rather than "claims" against foreign sovereigns. See 28 U.S.C. § 1330
(a); First Nat'l Bank of Mobile v. Kaufman, 593 F. Supp. 1189, 1191-92
(N.D. Ala. 1984). Section 1330(a) governs (1) any claim for relief, (2)
to which a foreign state is not entitled to immunity, (3) in any civil
action against a foreign state. See id.
Non-Ferrous' counterclaims meet all three conditions for jurisdiction
under section 1330(a). First, those counterclaims are indeed claims for
relief. Second, Non-Ferrous is not entitled to immunity on those claims.
It is self-evident that Non-Ferrous could not obtain immunity on its own
counterclaims. Third, this case is a civil action against NonFerrous, a
foreign state as defined in section 1603(a). As a result, section
1330(a) mandates a nonjury trial for those claims, for the FSIA's legislative
history does not instruct otherwise.*fn5
The Court does not agree with Non-Ferrous that a defendant's
counterclaims constitute an "action" against a plaintiff. (See Defs.'
Opp. Mem. at 16 (citing Allendale Mut. Ins. Co. v. Bull Data Sys., Inc.,
No. 91 Civ. 6103, 1995 WL 5895 (N.D. Ill. Jan. 4, 1995)). The Second
Circuit ruled in an analogous situation that a governmental defendant's
counterclaims did not constitute a "suit" against a plaintiff. See
Cargill Inc. v. Commodity Credit Corp., 275 F.2d 745, 748 (2d Cir. 1960)
("The statute speaks in terms of `suits' not of claims. Commodity's
counterclaim was part of the suit").
Non-Ferrous argues that Cargill is inapposite, as it involved a waiver
of sovereign immunity by the United States Government under the Commodity
Credit Corporation's Charter Act, 15 U.S.C. § 714. Non-Ferrous
observes that the U.S. Government, unlike Non-Ferrous, can "set the
terms" of its consent to suit. That observation, however, does not affect
the Second Circuit's ruling that there is a distinction between the plain
meaning of "suit" and "claim," and that the term "suit" (or "action")
includes both claims and counterclaims.
The Seventh Amendment to the Constitution also speaks of "[s]uits at
common law" rather than "claims at common law" in "preserv[ing]" the
right to a jury. See U.S. Const. amend. VII. Therefore, the Second
Circuit's holding that the nonjury provision in section 1330(a) is
constitutional, see Ruggiero, 639 F.2d at 878-79, applies equally to
counterclaims asserted by foreign-state defendants within such suits. See
Kaufman, 593 F. Supp. at 1193 (upholding the constitutionality of section
1330(a) in an action involving counterclaims by a foreign-state
defendant); see also McElrath v. United States, 102 U.S. 426, 440 (1880)
(holding that the Seventh Amendment does not govern suits against the
United States Government, including counterclaims by the Government,
because those suits "are not suits at common law within its true
This case is an action against two foreign-state defendants; it is
therefore governed in its entirety by section 1330(a). Accordingly, the
trial of this case will be held before the Court without a jury with
respect to all claims and counterclaims asserted by the parties.
The Court grants Lehman's motion to strike the jury demand in this
case. Trial in this case will be before this Court without a jury. The
Court hereby gives the parties a firm trial date of Monday, October 29,