RICHARD J. SULLIVAN, District Judge.
Plaintiff Raymond T. Kim ("Plaintiff") brings this action against Defendants Korea Trade Promotion-Investment Agency ("KOTRA"), Sung Pil Um ("Um"), and Sung Hun Lee ("Lee," and collectively with KOTRA and Um, "Defendants"), asserting numerous claims of discrimination and retaliation pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code § 8-101 et seq. Now before the Court is Defendants' motion to dismiss all claims for lack of subject matter jurisdiction based on sovereign immunity. For the reasons set forth below, the Court grants Defendants' motion.
Plaintiff is a United States citizen who had worked for KOTRA for thirty-five years prior to his termination in April 2013.
The President of the Republic of Korea appoints the officers and directors of KOTRA, and the Korean Minister of Commerce, Industry, and Energy exercises supervisory authority over KOTRA. (Stip. ¶¶ 4-5). KOTRA was established "for the purpose of promoting development of the Korean national economy by providing services to Korean industries and enterprises" (Stip. ¶ 1), and its mission is to act as a local office for various Korean commercial entities by facilitating the sale of their goods and services in the United States (Am. Compl. ¶ 11). On behalf of "Korean corporations, commercial entities, and exporters in Korea," KOTRA offers a variety of services, such as conducting market research,
Plaintiff began his employment with KOTRA in 1977 with the job title of Assistant Staff; his responsibilities included researching and identifying potential buyers for Korean exporters, as well as guiding exporters to buyers in New York and throughout the United States. (Stip. ¶ 8.) Plaintiff held the position of Assistant Marketing Manager beginning in June 1988 and was "assigned to work in a marketing program initiated by KOTRA whereby KOTRA would act as a branch office to Korean corporations and exporters seeking to sell goods and services in the United States." (Id. ¶ 10.) Plaintiff's position changed again in August 1999, when he became a "Marketing Manager," and in August 2008, when he became a "Marketing Consultant" (id. ¶ 11) — changes that Plaintiff characterizes as promotions (Am. Compl. ¶ 16). On February 1, 2012, Plaintiff received an offer letter confirming his position as Marketing Consultant, the responsibilities of which included "Korea Trade and Marketing Function." (Stip. Ex. B ("2012 Offer Letter").)
According to Plaintiff, in December 2012, Um called Plaintiff into his office and asked him to resign from his job "like most people in Korea do at age [sixty]" because "the workload seemed burdensome for [Plaintiff] given his age." (Am. Compl. ¶ 18.) Um then "offered Plaintiff a temporary position with a [thirty-five] percent reduction in annual pay," explaining that Plaintiff was "lucky to keep a simple entry level job as an old man in a bad economy." (Id. ¶ 19.) In January 2013, Lee, acting at the direction of Um, prepared a resignation letter and required that Plaintiff sign it as a precondition to any continued employment with KOTRA, albeit in a temporary position with reduced salary. (Id. ¶¶ 21-22.) Lee also offered Plaintiff $15,000 to give up his position as a permanent employee. (Id. ¶ 22.) In January 2013, Plaintiff signed the resignation letter under emotional and financial duress. (Id. ¶ 23.) Thereafter, on February 1, 2013, Plaintiff received an offer letter changing his position to "Specialist in Exhibitions" with responsibility for "marketing ... exhibitions." (Stip. Ex. C ("2013 Offer Letter").) Within days, KOTRA replaced Plaintiff with Eric J. Park, "an employee substantially younger than Plaintiff." (Am. Compl. ¶ 28.)
In February 2013, Plaintiff filed an age discrimination claim with the Equal Employment Opportunity Commission ("EEOC"). (Id. ¶ 24.) When Um discovered that Plaintiff had filed a complaint, he screamed at Plaintiff and ordered him to quit immediately. (Id. ¶ 25.) According to Plaintiff, after that encounter with Um, his working conditions became intolerable. (Id.) Thereafter, Plaintiff advised the EEOC of the incident with Um (id. ¶ 26), and, on April 30, 2013, Plaintiff "accepted his firing by the Defendants and left" KOTRA (id. ¶ 27). On or about July 31, 2013, Plaintiff received a right-to-sue notice from the EEOC. (Id. ¶ 29.)
On October 25, 2013, Plaintiff initiated the instant suit by filing a Complaint against Defendants. (Doc. No. 1.) On December 20, 2013, Plaintiff filed an Amended Complaint. (Doc. No. 10.) Thereafter,
On a motion to dismiss pursuant to Rule 12(b)(1), "[t]he plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). While the court must generally "take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff," Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (alteration in original) (citation and internal quotation marks omitted), jurisdiction "must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it," id. (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003)); see also Figueroa v. Comm'r of Soc. Sec., No. 12-cv-7129 (LGS)(SN), 2013 WL 3481317, at *2 (S.D.N.Y. July 11, 2013) ("[N]o presumptive truthfulness attaches to the complaint's jurisdictional allegations." (citation and internal quotation marks omitted)). Moreover, "even on a motion to dismiss, courts are not bound to accept as true a legal conclusion couched as a factual allegation." Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir.2009) (citation and internal quotation marks omitted). The Court may resolve "disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold an evidentiary hearing." Zappia Middle East Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); see also Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986).
"The [Foreign Sovereign Immunities Act ("FSIA")] provides the sole basis for obtaining jurisdiction over a foreign state in the courts of [the United States]." Swarna v. Al-Awadi, 622 F.3d 123, 143 (2d Cir.2010) (citation and internal quotation marks omitted). Under the FSIA, "a foreign state shall be immune from the jurisdiction of the courts of the United States" absent an applicable statutory exception. See 28 U.S.C. § 1604. "The FSIA defines `foreign state' to include an `agency or instrumentality' of a foreign state." Kato v. Ishihara, 360 F.3d 106, 110 (2d Cir.2004) (quoting 28 U.S.C. § 1603(a)). In addition, "an individual official of a foreign state acting in his official capacity is ... protected by the FSIA." Matar v. Dichter, 563 F.3d 9, 12 (2d Cir. 2009) (citation and internal quotation marks omitted). "The party seeking to establish jurisdiction bears the burden of producing evidence ... that a specific exception to immunity applies, but the foreign state then bears the ultimate burden of persuasion on this question." City of New York v. Permanent Mission of India to the United Nations, 446 F.3d 365, 369 (2d Cir.2006).
Germane to the instant motion, a foreign state may "waive[] its [sovereign] immunity either explicitly or by implication." See 28 U.S.C. § 1605(a)(1). "With respect to implicit waivers, the courts have found such waivers ... [(1)] where a foreign state has agreed to arbitration in
Another exception to sovereign immunity relevant here is the commercial activity exception, which applies when an "action is based upon a commercial activity carried on in the United States by the foreign state." See 28 U.S.C. § 1605(a)(2). Under the statute, "commercial activity" is defined to mean "either a regular course of commercial conduct or a particular commercial transaction or act[;] ... [t]he commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." 28 U.S.C. § 1603(d). "The House Report on the bill that became the FSIA explicitly asserts the congressional intention to leave to the `courts ... a great deal of latitude in determining what is a commercial activity'" under the FSIA. Kato, 360 F.3d at 110 (quoting H.R.Rep. No. 94-1487, at 16 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6615).
According to the Supreme Court, "a state engages in commercial activity... [when] it exercises only those powers that can also be exercised by private citizens." Saudi Arabia v. Nelson, 507 U.S. 349, 360, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) (quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992)) (internal quotation marks omitted). The Second Circuit's description of the commercial activity exception in Swarna is particularly instructive:
622 F.3d at 147 (quoting Anglo-Iberia Underwriting Mgmt. v. P.T. Jamsostek, 600 F.3d 171, 177 (2d Cir.2010)); see also Weltover, 504 U.S. at 614-15, 112 S.Ct. 2160 ("[A] contract to buy army boots or even bullets is a `commercial' activity, because private companies can similarly use sales contracts to acquire goods...."). Moreover, "the fact that a government instrumentality... is engaged in the promotion of commerce does not mean that the instrumentality is thereby engaged in commerce.". Kato, 360 F.3d at 112 (emphasis in original). In fact, "[t]he promotion
Because "[t]he FSIA provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country," Swarna, 622 F.3d at 143, Plaintiff must demonstrate that a specific exception to the FSIA's grant of sovereign immunity applies in order for the Court to have subject matter jurisdiction over Plaintiff's claims, see 28 U.S.C. § 1604 (explaining that, absent a statutory exception, "a foreign state shall be immune from the jurisdiction of the courts of the United States"). Plaintiff concedes that KOTRA is "a foreign government agency." (Opp'n at 1.) Nevertheless, Plaintiff argues that the Court has jurisdiction over his claims because both the waiver exception and the commercial activity exception of the FSIA apply to the instant case. (Opp'n at 1-3.) The Court will address each of these arguments in turn.
Plaintiff argues that Defendants have implicitly waived their sovereign immunity by repeatedly manifesting an intention to have local laws govern KOTRA's contracts and disputes. (See Opp'n at 9 (quoting Shapiro, 930 F.2d at 1017 ("With respect to implicit waivers, the courts have found such waivers in cases where a foreign state has agreed ... that the law of a particular country should govern a contract.")).) Specifically, Plaintiff contends that KOTRA (1) "openly directs its overseas offices to have local law `govern' its employment contracts and related disputes" (Opp'n at 9) and (2) maintains a handbook representing to employees that they are protected by the anti-discrimination laws of the United States during the course of their employment (Opp'n at 10-11).
However, an implicit waiver must be "unmistakable" and "unambiguous," and the evidence before the Court suggests quite the opposite intent by KOTRA. See Shapiro, 930 F.2d at 1017 (explaining that the use of local governing law constitutes a waiver when it is "unmistakable," and that "courts have been reluctant to find an implied waiver where the circumstances were not ... unambiguous."). Here, both the 2012 Offer Letter and 2013 Offer Letter provide that Plaintiff "shall observe all KOTRA's policies, procedures, rules and regulations, including, but not limited to, those contained in the Employee Handbook, which regulate the terms and conditions of [Plaintiff's] employment." (Reply at 8 (emphasis in original).) KOTRA's current handbook, which is applicable to employees working in New York, provides — in all capital and bold letters, on the very first page — that "NOTHING HEREIN IS INTENDED AS A[] WAIVER OF KOTRA'S SOVEREIGN IMMUNITY TO SUIT OR CLAIMS IN ANY SUCH COURT OR AGENCY." (Id. (quoting Reply Declaration of Tae Sik Han, dated Apr. 14, 2014, Doc. No. 36 ("Han Reply Decl."), Ex. D at 1); see also Han Reply Decl. Ex. D at 2 ("Equal employment opportunity notices [that] are posted near employee gathering places as required by law ... are NOT intended as a waiver of KOTRA's sovereign immunity from suit in state or federal court, or in any administrative agency.").)
Plaintiff also contends that KOTRA explicitly argued in a separate legal proceeding in Korea that the labor laws of the United States should govern employment disputes between KOTRA and its American employees, and, consequently, that Defendants should be judicially estopped from asserting a contradictory position in this case. (See Opp'n at 10.) As evidence of the position taken by KOTRA in the Korean proceeding, Plaintiff points to a memorandum prepared by the Barun Law Firm in connection with "a Korean action involving severance payment claims brought against [KOTRA] by its former and present local U.S. employees." (Id. at 5 (citing Lee Decl. Ex. C).) Defendants vigorously dispute Plaintiff's claim, pointing out that not only did the Barun Law Firm not represent KOTRA in the Korean action but that the firm represented Plaintiff and other current and former KOTRA employees who were adverse to KOTRA. (See Reply at 10; Han Reply Decl. ¶ 39.) Having reviewed these materials, the Court finds that the memorandum does not provide "strong evidence of the sovereign's intent" to waive its sovereign immunity, particularly when coupled with the other evidence, discussed above, which similarly demonstrates that KOTRA sought to preserve its sovereign immunity.
With respect to whether KOTRA's conduct falls within the commercial activity exception to the FSIA, the facts at issue here are strikingly similar to those at play in Kato v. Ishihara. In Kato, which was also a case involving claims of employment discrimination, the plaintiff was employed in the United States by the Tokyo Metropolitan Government ("TMG"), a Japanese governmental office that provided "product promotion for Japanese companies, general business development assistance, participation in trade shows on behalf of the [various] companies to promote those companies' products for sale, and leasing [of] office space to those companies for their business development." 360 F.3d at 111. The plaintiff's job entailed responsibility for "promotional activities on behalf of Japanese companies, such as manning booths at trade shows to promote specific products ... [and creating] marketing reports of interest to Japanese companies." Id. at 109. Noting that TMG "performed actions that were only superficially similar to actions typically undertaken by private parties," id. at 111, the Second Circuit determined that TMG's activities were governmental rather than commercial, explaining that even if "a private Japanese business might engage in these activities on its own behalf ... such a business would not typically undertake the promotion of other Japanese businesses, or the promotion of Japanese business interests in general," id. at 112. Thus, the mere "fact that a government instrumentality like TMG is engaged in the promotion of commerce does not mean that the instrumentality is thereby engaged in commerce." Id. at 112 (emphasis in original). Key to the Second Circuit's holding was the recognition that foreign states and
Here, Plaintiff identifies numerous services offered by KOTRA that are virtually indistinguishable from the services offered by TMG. Specifically, Plaintiff alleges that KOTRA provided
(Am. Compl. ¶ 11.) According to Plaintiff, his own duties "were to research and identify buyers for Korean exporters...." (Id. ¶ 13; see also id. ¶ 14 ("[Plaintiff] was also asked to consult [KOTRA's] Korean corporat[e clients] and to coordinate various trade shows and buyers['] meetings to actively assist the sale of goods in the United States on behalf of Korean exporters.").) Accepting Plaintiff's characterizations as true, the Court finds that KOTRA's activities are almost identical to the services provided by TMG in Kato, which the Second Circuit characterized as governmental rather than commercial. See 360 F.3d at 111-12.
Plaintiff also alleges, however, that KOTRA engages in the "marketing and selling [of] goods and services of its Korean corporate clients in the United States for the commercial benefits to its Korean corporate clients." (Am. Compl. ¶ 11.) Indeed, Plaintiff highlights these services in his opposition and attempts to re-characterize KOTRA's activities, in this respect, as primarily sales-based, thus falling within the scope of the commercial activity exception. (See Opp'n at 12-15.) Specifically, Plaintiff contends that KOTRA (1) concludes transactions on behalf of member entities, (2) assures actual sales to member entities, (3) issues annual directives with target amounts for export sales, (4) assigns members to local employees with individual sales targets, and (5) enforces a sales performance evaluation mechanism tied to the compensation and retention of employees. (Id.; see also Declaration of Raymond T. Kim, dated Mar. 31, 2014, Doc. No. 25 ("Kim Decl."), ¶ 5 ("KOTRA deploys operational, disciplinary, employment and compensation policies ... all designed to compel sales like a sales agency.").) Plaintiff also argues that his own conduct as an employee of KOTRA was "entirely sales related, that of a sales agent working for a sales agency engaged in commerce." (Opp'n at 15; see also Kim Decl. ¶¶ 5-14.)
As an initial matter, Plaintiff's recent characterization of KOTRA's activities, as well as his own employment, are at odds with contemporaneous accounts contained in the record. For example, on December 3, 2012, Plaintiff sent an email to Jaehong Sim — the Deputy General Manager of Namyung Lighting, a KOTRA client — describing KOTRA's functions in very different terms:
(Han Reply Decl. Ex. C (emphasis added).) Additionally, the contracts that KOTRA enters into with each member entity are consistent with the description set forth in Plaintiff's e-mail. Specifically, those contracts state that KOTRA will "provide to clients services regarding local market information, finding new buyers, export consultations, and on-site support for overseas business trips" (Han Reply Decl. Ex. B art. 4), but also make clear that "KOTRA... may not be legal prox[y] of the client or buyers" and exclude from the scope of services offered by KOTRA "[m]atters of contract signing by proxy, resolution of claims, and other matters involving legal liabilities and disputes" (id. art. 6). Furthermore, contrary to Plaintiff's assertion that he functioned purely as a "sales agent," the record reflects that Plaintiff's compensation, like that of other KOTRA employees, did not substantially depend on sales performance and was not "affected by the amount of sales that the member organization[] to which [Plaintiff was as]signed made." (Han Reply Decl. ¶ 23.) The declaration of Jaehong Sim further buttresses this conclusion. (See Declaration of Jaehong Sim, dated Apr. 10, 2014, Doc. No. 38 ("Sim Decl."), ¶ 11 ("Mr. Kim never made sales on behalf of Namyung Lighting, and never negotiated a contract on Namyung Lighting's behalf."); id. ¶ 12 ("Mr. Kim received no commissions from Namyung Lighting.").) Thus, the Court finds that KOTRA did not, as Plaintiff contends, enforce a "sale[s] performance evaluation [program] that is explicitly connected to employees' compensation and even termination" (see Opp'n at 13), but merely took into account the "exports promoted" by the employee as one of more than thirty other factors relied on by KOTRA when evaluating employee performance (see Han Reply Decl. ¶¶ 18-22 (emphasis added); Kim Decl. Ex. E (attaching copy of KOTRA's form used for evaluating employees); see also Reply at 5-6).
Perhaps most damaging to Plaintiff's contention that he was working as a sales agent for KOTRA are the facts that (1) KOTRA was assisting over fifty member organizations with their United States sales (Han Reply Decl. ¶ 5), and (2) KOTRA received no profits from the sales of its member organizations
Since 28 U.S.C. § 1604 "bars federal and state courts from exercising jurisdiction when a foreign state is entitled to immunity," Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (first emphasis added), the FSIA provides the sole basis for the courts in the United States — both federal and state — to obtain jurisdiction over foreign government agencies, see 14A C. Wright & A. Miller, Fed. Prac. & Proc. § 3662 (4th ed.2009) ("The FSIA is the sole basis for obtaining subject-matter jurisdiction over a foreign state, its agencies, or its instrumentalities, and sets forth the exclusive standards to be used in resolving questions of sovereign immunity in cases before both federal and state courts."). Consequently, the Court lacks jurisdiction, and Defendants are immune from suit pursuant to the FSIA for all of Plaintiff's claims — federal, state, and city.
For the reasons set forth above, IT IS HEREBY ORDERED THAT Defendants' motion to dismiss is GRANTED. The Clerk of the Court is respectfully directed to terminate the motion pending at Doc. No. 21, and to close this case.
SO ORDERED.
