United States District Court, S.D. Florida
AMENDED ORDER 
P. GAYLES UNITED STATES DISTRICT JUDGE
THIS CAUSE comes before the Court on
Defendants' Motion to Dismiss Third Amended Complaint
[ECF No. 28] (“Motion”). The Court has reviewed
the briefing, the record in this case, and the applicable
law, and is otherwise fully advised. For the reasons that
follow, the Motion is granted.
George Vila, P.A. (“Plaintiff”) is the part-owner
and bailee of eleven works of art allegedly produced by
renowned Mexican artist, Frida Kahlo. Plaintiff brings this
suit against four undisputed agencies of the Mexican
government-Secretaria de Cultura (formerly known as Consejo
Nacional Para la Cultura y las Artes), Direccion General del
Instituto Nacional de Bellas Artes, Coordinacion de Artes
Visuales del Instituto Nacional de Bellas Artes, and
Dirrecion de Asuntos Juridicos del Instituto Nacional de
Bellas Artes-and against Fideicomiso Diego Rivera (the Banco
De México Diego Rivera Frida Kahlo Museums Trust), of
which the Central Bank of Mexico is the designated trustee.
Plaintiff primarily seeks to compel these entities to
authenticate the works in Plaintiff's possession.
alleges that pursuant to Mexican law, the Instituto Nacional
de Bellas Artes (“INBA”) is “the only
authority in Mexico authorized to determine if a work of art
is authentic.” [ECF No. 27, ¶ 51]. In 2013 and
2014, Plaintiff engaged in a series of correspondence with
IN-BA, seeking to have the agency certify the authenticity of
the works in its possession. [Id. ¶¶ 52-
59]. Plaintiff alleges that INBA continually required more
information and never completed the authentication process.
[Id. ¶¶ 52-59].
Third Amended Complaint lodges nineteen (19) claims against
these various entities, seeking declaratory and injunctive
relief, as well as damages for business torts. In Counts I
and II, Plaintiff seeks a declaration that “Defendants
have a legal obligation to proceed in their authentication
process with regard to the subject (11) eleven Frida Kahlo
works of art.” [Id. ¶¶ 65, 71]. In
Count III, Plaintiff seeks an injunction “compelling
the Defendants to expedi-tiously engage in and complete the
authentication process” with respect to these works.
[Id. ¶ 74]. And each of the remaining counts
seeks damages for various theories of liability stemming from
the Defendants' “failing to certify the
authenticity of Plaintiff's Frida Kahlo paintings.”
[See, e.g., id. ¶¶ 76, 80, 83].
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). “It is to be presumed that a cause
lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Id. (citations omitted). A
motion to dismiss for lack of subject matter jurisdiction
brought pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure may present either a facial or a factual
challenge to jurisdiction. See McElmurray v. Consol.
Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251
(11th Cir. 2007). In a facial challenge, a court is required
only to determine if the plaintiff has “sufficiently
alleged a basis of subject matter jurisdiction.”
Id. at 1251 (quoting Lawrence v. Dunbar,
919 F.2d 1525, 1529 (11th Cir. 1990)). Furthermore,
“the court must consider the allegations in the
plaintiff's complaint as true.” Williamson v.
Tucker, 645 F.2d 404, 412 (5th Cir. 1981). By contrast, a
factual attack “challenge[s] ‘the existence of
subject matter jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings . . . are
considered.'” McElmurray, 501 F.3d at 1251
(quoting Lawrence, 919 F.2d at 1529). In a factual
attack, “no presumptive truthfulness attaches to [a]
plaintiff's allegations, ” Lawrence, 919
F.2d at 1529 (quoting Williamson, 645 F.2d at 413),
and the plaintiff bears the burden to prove the facts
sufficient to establish subject matter jurisdiction. See
OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir.
Defendants have advanced a factual challenge because they
contend that this Court lacks subject matter jurisdiction
under the Foreign Sovereign Immunities Act. See,
e.g., Araya-Solorzano v. Gov't of Republic of
Nicar., 562 Fed.Appx. 901 (11th Cir. 2014) (per curiam)
(affirming a district court's dismissal for lack of
subject matter jurisdiction pursuant to the FSIA where the
district court had considered matters outside the pleadings
and noting that such considerations are appropriate where
there is a factual challenge to jurisdiction).
Foreign Sovereign Immunities Act (“FSIA”), 28
U.S.C. § 1602, et seq., “provides the
sole basis for obtaining subject matter jurisdiction over a
foreign sovereign in the United States.” Guevara v.
Republic of Peru (Guevara II), 608 F.3d 1297,
1305 (11th Cir. 2010) (quot- ing Guevara v. Republic of
Peru (Guevara I), 468 F.3d 1289, 1294 (11th
Cir. 2006)). Pursuant to the FSIA, “a foreign state
shall be immune from the jurisdiction of the courts of the
United States and of the States except as provided in
sections 1605 to 1607” of Title 28. See 28
U.S.C. § 1604.
preliminary matter, Plaintiff disputes that the Banco De
México Diego Rivera Frida Kahlo Museums Trust-a
private trust over which the Bank of Mexico serves as
trustee- constitutes a “foreign state” for the
purposes of the FSIA. Plaintiff's argument is without
merit. Under the Act, a “foreign state” includes
“a political subdivision of a foreign state or an
agency or instrumentality of a foreign state.”
Id. § 1603(a). And “agency or
instrumentality” includes any entity that is “an
organ of a foreign state” or controlled by that
state-that is, state-owned or controlled corporations.
Id. § 1603(b)(2). It is undisputed that the
Mexican public writ large is the beneficiary of the trust and
the trustee, the Central Bank of Mexico, is an agency or
instrumentality of Mexico. The real party in interest to this
dispute is the trustee, the Central Bank of Mexico.
See Fed. R. Civ. P. 17(a)(1)(E). And the injunction
sought here would compel action only on the part of agencies
or instrumentalities of Mexico. Thus, the FSIA applies to the
state-controlled and state-administered trust.
question then is whether this suit is nevertheless authorized
under the FSIA. The FSIA's broad grant of immunity is
limited by a number of narrow exceptions, two of which are
relevant here: the commercial activity exception and the
tortious acts or omissions exception.