30
950 FEDERAL SUPPLEMENT, 2d SERIES
(DPRK) was done purposefully, they did
not establish the severity of treatment of
reverend in particular, or that his treatment amounted to torture, thereby precluding subject matter jurisdiction under
terrorism exception of Foreign Sovereign
Immunities Act (FSIA); reports from defectors stating reverend was tortured and
was either still in custody or had died as
result of treatment were credible, but expert did not report that prisoners had
personal knowledge of reverend’s treatment. 28 U.S.C.A. § 1605A(a)(2)(A)(i)(I).
7. Federal Courts O572.1
Under statute governing interlocutory
appeals, a ‘‘controlling question of law’’ is
one that would require reversal if decided
incorrectly or that could materially affect
the course of litigation with resulting savings of the court’s or the parties’ resources
and includes issues that would terminate
an action if the district court’s order were
reversed. 28 U.S.C.A. § 1292(b).
See publication Words and Phrases for other judicial constructions
and definitions.
Robert Joseph Tolchin, The Berkman
Law Office, LLC, Brooklyn, NY, Meir
Katz, Globa Frontier Justice Center, Baltimore, MD, for Plaintiffs.
MEMORANDUM OPINION
AND ORDER
RICHARD W. ROBERTS, District
Judge.
Plaintiffs Han Kim (‘‘Han’’) and Yong
Seok Kim (‘‘Yong’’) bring this civil action
under the terrorism exception of the Foreign Sovereign Immunities Act (‘‘FSIA’’),
28 U.S.C. § 1605A(c), seeking damages
against officials, employees and agents of
defendant Democratic People’s Republic of
Korea (‘‘DPRK’’) in connection with the
January 16, 2000 abduction of Reverend
Kim Dong Shik (‘‘Reverend Kim’’), who is
Han’s father and Yong’s brother. Follow-
ing his abduction, Reverend Kim was forcibly transferred to North Korea where the
plaintiffs allege he was repeatedly tortured
by officials, employees and agents of
DPRK.
Plaintiffs filed suit and served DPRK
following the requirements of 28 U.S.C.
§ 1608(a, b). DPRK failed to answer or
otherwise respond to the complaint, and
plaintiffs secured entry of default under
Fed.R.Civ.P. 55(a). The plaintiffs then
moved for default judgment and have submitted proposed findings of fact, along
with supporting declarations and documentary evidence, and proposed conclusions of
law.
The FSIA permits courts to exercise
subject matter jurisdiction and enter judgments of liability against foreign states
only where a plaintiff pleads and produces
satisfactory evidence that a foreign state’s
conduct falls within one of the enumerated
exceptions to sovereign immunity. 28
U.S.C. § 1605A(a, c). The plaintiffs here
rely on the exception for torture, arguing
that ‘‘[t]he evidence submitted demonstrates that it is far more likely than not
that Reverend Kim suffered and continues
to suffer the torture and brutal conditions
meted out to all ‘enemies’ of the DPRK
unfortunate enough to fall into the hands
of the DPRK’s security services.’’ Pls.’
Proposed Findings of Facts and Conclusions of Law (‘‘Pls.’ Proposed Facts’’) at
42. However, plaintiffs’ evidence regarding DPRK’s alleged treatment of Reverend Kim appears insufficient to meet the
high standard recognized in this circuit
that is set by the FSIA’s definition of
torture. Because the FSIA precludes jurisdiction over this action against a foreign
sovereign for conduct not shown by satisfactory evidence to meet the high standard
set for proof of torture, the plaintiffs’ motion for default judgment will be denied
but the case will be certified for an interlocutory appeal.