Today’s case of the day is Devengoechea v. Venezuela (11th Cir. 2026). Friend of Letters Blogatory Ingrid Brunk discussed the case in a recent post at the Transnational Litigation Blog, and I wrote about an earlier stage of the case years ago. Devengoechea was a collector of artifacts of Simón Bolívar who lived in Florida. He claimed that Venezuelan government officials had agreed to meet with him in Venezuela to negotiate a purchase of his collection. They agreed that they would inspect the artifacts and either buy them or return them to him. He left the artifacts in Venezuela to allow the government to inspect them, but “ultimately, Venezuela neither paid Devengoechea for the collection nor returned it to him.” Let me begin by saying that it strikes me that Devengoechea seems to have been either incredibly naive or else poorly advised. In any case, Devengoechea sued for breach of contract and unjust enrichment.

At first, Venezuela failed to appear in the case. The clerk entered its default, the court held a trial on damages, and ultimately it entered a default judgment. Venezuela then did appear and sought to vacate the judgment. Devengoechea stipulated to the vacatur. Venezuela then moved to dismiss for lack of subject-matter jurisdiction. The court denied the motion, Venezuela appealed, and the Eleventh Circuit affirmed. On remand, Venezuela continued to participate in the litigation, moving again to dismiss and also moving for summary judgment. The court denied its motions. A “regime change” in Venezuela also led Venezuela’s lawyer to withdraw from the case. Venezuela then stopped participating. While the court apparently considered entering another default judgment on liability, Devengoechea “stated he prefer[red] to prove his case.” So the court held a trial on the merits. Venezuela did not participate. Following trial, the court entered judgment for $17 million against Venezuela. Venezuela then appeared again in the case and appealed.

The basis for the appeal was the claim that the FSIA does not allow for “trial in absentia” but requires a default judgment. I am not totally I understand what the appeal is about. In a criminal case, there’s a real issue about trials in absentia, because a criminal defendant has a right to be present at all stages of the case. Even in criminal cases, the right is not absolute and can be waived or forfeited. But what is a “trial in absentia” in a civil case? Isn’t it just a trial where one party fails to show up after receiving notice? The party has the right to be present, of course, but the party’s presence is, as far as I know, never actually required for the trial of a civil action to go ahead. When a party to a civil action is not a natural person, then of course the party itself can never really be “present” in court anyway. It seems to me that what happened here was that the court scheduled a trial, one side didn’t show up, and the court went ahead with the trial rather than proceeding by default. It’s hard for me to see why this could be inconsistent with the FSIA, why it isn’t just an example of a case proceeding to trial and judgment in the ordinary course.

The Eleventh Circuit, though, didn’t see it that way. The court treated the judgment as a default judgment and held that the FSIA did require a plaintiff to follow the ordinary procedure for obtaining a default judgment in FRCP 55. The court, in its discussion of Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1979),¹ seemed to agree that in a non-FSIA case, the analysis I gave above would be correct. I admit to having some trouble understanding why it has distinguished the case. The reasoning seems flawed to me: (1) the FSIA’s provisions on default judgments are mandatory and exclusive and require compliance with the procedural requirements of FRCP 55; (2) this was a default judgment; therefore (3) the outcome of the trial in absentia, which did not follow the ordinary procedure for defaults, must be set aside. But I don’t see any actual reasoning or support for point (2) in the decision. Judge Rosenbaum’s dissent seems to be right on the money:

The Majority Opinion offers no reason why a district court cannot try a civil defendant in absential when the litigant ceases to defend the case. And it doesn’t explain how—despite binding precedent to the contrary—a judgment following that type of trial is a default judgment.

Ingrid’s post correctly points out how frustrating this must be for the plaintiff. I agree, though I have to say I don’t understand why the plaintiff did not take the option of a default judgment when it was offered. It is hard to imagine the court giving Venezuela relief from a default in the circumstances, just because we prefer trials on the merits. You don’t get two freebies.

1. Old Fifth Circuit cases are precedential in the Eleventh Circuit, which split off from the Fifth Circuit as that circuit grew and grew. ↩︎