Case of the Day: Jerez v. Republic of Cuba
Posted on January 5, 2015
The case of the day is Jerez v. Republic of Cuba (D.C. Cir. 2014). This is the appeal from the case of the day from September 13, 2013. Nilo Jerez claimed he had been tortured by the Cuban government in the 1960s and 1970s. In 2005, he sued Cuba in a Florida state court under the Torture Victim Protection Act, and he obtained a default judgment. Jerez then sued on the judgment in the US District Court for the Southern District of Florida which recognized the Florida judgment after Cuba again defaulted. Then Jerez registered the new federal judgment in the District of Columbia and sought to attach patents and trademarks said to be owned by instrumentalities of Cuba. The US District Court in Washington refused to attach the intellectual property on the grounds that the Florida state court and the federal court in Florida had lacked jurisdiction under the FSIA. Jerez appealed.
The DC Circuit affirmed. The decision is clearly correct. I explained the reasons why the FSIA did not allow the court to exercise jurisdiction in the prior post. I’ll just expand a little bit on the question whether Cuba was precluded from making such arguments in the District of Columbia in light of the Florida judgments. Cuba defaulted both in the Florida state court and in the federal court. As the DC circuit held, in order for a decision about subject matter jurisdiction to be preclusive, it is not enough that the party opposing jurisdiction could have litigated the issue; the issue actually has to have been litigated:
A defendant who knows of an action but believes the court lacks jurisdiction over his person or over the subject matter generally has an election. He may appear, raise the jurisdictional objection, and ultimately pursue it on direct appeal. If he so elects, he may not renew the jurisdictional objection in a collateral attack. …
Alternatively, the defendant may refrain from appearing, thereby exposing himself to the risk of a default judgment. When enforcement of the default judgment is attempted, however, he may assert his jurisdictional objection. If he prevails on the objection, the default judgment will be vacated.
Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1547 (D.C. Cir. 1987) (per Ginsburg, J.).
This, by the way, is completely consistent with the Full Faith and Credit Act. Under both federal law and Florida law, the enforcing court must refuse to enforce the state court judgment if the state court lacked subject matter jurisdiction.