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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Price v. Unisea, Inc. (12/7/2012) sp-6732
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CHRISTOPHER LEE PRICE, )
) Supreme Court No. S-14184
Appellant, )
) Superior Court No. 3AN-07-08143 CI
v. )
) O P I N I O N
UNISEA, INC., INTERNATIONAL )
PACIFIC HALIBUT COMMISSION ) No. 6732 - December 7, 2012
& SOMPO JAPAN INSURANCE )
COMPANY OF AMERICA, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, William F. Morse, Judge.
Appearances: Marc W. June, Anchorage, for Appellant.
Charles Jordan, Danielson Harrigan Leyh & Tollefson
LLP, Seattle, for Appellee International Pacific Halibut
Commission.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices. [Christen, Justice, not participating.]
CARPENETI, Chief Justice.
I. INTRODUCTION
A worker at a fish processing plant was injured while on the job. His
employer, an international organization, asserted that it did not maintain workers'
compensation and that it was immune from suit, so the worker filed a negligence action
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in state court seeking reimbursement for medical expenses, compensation for lost wages,
and attorney's fees. The superior court granted the employer's motion to dismiss on
immunity grounds. Because the international organization enjoys absolute immunity
from suit and it has not waived this immunity, we affirm the superior court in all
respects.
II. FACTS AND PROCEEDINGS
Appellant Christopher Lee Price was hired by International Pacific Halibut
Commission (IPHC) on February 28, 2006. Price was employed as a "port sampler" at
Unisea's fish processing plant in Dutch Harbor. His duties included collecting data and
supporting information used in the stock assessment of Pacific halibut. Exhibit A,
attached to his employment contract (Employment Agreement), specified that "[t]he
work is performed in and around fish docks . . . [and] [w]orking platforms . . . are often
cold and wet." On August 17, 2006, Price suffered a slip and fall injury while on the job.
IPHC is an international organization with its headquarters in Seattle,
Washington. It was established by treaty between the United States and Canada in 1923.
President John F. Kennedy issued an executive order designating IPHC as a public
international organization on October 23, 1962. Accordingly, it is subject to most of the
privileges and immunities of the International Organizations Immunity Act of 1945
(IOIA).1
Both parties signed the Employment Agreement, a form employment
contract. The agreement stated that "[it] shall be governed by the laws of the State of
Washington." The agreement also contained an "insurance and benefits" provision in
Paragraph 12, which indicated that workers' compensation would only be available to
1 International Organizations Immunity Act of 1945, Pub. L. No. 79-291, 59
Stat. 669 (codified as amended in scattered sections, including 22 U.S.C. § 288).
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employees based in British Columbia.
After his injury, Price sought medical and disability benefits under the
Alaska Workers' Compensation Act. After failing to respond initially, a representative
of IPHC, Michael Larsen, attended a prehearing conference with the Alaska Workers'
Compensation Board on January 31, 2007. Larsen explained that as a public international
organization, IPHC does not carry workers' compensation insurance and is otherwise
immune from suit. A second prehearing conference to discuss unpaid medical costs was
held on March 7, 2007. At that hearing, Larsen stated that IPHC's insurer, Premera, was
supposed to pay the medical costs resulting from Price's injuries.
In June 2007, after failing to resolve the dispute, Price brought a tort action
in state court, alleging that IPHC had negligently failed to secure workers' compensation
insurance for him and thereby failed to provide a safe work place. Price claimed that
IPHC agreed to comply with applicable state law mandating that employers provide
workers' compensation insurance by entering into the Employment Agreement. IPHC
moved to dismiss, asserting that it was immune from all forms of judicial process,
including the jurisdiction of the Alaska courts and any discovery requests made by Price.
Price responded that IPHC had expressly waived its immunity by including a choice of
law provision in the Employment Agreement and by agreeing to comply with applicable
state law. At the very least, Price maintained, the Employment Agreement was
ambiguous and therefore should be construed against the drafter.
Extensive motion practice ensued. Price asked that, at a minimum, IPHC
provide his personnel file, the disability policy included in his employee benefits, and
documentation of medical bills paid by his IPHC health insurance. IPHC refused to
provide these documents, again insisting that its immunity extended to any documents,
archives, or records. Price then filed a motion to compel in the superior court, which
granted limited discovery. Oral argument was held on IPHC's motion to dismiss.
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Following argument, the superior court granted IPHC's motion to dismiss.
It found that neither Paragraph 25 of the Employment Agreement (choice of law) nor
Paragraph 12 (explanation of insurance and benefits) constituted a waiver of IPHC's
absolute immunity. Price filed a motion for reconsideration, asking the trial court to
(1) reconsider its decision based on Price's inability to conduct discovery due to
assertions of immunity or (2) interpret IPHC's Employment Agreement as a contract of
adhesion to be construed against the drafter. The superior court issued an order
requesting Price to provide a summary of the discovery materials he wished to pursue.
After considering Price's response and IPHC's opposition, the superior court denied his
motion for reconsideration in September 2008.
Price's claims against Unisea were tried, and in December 2010 a jury
found Unisea negligent. Final judgment against Unisea was entered in January 2011.
The jury found $1,154,896 in damages, but it apportioned fault 75% to Unisea and 25%
to Price; thus, the amount awarded to Price was $993,475. After this judgment was
entered, IPHC moved for attorney's fees under Alaska Civil Rule 82. Although the rule
normally awards the prevailing party 20% of its fees, IPHC asked for an enhanced award
given the extensive motion practice and complexity of the case. Alleging total fees of
about $112,000, IPHC sought an award of 30% or almost $34,000. Price filed a motion
opposing the grant of attorney's fees, claiming that (1) the proposed amount was
excessive, (2) IPHC had not provided proper documentation, and (3) the award should
be reduced to 10% of actual fees since the Employment Agreement constituted a
fraudulent contract. IPHC submitted billing records totaling only about $89,900. From
this amount the superior court deducted about $8,400 because the fees were not
reasonably or necessarily incurred and about $3,300 because the fees were incurred post-
dismissal. The superior court thus deducted about $11,700 of IPHC's alleged costs.
After adjustments, the court entered a final judgment awarding IPHC $15,642.60 in
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attorney's fees, 20% of actual fees of $78,213. Price filed a motion for reconsideration
of the award, which was denied by the superior court in April 2011. This appeal
followed.
III. STANDARD OF REVIEW
"When materials outside the pleadings are submitted with regard to a
motion to dismiss [under Rule 12(b)(6)], the superior court must either explicitly exclude
the materials or convert the motion into one for summary judgment under Alaska Rule
of Civil Procedure 56."2 Here, the superior court took the Employment Agreement
signed by the parties into account when granting IPHC's motion to dismiss. Although
the superior court did not explicitly state that a conversion had taken place, we will treat
the decision as a grant of summary judgment under Rule 56.
We review a grant of summary judgment de novo, "drawing all reasonable
inferences in favor of the nonmoving party."3 Summary judgment will be upheld "if no
genuine issue of material fact exists."4
The superior court's interpretation of contracts, specifically the
Employment Agreement in this case, raises "questions of law" and is reviewed de novo.5
2 Kaiser v. Umialik Ins. , 108 P.3d 876, 879 (Alaska 2005) (citing Alaska R.
Civ. P. 12(b); Martin v. Mears , 602 P.2d 421, 425-26 (Alaska 1979)).
3 Dominic Wenzel, D.M.D. P.C. v. Ingrim , 228 P.3d 103, 106 (Alaska 2010)
(quoting Nichols v. State Farm Fire & Cas. Co. , 6 P.3d 300, 303 (Alaska 2000)).
4 Id .
5 Beal v. McGuire , 216 P.3d 1154, 1162 (Alaska 2009) (citing Norville v.
Carr-Gottstein Foods Co., 84 P.3d 996, 1000 n.1 (Alaska 2004)).
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The superior court's grant of attorney's fees is reviewed using an abuse of discretion
standard.6 An abuse of discretion occurs when an award is "arbitrary, capricious,
manifestly unreasonable, or improperly motivated."7
IV. DISCUSSION
A. The International Pacific Halibut Commission Is Immune From Suit.
1. The IPHC is an international organization.
Both parties agreed that the IPHC has been classified as an "international
organization" by executive order and, as such, is entitled to the protections of the
International Organizations Immunities Act of 1945.8 The IOIA provides that covered
entities "enjoy the same immunity from suit and every form of judicial process as is
enjoyed by foreign governments, except to the extent that such organizations may
expressly waive their immunity for the purpose of any proceedings or by the terms of
any contract."9
2. The IOIA provides absolute immunity to international
organizations.
Many courts have explored the scope of immunity granted under the IOIA.
The main debate is whether the IOIA grants the absolute immunity enjoyed by foreign
governments when it was enacted in 194510 or whether it was intended to be modified by
6 Okagawa v. Yaple, 234 P.3d 1278, 1280 (Alaska 2010) (citing Krone v.
State, Dep't of Health & Soc. Servs., 222 P.3d 250, 252 (Alaska 2009)).
7 Id . (quoting Cook Schuhmann & Groseclose, Inc. v. Brown & Root, Inc.,
116 P.3d 592, 597 (Alaska 2005)) (internal quotation marks omitted).
8 Exec. Order No. 11,059, 27 Fed. Reg. 10,405 (Oct. 23, 1962).
9 22 U.S.C. § 288a(b) (2006).
10 See, e.g., Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983)
(continued...)
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subsequent statutes affecting the immunity of foreign governments.11 After the IOIA was
enacted, Congress adopted the Foreign Sovereign Immunities Act of 1976 (FSIA),12
which carved out certain exceptions to immunity for foreign sovereigns.13 The FSIA
made no mention of international organizations, so it was unclear whether the principle
of restricted immunity should be adopted by reference or whether Congress intended for
international organizations to enjoy a greater immunity than foreign sovereigns.14 In
Broadbent v. Organization of American States ,15 one of the early cases to address the
application of the FSIA to international organizations, the D.C. Circuit seemed to suggest
the latter because the FSIA is "generally silent about international organizations" and "by
its own terms the IOIA provides for the modification, where appropriate, of the immunity
enjoyed by one or more international organizations."16 But Broadbent never reached the
10 (...continued)
(when Congress enacted the IOIA in 1945, foreign sovereigns enjoyed virtually absolute
immunity).
11 Atkinson v. Inter-Am. Dev. Bank , 156 F.3d 1335, 1340 (D.C. Cir. 1998);
Boimah v . United Nations Gen. Assembly, 664 F. Supp. 69, 71 (E.D.N.Y. 1987).
12 Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat.
2891 (codified as amended in scattered sections of 28 U.S.C.).
13 See Broadbent v. Org. of Am. States, 628 F.2d 27, 30-31 (D.C. Cir. 1980).
14 Id. at 29.
15 628 F.2d 27.
16 Id. at 31-32. "Under the statute, the President can withdraw or restrict the
immunity and privileges thereby conferred." Id. at 32.
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issue because it held that the organization in that case was immune from suit even under
a restrictive theory.17
The leading case that ruled in favor of absolute immunity for international
organizations was Atkinson v. Inter-American Development Bank .18 Atkinson overruled
an earlier case, Rendall-Speranza v. Nassim ,19 in which the district court held that
"[i]naction on the part of Congress implies that Congress felt the more restrictive
immunity afforded foreign governments under the FSIA was to apply in like fashion to
international organizations."20 In Atkinson , the D.C. Circuit disagreed with this
reasoning and decided that Congress's failure to include international organizations in
the language of FSIA indicated an intent to leave organizational immunity subject to the
provisions set forth in the IOIA:
[T]he IOIA sets forth an explicit mechanism for monitoring
the immunities of designated international organizations . . .
[so] therefore . . . Congress was content to delegate to the
President the responsibility for updating the immunities of
international organizations in the face of changing
circumstances. This built-in mechanism for updating the
IOIA undermines [the] claim that Congress intended a
different updating mechanism: automatic alteration of the
scope of immunity under the IOIA in accordance with
developments in the law governing the immunity of foreign
sovereigns.[21]
17 Id . at 32-33.
18 156 F.3d 1335 (D.C. Cir. 1998).
19 932 F. Supp. 19 (D.D.C. 1996).
20 Id . at 24.
21 Atkinson , 156 F.3d at 1341.
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Because Congress explicitly created a means to modify the immunity afforded
international organizations - that is, presidential authority to revoke or modify existing
immunity - the Atkinson court reasoned that no new mechanism for change need be
implied from Congressional silence in a later statute.22 Given this understanding, at least
one other court has concluded that "[a]n international organization that has been granted
immunity from suit can only have that immunity restricted in two ways: First, the
organization itself may expressly waive its immunity. Second, the President of the
United States may specifically limit the organization's immunities . . . ."23 The
Broadbent court explained that this system aligned with legislative intent because leaving
discretion to the president allowed for quick and easy changes if an organization abused
its immunity.24
Although the Rendall-Speranza court found it unlikely that Congress would
intentionally provide a greater immunity for international organizations than foreign
governments, allowing greater immunity for international organizations respects the
special position held by such organizations. "[I]nternational organizations . . . are
creatures of treaty and by virtue of treaty stand in a different position with respect to the
issue of immunity than sovereign nations."25 International organizations differ from
22 Id.
23 Vila v. Inter-Am. Inv. Corp., 536 F. Supp. 2d 41, 46-47 (D.D.C. 2008), aff'd
and remanded, 570 F.3d 274 (D.C. Cir. 2009) (quoting Mendaro v. World Bank , 717
F.2d 610, 613 (D.C. Cir. 1983)) (internal quotation marks omitted).
24 "[I]n floor debate on the legislation, its supporters pointed again to this
provision [granting authority to the president to modify an organization's immunity] as
a limitation on commercial abuses by an international organization." Broadbent v. Org.
of Am. States, 628 F.2d 27, 32 (D.C. Cir. 1980).
25 Broadbent , 628 F.2d at 29.
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sovereign nations and private corporations because their actions are governed by the
laws of several nations and they are not subject to the policies of any one state.26 The
premise underlying restricted immunity for sovereign nations rests upon an
understanding that
[the exceptions listed in the FSIA] leave[] foreign states free
to conduct "governmental" matters through their own
citizens. A comparable exception is not applicable to
international organizations, because their civil servants are
inevitably drawn from either American citizens or "third"
country nations. In the case of international organizations,
such an exception would swallow up the rule of immunity
for civil service employment disputes.[27]
Subjecting international organizations to the restricted immunity codified in the FSIA
would effectively eliminate any immunity they currently enjoy. By omitting reference
to international organizations in FSIA, "the 1976 Congress wished to clarify that
international organizations deserve special protection."28
Almost every court since Atkinson has agreed that international
organizations retain the absolute immunity granted when the IOIA was enacted in
29 However, the Third Circuit recently ruled that the FSIA, and its exceptions to
1945.
26 See Mendaro, 717 F.2d at 619.
27 Broadbent , 628 F.2d at 34.
28 Atkinson , 156 F.3d at 1342.
29 See, e.g., In re Dinastia, L.P. , No. 04:07-cv-02501, 381 B.R. 512 (S.D. Tex.
Nov. 8, 2007); Banco de Seguros del Estado v. Int'l Fin. Corp ., Nos. 06 Civ. 2427(LAP),
06 Civ. 3739(LAP), 2007 WL 2746808 (S.D.N.Y. Sept. 20, 2007); Ashford Int'l, Inc. v.
World Bank Group, No. 1:04-CV-3822-JOF, 2006 WL 783357 (N.D. Ga. Mar. 24, 2006);
Atlantic Tele-Network Inc. v. Inter-Am. Dev. Bank , 251 F. Supp. 2d 126 (2003); Bro Tech
Corp. v. European Bank for Reconstruction & Dev., No. CIV.A. 00-2160, 2000 WL
(continued...)
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immunity, applied to international organizations.30 This new interpretation contradicts
the precedent established by Atkinson , and we decline to follow it. Instead, we adopt the
holding of Atkinson and its progeny that the IOIA provides absolute immunity to
international organizations such as the IPHC.31
3. There is no waiver of immunity here.
Since we conclude that international organizations enjoy absolute immunity
from suit, the only way to dissolve such immunity is through an express waiver or
presidential order. "[T]he immunity from employee suits may be waived by the
members of the international organization, or its administrative directors. However,
under national and international law, waivers of immunity must generally be expressly
stated."32 Immunity is not absolute in the sense that it can never be waived, but courts
are hesitant to read waiver into a contract when the intent of the organization is unclear.33
29 (...continued)
1751094 (E.D. Pa. Nov. 29, 2000).
30 See Oss Nokalva, Inc. v. European Space Agency, 617 F.3d 756 (3d Cir.
2010).
31 We add that even if the restrictive immunity of the FSIA applied to
international organizations, we have serious doubts that this employment dispute would
fall under the "commercial activity" exception.
32 Mendaro v. World Bank , 717 F.2d 610, 617 (D.C. Cir. 1983).
33 Courts are generally hesitant to find that a sovereign has waived its
immunity. See C & L Enters., Inc. v. Citizen Band of Potawatomi Indian Tribe of Okla.,
532 U.S. 411, 418 (2001) ("to relinquish its immunity, a tribe's waiver must be
'clear' ");Allen v. Gold Country Casino , 464 F.3d 1044, 1047 (9th Cir. 2006) ("waivers
of tribal sovereign immunity may not be implied"); State Commercial Fisheries Entry
Comm'n v. Carlson, 65 P.3d 851, 874-75 (Alaska 2003) ("waivers of sovereign
immunity imposing monetary liability on the federal or state government must be
(continued...)
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Price argues that IPHC expressly waived its immunity in two provisions of
the Employment Agreement. First, he contends that the statement in Paragraph 12 that
he "shall be entitled to insurance benefits, in accordance with . . . applicable state law"
is a waiver of immunity for claims related to those benefits. Second, he alleges that the
choice of law clause in Paragraph 25 of the Employment Agreement is an express waiver
of immunity for claims arising under the contract.
In some cases, an express arbitration or dispute resolution clause has been
held to constitute a waiver of immunity.34 However, Paragraph 12 is neither a dispute
resolution nor arbitration clause, but rather an explanation of benefits. It explicitly states
that IPHC would provide "Worker's Comp" benefits to "B.C. based employees only,"
in effect putting Price, an employee not based in British Columbia, on notice that he was
not entitled to such benefits. The fact that Paragraph 12 used the words "in accordance
with . . . applicable state law" in the context of discussing benefits does not transform it
into a clause waiving immunity for suits related to these benefits in state court. The
superior court correctly held that even though the provision implied that IPHC should
have had insurance in order to comply with "applicable" state law, it in no way
authorized suit based on a lack of such insurance. Paragraph 12 does not address
immunity and cannot be construed as an express waiver.
33 (...continued)
narrowly interpreted").
34 See, e.g., C & L Enters., Inc., 532 U.S. at 414, 420 (tribe waived immunity
from suits to enforce an arbitral award in state court by signing arbitration clause);
Nenana Fuel Co. v. Native Vill. of Venetie , 834 P.2d 1229, 1232-33 (Alaska 1992)
("remedies on default" clause was waiver of immunity); Native Vill. of Eyak v. GC
Contractors, 658 P.2d 756, 757-58 (Alaska 1983) (arbitration clause in contract was
waiver).
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Price's assertion that Paragraph 25 constitutes an express waiver is similarly
unpersuasive. Paragraph 25 is a choice of law clause, which states that the interpretation
of the contract will be governed by the laws of the State of Washington. Washington
courts have held that a choice of law clause, unlike a choice of forum clause, is not a
waiver of immunity. "To determine whether a particular agreement shows consent, it is
necessary to distinguish between a choice-of-forum clause, on the one hand, and a
choice-of-law clause on the other. A choice-of-forum clause is one in which the parties
agree on a presiding tribunal."35 A choice of law clause, on the other hand, indicates
which jurisdiction's law will govern the interpretation of a contract if litigation ensues.36
It does not indicate an agreement on IPHC's part to subject itself to the jurisdiction of
any court. As the superior court explained, "[t]he choice of law provision would act as
a springing clause, contingent upon a future waiver that might never take place."
Price claims that even if neither provision constitutes an express waiver of
immunity, Paragraph 12 is ambiguous at best and should be further analyzed by the
court. The superior court rejected his argument and we similarly disagree. In the
absence of express waiver, IPHC is immune from suit.
B. Price Was Not Entitled To Further Discovery On Immunity And
Waiver.
Price argues that the superior court should have allowed more discovery on
the immunity and waiver issues. The superior court did permit limited discovery on the
35 Kysar v. Lambert , 887 P.2d 431, 440 (Wash. App. 1995) (citing Carnival
Cruise Lines, Inc. v. Shute, 499 U.S. 585, 587-88 (1991)).
36 See C & L Enters., 532 U.S. at 415, 419 (holding that although arbitration
clause is waiver of immunity, choice of law clause merely dictates which state's law will
govern disputes after arbitration occurs).
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topic of immunity before issuing a judgment on the motion to dismiss.37 As the court
explained when denying Price's motion for reconsideration, "the Court granted
Plaintiff's motion to compel discovery in the form of initial disclosures and specific
documents identified by Plaintiff." After the court granted the motion to dismiss, it
accommodated Price's repeated complaints regarding discovery, but first required a list
of specific documents he sought. After receiving this list, the court denied Price's
request for further discovery, explaining that "the discovery sought would not be likely
to provide information . . . in support of Price's contention that the IPHC waived its
immunity." Price still believes that he was entitled to more discovery on this issue,
particularly regarding how IPHC intended to resolve disputes arising from the
Employment Agreement.
The IOIA states that "[i]nternational organizations, their property and their
assets, wherever located, and by whomsoever held, shall enjoy the same immunity from
suit and every form of judicial process as is enjoyed by foreign governments . . . ."38
IPHC contends that this immunity to all forms of judicial process includes subpoenas and
discovery requests except those that will materially change the court's jurisdictional
analysis. "[I]mmunity, where justly invoked, properly shields defendants not only from
the consequences of litigation's results but also from the burden of defending
themselves."39 Accordingly, "[t]he premises, archives, and communications of
37 Price believes these orders were mischaracterized as limited discovery.
Although he admits that he received access to his personnel records due to the court's
order, he maintains that these documents were insufficient to fulfill the initial disclosures
to which he was entitled under Alaska Civil Rule 26.
38 22 U.S.C. § 288a(b) (2006) (emphasis added).
39 Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (D.C. Cir. 1981) (quoting
(continued...)
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international organizations are shielded from interference by member states . . . ."40
Discovery requests seeking to access these internal documents are shielded under IPHC's
immunity.
Price relies on Tuck v. Pan American Health Organization41 and Polak v.
International Monetary Fund42 to support his assertion that "[w]here jurisdictional issues
are in dispute, a party has a right to limited discovery." Although this premise may be
true, his analysis skews the holdings of these cases. The Tuck court stated in a footnote
that "because the issues often are so intertwined, it may be impossible in some suits to
resolve a claim of immunity without first conducting a limited factual inquiry."43
However, the court went on to say that "[s]uch is not the case here" because the court
had already determined that the international organization being sued was entitled to
immunity under the IOIA.44 Tuck does not support an assertion that a party has a right
to any discovery. Polak involved a situation similar to this case, where the plaintiff
requested a stay of decision in order to conduct limited discovery on the scope of
39 (...continued)
and citing Dombrowski v. Eastland , 387 U.S. 82, 85 (1967)) (internal quotation marks
omitted).
40 Mendaro v. World Bank , 717 F.2d 610, 615 (D.C. Cir. 1983) (citing
RESTATEMENT OF FOREIGN RELATIONS LAW OF THE UNITED STATES (Revised) § 465
(Tentative Draft No. 4, 1983)).
41 668 F.2d 547 (D.C. Cir. 1981).
42 657 F. Supp. 2d 116 (D.D.C. 2009).
43 Tuck, 668 F.2d at 549 n.4 (citing Forsyth v. Kleindienst , 599 F.2d 1203 (3d
Cir. 1979), cert. denied, 453 U.S. 913 (1981)).
44 Id.
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immunity of an international organization.45 The court noted that "limited discovery may
be proper if pertinent facts bearing on the issue of jurisdiction are in dispute," but "the
only pertinent fact bearing on the jurisdictional issue is whether the defendant has . . .
expressly waived its immunity . . . ."46 Instead of limiting his discovery requests to the
existence of such a waiver, the plaintiff wanted "a broad range of information relating
to the defendant's liability in, and immunity from, prior tort claims."47 Therefore, the
court denied the plaintiff's requests for further discovery.
Price did not limit his discovery requests to documents regarding immunity
and waiver, but he also wanted information on IPHC's intended dispute resolution
process, IPHC's other employment contracts, IPHC's payroll information, IPHC's
attempts to obtain workers' compensation in other forums, and other litigation involving
IPHC. The superior court did not err in holding that Price's discovery requests were too
broad and were not designed to lead to information on the immunity issue. IPHC
emphasizes that Price was not entitled to any further discovery on the jurisdictional issue
unless the information found could materially change the court's analysis.48 This rule
holds true even under a FSIA analysis.49 The information sought by Price about IPHC's
45 Polak , 657 F. Supp. 2d at 121-22.
46 Id. at 122 (quoting Osseiran v. Int'l Fin. Corp., 498 F. Supp. 2d 139, 145
n.2 (D.D.C. 2009)) (internal quotation marks omitted).
47 Id.
48 See Blackburn v. United States, 100 F.3d 1426, 1436 (9th Cir. 1996)
(Plaintiff "does not show how allowing additional discovery would have precluded
summary judgment. Therefore, the district court did not abuse its discretion in limiting
the scope and length of discovery.").
49 See Peterson v. Islamic Republic of Iran, 563 F. Supp. 2d 268, 274 (D.D.C.
(continued...)
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grievance mechanisms and dispute resolution procedures are not relevant to whether it
waived its immunity here. Since further discovery would not have changed the superior
court's immunity analysis, it was properly denied by the superior court.
C. The Superior Court Did Not Err In Awarding Attorney's Fees
Pursuant To Civil Rule 82.50
Price argues that the attorney's fees awarded to IPHC are excessive and
unreasonable under the circumstances. He maintains that the superior court should have
required IPHC to provide him with the basis for its fee claim and allowed him an
opportunity to respond. This requested information was subsequently provided, but
Price contends that the amount awarded still does not accurately reflect the costs of
litigation because it is disproportional to his own costs and IPHC should not be rewarded
for "wrongfully resisting minimal discovery and charging depositions that it did not even
attend." Price's legal fees totaled $31,473.50. IPHC claims that it incurred $111,988.50
in attorney's fees and requested that it be awarded 30% of those fees due to the extensive
49 (...continued)
2008) ("Requests for jurisdictional discovery should be granted only if the plaintiff
presents non-conclusory allegations that, if supplemented with additional information,
will materially affect the court's analysis with regard to the applicability of the FSIA."
(quoting El-Fadl v. Cent. Bank of Jordan , 75 F.3d 668, 671 (D.C. Cir. 1996))) (internal
quotation marks omitted).
50 We note that different rules govern attorney's fees in workers'
compensation cases. See AS 23.30.145(regarding fee awards by the Alaska Workers'
Compensation Board); AS 23.30.008(d) (regarding fee awards by the Alaska Workers'
Compensation Appeals Commission); and Alaska R. App. P. 508(g) (regarding fee
awards in appeals from the Alaska Workers' Compensation Appeals Commission). This
is not a workers' compensation case - after determining that IPHC had not secured
workers' compensation insurance for his employment, Price brought an action at law for
IPHC's negligent failure to maintain a safe workplace. See AS 23.30.055 (providing that
if an employer fails to secure payment of workers' compensation, employee may elect
to claim workers' compensation or file an action at law for damages).
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motion practice in this case. "That practice included the submission of no less than
eighteen memoranda of law citing to over 80 cases as well as attendance at oral argument
requested by plaintiff."
Alaska Civil Rule 82(a) commands that "the prevailing party in a civil case
shall be awarded attorney's fees . . . ." IPHC was the prevailing party in this litigation
since it was found immune from suit. Rule 82(b)(2) explains that "[i]n cases in which
the prevailing party recovers no money judgment, the court shall award . . . the
prevailing party in a case resolved without trial 20 percent of its actual attorney's fees
which were necessarily incurred." No money judgment was rendered here because IPHC
was excused from the litigation before trial, so it should presumptively receive 20% of
its fees. Rule 82(b)(3) lists factors that may justify a court's deviation from the 20%
formula, including complexity of the litigation, reasonableness of the attorney's hourly
rates, reasonableness of claims, and bad conduct. The superior court found none of these
factors present and used the default 20% formula despite requests by IPHC to raise the
proportion to 30% and requests by Price to lower it to 10%.
The superior court found that IPHC had incurred $78,213 of necessary legal
fees and awarded 20% of that amount, $15,642.40. This award took into account the
extensive motion practice in this case, which spanned well over one year. The superior
court removed "unreasonable costs" incurred by IPHC in its calculation, such as those
incurred after IPHC's motion to dismiss was granted and those incurred by IPHC in
opposing the petition for review before this court. This argument over attorney's fees
is indicative of the extensive motion practice that occurred throughout this case. The
superior court made its decision after considering IPHC's original motion for attorney's
fees and costs, Price's opposition to this motion, and IPHC's reply in support of the
motion for fees as well as supplemental supporting documents and declarations. Price
then filed a motion for reconsideration and IPHC responded. The court then denied the
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motion for reconsideration stating that the "fact alone [that IPHC incurred higher fees]
does not mean the party who incurred greater fees did so unreasonably." We find no
evidence that the superior court abused its discretion in calculating attorney's fees nor
is the award unreasonable, arbitrary, or capricious.
V. CONCLUSION
Because the International Pacific Halibut Commission is an international
organization that enjoys absolute immunity from suit and it did not waive its immunity,
we AFFIRM the superior court in all respects.
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