The opinion of the court was delivered by: WEXLER
Plaintiff Bawol Cabiri ("Cabiri") was a trade representative to the United States appointed by the Ghanian Government in 1983 to serve in New York. He and his family were provided with a home on Marietta Drive in Westbury, New York which was owned by the defendant the Republic of Ghana.
Plaintiffs' Underlying Allegations
Plaintiff Bawol Cabiri alleges that prior to July 1986, officials of Ghana formulated a scheme to deprive him of the benefits of his position as trade counsellor, and subject him to torture, false imprisonment, false arrest, physical and mental abuse, and internal exile. Cabiri was recalled to Ghana in July 1986 for consultations regarding shipments of grain. Cabiri alleges that this recall was a ruse to repatriate him, that he was forcibly removed from the ministry of trade in Ghana where he had reported, and was imprisoned for nearly a year in detention camps.
While Cabiri was being held, Ghanian officials purportedly subjected his wife, Efua Cabiri, to threats and intimidation. Mrs. Cabiri was given no information as to her husband's whereabouts or physical condition.
Ghana claims that Cabiri was retired from his post on October 31, 1986. Cabiri argues that his retirement was attempted retroactively by a letter dated April 16, 1987, and was not effective. In June 1991, Cabiri was allowed to leave Ghana and return to the United States. The State Department granted Mrs. Cabiri asylum in the United States in 1988, and granted Mr. Cabiri asylum in 1993.
The Real Property Proceeding
After the Cabiris' served discovery requests for their counterclaims, the parties reached a settlement as to the dispossess action, and agreed to dismiss the counterclaims so that they could be brought before this court. The parties agreed that any defenses that Ghana could assert in the federal action under the Foreign Sovereign Immunities Act or the Act of State Doctrine would be waived to the extent they had been waived in the Real property Proceeding.
This case is before this Court upon defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to FRCP Rule 12(b)(1). The Foreign Sovereign Immunities Act (the "FSIA") provides the sole source of subject; matter jurisdiction over foreign sovereigns in suits brought in United States courts. 28 U.S.C. § 1602 et seq.; see Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989); see also Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017 (2d Cir. 1991) (citations omitted); Letelier v. Republic of Chile, 748 F.2d 790, 793 (2d Cir. 1984) (citations omitted). As a rule, a foreign state is immune from the jurisdiction of the courts of the United States unless one of the specific exceptions contained within sections 1605 or 1607 of the Act is found to apply. 28 U.S.C. § 1604: see Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-89, 76 L. Ed. 2d 81, 103 S. Ct. 1962 (1983); Carey v. National Oil Corp., 592 F.2d 673, 676 (2d Cir. 1979) (footnote omitted). Only if it is determined that a foreign state is not entitled to immunity does the FSIA confer original jurisdiction on district courts. 28 U.S.C. § 1330(a); Verlinden, 461 U.S. at 489 ("If the claim does not fall within one of the exceptions, federal courts lack subject-matter jurisdiction."); see also Shapiro, 930 F.2d at 1017 (citing § 1330(a)). If subject matter jurisdiction exists, the foreign sovereign is liable in the "same manner and to the same extent as a private individual under like circumstances." Verlinden, 461 U.S. at 488-89 (quoting § 1606) (footnote omitted.)
Plaintiffs admit that defendant constitutes a "foreign state" as defined by § 1603(a) of the FSIA. Therefore, the burden now shifts to plaintiffs to come forward with some facts which would allow this Court to find that an exception to the Act applies. See Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 289 n.6 (5th Cir. 1989); Olsen v. Government of Mexico, 729 F.2d 641, 644 (9th Cir. 1984). Plaintiffs raise three different exceptions to sovereign immunity to this case to confer jurisdiction upon this Court. They are the tort exception, the counterclaim exception and ...