Does the FSIA Permit Trials in Absentia?

During the course of a lengthy litigation, Venezuela stopped defending a lawsuit, due to a change in government. The court set pretrial deadlines, which Venezuela did not meet.  The district court did not enter a default, however, because the plaintiff wanted instead to prove his case. The court accordingly held a bench trial (without Venezuela’s participation) and eventually awarded the plaintiff more than $17 million.

The Eleventh Circuit vacated the judgment in a 2-1 opinion, holding that the district court did not follow the requirements of 28 U.S.C. § 1608(e), which is the section of the Foreign Sovereign Immunities Act (FSIA) that governs default judgments.  Although the lengthy opinions by the majority and the dissenting judge disagree about several things, it all really boils down to this question:  was the trial court required by the FSIA to enter a default judgment, or could it instead hold a trial in absentia?

Facts and Procedural History

Ricardo Devengoechea, who lives in Orlando, owned a collection of artifacts that were purportedly linked to Simón Bolívar.  Devengoechea alleged that Venezuelan government officials contacted him expressing interest in buying the collection. The officials first arranged to meet him in Orlando to examine the collection, then they asked him to bring the collection to Venezuela for inspection, and then they asked him to leave the collection in Venezuela for further analysis. Devengoechea complied and now alleges that Venezuela neither paid for the collection nor returned it.

Litigating against Venezuela seems really burdensome – at least in this case.  Devengoechea sued Venezuela for breach of contract and unjust enrichment. Venezuela failed to appear, the clerk entered a default, the district court held a bench trial on damages, and then it entered a default judgment against Venezuela. But then Venezuela’s counsel did finally appear. At Devengoechea’s own request, the district court vacated both the clerk’s default and the default judgment, so Venezuela would be required to respond to the complaint on the merits. Venezuela moved to dismiss for lack of subject-matter jurisdiction (among other grounds). The district court refused to dismiss, Venezuela appealed, and the Eleventh Circuit affirmed in Devengoechea I.

On remand, Venezuela filed another motion to dismiss, along with a motion for summary judgment. As these were pending, a change of regime took place in Venezuela and its lawyers withdrew from the case. The trial court denied the motions and set a series of pretrial deadlines and filing requirements.  Venezuela, now unrepresented, failed to meet them.  Again, Devengoechea wanted to prove his case rather than take a default, so the court held a bench trial on the merits and unsurprisingly ruled for the plaintiff.  Then – wait for it – Venezuela’s counsel reappeared to bring an appeal, arguing that the district court should have followed FSIA § 1608(e)’s default-judgment procedures.

Devengoechea II

Judge Kidd, writing for himself and Judge Branch, agreed with Venezuela. Judge Rosenbaum dissented, arguing in essence that because the trial court did not enter a default judgment, it did not have to follow the FSIA’s requirements for a default judgment.  That seems like a pretty strong argument. In response, the majority argued in effect that the trial court had to use the FSIA default procedures. There is more disagreement, including about whether FRCP 55 (which the trial court also did not follow) only permits defaults in the pleading stage of a case or also permits them after the pleadings are closed. But the FSIA question boils down to whether trials in absentia are allowed at all against foreign sovereigns to whom the FSIA applies.

As the majority opinion says in footnote 2:

The dissent faults us for “offer[ing] no reason why a district court cannot try a civil defendant in absentia when the litigant ceases to defend the case.” But notably, the dissent cites no statute or precedent that provides for a trial in absentia in an FSIA case. As previously discussed, by enacting the FSIA, Congress provided a comprehensive scheme for litigation involving foreign states. See Republic of Hungary, [604 U.S. 115 (2025)]. The FSIA does not provide for trials in absentia. It does provide for default judgments in section 1608(e), and that provision covers the litigation before the district court in this case.

In support of its argument that the 1608(e) process was required in this case, the majority opinion cites Supreme Court cases that say the FSIA is “comprehensive” and that it “must be applied by the district courts in every action against a foreign sovereign” (citing Argentine Republic v. Amerada Hess Shipping Corp. (1989)).

These statements are not as helpful as the majority suggests, in part for reasons that the dissent did not identify. In particular, the Supreme Court rejected an argument of this kind in Argentina v. NML Capital (2014).  The plaintiffs in that case sought discovery from Argentina about the location of assets outside the United States that might be used to enforce a judgment.  The FSIA says nothing about post-judgment discovery, just as it says nothing about trials in absentia, and Argentina argued that the silence meant that no such discovery was permissible.  The Court recited all the language about how the FSIA is comprehensive but then reasoned that because the statute said nothing about this form of discovery, it was permissible. To the extent there was a “gap” in the statute, only Congress – not the courts – could fill it.

Applying the reasoning from NML Capital means that the FSIA does not implicitly repeal otherwise available procedures, including trials in absentia. On the other hand, it is true that the FSIA says almost nothing at all about discovery, but it does have an entire provision on default judgments. To the extent that the statute’s requirements for default are circumvented or undermined through the use of a trial in absentia, then such trials might be inconsistent with the FSIA and for that reason impermissible.

Perhaps that was true in Devengoechea, although the majority did not say as much. For that matter, it is not clear exactly why Venezuela would want a default under the FSIA as opposed to a trial in absentia – except for the obvious point that because there was a trial in absentia, Venezuela will argue on appeal that it wanted something else.  The majority opined that it was unclear whether the substantive requirements of 1608(e) were satisfied because the trial court did not apply that standard, but how different are they? At the trial, Devengoechea bore all evidentiary burdens, introduced evidence, and established his claims by a preponderance of the evidence.  Under 1608(e)’s default provisions, he would have had to “establish[e]s his claim or right to relief by evidence satisfactory to the court.” Perhaps Venezuela would have preferred to have a default judgment because such a judgment is easier to reopen and harder to enforce – likely these were precisely the reasons that Devengoechea sought an on-the-merits adjudication.

Conclusion

 This seems to be one of those cases that gives procedure a bad name. The process costs for the plaintiff are high – having first won a default judgment and then a merits judgment against Venezuela, only to have to go up to the Court of Appeals twice. Venezuela, so far, seems able to show up intermittently while making it unreasonably difficult for the plaintiff to secure a judgment and go forward.  High process costs may be justified, of course, if there is a corresponding benefit in the process that helps ensure a correct verdict.  It is difficult to see how that has been achieved here.