FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE Hon. George Z. Singal, U.S. District Judge
J. Van Dyke and Lynch & Van Dyke, P.A. on brief for
Howard, Chief Judge, Lynch and Kayatta, Circuit Judges.
2009, a Maine Superior Court awarded the plaintiff, Sherry
Sullivan ("Sullivan"), a default judgment of $21
million against the Republic of Cuba for the alleged
"extrajudicial killing" of her father, said to be a
covert U.S. agent. Sullivan sought to enforce this judgment
in federal district court in 2016. When Cuba again failed to
appear, Sullivan moved for a default judgment in federal
court as well. The district court denied Sullivan's
motion and dismissed her suit for lack of subject matter
jurisdiction under the Foreign Sovereign Immunities Act
("FSIA"), 28 U.S.C. §§ 1330, 1602-1611.
Sullivan v. Republic of Cuba, 289 F.Supp.3d 231, 246
(D. Me. 2017). We affirm.
Sullivan's father, Geoffrey Sullivan ("Mr.
Sullivan"), disappeared in October 1963 while serving in
the Army National Guard. Id. at 233. Sullivan was a
child at the time. She has since dedicated much of her life
to discovering the truth about his disappearance, including
"contacting dozens of federal agencies and
officials" and filing a Freedom of Information Act
("FOIA") request. Id. at 235. Based on her
research, Sullivan concluded that her father was captured
during a covert mission against Fidel Castro, was
incarcerated by the Castro regime, and eventually died while
in the custody of the Cuban government sometime after 1982.
2007, Sullivan filed a wrongful-death suit against Cuba in
Maine Superior Court. Cuba was properly served and did not
appear in the case. A Maine Superior Court entered default
judgment for Sullivan on August 10, 2009. After conducting a
hearing, at which Cuba also did not appear, the court awarded
Sullivan $21 million in damages for loss of support, severe
emotional distress, and damages to her father's estate,
including compensation for his pain and suffering. Sullivan
was the sole witness at the hearing. The court issued a
memorandum detailing its factual findings and legal
conclusions said to be in support of its award. That
memorandum tracked the proposed findings and conclusions
Sullivan had submitted to the court and adopted them
virtually verbatim. We recount the portions relevant to this
to the Maine Superior Court, Mr. Sullivan and another member
of the National Guard, Alexander Rorke, Jr., participated in
a series of covert missions in Cuba and Central America
against Castro's regime from 1960 to 1963. In the fall of
1963, the two men flew a plane from Florida, purportedly to
go "lobster hauling" in Honduras. They actually
traveled to various cities in Mexico before leaving for an
"undisclosed location" on October 1, 1963.
court adopted Sullivan's proposed finding that, on this
journey, "Mr. Sullivan was shot down over Cuba . . . and
had been imprisoned by the Castro regime in Cuba . . . in
violation of international law, thereafter." The court
based its conclusion on second- and third-hand reports,
provided by Sullivan, of those who had witnessed or heard of
Mr. Sullivan's capture and subsequent detention in
Havana. The court also adopted Sullivan's proposed
finding that Cuba "intentionally . . . caused the
indeterminate, undisclosed and illegal incarceration of Mr.
Sullivan, which . . . has culminated in the legally-declared
death of Mr. Sullivan and which constitutes an extrajudicial
killing under applicable law." The court supported this
conclusion by noting that Mr. Sullivan had been
"declared legally dead" by the United States Social
Security Administration as of 1963.
on these factual findings, the court concluded that it had
subject matter jurisdiction over Sullivan's suit.
Although the FSIA generally bars suits against foreign
sovereigns, the court adopted Sullivan's proposed legal
conclusion that Cuba did not have immunity in this case
because its "extrajudicial killing" of Mr. Sullivan
fell under the terrorism exception to the FSIA. See
28 U.S.C. § 1605A(a)(1) (originally enacted as 28 U.S.C.
§ 1605(a)(7)). The court concluded that "as the
successor to, heir to, and guardian of her father's
estate, " Sullivan was entitled to the damages
the next seven years, Sullivan did not collect any portion of
her $21 million damages award. On June 21, 2016, she filed
suit in federal district court to enforce her default
judgment. Cuba again did not appear after being properly
served. Sullivan, 289 F.Supp.3d at 235. On May 12,
2017, Sullivan moved for entry of default. Id.
district court was concerned about the validity of the state
court's default judgment and ordered further briefing.
Specifically, the court asked Sullivan to address whether the
Maine Superior Court had subject matter jurisdiction over the
original action and whether there was sufficient evidence of
an "extrajudicial killing" to warrant entry of
default against Cuba. Id. at 235-36. After
considering Sullivan's submission, the district court
scheduled a hearing for August 28, 2017. Id. at 237.
presented two witnesses at the hearing: herself and an
attorney. Sullivan primarily testified regarding
evidence that -- in her view -- proved her father was
imprisoned in Cuba into the ...