with the Hague Convention. The Bonn Opera Company and del Monaco were subsequently served in September and November, respectively. In a letter dated October 6, 1993, Dr. Erich Raeder, an attorney admitted to the bar in Germany, sent a letter to the Court, in German, stating that he would be representing the defendants and requesting an additional month in order to respond to the complaint. The next month he sent an additional letter addressing the merits of Bybee's claims. Although the Court did not respond to the letters, plaintiff's counsel notified Dr. Raeder that he would need "to retain local counsel and submit an answer in compliance with the applicable rules of [the] Court." Stewart Declaration P 7. Defendants never provided any additional response.

 On June 14, 1994, a default judgment was entered against defendants permitting plaintiff to recover damages sustained "on account of the claims for relief demanded in the complaint." The matter was referred for a determination of damages to a Magistrate Judge, who concluded that the damages clause in the complaint lacked sufficient specificity because it stated merely that Bybee had suffered damages in excess of $ 50,000.00. The Magistrate Judge notified Bybee that she could either limit judgment to $ 50,000.00 or file a motion to vacate the default judgment and file an amended complaint. Bybee chose the latter option, and in March of this year the Court granted Bybee's motion to vacate the default judgment and to permit the filing of an amended complaint. The Court ordered that "service of process upon the defendants, Oper Der Standt Bonn (the Bonn Opera Company) and Gian-Carlo Del Monaco and Dr. Erich Raeder, counsel for defendants, shall be made with translations by international federal express with such service good and valid." Order dated March 7, 1995.

 On April 26, 1995, Bybee served defendants and their German attorney, Dr. Raeder, in the manner set forth in the Court's order. Defendants are now represented by counsel admitted to the bar of this Court. In the amended complaint, Bybee seeks damages of $ 178,303.18 for breach of contract, negligent misrepresentation, and negligent interference with prospective contractual relations, and $ 10,000,000.00 for intentional misrepresentation, negligent hiring, defamation, and intentional interference with prospective contractual relations.

 Defendants now move to dismiss the amended complaint.

 II. Subject Matter Jurisdiction

 The defendants claim that this Court lacks jurisdiction because defendants are immune from jurisdiction pursuant to the Foreign Sovereign Immunities Act (the "FSIA"). The FSIA provides that a foreign state, including "an agency or instrumentality of a foreign state," is "immune from the jurisdiction of the courts of the United States" unless it comes within certain exclusions set forth within the FSIA. 28 U.S.C. §§ 1603(a), 1604.

 Bybee does not challenge defendants' assertion that they are an agency or instrumentality of a foreign state as defined in the FSIA. See 28 U.S.C. § 1603(b). Instead, she claims that the activity in question is within the statutory exception to immunity which provides that a foreign state shall not be immune in any case "in which the action is based upon a commercial activity carried on in the United States in connection with a commercial activity of the foreign state elsewhere...." 28 U.S.C. § 1605(a)(2); see also Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 241 (2d Cir. 1994). Commercial activity is defined as "either a regular course of commercial conduct or a particular commercial transaction or act." 28 U.S.C. 1603(d); see also Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614, 112 S. Ct. 2160, 2166, 119 L. Ed. 2d 394 (1992).

 The relevant conduct here, engaging an opera singer to perform personal services, constitutes commercial activity, as acknowledged by defendants' counsel at the oral argument of these motions. Accordingly, defendants' motion to dismiss the amended complaint insofar as ...


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