DVOINIK

v.

PHILIPP

Peter Philipp, a private criminal defense lawyer. Philipp initially told Plaintiffs he would look into the matter and clear it up, but then, based on his conversation with the authorities, he told Plaintiffs that an investigation would result in Zavadovsky’s medical license being suspended, and that complaining about the conduct of the police or filing appeals would be useless and make things worse. He said an agreement could be reached with the prosecutor’s office, but such sensitive matters had to be discussed in person and therefore Zavodovsky should come to Vienna

“urgently” and “before it’s too late.” While containing no overt demand for money or property, Plaintiffs allege this conversation reflected “[t]hreats” and “extortion of bribery.” Plaintiffs fired Philipp but allege he continued to purport to represent them in dealing with the authorities, while in reality cooperating with the other Defendants as part of a conspiracy. The details of any further participation or role by Philipp are not spelled out. Plaintiffs allege they provided evidence of the foregoing misconduct to Austrian law enforcement, prosecutors’ offices, and the courts, but they obtained no relief. They spoke again to Rabl, who told them that he was too busy and was out of the office and that they should “stop calling and harassing him” and talk to the prosecutor, Ebhart, instead. Plaintiffs complain they were not allowed into Rabl’s building on the pretext of an “anti-coronavirus regime.” They next contacted Defendant Gunda Ebhart, a government prosecutor, who “vigorously refused to speak to the Plaintiffs in person” and told them she would only deal with the attorney, Philipp. As with Rabl, Plaintiffs complain they were not allowed into the prosecutor’s offices.³ Plaintiffs allege that Defendants originally intended to use the withholding of their property and threat of further legal action to extort money or property from them in exchange for its return. Plaintiffs admit the “main part” of their property was returned to them in November 2021 but allege that Defendants failed to return an antique coin collection valued at $600,000. At that point, Plaintiffs allege, the scheme changed from extortion to misappropriation of the coin collection, combined with other actions to harm and threaten Plaintiffs to keep them from asserting their legal rights. These tactics included failing to initiate criminal investigations of lower officials’ misconduct, falsifying documents placed in official files, ignoring

and Philipp, and asserts eleven counts, including RICO and RICO conspiracy.5 Plaintiffs allege that as a result of Defendants’ conduct, they have lost the value of

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual allegations,” it does require “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, factual allegations must be sufficient “to state a claim to relief that is plausible on its face.” Id. at 570. When deciding a Rule 12(b)(6) motion, review is generally limited to the four corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a court “must accept [a] [p]laintiff’s well pleaded facts as true, and construe the [c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the complaint’s legal sufficiency, and is not a procedure for resolving factual questions or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC,⁸:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct.⁹, 2009) (Lazzara, J.). Analysis Defendants’ motion to dismiss raises substantial questions regarding the sufficiency of service of process, personal jurisdiction, and whether the complaint states a claim for relief. In the interest of judicial economy, however, the Court will address only Defendant’s argument that the case should be dismissed based on the act of state doctrine. Plaintiffs did not respond to this argument. Because the Court finds that the act of state doctrine precludes Plaintiffs’ claims, Defendants’ other challenges become moot. Under the act of state doctrine, the courts of this country will not inquire into the validity of public acts of a recognized foreign sovereign power committed within its own territory. E.g., Mezerhane v. Republica Bolivariana de Venezuela, 785 F. 3d 545, 552 (11th Cir. 2015). “Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.” Id. (quoting Underhill v. Hernandez, 168 U.S. 250, 252 (1897)). The act of state doctrine has been justified by the need to promote “international comity [and] respect for the sovereignty of foreign nations on their own territory.” W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 408 (1990). Under current case law, the doctrine is supported primarily by domestic separation of powers concerns – the “‘strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder’ the conduct of foreign affairs.” Id. at 404 (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964)). Plaintiffs’ lawsuit is almost exclusively about events that allegedly occurred in Austria. The only substantial connection this case has to the United States is the fact that Plaintiffs reside here. More specifically, the lawsuit concerns the activities of Austrian law enforcement and the Austrian judiciary stemming from a search of Plaintiffs’ house in Austria pursuant to a court-issued warrant.⁶ The conduct at issue includes obtaining the warrant, conducting a search, seizing evidence, providing information to and requesting information from other governmental agencies and other entities and individuals, threatening Plaintiffs with prosecution,

filing criminal charges against Plaintiffs, and responding (or failing to respond) to Plaintiffs’ complaints. Although Plaintiffs allege these actions were baseless, illegal, and motivated by personal gain, rather than proper acts on behalf of the

Polish authorities in connection with criminal prosecution and had “mysteriously disappeared” necessarily called for “an inquiry into the acts of a foreign sovereign and is barred by the act-of-state doctrine”); Hourani v. Mirtchev, 796 F. 3d 1, 15 (D.C. Cir. 2015) (holding that the plaintiff’s defamation claim could not be decided

It is therefore ORDERED, ADJUDGED, and DECREED that: 1. Defendants’ motion to dismiss (Doc. 51) is GRANTED. 2. The amended complaint (Doc. 31) is DISMISSED WITHOUT PREJUDICE, with leave to amend. 3. Plaintiffs are directed to file a second amended complaint on or before April 14, 2023. Failure to file a second amended complaint as directed property,” that is “based on (or traced through) a confiscation” that took place in violation of international law. See 22 U.S.C. § 2370(e)(2). This statute does not apply because Plaintiffs do not allege anyone is asserting title or right to property based on a confiscation, and because the exception applies only to property located in the United States. See, e.g., Glen v. Club Mediterranee S.A., 365 F. Supp. 2d 1263, 1268 (S.D. Fla. 2005), aff'd, 450 F. 3d 1251 (11th Cir. 2006).

N⁴)

a / bicol Phe

TOM BARBER

UNITED STATES DISTRICT JUDGE