01-3054 International Ins. Co. v. Caja Nacional De Ahorro Y Seguro

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“The affidavits offered by Caja are not adequate to constitute a prima facie case that Caja is an instrumentality of Argentina. Sufficient evidence of the validity for a foreign instrumentality should be relatively simple to obtain. For example, an authenticated corporate document demonstrating ownership at the time of suit, or an affidavit of a duly authorized corporate or government officer, should be readily available, especially when an entity’s sovereign immunity is at stake. While we are not limiting what constitutes proof under all circumstances, the naked assertions of Caja’s attorneys are clearly insufficient to establish that Caja is wholly-owned by Argentina. See, e.g., Sesostris, S.A.E. v. Transportes Navales, S.A., 727 F.Supp. 737, 743 (D.Mass. 1989) (evidence of Spanish attorney was insufficient to show that entity was a foreign central bank under 28 U.S.C. sec. 1611(b)(1) where defendant presented no authenticated document showing its ownership interest). Compare, e.g., O’Connell Machinery Co., Inc. v. M. V. ‘Americana’, 734 F.2d 115, 116 (2d Cir. 1984) (where defendant presented affidavit of Italian government officer averring that a majority of the defendant’s shares were owned by a company, which was, in turn, under the direct control of the Italian Government, and where the plaintiff did not dispute such ownership, entity deemed to be foreign instrumentality). Additionally, we note that an affidavit executed outside the United States must include a statement that the affiant has made his declarations ‘under penalty of perjury under the laws of the United States of America.’ 28 U.S.C. sec. 1746. Mr. Crespo’s affidavit contained no such declaration. However, even if it had been properly executed, the affidavit only refers to a document that was apparently executed in 1998, and nothing therein indicates that, as of a relevant time, such as the time of this lawsuit in 2000, at least 50% of Caja was owned by the Argentinean government. See, e.g., Ocasek v. Flintkote Co., 796 F.Supp. 362, 365 (N.D.Ill. 1992) (affidavit that, ten years before present action, majority of entity’s shares were owned by Quebec was insufficient to demonstrate entity was foreign state at time action was filed). Therefore, we conclude that Caja has not presented sufficient prima facie evidence to establish that it is a foreign instrumentality under the FSIA such that it would be entitled to immunity from posting pre-judgment security.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Manion, J.