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Sullivan v. Republic of Cuba

United States District Court, D. Maine

October 2, 2017

SHERRY SULLIVAN, Plaintiff,
v.
THE REPUBLIC OF CUBA, A FOREIGN STATE, Defendant.

          ORDER ON PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

          George Z. Singal United States District Judge

         Before the Court is Plaintiff Sherry Sullivan's Motion for Default Judgment (ECF No. 13) in this action arising from the disappearance of her father. After careful consideration of her filings and the evidence presented, and for the foregoing reasons, the Court DENIES the Motion.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On June 21, 2016, Sherry Sullivan (“Sullivan”) filed her Complaint with this Court seeking enforcement of a state court judgment against the Republic of Cuba (“Cuba”). The August 10, 2009 default judgment of the Maine Superior Court awarded Sullivan twenty-one million dollars ($21, 000, 000.00) in compensatory damages, plus pre- and post-judgment interest and costs, based on Cuba's “extrajudicial killing” of her father. As relevant to the matter before this Court, the state court made the following findings of fact: Geoffrey Francis Sullivan (“Geoffrey Sullivan”) was an American citizen and the father of Sherry Sullivan, an American citizen, who “was, is and/or will be duly appointed as the successor to, heir to and guardian of her father's estate.” (Superior Court Judgment (ECF No. 1-3), PageID # 18.) Cuba is a foreign state that, at the time of the proceeding in the state court, had been designated a state sponsor of terrorism. Geoffrey Sullivan served in the United States Air Force and Army National Guard and was a licensed small aircraft pilot. In the National Guard, Geoffrey Sullivan met Alexander Rorke, Jr. From 1960 until their disappearance around October 1963, Geoffrey Sullivan and Rorke participated in various covert missions in Cuba and Central America against the Cuban government of Fidel Castro, such as the bombing of an oil refinery in Havana. In the fall of 1963, Geoffrey Sullivan and Rorke flew a twin-engine airplane from Florida with the purported destination of Honduras to engage in commercial “lobster hauling.” However, they actually flew to several places in Mexico.[1] On October 1, 1963, Geoffrey Sullivan and Rorke flew to Cozumel, Mexico, and then on to a further unknown location. The state court described the evidence about what then happened to Geoffrey Sullivan as follows:

Evidence has been uncovered which has revealed that Mr. Sullivan was shot down over Cuba in the course of a covert mission against the Castro regime and was and had been imprisoned by the Castro regime in Cuba, without disclosure of same, in violation of international law, thereafter. That evidence includes, among other information, specifically, (1) reports contemporaneous to the October 1, 1963 disappearance from a variety of sources which stated that Rorke and Sullivan had been shot down and that two Caucasians fitting the description of Rorke and Sullivan had been taken aboard a Cuban sea-going vessel; (2) United States Department of State records dating from November, 1963 which detail ‘rumors emanating from Cuban refugees that Rorke and Sullivan reportedly crashed in Cuba and that either Rorke or Sullivan was killed, but one of them was alive;' (3) in 1969, Americans who had been formerly incarcerated in Cuba reported that the ‘Sullivan' name was familiar from detainments at both the G-2 military police headquarters in Havana, Cuba and the Marone Prison for Political prisoners; (4) in 1972, a private American pilot detained in Cuba on unrelated charges reported that he had been detained adjacent to a Caucasian American who claimed to be Mr. Sullivan and claimed to then having been detained for ‘almost ten years'; (5) a 1989 Miami, Florida newspaper article on the Rorke/Sullivan disappearance prompted a report to a radio talk-show program from a Cuban émigré that Rorke and Sullivan [had been] shot down ‘during combat' with a Cuban aircraft ‘belonging to the [Cuban] Ministry of Light Industry, Commandant Ernesto “Che” Guevara' . . . and that ‘[T]he [Cuban] Ministry of the Armed Forces and the Ministry of the Interior have in their possession the registration number, day, hour and place in which this account took place. The [American] airplane was taking action of sabotage against the sugar cane industry of Cuba . . .'; (6) in 1989, a Cuban émigré formerly imprisoned at the ‘Combinado del Este' prison in Cuba related that he had advised the FBI and CIA years prior that a (badly burned) American had been at the prison hospital there contemporaneous with the period immediately following the Rorke/Sullivan disappearance; and (7) in 1991, two separate Cuban-Americans who themselves had been imprisoned at the ‘Combinado del Este' prison at various times reported the presence there of a Caucasian prisoner named ‘Sullivan'.

(Superior Court Judgment, PageID #s 20-21.)

         The state court further found that, after his 1963 disappearance, Geoffrey Sullivan had been declared legally dead by the United States Social Security Administration and by a proclamation of the Maine State Legislature.[2] Finally, the state court found that Cuba “has intentionally, unlawfully, and with complete disregard for human life caused the indeterminate, undisclosed and illegal incarceration of Mr. Sullivan, which incarceration has culminated in the legally-declared death of Mr. Sullivan and which constitutes an extrajudicial killing under applicable law.” (Superior Court Judgment, PageID # 21.)

         Given these findings, the state court determined it had subject matter jurisdiction pursuant to the terrorism exception of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605A, which, in relevant part, provides federal and state courts with jurisdiction over suits against certain foreign states based on any “extrajudicial killing” carried out or supported by those foreign states. Based on Cuba's default in the state suit and the state court's conclusion that “[t]he indeterminate, undisclosed and illegal incarceration of Mr. Sullivan, which incarceration has culminated in [his] legally-declared death . . . constitutes an extrajudicial killing, ” the state court concluded that Cuba was liable to Sherry Sullivan for her father's death.[3] (See Superior Court Judgment, PageID #s 25, 26.) The state court also determined that it had subject matter jurisdiction “pursuant to Maine state law . . . because Plaintiff seeks damages for wrongful death” and that the court had personal jurisdiction over Cuba in part based on “Maine's long-arm statute.” (Superior Court Judgment, PageID # 25.)

         Regarding the assessment of damages, the court found that Sullivan “has devoted her life to uncovering the truth respecting her father”-including by contacting “dozens of Federal agencies and officials” and pursuing an action under the Freedom of Information Act (FOIA)- and that the uncertainty over her father's fate has “devastated her life.” (Superior Court Judgment, PageID # 23-24.) The court ultimately awarded damages to Sullivan based upon, “(a) The loss of support and services suffered and to be suffered by Sherry Sullivan as a result of her father's wrongful death; (b) The severe emotional distress and anguish suffered by Sherry Sullivan, which she will continue to suffer as a result of her father's wrongful death; (c) The loss of net accumulations and sustained economic damages owed to the Estate of Geoffrey Francis Sullivan; and (d) Damages for pain and suffering prior to death owed to [the estate of] Geoffrey Francis Sullivan.” (Superior Court Judgment, PageID #s 26-27.)

         In her Complaint before this Court, Sullivan alleges, “[t]o date, [she] has not collected any amount of the Final Judgment entered in [her] favor by the Maine State Court on August 10, 2009. Thus, the entire amount of the Final Judgment, plus pre- and post-judgment interest, remains due.” (Compl. (ECF No. 1) ¶ 14.) On May 12, 2017, Sullivan moved for entry of a default against Cuba based on the fact that Cuba had been properly served but had failed to enter an appearance in the present matter. (ECF No. 11.) On May 15, 2017, this Court directed the clerk to enter a default against Cuba pursuant to Federal Rule of Civil Procedure 55(a) but requested Sullivan address some areas of concern to this Court in any motion for default judgment, specifically,

(1) The extent to which this Court should consider whether the state court had subject matter jurisdiction in the original action;
(2) The asserted basis for Cuba's waiver of sovereign immunity given that the state court judgment does not clearly find that the extrajudicial killing occurred after Cuba was added to the State Sponsors of Terrorism List or that Cuba was added to the list as a result of the killing . . .; and
(3) Whether the Court need hold a separate evidentiary hearing or otherwise take additional evidence in light of its obligations to review the basis for a default judgment pursuant to 28 U.S.C. § 1608(e) and Federal Rule of Civil Procedure 55.

(Order on Motion for Entry of Default and Procedural Order (ECF No. 12), PageID #s 64-65 (footnote omitted).)

         On June 12, 2017, Sullivan filed a Motion for Default Judgment in which she addressed the Court's questions. Regarding the state court's jurisdiction, Sullivan noted that the state court determined it had subject matter jurisdiction based on the terrorism exception to the Foreign Sovereign Immunities Act and stated that “[t]he [state] court came to [its] Conclusion of Law based on pleadings and testimony given by Plaintiff Sullivan showing that Geoffrey Sullivan was deceased sometime after 1982, when Cuba was designated as a state sponsor of terrorism.” (Motion for Default Judgment (ECF No. 13), PageID # 67.) Regarding the necessity of an evidentiary hearing, Sullivan argued that

[t]he state[] [court's] . . . implicit determination based on testimony and documentation submitted by the plaintiff that the killing occurred after 1982, which findings should be accepted by this Court, together with the . . . further-provided information, is sufficient to resolve [the Court's concern]. It is respectfully submitted that this Court-in the exercise of its obligation to review the basis for the requested default judgment-need not second-guess the state court in its findings.

(Motion for Default Judgment, PageID #s 69-70.)

         Sullivan attached to her Motion an unsigned affidavit by counsel David Van Dyke stating, in relevant part, that “after due inquiry, neither a transcript nor an audio-recording of the June 4, 2009 hearing [in state court] can be obtained”; that “[t]o the best of my recollection, the final default damages hearing lasted approximately 90 minutes” and that “Ms. Sullivan testified for virtually the entire” hearing; and that “[a]t [the] conclusion of the hearing, [the state court judge] raised to the undersigned a series of pointed inquiries regarding subject matter jurisdiction and the circumstances of service.” (Aff. of David J. Van Dyke, Esq. (ECF No. 13-1), PageID #s 71-72.) Sullivan also attached to her Motion an unsigned affidavit in which she attests to knowledge of two specific “eyewitness observations of [her] father being alive [in a Cuban prison] at least through 198[2], the latter of which places [her] father still alive in prison in Cuba as of 1991.” (Aff. of Sherry Sullivan (ECF No. 13-3), PageID # 77.) She claims that she did not provide the state court with “specific details” of these eyewitness accounts because the source of both accounts was afraid of potential retaliation by Cuban agents, but that she was providing the information now “given the passage of time since 2009 and insofar as it appears that the federal court is seeking further and specific details supporting the fact of [her] father's extra-judicial killing by Cuba after Cuba was added to the list of state sponsors of terror in 1982.” (Aff. of Sherry Sullivan, PageID # 76.) Finally, Sullivan attached to her affidavit a series of notes regarding these eyewitness accounts seemingly compiled by research staff of the “Unsolved Mysteries” television show. (Attachment A to Sullivan Aff. (ECF No. 14), PageID #s 79-82.)

         On July 26, 2017, after setting a hearing on the Motion for Default Judgment, this Court issued a procedural order directing counsel to “be prepared to address the issues raised in the Court's May 15, 2017 Order, as well as, in general, the basis for the state court's jurisdiction.” (Procedural Order Regarding Motion for Entry of Default Judgment (ECF No. 16), PageID # 83.) At the August 28, 2017 hearing on the Motion for Default Judgment, Sullivan presented testimony from two witnesses. Attorney William Oldaker testified that Sullivan is seeking enforcement of the state court judgment in federal court so that she can pursue compensation through a dedicated fund to compensate claimants who have a final judgment issued by a federal district court against a state sponsor of terrorism. See Justice for United States Victims of State Sponsored Terrorism Act, 34 U.S.C. § 20144 (formerly 42 U.S.C. § 10609). Sullivan then testified for the bulk of the hearing and described (1) the evidence she had compiled suggesting that her father was imprisoned in Cuba into the early 1990s; (2) her longstanding efforts to access more information on his fate; and (3) the extreme emotional pain and economic hardship she had suffered after her father disappeared when she was a young child.

         Specifically, regarding her father's fate, Sullivan testified that her mother was told by the State Department soon after the disappearance that her father and Rorke were in a Cuban prison. She described her quest to find out information about her father as an adult and testified that she had compiled information based on interviews she had conducted and voluminous documents she had received from FOIA requests, including documents that had been heavily redacted by the United States government. She also testified regarding the most recent eyewitness account of her father in a Cuban prison: after the airing of an episode of “Unsolved Mysteries” discussing her father's case, she had been contacted by a man in Florida, Stephen Scherer, who had provided her information he had received from a security guard at his workplace, Carlos Kersey, who claimed to have seen her father in a Cuban prison in the 1970s and knew another person who had seen her father in prison in the early 1990s.

         Sullivan also presented several exhibits to the Court, including:

• Documents that appear to be summaries of notes and research drafted by Sullivan based on her interviews and document reviews, and which relate to her father's involvement with Rorke in anti-Castro activities, perhaps with the clandestine support of the U.S. government, and his disappearance in early October 1963. (Hr'g Exs. 1-3.)
• What appears to be a letter written by Sullivan's mother, Cora Sullivan, which seemingly describes her receipt of information that Geoffrey Sullivan's plane crashed and that he ...

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