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Case of the Day: Jerez v. Republic of Cuba

The case of the day is Jerez v. Republic of Cuba (D.D.C. 2013). In 2005, Nilo Jerez sued Cuba and various government officials and agencies, including Fidel and Raul Castro, alleging that he had been tortured in a Cuban prison in the early 1970s. He obtained a default judgment in a Florida state court, and the US District Court for the Southern District of Florida, giving the state court judgment full faith and credit under 28 USC § 1738, likewise entered a default judgment. 1 Jerez then registered the federal judgment in the District of Columbia under 28 USC § 1963 and sought a writ of attachment. The magistrate judge refused to issue the writ on the grounds that the Florida state court had lacked subject matter jurisdiction under the FSIA. 2 Jerez objected to the magistrate judge’s decision.

The court overruled Jerez’s objections. Jerez argued that the non-commercial tort exception to sovereign immunity, 28 USC § 1605(a)(5), applied, but that exception applies only when the tort and the injury occurred in the United States. Part of the claim was that Jerez had contracted hepatitis as a result of the torture and that the Cuban government’s continuing failure to warn him of that fact was a separate tort that should be deemed to have occurred in the United States because the Cuban government had representatives here at relevant times. But the judge rejected this attenuated theory because there was no evidence that any Cuban government representative in the US did in fact have knowledge of the relevant facts.

Jerez also pointed to the state-sponsored terrorism exception, § 1605(a)(7), but this argument failed, too. First, Cuba wasn’t designated as a state sponsor of terrorism until years after the torture, and second, although there was an apparent typographical error in the record that muddied the waters, it was clear to the judge that Jerez was not a US citizen at the time of the torture.

Jerez conceded that a lack of subject matter jurisdiction in the Florida state court could not be cured by way of an action on the judgment in the federal court. But he nevertheless argued that the magistrate judge had erred by inquiring into the state court’s subject matter jurisdiction. Here, though, the jurisdictional issue had not been litigated on the merits in the Florida state court, so it would be a mistake to accord preclusive effect to the state court’s implicit determination about subject matter jurisdiction.

Notes:

  1. It seems that Jerez brought an action on the judgment in the federal court, but it’s not clear from the decision.
  2. There was also an issue about the Cuban Assets Control Regulations, which I do not review here.