Architectural Ingenieria Siglo XXI, LLC v. Dominican Republic , 788 F.3d 1329 ( 2015 )

Case: 13-13877 Date Filed: 06/10/2015 Page: 1 of 29
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 13-13877 & 14-12543
________________________
D.C. Docket No. 1:13-cv-20544-KMM
ARCHITECTURAL INGENIERIA SIGLO XXI, LLC,
a Florida limited liability company,
SUN LAND & RGITC LLC,
a Florida limited liability company
f.k.a. Sun Land RGITC, Co.,
Plaintiffs–Appellees,
versus
DOMINICAN REPUBLIC,
a foreign state,
INSTITUTO NACIONAL DE RECURSOS HIDRAULICOS,
a foreign government agency,
Defendants–Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(June 10, 2015)
Case: 13-13877 Date Filed: 06/10/2015 Page: 2 of 29
Before HULL and DUBINA, Circuit Judges, and BOWEN, * District Judge.
DUBINA, Circuit Judge:
These appeals arise from an action brought by two Florida companies
against a foreign nation and one of its instrumentalities under the Foreign
Sovereign Immunities Act, 28 U.S.C. §§ 1602–1611. Plaintiffs Sun Land &
RGITC LLC and Architectural Ingenieria Siglo XXI, LLC sued Defendants
Dominican Republic and INDRHI 1 for breach of contract and unjust enrichment
related to an irrigation project in the Dominican Republic. 2 Because the
Dominican Republic and INDRHI did not timely answer the complaint, the district
court entered a default judgment in favor of Sun Land and Architectural, awarding
damages that cumulatively exceeded $50 million.
Eight days after the entry of the default judgment, the Dominican Republic
and INDRHI entered an appearance; and ten days thereafter, they moved to vacate
the default judgment for excusable neglect under Federal Rule of Civil Procedure
60(b)(1). The district court denied their motion, and they timely appealed. While
that appeal was pending, the Dominican Republic moved to vacate the default
judgment for voidness under Rule 60(b)(4). On reconsideration, the district court
*
Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
1
INDRHI is an acronym for Instituto Nacional de Recursos Hidráulicos, the National
Institute for Hydraulic Resources.
2
It is undisputed that each Defendant is a “foreign state” under the FSIA. The
Dominican Republic is a foreign nation, and INDRHI is a governmental agency under the
executive branch of the Dominican Republic responsible for the planning, operation and
construction of water-works projects in that nation. See 28 U.S.C. § 1603(a)–(b).
2
Case: 13-13877 Date Filed: 06/10/2015 Page: 3 of 29
denied the motion on the merits, finding that the foreign nation had waived its
sovereign immunity. The Dominican Republic timely appealed that ruling as well.
We consolidated both appeals and now reverse the district court’s orders on the
Defendants’ Rule 60(b) motions.
I.
Sun Land and Architectural’s breach-of-contract action is based on several
documents, which they collectively refer to as “the Contract.” Because whether
the district court had subject-matter jurisdiction over the claims against the
Dominican Republic depends on the nature and content of these documents, we
begin with an overview of their key terms.
A.
In 2000, INDRHI proposed the construction of an irrigation project in the
Dominican Province of Azua. This project, commonly referred to as Azua II, was
intended to provide irrigation to an area totaling 3000 hectares. INDRHI and STP3
(the Technical Secretary) invited contractors to bid on the project. Each bid had to
be for a turnkey project that, among other things, provided for the financing
necessary to complete the project. To arrange the financing component of its bid,
Architectural asked Sun Land to participate. Ultimately, its $51.8 million bid for
the Azua II project was the winning bid.
3
STP is the acronym for Secretario Tecnico de la Presidencia de la República
Dominicana, or Technical Secretary of the Presidency of the Dominican Republic. This position
was later renamed and is currently referred to as the Ministerio de Economía, Planificación y
Desarrollo, or Ministry for Economy, Planning, and Development. The Technical Secretary is
not a party to this action.
3
Case: 13-13877 Date Filed: 06/10/2015 Page: 4 of 29
B.
In November 2001, the President of the Dominican Republic issued Special
Power 691-01, authorizing the Technical Secretary and INDRHI—“in the name
and representation of the Dominican State”—to enter into two agreements
regarding the Azua II project: (1) a financing agreement with the Florida Export
Finance Corporation and other commercial banks, with the guarantee of the
Export–Import Bank of the United States, to obtain the funds needed to complete
Azua II; and (2) a commercial agreement with Architectural to provide the services
needed to complete the Azua II project.
C.
In February 2002,4 INDRHI, the Technical Secretary, and Sun Land entered
into a purchase agreement. Under this agreement, INDRHI agreed to buy the
“Products” (e.g., the raw materials) and the “Services” (e.g., civil engineering,
architectural designs, and supervision) needed for the Azua II project from Sun
Land. To fund this purchase, the Technical Secretary agreed to obtain financing
through Sun Land, an authorized agent of the Export–Import Bank. In return,
INDRHI and the Technical Secretary agreed to pay Sun Land the total purchase
price of $51.8 million, an amount that was “guaranteed with the full faith and
credit of the Dominican Government.”
Several other provisions of the purchase agreement are relevant here.
4
While the Technical Secretary and Sun Land executed the purchase agreement in
December 2001, INDRHI did not do so until February 2002.
4
Case: 13-13877 Date Filed: 06/10/2015 Page: 5 of 29
First, the purchase agreement made plain that the Technical Secretary had
been “empowered by the Executive to sign [that agreement] with the Full Faith and
Credit of the Government on behalf of the country.”
Second, Sun Land had “an absolute right to subcontract” any of its
obligations or duties under the purchase agreement; and INDRHI and the
Technical Secretary “agree[d] to execute any additional documentation [Sun
Land] . . . may deem necessary to effectuate the terms and conditions of this
agreement.”
Third, INDRHI and the Technical Secretary “acknowledge[d] and agree[d]”
that they were not entitled to “immunity on the grounds of sovereignty or
otherwise” because the activities contemplated by the purchase agreement were
“commercial in nature rather than governmental or public.” INDRHI and the
Technical Secretary—“in respect to themselves”—then “expressly and irrevocably
waive[d] any such right of immunity.”
Fourth, the parties submitted to the jurisdiction of the federal court sitting in
Miami, Florida for any action “arising out of or relating to this agreement or notes
or any of the transactions contemplated thereby.”
Fifth, the parties agreed that Florida law would govern the construction and
enforcement of the purchase agreement.
Sixth, INDRHI and the Technical Secretary “designate[d], appoint[ed] and
empower[ed]” the Dominican Ambassador or any Dominican Consul to receive
service of process on their behalf. They also agreed that service of process could
be made personally or by mailing or delivering a copy of the summons and
5
Case: 13-13877 Date Filed: 06/10/2015 Page: 6 of 29
complaint to the Dominican Ambassador, any Dominican Consul, or the address
listed in the purchase agreement.
Once executed, the purchase agreement was submitted for legislative
approval. In November 2002, the Dominican National Congress passed a
resolution approving the purchase agreement, which the legislature described as a
document executed by “the Dominican State, represented by the Technical
Secretary of the Presidency . . . and [INDRHI]” under Special Power 691-01.5
D.
In March 2002, INDRHI and Architectural entered into Contract 10375 for
the studies, design, and construction of the Azua II project. According to the
preamble—“an integral part of” Contract 10375—the Technical Secretary had
instructed INDRHI “to serve as the executing entity” for the Azua II project. Also,
as both its preamble and articles made clear, Contract 10375 had been entered into
and was to be performed in accordance with the purchase agreement.
Under Contract 10375, INDRHI did not submit to U.S. jurisdiction, agree to
a special arrangement for service of process, or explicitly waive its sovereign
immunity. Instead, the parties submitted to jurisdiction in the courts of Santo
Domingo, agreed that Dominican law governed the agreement, and provided that
certain disputes should be arbitrated in the Dominican Republic.
5
In their complaint and brief on appeal, Sun Land and Architectural reference a
certification of the Dominican Senate’s July 2002 approval of the purchase agreement, treating
this certification as distinct from the November 2002 National Congress resolution. Given that
the National Congress resolution is a bicameral action, it is unclear whether the Senate’s
approval is actually distinct.
6
Case: 13-13877 Date Filed: 06/10/2015 Page: 7 of 29
Contract 10375 was ultimately replaced with a more comprehensive
document and thus is not part of what Sun Land and Architectural call “the
Contract.” As a result, Sun Land and Architectural do not allege that the
Dominican Republic or INDRHI breached Contract 10375. Even so, this
document remains relevant here because several documents that are part of the
Contract explicitly incorporate Contract 10375’s terms.
E.
In February 2004, INDRHI, Sun Land, and Architectural executed the
protocol for the execution of the purchase agreement. The protocol explicitly
superseded Contract 10375 and set forth each party’s responsibilities regarding the
Azua II project, including the construction and payment procedures. After
acknowledging that “there [we]re several Agreements that relate[d] to and [we]re
material to the construction and financing” of the Azua II project, the parties
expressly provided that the terms of the purchase agreement trumped any
conflicting terms in the protocol.
The protocol, like the purchase agreement, included several additional
provisions that are relevant here.
First, INDRHI “acknowledge[d] and agree[d]” that it was not entitled to
“immunity on the grounds of sovereignty or otherwise . . . in any legal proceeding
arising out of or relating to THE PROTOCOL” because the activities
contemplated by the protocol were “commercial in nature rather than governmental
7
Case: 13-13877 Date Filed: 06/10/2015 Page: 8 of 29
or public.” INDRHI then “expressly and irrevocably waive[d] any such right of
immunity.”
Second, the parties submitted to the jurisdiction of the federal court sitting in
Miami, Florida for any action “arising out of or relating to this PROTOCOL or
any of the transactions contemplated thereby.”
Third, the parties agreed that Florida law would govern the construction and
enforcement of the protocol.
Fourth, INDRHI “designate[d], appoint[ed] and empower[ed]” the
Dominican Ambassador or any Dominican Consul to receive service of process on
its behalf. It also agreed that service of process could be made personally or by
mailing or delivering a copy of the summons and complaint to INDRHI “in care of
its agent designated above.”
With the purchase agreement and the protocol in place, work on the Azua II
project was ready to begin.
F.
In March 2004, Architectural received word from INDRHI to begin the
Azua II project, and it did so. Over the next 30 months, Architectural worked on
the irrigation project as INDRHI directed, which included complying with its
numerous orders to cease all work as well as its countermands to recommence.
In March 2006, INDRHI sent a letter to Architectural approving an itemized
list of the “Components of Works in New Contract” that updated and expanded the
scope of the Azua II project. Sun Land and Architectural have characterized this
8
Case: 13-13877 Date Filed: 06/10/2015 Page: 9 of 29
letter at least three different ways: (1) in their complaint, they called it “an
Agreement”; (2) in their motion for default judgment, they referred to it as “a
[N]ew Contract”; and (3) in their brief on appeal, they define it as “the
‘Amendment.’” Here, we refer to this document as “the Amendment.”
With the addition of the components referenced in “the Amendment,” the
total cost of the Azua II project ballooned to $106.1 million. Once financing for
this expansion was secured in June 2007, INDRHI instructed Architectural to
begin working on the project again.
G.
In November 2007, INDRHI and Architectural entered into the first of three
addenda. The first addendum covered structural repairs to sections of the Yaque
del Sur-Azua Canal, a system of water pathways in the geographic region of the
Azua II project. The total cost of this work was $63.4 million Dominican pesos.
After Architectural performed part of the work contemplated by this addendum, it
presented INDRHI with an invoice for $40.1 million Dominican pesos, which was
paid in full.
In January 2008, INDRHI and Architectural entered into the second
addendum to repair sections of the Yaque del Sur-Azua Canal damaged by
Tropical Storm Noel. Architectural performed the work contemplated by this
addendum and presented INDRHI with an invoice for $44.5 million Dominican
pesos, which was paid in full.
9
Case: 13-13877 Date Filed: 06/10/2015 Page: 10 of 29
Finally, in July 2008, INDRHI and Architectural entered into the third
addendum to repair sections of the Yaque del Sur-Azua Canal damaged by
Tropical Storm Olga. After Architectural performed the work contemplated by the
addendum, it submitted a partial invoice to INDRHI for $55.1 million Dominican
pesos, which was paid in part. INDRHI still owes $18.4 million Dominican pesos
on this invoice.
Each addendum purported to modify the terms of Contract 10375 between
INDRHI and Architectural. For example, the third addendum provided, “All other
remaining Articles of Contract 10375 that have not been modified remain in full
effect, the same as the Documents of the Contract that are not modified by effect of
the present Addendum.” That addendum also provided that it would “not have to
be ratified by any other party, due to the fact that the necessary funds involved in
[the addendum] will come directly from the Dominican state.” None of the
addenda expressly refer to either the purchase agreement or the protocol.
According to Sun Land and Architectural’s complaint, the purchase
agreement, the protocol, and the three addenda comprise “the Contract.” On
appeal, as in the district court, they also contend that “the Amendment” is part of
the Contract.
H.
In October 2008, INDRHI sent a letter to the legal counsel for the
Dominican Executive Branch. In this letter, the agency described Architectural’s
performance as “satisfactory, fully complying with their obligations as principal
10
Case: 13-13877 Date Filed: 06/10/2015 Page: 11 of 29
contractor, despite the lack of payment of several invoices.” The agency also
noted that Sun Land’s work had been “executed without any problems.”
Even so, in February and June 2009 as well as in October 2010, INDRHI
sent Sun Land and Architectural correspondence attempting to terminate their
work under the protocol and the first and third addenda. In 2011, a Brazilian
company was hired to complete the Azua II project.
II.
In February 2013, Sun Land and Architectural filed this action against the
Dominican Republic and INDRHI. The next day, service of the original
summonses and complaint was made on the Office of the Consulate General of the
Dominican Republic in Miami, Florida. These documents were received by an
“auxiliary consul,” a person performing clerical duties at the consulate, who then
delivered them to Gina Lacayo, “the assistant” to the Miami Consul General. This
assistant position is a secretarial position, and there is no evidence that Lacayo had
any management duties at the Miami consulate. Indeed, at the time of service,
Lacayo had served in this secretarial capacity for only three months, though she
had been an auxiliary consul (a clerical position) for nearly 12 years before taking
this job.
After receiving these documents, Lacayo contacted Ramon Burgos, a
Dominican lawyer in Santo Domingo, who worked as an assistant legal counsel to
the Dominican government. According to her declaration, she did so to confirm
her understanding that the Miami consulate was not authorized to accept service of
11
Case: 13-13877 Date Filed: 06/10/2015 Page: 12 of 29
process. Without reading the complaint herself or providing Burgos a copy to
review (and apparently he never asked to see the complaint), Lacayo explained to
Burgos that the Miami consulate had mistakenly received legal documents naming
the Dominican Republic as a defendant in a U.S. legal action. Burgos then
confirmed her understanding that under both Dominican law and the Vienna
Convention, the Miami consulate should not have received or accepted service for
a lawsuit against the Dominican Republic.
Having confirmed her understanding, Lacayo called Sun Land and
Architectural’s counsel to explain that the Miami consulate was not authorized to
accept service of process. During this call, Plaintiffs’ counsel explained that the
Miami consulate could accept service in this case because it was contractually
authorized to do so. But Lacayo disagreed. Given her conversation with Burgos
and the Miami consulate’s longstanding policy against accepting service of
process, she suggested that Plaintiffs’ counsel send these documents to the
Dominican Embassy in Washington, D.C.
In early April, Sun Land and Architectural mailed the Dominican
Ambassador in Washington a certified letter that included copies of the summonses
and complaint and emailed him a copy of that letter without attaching a copy of the
complaint; 6 a copy of this letter was also sent to the Miami consulate. When
6
According to the Dominican Republic and INDRHI, the Dominican Embassy has no
record that it received either the letter or the email. The district court did not resolve this factual
dispute in ruling on the Defendants’ Rule 60(b)(1) motion. Rather, the district court relied only
on the receipt of the complaint and service papers by a secretary in the Dominican Republic’s
Miami consulate.
12
Case: 13-13877 Date Filed: 06/10/2015 Page: 13 of 29
Lacayo received this letter, she again called Plaintiffs’ counsel to notify him that
the Miami consulate was not authorized to receive service of process for the
Dominican Republic and to request that he stop sending legal documents to the
Miami consulate. According to counsel’s affidavit, Lacayo “advised that there
would be no response because the Defendants had not been properly served, and
told me to read the Vienna Convention.” Lacayo, in contrast, explained in her
declaration that she “never said that the government of the Dominican Republic
would not be taking any action in response to the Complaint and Summons. I was
not then, and I am not now[,] authorized to speak on behalf of the government of
the Dominican Republic.” In any event, Lacayo said that in light of the April
letter, it was her understanding that the Embassy was handling this matter.
In mid-April, the clerk of the district court entered default and mailed a copy
to the Miami consulate. Sun Land and Architectural moved for a default judgment
a month later. A process server delivered copies of this motion to the Miami
consulate. Although Lacayo received them, because she believed that the Embassy
was handling this matter, she simply filed the motion. Sun Land and Architectural
also assert that they sent copies of this motion to INDRHI and the Dominican
Republic Ministry of Economy, Planning, and Development (formerly known as
the Technical Secretary) by Federal Express.
In June, four months after Lacayo, the Miami Consul General’s secretary,
first received service of process, the district court entered a default judgment
against the Dominican Republic and INDRHI, and they were served with a copy of
this judgment at the Miami consulate and by Federal Express in the Dominican
13
Case: 13-13877 Date Filed: 06/10/2015 Page: 14 of 29
Republic. Eight days later, they entered an appearance; and ten days thereafter,
they moved to vacate the default judgment for excusable neglect under Rule
60(b)(1). The district court denied their motion, finding that they had not
established a good reason for failing to respond to the complaint. The Dominican
Republic and INDRHI timely appealed.
While that appeal was pending, the Dominican Republic moved to vacate
the default judgment for voidness under Rule 60(b)(4). On reconsideration, the
district court denied the motion on the merits, finding that the foreign nation had
waived its sovereign immunity. The Dominican Republic timely appealed that
ruling as well. We consolidated both appeals.
III.
Several standards of review govern these appeals. We review jurisdictional
questions de novo, Beg v. Islamic Republic of Pakistan, 353 F.3d 1323, 1324 (11th
Cir. 2003), and the district court’s factual findings for clear error, Aquamar, S.A. v.
Del Monte Fresh Produce, 179 F.3d 1279, 1290 (11th Cir. 1999).
We review the district court’s ruling on a Rule 60(b)(4) motion to set aside
default judgment for voidness de novo. Stansell v. Revolutionary Armed Forces of
Colom., 771 F.3d 713, 736 (11th Cir. 2014). “A judgment can be set aside for
voidness where the court lacked jurisdiction or where the movant was denied due
process.” Id. “Voidness for purposes of a 60(b)(4) motion contemplates lack of
jurisdiction or defects in due process that deprive a party of notice or an
opportunity to be heard.” Id. at 737.
14
Case: 13-13877 Date Filed: 06/10/2015 Page: 15 of 29
We review the district court’s denial of a Rule 60(b)(1) motion to set aside a
default judgment for excusable neglect for an abuse of discretion. Valdez v.
Feltman (In re Worldwide Web Sys., Inc.), 328 F.3d 1291, 1295 (11th Cir. 2001).
An abuse of discretion occurs where the district court misapplies the law or bases
its conclusions on clearly erroneous factual findings. Broadcast Music, Inc. v.
Evie’s Tavern Ellenton, Inc., 772 F.3d 1254, 1257 (11th Cir. 2014).
IV.
On appeal, the Dominican Republic challenges whether the district court had
subject-matter jurisdiction over all or part of Sun Land and Architectural’s breach-
of-contract claim.
A.
The FSIA is the sole “basis for obtaining jurisdiction over a foreign state,”
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 109 S. Ct.
683, 693 (1989), because this Act endows a foreign state with presumptive
immunity to suits in U.S. courts unless a statutory exception applies, Saudi Arabia
v. Nelson, 507 U.S. 349, 355, 113 S. Ct. 1471, 1476 (1993); see 28 U.S.C. §§ 1604,
1605(a). To determine whether subject-matter jurisdiction under the FSIA exists, a
court looks at the plaintiff’s allegations and any undisputed facts that the parties
have put forward. Butler v. Sukhoi Co., 579 F.3d 1307, 1313 (11th Cir. 2009).
Once the plaintiff shows that a statutory exception to the FSIA applies, “the burden
then shifts to the defendant to prove, by a preponderance of the evidence, that the
plaintiff’s claims do not fall within that exception.” Id.15
Case: 13-13877 Date Filed: 06/10/2015 Page: 16 of 29
For purposes of the FSIA, a foreign state expressly waives its right to
immunity only where its intent to do so is clear and unambiguous. Aquamar, 179
F.3d at 1292; accord World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296
F.3d 1154, 1162 (D.C. Cir. 2002). And as a general rule, “explicit waivers of
sovereign immunity are narrowly construed ‘in favor of the sovereign’ and are not
enlarged ‘beyond what the language requires.’” World Wide Minerals, 296 F.3d at
1162 (quoting Library of Cong. v. Shaw, 478 U.S. 310, 318, 106 S. Ct. 2957, 2963
(1986)).
The FSIA also recognizes that a foreign state may waive its sovereign
immunity implicitly, but the Act itself does not define implicit waiver. See
§ 1605(a)(1). We have recognized that implicit waiver is a narrow exception that
generally applies only if “the foreign state reveals its intent to waive its immunity
by: (1) agreeing to arbitration in another country, (2) agreeing that the law of a
particular country should govern a contract, or (3) filing a responsive pleading in
an action without raising the defense of sovereign immunity.” Calzadilla v. Banco
Latino Internacional, 413 F.3d 1285, 1287 (11th Cir. 2005).
Here, Sun Land and Architectural alleged that the district court had subject-
matter jurisdiction over their claims against the Dominican Republic based on its
express and implied waivers of immunity in “the [C]ontract (herein later described
as the [Protocol], Purchase Agreement, and addenda and amendments thereto)” as
well as its commercial activity within the United States or its extraterritorial
commercial activity that had a direct effect within the United States. See
§ 1605(a)(1)–(2).
16
Case: 13-13877 Date Filed: 06/10/2015 Page: 17 of 29
Because Sun Land and Architectural sought to invoke the jurisdiction of the
U.S. courts to enter a judgment on their claims against the Dominican Republic,
they had to present a prima facie case that jurisdiction existed. 7 Butler, 579 F.3d at
1313. “Where, as here, the party asserting immunity under the FSIA does not
contest the alleged jurisdictional facts, but rather, challenges their legal adequacy,
we review de novo the complaint’s jurisdictional allegations to determine whether
they were sufficient to eliminate the appellants’ presumptive immunity.” Id.B.
The district court concluded that all of the documents comprising what Sun
Land and Architectural call “the Contract” constituted “one overall agreement” and
that the waivers of sovereign immunity in the purchase agreement and the protocol
thus applied to each document. 8 This conclusion was warranted, the court
reasoned, because this collection of documents “all relate[d] to each other and
include[d] numerous statements that INDRHI and the Technical Secretary of the
President signed and executed the agreements in the name of and as a
representative of Defendant Dominican Republic.” Doc. 56 at 4. Additionally, the
court concluded that “Defendant Dominican Republic is interchangeable as a party
7
Here, the Dominican Republic’s status as a “foreign state” within the meaning of the
FSIA was uncontested; otherwise, the Dominican Republic would first have had to present a
prima facie case that it was entitled to immunity under the Act. See Butler, 579 F.3d at 1313 n.8.
8
Although the district court’s order states that all of the documents attached to the
complaint constitute “one overall agreement,” Sun Land and Architectural’s allegations do not
go this far. As a result, we construe the court’s statement so that it reaches only those documents
attached to the complaint that they contend on appeal comprise the Contract: the purchase
agreement, the protocol, the three addenda, and “the Amendment.”
17
Case: 13-13877 Date Filed: 06/10/2015 Page: 18 of 29
to the agreements wherever INDRHI or the Technical Secretary of the President
are Parties.” Id. at 5. Consequently, the court concluded that the Dominican
Republic was subject to its jurisdiction under the FSIA for its alleged breach of the
purchase agreement, the protocol, the addenda, and “the Amendment” because of
the foreign nation’s waivers of sovereign immunity. Based on our review of the
record, however, we cannot fully agree.
1.
The Azua II project began with Sun Land and Architectural’s $51.8 million
winning bid—a bid that accounted for the financing, design, and construction of
the 3000 hectare irrigation project. As a result, the documents (and amendments
thereto) executed to bring this project to fruition should be read together. See
Restatement (Second) of Contracts § 202(b) (“[A]ll writings that are part of the
same transaction are interpreted together.”). This is true even though the parties to
these documents were not the same because “the writings form part of a single
transaction and are designed to effectuate the same purpose.” 11 Williston on
Contracts § 30:26 (4th ed. West 2015). And it is true even though these
agreements were executed on different dates, given “the fact that they were made
on different occasions [is] insignificant if they are related to and were part of the
same transaction.” Id.; accord J.M. Montgomery Roofing Co. v. Fred Howland,
Inc., 98 So. 2d 484, 486 (Fla. 1957) (“[I]nstruments entered into on different days
but concerning the same subject matter, may under some circumstances be
18
Case: 13-13877 Date Filed: 06/10/2015 Page: 19 of 29
regarded as one contract and interpreted together.” (quoting 7 Florida
Jurisprudence: Contracts § 78)).
So while the purchase agreement and the protocol were executed on separate
dates and involved different parties, we conclude from the record that they are part
of the same transaction—the Azua II project—as both were essential to bringing
that project to fruition. The same however cannot be said for the three addenda
and “the Amendment” that were entered into after work began on the Azua II
project.
The three addenda were executed by INDRHI and Architectural and
explicitly incorporated the terms of Contract 10375. Despite this, Architectural
contends that they were amendments to the protocol. We disagree for two reasons.
First, the protocol provided that any amendments could occur only with the
written consent of all parties. Because Sun Land was a party to the protocol but
not these addenda, the addenda were not properly executed amendments of the
protocol.
Second, “where a writing expressly refers to and sufficiently describes
another document, that other document, or so much of it as is referred to, is to be
interpreted as part of the writing.” OBS Co. v. Pace Constr. Corp., 558 So. 2d 404,
406 (Fla. 1990).9 This rule applies here because INDRHI and Architectural clearly
9
See also 11 Williston on Contracts § 30:25 (“As long as the contract makes clear
reference to the document and describes it in such terms that its identity may be ascertained
beyond doubt, the parties to a contract may incorporate contractual terms by reference to a
separate, noncontemporaneous document, including a separate agreement to which they are not
parties, and including a separate document which is unsigned.” (footnotes omitted)).
19
Case: 13-13877 Date Filed: 06/10/2015 Page: 20 of 29
and unambiguously incorporated the terms of Contract 10375 into each addendum.
Having done so, we must glean the parties’ intent from the four corners of these
documents. Crawford v. Barker, 64 So. 3d 1246, 1255 (Fla. 2011). After all, the
best evidence of intent is the contract’s own language, and its plain meaning
controls. Id.INDRHI and Architectural chose to incorporate Contract 10375’s terms,
rather than those of the protocol, into each addendum. And they did so even
though Contract 10375 was expressly superseded by the protocol more than three
and a half years before the first addendum was executed. Although the repair work
contemplated by each addendum was similar in kind to that performed as part of
the Azua II project, the work under each addendum was not directly related to the
Azua II project. Nor were the payment terms the same: work related to the Azua II
project was to be paid for in U.S. dollars, but work under each addendum was to be
paid for in Dominican pesos. For these reasons, we cannot conclude on the current
record that the three addenda should be interpreted together with the purchase
agreement and the protocol—documents that they never explicitly reference—nor
can we conclude that the addenda amended the protocol.
“The Amendment” fares no better. In their complaint, Sun Land and
Architectural allege that “the parties” executed “an Agreement” (which they refer
to as “the Amendment” on appeal) in March 2006 to “update and define” the scope
of the Azua II project. To substantiate their allegation, they attached a copy of this
document to their complaint. But after reviewing it, we are unpersuaded that it
20
Case: 13-13877 Date Filed: 06/10/2015 Page: 21 of 29
constitutes an amendment of either the purchase agreement or the protocol, the
documents memorializing the Azua II project.
For starters, this document is signed only by INDRHI, not “the parties” as
Sun Land and Architectural alleged. So this document was not a properly executed
amendment of either the purchase agreement or the protocol. Next, the document
itself contained no terms or obligations, nor did it incorporate the terms of any
other contract. On its face, “the Amendment” is thus neither an amendment of a
document that relates to the Azua II project nor a stand-alone agreement.
Consequently, based solely on our review of “the Amendment,” 10 we cannot
conclude that the scope of the Azua II project was indeed extended in March 2006.
In sum, our review of the record persuades us that the only documents
attached to the complaint that relate to the Azua II project are the purchase
agreement and the protocol. Because the damages awarded via default judgment
were partially based on the three addenda and “the Amendment,” we hold that the
district court erred by denying the Dominican Republic’s Rule 60(b)(4) motion and
thus must reverse the default judgment entered against the foreign nation. See
Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001) (“[A] judgment is void under
Rule 60(b)(4) if the court that rendered it lacked jurisdiction of the subject
matter.”).
10
Because “the Amendment” contradicts Sun Land and Architectural’s allegation, this
allegation is not entitled to a presumption of veracity. See Crenshaw v. Lister, 556 F.3d 1283,
1292 (11th Cir. 2009) (“It is the law in this Circuit that ‘when the exhibits contradict the general
and conclusory allegations of the pleading, the exhibits govern.’” (quoting Griffin Indus., Inc. v.
Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007))).
21
Case: 13-13877 Date Filed: 06/10/2015 Page: 22 of 29
Even so, the larger question remains: whether the Dominican Republic has
any amenability to suit in U.S. courts in this action. In a word, yes.
2.
Here, because at least one statutory exception to the FSIA applies, the
Dominican Republic is amenable to the jurisdiction of U.S. courts. See 28 U.S.C.
§§ 1604, 1605(a); Saudi Arabia, 507 U.S. at 355, 113 S. Ct. at 1476.
The Dominican Republic is a party to the purchase agreement. The
Technical Secretary signed the purchase agreement and did so after having been
“empowered by the Executive to sign [that agreement] with the Full Faith and
Credit of the Government on behalf of the country.” Indeed, nothing in the record
suggests that the Technical Secretary (now the Minister of Economy, Planning, and
Development) is not simply one of many actors through which the Dominican
Republic carries out its sovereign affairs. Cf. First Fid. Bank, N.A. v. Gov’t of
Antigua & Barbuda—Permanent Mission, 877 F.2d 189, 192 (2d Cir. 1989)
(“Normally, of course, a state authorizes a representative to act on its behalf.”). In
other words, like most foreign ministers, the Technical Secretary is simply “part of
the sovereign itself.” Garb v. Republic of Poland, 440 F.3d 579, 595 (2d Cir.
2006) (quoting Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 152
(D.C. Cir. 1994)); see also S & Davis Int’l, Inc. v. The Republic of Yemen, 218
F.3d 1292, 1298 (11th Cir. 2000) (treating the Yemini Ministry of Supply & Trade
22
Case: 13-13877 Date Filed: 06/10/2015 Page: 23 of 29
as “admittedly” a political subdivision of the Republic of Yemen). Thus, the
Dominican Republic is bound by the purchase agreement’s terms. 11
The Dominican Republic waived its sovereign immunity in the purchase
agreement. As recounted above, the purchase agreement contains both a clear and
unambiguous explicit waiver of sovereign immunity and an implicit waiver of
sovereign immunity (i.e., a provision providing that Florida law governs the
agreement). See Aquamar, 179 F.2d at 1292; Calzadilla, 413 F.3d at 1287. Hence,
only one question remains: what is the scope of the waiver?
According to the Dominican Republic, the purchase agreement’s waiver of
sovereign immunity extends only to future loans, not the construction project
around which Sun Land and Architectural’s complaint is built. We disagree.
The purchase agreement’s waiver provision sweeps broadly. The parties to
that agreement—which includes the Dominican Republic—submitted to the
jurisdiction of the federal court sitting in Miami, Florida for any action “arising out
of or relating to this agreement or notes or any of the transactions contemplated
11
In its reply brief, the Dominican Republic contends that nothing in the record supports
Sun Land and Architectural’s statements that the Technical Secretary is not an agency or
instrumentality of the Dominican Republic and that the Technical Secretary is simply part of the
Dominican Republic. We disagree. First, to the extent that the Dominican Republic argues that
the Technical Secretary and the Dominican Republic are separate juridical entities, the foreign
nation waived this argument by not raising it in its opening brief. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 682–83 (11th Cir. 2014). Second, even if the Dominican
Republic has not fully waived its argument, the fact remains that foreign ministers are generally
presumed to be part of the sovereign they represent. After all, sovereigns, like other entities,
must act through agents. And while the burden of showing that the presumption of separateness
has been overcome ultimately falls on the plaintiff, “the initial burden of presenting a prima facie
case that [the entity in question] is a foreign state” under the FSIA falls on the defendant. See
Butler, 579 F.3d at 1313.
23
Case: 13-13877 Date Filed: 06/10/2015 Page: 24 of 29
thereby.” Purchase Agreement art. 23 (emphasis added). The design and
construction of the Azua II project were transactions contemplated by the purchase
agreement—indeed, they were part of the “Services” that Sun Land agreed to
provide and the Technical Secretary and INDRHI agreed to pay for under that
agreement. We thus conclude that the purchase agreement’s waiver of sovereign
immunity is not limited to future loans but rather reaches the construction project
at the heart of this action. Because the protocol merely memorializes the parties’
responsibilities vis-à-vis the Azua II project, the protocol constitutes a transaction
contemplated by the purchase agreement. Accordingly, we hold that the district
court did not err in concluding that the Dominican Republic’s waiver of sovereign
immunity extends to the protocol.
3.
Lastly, Sun Land and Architectural contend that the Dominican Republic
was also subject to the jurisdiction of U.S. courts based on its commercial activity.
See § 1605(a)(2). At least for purposes of establishing subject-matter jurisdiction
over the Dominican Republic’s alleged breach of the three addenda and “the
Amendment,” we disagree.
The FSIA presumes that a foreign state and its instrumentalities are separate
legal entities. See § 1603(b)(1) (defining instrumentality of a foreign state as,
among other things, “a separate legal person”); cf. First Nat’l City Bank v. Banco
Para El Comercio Exterior de Cuba, 462 U.S. 611, 625–28, 103 S. Ct. 2591,
2599–2601 (1983) (discussing nature of government instrumentalities and
24
Case: 13-13877 Date Filed: 06/10/2015 Page: 25 of 29
presumption of separateness for purposes of substantive liability); Alejandre v.
Telefonica Larga Distancia de Puerto Rico, Inc., 183 F.3d 1277, 1284 (11th Cir.
1999) (“[G]overnment instrumentalities enjoy a presumption of separate juridical
status vis-à-vis the foreign government to which they are related.”). And the
burden of overcoming this presumption falls on the plaintiff. S & Davis Int’l, 218
F.3d at 1298–99 (discussing allocation of burden and two ways of overcoming this
presumption).
Based on our review of the record, we conclude that Sun Land and
Architectural have failed to overcome the presumption that INDRHI—the only
Dominican entity to sign the three addenda and “the Amendment”—is separate
from the Dominican Republic. Thus, we cannot affirm the district court’s
conclusion that the Dominican Republic is amenable to suit in federal court for the
foreign nation’s alleged breach of these documents under the FSIA’s commercial-
activity exception.
V.
Under Rule 60(b)(1), the district court has discretion to relieve a party from
a final judgment for “mistake, inadvertence, surprise, or excusable neglect.” Even
so, in ruling on a Rule 60(b)(1) motion, “the discretion of the district court is not
unbounded, and must be exercised in light of the balance that is struck by Rule
60(b) between the desideratum of finality and the demands of justice.” Seven
Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981). Our review
of the district court’s ruling is informed by that same consideration; “and where
25
Case: 13-13877 Date Filed: 06/10/2015 Page: 26 of 29
denial of relief precludes examination of the full merits of the cause, even a slight
abuse may justify reversal.” Id.At the same time, our caselaw makes clear that the party seeking relief under
Rule 60(b)(1) must provide a justification so compelling that the district court had
to vacate the challenged order. Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115
(11th Cir. 1993). To do so, the defaulting party must establish that “(1) it had a
meritorious defense that might have affected the outcome; (2) granting the motion
would not result in prejudice to the non-defaulting party; and (3) a good reason
existed for failing to reply to the complaint.” Ehlers, 8 F.3d at 783, quoted in In re
Worldwide Web Sys., 328 F.3d at 1295.
Here, the district court denied the Dominican Republic and INDRHI’s Rule
60(b)(1) motion, finding that they “lacked a good reason for failing to respond to
the Complaint or the multiple other communications that they received in this
matter.” Doc. 30 at 9. For this reason, the court did not decide whether the
Dominican Republic and INDRHI had a meritorious defense or whether granting
relief would prejudice Sun Land and Architectural. On appeal, the Dominican
Republic and INDRHI argue that the court abused its discretion in denying their
motions. We agree.
To conclude that the Dominican Republic and the INDRHI made a “willful
decision” to not respond to the complaint as a “tactical maneuver,” Doc. 30 at 8,
the district court relied on several factual findings. These findings were based
solely on the court’s assessment of Lacayo’s conduct given its conclusion that
26
Case: 13-13877 Date Filed: 06/10/2015 Page: 27 of 29
resolving “the validity of the communications sent to the Embassy or the
Dominican Republic directly” was unnecessary. Id. at 7 n.5.
The district court found that the Dominican Republic and INDRHI
“acknowledged receiving the [c]omplaint” and that they “twice reached out to
Plaintiffs to inform them that they would not respond because of a disagreement as
to the validity of service.” Id. at 7. The court also found that the Dominican
Republic and INDRHI’s failure to answer the complaint could not be excused as a
clerical error. In the district court’s view, Lacayo was not a junior employee
because she had been employed at the Miami consulate for twelve years and was
“the assistant” to the Consul General. Id. at 8. Indeed, the court noted that Lacayo
was “senior enough” (or “felt senior enough”) in this position to twice call Sun
Land and Architectural’s counsel and “inform them that no response would be
forthcoming.” Id. The court thus concluded that the Dominican Republic and
INDRHI “put themselves” in a position to face a default judgment of more than
$50 million “through their adamant and repeated refusals to participate in the legal
process.” Id. at 9.
Based on our thorough review, we conclude that the factual findings
underlying the district court’s decision were unsupported by the record. Contrary
to the court’s finding, the record shows that when the complaint was served,
Lacayo had been “the assistant” to the Miami Consul General for only three
months; in her role as “the assistant,” she was still a secretary; and for the twelve
years prior to becoming “the assistant,” she had held only a clerical position at the
Miami consulate. Also, nothing in the record shows that Lacayo had any
27
Case: 13-13877 Date Filed: 06/10/2015 Page: 28 of 29
management duties at the Miami consulate. Thus, the court’s finding that she was
“senior enough” at the Miami consulate to render her mistake a nonclerical error is
unsupported by the record and is thus clearly erroneous.
While Lacayo twice spoke with Sun Land and Architectural’s counsel,
nothing in the record establishes that anyone with managerial responsibilities
within the Dominican Republic government or INDRHI knew anything about this
case. Even so, the district court found that the Dominican Republic and INDRHI
twice told Sun Land and Architectural’s counsel that they were not going to
respond to the complaint because they believed that service had been improper. To
make this finding, the district court imputed Lacayo’s conduct to the Dominican
Republic and INDRHI, yet nothing in the record supports doing so. Hence, this
finding is also clearly erroneous.
Finally, because nothing in the record establishes that anyone at the Miami
consulate other than Lacayo and a clerical employee knew about this action, the
court’s conclusion that the Dominican Republic and INDRHI willfully decided not
to respond to the complaint for tactical reasons is unsupported by the record. At
best, the record suggests that their failure to respond was the result of negligence
that is excusable. Thus, good reason for their failure to respond to the complaint
exists, and we hold that the district court’s contrary finding was clearly
erroneous.12
12
Based on our review of the record, we also conclude that the Dominican Republic and
INDRHI have meritorious defenses and that vacating the default judgment will not prejudice Sun
Land and Architectural. See Ehlers, 8 F.3d at 783.
28
Case: 13-13877 Date Filed: 06/10/2015 Page: 29 of 29
VI.
Having carefully considered the record in this case, the parties’ briefs, and
with the benefit of oral argument, we conclude that the district court erred by
denying the Dominican Republic’s Rule 60(b)(4) motion to vacate for voidness the
default judgment entered against the foreign nation. We also conclude that the
district court abused its discretion by denying the Dominican Republic and
INDRHI’s Rule 60(b)(1) motion to vacate for excusable neglect the default
judgment entered against them. Accordingly, we reverse the district court’s orders
and remand this case for further proceedings consistent with this opinion.
REVERSED and REMANDED.
29