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Devengoechea v. Bolivarian Republic of Venezuela

United States Court of Appeals, Eleventh Circuit

May 10, 2018

RICARDO DEVENGOECHEA, Plaintiff - Appellee,
BOLIVARIAN REPUBLIC OF VENEZUELA, a foreign state, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:12-cv-23743-PCH

          Before WILLIAM PRYOR, MARTIN, and ROSENBAUM, Circuit Judges.


         Almost two-hundred years ago, on the island of Santa Marta in the Caribbean, General Simón Bolívar spent his last days at the home of his friend Joaquín de Mier.[1] Through his relationship with Bolívar, de Mier obtained a treasure trove of Bolívar's possessions (the "Bolívar Collection").

         Because some readers might not be as familiar with Bolívar as with, say President George Washington, we pause for a moment to briefly note Bolívar's enormous historic significance.[2] Bolívar, who was born in 1783, was a contemporary of George Washington and was a founding father in South America not long after Washington played that role in North America.[3] In fact, Bolívar was instrumental in helping six countries obtain independence from their former ruling sovereign (Spain) and become sovereign nations in their own right: Venezuela, Bolivia, Colombia, Ecuador, Peru, and Panama.[4]

         As you might expect, the personal effects and professional mementos that Bolívar acquired over his life have taken on a remarkable significance. And that is where history intersects with our story.

         It turns out that de Mier's great, great grandson is Plaintiff-Appellant Ricardo Devengoechea. In the years after de Mier's death, Devengoechea's ancestors passed down the Bolívar Collection from generation to generation until, eventually, Devengoechea inherited it. Among the items he received are thousands of Bolívar's historic documents, including governmental documents and Bolívar's correspondence and other writings; Napoleon Bonaparte's ornamental epaulets; Bolívar's one-of-a-kind Liberation Medal of Peru; and a lock of Bolívar's hair. According to Devengoechea, today the Collection is worth millions of dollars because of its association with Bolívar. This case concerns the journey the Bolívar Collection took after Devengoechea inherited it.

         When our story began in 2007, Devengoechea had the Bolívar Collection in the United States. That's when Defendant-Appellant Bolivarian Republic of Venezuela ("Venezuela")[5] entered the picture. Perhaps not surprisingly, when Venezuela learned of the Bolívar Collection, Devengoechea asserts, it expressed interest in purchasing it.

         Towards this end, Venezuela sent officials to the United States to meet with Devengoechea and negotiate. Devengoechea contends that while the Venezuelan officials were in the United States, he and they reached an understanding and agreement that Devengoechea would take the Bolívar Collection to Venezuela for further inspection, and Venezuela would either purchase it or return it to Devengoechea. Based on this agreement, on October 17, 2007, Devengoechea and the Venezuelan delegation flew to Venezuela on the Venezuelan delegation's private jet. Devengoechea took along the Bolívar Collection.

         Five years later, Venezuela still had neither returned nor paid for the Bolívar Collection, despite Devengoechea's repeated inquiries about obtaining payment or return.

         So Devengoechea filed this action against Venezuela, seeking payment for or return of the Bolívar Collection. He asserted jurisdiction under the commercial- activity exception to the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1605(a)(2) ("FSIA" or the "Act").

         Venezuela moved to dismiss, claiming sovereign immunity. The district court denied Venezuela's motion, and Venezuela appealed. We now affirm.


         Devengoechea is a United States citizen living in Orlando, Florida. In 2007, he received a phone call from Jorge Mier Hoffman, a relative of his, on behalf of Venezuelan officials, requesting copies of select items in the Bolívar Collection. Soon afterward, Venezuelan officials contacted Devengoechea directly to arrange a meeting with him in Orlando so they could inspect the Collection in person.

         The first meeting occurred on October 14, 2007, after Venezuelan officials flew by private jet to the United States. Among the Venezuelan delegation was Delcy Rodríguez, then the Coordinator General of the Office of the Vice President of Venezuela.[7] During the three-hour meeting in Orlando, the Venezuelan officials began negotiations for a potential purchase of it.

         The next day, at the Venezuelan delegation's request, Devengoechea took the Bolívar Collection to the Orlando hotel where the Venezuelan officials were staying. There, the officials examined the Collection, and the parties engaged in another meeting and set of negotiations for Venezuela's purchase of the Bolívar Collection-this time for five hours. During the meeting, the Venezuelan delegation also asked Devengochea to take the Collection and travel with them to Venezuela, where Venezuela's experts could further inspect the Collection and where negotiations for purchase were to continue.

         Though Devengoechea was not opposed to the request, he had a problem: his passport had expired. When the Venezuelan officials learned of the situation, they asked Devengoechea to go to the Passport Office in Miami the next day to obtain a new passport on an expedited basis, so Devengoechea could accompany them to Venezuela with the Bolívar Collection. Then the Venezuelan officials arranged for Zueiva Vivas, President of Venezuela's Foundation of National Museums, to email Devengoechea a letter on the letterhead of "Fundacion Museos Nacionales" in the "Ministerio del Poder Popular" of the "Gobierno Bolivariano de Venezuela, " which translates to the Foundation of National Museums in the Ministry of Popular Power of the Government of the Bolivarian Republic of Venezuela ("Venezuelan Ministry of Culture"). The officials explained that the letter would allow Devengoechea to receive his passport the following day, so he could travel with the Venezuelan delegation back to Venezuela.

         As Venezuela requested, Devengoechea made an appointment to obtain his passport on an emergency basis on October 16, 2007. That day, Devengoechea drove to Miami, with the letter, for a 9 a.m. appointment at the passport office. After receiving his passport that afternoon, Devengoechea drove back the more than 200 miles to Orlando, packed up the Collection, and met the Venezuelan officials at the airport. On October 17, 2007, after continuing negotiations for about an hour, they boarded the private jet and set course for Caracas, Venezuela. Devengoechea alleges that he never would have done these things, had he and the Venezuelan officials not reached the understanding and agreement that Venezuela would, after further examination of the Collection, either return it to him or pay him for it.

         While en route to and following their arrival in Venezuela, the parties continued to negotiate about the potential sale of the Collection. During these discussions, Devengoechea mentioned that he might have more memorabilia back in Orlando. Venezuelan officials, including Rodríguez, then paid for Devengoechea to fly back to Orlando to gather additional items concerning Bolívar. Once Devengoechea had done so, Venezuelan officials paid for Devengoechea to return to Venezuela with the additional items.

         Devengoechea remained in Venezuela until about November 6, 2007. At that time, Venezuelan officials informed him that they needed more time to examine the Collection because of its vast size and that they would contact him about purchasing it once they had completed their examination. Devengoechea alleges that he left the Bolívar Collection with Venezuela based on the agreement and understanding that Venezuela either would pay Devengoechea for the Collection or would return it to him.

         Over the next two to three years, Devengoechea contacted the Venezuelan officials periodically about the Collection. Each time, he was told they needed more time to inspect it. During this period, Devengoechea took Venezuela at its word, and based on these representations, took no immediate action to obtain assistance in procuring the return of the Collection.

         But in July 2010, Venezuelan President Hugo Chávez announced that he would be exhuming Bolívar's body. Devengoechea surmised that one reason for the exhumation was to test the DNA in the Bolívar Collection's lock of hair against Bolívar's DNA. After the exhumation, Devengoechea's calls to Venezuelan officials went unanswered. Despite Devengoechea's demands, Venezuela neither paid for nor returned the Bolívar Collection to Devengoechea. To date, that remains the case.


         In an effort to remedy that situation, Devengoechea filed suit against Venezuela in the Southern District of Florida. Devengoechea asserts five counts in his Second Amended Complaint: declaratory relief (Count I); damages for breach of agreement and unjust enrichment (Counts II and III, respectively) under Clause 1 of the commercial-activity exception of the FSIA; and damages for breach of agreement and unjust enrichment (Counts IV and V, respectively) under Clause 2 of the commercial-activity exception of the FSIA. For all counts, Devengoechea invokes the Court's jurisdiction under all three clauses of the commercial-activity exception of the FSIA, 28 U.S.C. § 1605(a)(2).

         Venezuela filed a motion seeking dismissal of the Second Amended Complaint for lack of subject-matter and personal jurisdiction and for failure to state a claim. The district court denied Venezuela's motion, concluding that subject-matter jurisdiction exists under the first clause of the FSIA's commercial-activity exception. To reach this conclusion, the district court found that the Second Amended Complaint sufficiently alleged facts establishing a breach in Florida of a bailment agreement that the parties entered into in Florida. Alternatively, the district court determined that jurisdiction exists under the third clause of the FSIA's commercial-activity exception because Venezuela was required to pay Devengoechea in the United States, and it failed to do so, causing a direct effect in the United States. Because the district court otherwise found jurisdiction, it declined to address the second clause of the FSIA's commercial-activity exception.


         We review de novo the district court's determination that it had jurisdiction under the FSIA. Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1289 (11th Cir. 1999). On a motion to dismiss, the factual allegations in the complaint are taken as true, even if they are subject to dispute. Saudi Arabia v. Nelson, 507 U.S. 349, 351 (1993). Finally, we can affirm on any basis that the record supports. Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008) (citation omitted).


         The Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602, et seq., renders foreign states immune from the jurisdiction of United States Courts unless one of its statutory exceptions applies to the plaintiff's claim. See 28 U.S.C. §§ 1604-1605; see also Republic of Arg. v. Weltover, Inc., 504 U.S. 607, 611 (1992) (citation and internal quotation marks omitted) ("The FSIA . . . provides the sole basis for obtaining jurisdiction over a foreign sovereign in the United States."). This case requires us to consider two of the FSIA's statutory exceptions: the commercial-activity exception, 28 U.S.C. § 1605(a)(2), and the expropriation exception, 28 U.S.C. § 1605(a)(3).

          A. The Commercial-activity Exception

         We begin with the commercial-activity exception. That exception provides for jurisdiction over foreign states when at least one of its three clauses applies:

the action is based [1] upon a commercial activity carried on in the United States by the foreign state; or [2] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [3] upon an act outside the territory of the United States in connection with a commercial activity of the ...

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