UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

EL PASO DIVISION 

FREE AND SOVEREIGN STATE OF 

CHIHUAHUA, 

Plaintiff, 

v. 

CESAR HORACIO DUARTE JAQUEZ, 

BERTHA OLGA GOMEZ FONG, 

OLGA SOFIA DUARTE GOMEZ, 

OLGA DUARTE JAQUEZ 

CESAR ADRIAN DUARTE GOMEZ, 

CAD CONSTRUCTION, INC., 

GABRIELA ARMENDARIZ 

CHAPARRO, MANUEL ALBERTO 

GARZA, 44 FOUNTAIN RD., LLC, AND 

110 S. FESTIVAL, LLC., 

Defendants. 

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 EP-20-CV-00086-DCG

MEMORANDUM OPINION AND ORDER 

 Presently before the Court is Plaintiff Free and Sovereign State of Chihuahua’s (“State of 

Chihuahua”) “Motion to Remand” (ECF No. 7) (“Motion”), filed on April 29, 2020. Therein, 

the State of Chihuahua requests the Court to remand the instant case to the state court pursuant to 

28 U.S.C. § 1447(c). For the reasons that follow, the Court GRANTS the State of Chihuahua’s 

Motion. 

I. BACKGROUND 

The State of Chihuahua, a foreign sovereign state and political subdivision of Mexico, 

initially brought this civil lawsuit in a Texas state court against its former governor, Cesar Duarte 

Jaquez (“Duarte”), his wife, two children, his sister, and other entities and associates 

(collectively, “Defendants”). Notice of Removal at 15, ECF No. 1. According to the complaint, 

Duarte fled to the United States after Mexico indicted him with more than 21 counts of 

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corruption and fraud for plundering hundreds of millions of dollars in government funds during 

his tenure as governor of the State of Chihuahua. Id. at 16. Specifically, the complaint alleges 

that Duarte conspired with his family and associates to abscond with these stolen government 

funds, which were then used to make investments and purchase luxury homes and cars in the 

United States. Id. Thus, the State of Chihuahua filed this lawsuit seeking to recoup these funds 

from Duarte and those who acted in concert with him, and to recover any assets purchased with 

these funds. Id.

Defendants subsequently removed to federal court on the basis of federal jurisdiction. Id.

at 1. Defendants contend that this Court has subject matter jurisdiction over this suit because, 

although all of the State of Chihuahua’s claims against them are rooted in state law, these claims 

raise substantial questions of federal law by implicating foreign policy concerns. Id. at 4–5. The 

State of Chihuahua now moves to remand on the ground that no federal question jurisdiction 

exists. Mot. at 2–3, ECF No. 7.1

II. STANDARD 

 “Only state-court actions that originally could have been filed in federal court may be 

removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 

(1987). “Absent diversity jurisdiction [under 28 U.S.C. § 1332], federal-question jurisdiction is 

required.” Id. “A federal question exists ‘only in those cases in which a well-pleaded complaint 

establishes that either federal law creates the cause of action or that the plaintiff’s right to relief 

necessarily depends on resolution of a substantial question of federal law.’” Singh v. Duane 

1

 While this motion was pending, on July 8, 2020, Duarte was arrested by the U.S. Marshals in 

Miami on an extradition request from the Mexican government to the U.S. Department of Justice. 

Associated Press, Cesar Duarte, ex-governor of Chihuahua arrested in Miami on extradition request, 

(July 8, 2020 8:41 PM), https://www.elpasotimes.com/story/news/crime/2020/07/08/cesar-duarte-formerchihuahua-governor-arrested-miami-extradition/5403484002/. 

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Morris LLP, 538 F.3d 334, 337 (5th Cir. 2008) (quoting Franchise Tax Bd. v. Constr. Laborers 

Vacation Tr., 463 U.S. 1, 27–28 (1983)); Torres v. S. Peru Copper Corp., 113 F.3d 540, 542 (5th 

Cir. 1997). 

As such, cases premised on state-law claims “may still arise under the laws of the United 

States if a well-pleaded complaint establishe[s] that [the] right to relief under state law requires 

resolution of a substantial question of federal law in dispute between the parties.” Franchise Tax 

Bd., 463 U.S. at 13. In other words, “federal jurisdiction is unavailable unless it appears that 

some substantial, disputed question of federal law is a necessary element of one of the wellpleaded state claims.” Id. Nevertheless, “[f]ederal jurisdiction cannot be predicated on an actual 

or anticipated defense[.]” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). For that reason, 

“[t]he [well-pleaded complaint] rule makes the plaintiff the master of the claim; he or she may 

avoid federal jurisdiction by exclusive reliance on state law.” Williams, 482 U.S. at 392. 

Under 28 U.S.C. § 1447(c), if a federal district court determines “at any time before final 

judgment . . . that [it] lacks subject matter jurisdiction, the case shall be remanded.” The 

removing parties “bear[] the burden of establishing that federal jurisdiction [exists].” De Aguilar 

v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995); see also In re Tobacco/Govtl. Health Care 

Costs Litig., 100 F. Supp. 2d 31, 35 (D.D.C. 2000) (“[T]he party moving to remand does not 

have the burden; the burden is on the removing defendants to show that federal jurisdiction exists 

and that the motion for remand should be denied.”). Federal courts strictly construe the removal 

statutes, “and any doubt about the propriety of removal must be resolved in favor of remand.” 

Gasch v. Hartford Acc. & Indent. Co., 491 F.3d 278, 281–82 (5th Cir. 2007). 

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III. DISCUSSION 

 The claims that the State of Chihuahua asserts here are unquestionably rooted in state 

law. Notice of Removal at 19–21 (asserting claims of conversion, constructive trust, civil 

conspiracy, and claims under the Texas Theft Liability Act and Texas Penal Code §31.03(e)(7)). 

None of the claims has an element premised on a right created by Congress or the Constitution. 

But Defendants contend that the Court has federal jurisdiction over these state-law claims 

because they turn on substantial questions of federal law. According to Defendants, these statelaw claims implicate important concerns for United States foreign relations, including: (1) the act 

of state doctrine; (2) foreign official immunity; and (3) the federal common law of foreign 

relations. Id. The Court now addresses these arguments in that order. 

A. Act of State. 

Defendants argue that the State of Chihuahua’s claims “necessarily raise issues under the 

[act of state] doctrine because they require consideration of the State of Chihuahua’s ‘official’ 

actions during . . . Duarte’s tenure [as governor of the state].” Resp. in Opp’n at 9, ECF No. 10. 

Further, Defendants argue that these state-law claims implicate the act of state doctrine because 

they “arise from conduct that occurred in a foreign state pursuant to the exercise of foreign 

authority.” Notice of Removal at 6. Upon scrutinizing the record, the Court concludes that no 

act of state issue is present as a necessary element to resolve any of the State of Chihuahua’s 

state-law claims. 

The act of state doctrine “limits, for prudential rather than jurisdictional reasons, the 

adjudication in American courts of the validity of a foreign sovereign’s public acts.” Walter 

Fuller Aircraft Sales, Inc. v. Republic of Phil., 965 F.2d 1375, 1387 (5th Cir. 1992). “The 

doctrine applies to bar an action when ‘the relief sought or the defense interposed would have 

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required a court in the United States to declare invalid the official act of a foreign sovereign 

performed within its own territory.’” Id. (quoting W.S. Kirkpatrick & Co., Inc. v. Envt’l 

Tectonics Corp., Int’l, 493 U.S. 400, 405 (1990)). Thus, “[a]ct of state issues only arise when a 

court must decide—that is, when the outcome of the case turns upon—the effect of official 

action by a foreign sovereign. When that question is not in the case, neither is the act of state 

doctrine.” W. S. Kirkpatrick, 493 U.S. at 406. 

Here, the act of state doctrine has no bearing in this case. First, the act of state doctrine 

typically applies upon a contested intrusion by a court in the United States into the sovereignty of 

a foreign government within its own territory. See, e.g., Banco Nacional de Cuba v. Sabbatino, 

376 U.S. 398, 439 (1964) (“Since the act of state doctrine proscribes a challenge to the validity 

of the Cuban expropriation decree in this case, any counterclaim based on asserted invalidity 

must fail.”); Underhill v. Hernandez, 168 U.S. 250, 252 (1897) (refusing to adjudicate an action 

against Hernandez, a revolutionary Venezuelan military commander whose government had 

been later recognized by the United States, brought by an American citizen who claimed that he 

had been unlawfully assaulted, coerced, and detained in Venezuela by Hernandez). Yet here, it 

is the foreign sovereign itself which willingly subjects itself to the judicial process and laws of a 

state in the United States by seeking a remedy through adjudication in a court of the same. 

Further, this foreign sovereign alleges that Defendants committed torts in violation of the laws of 

the State of Texas, which is also the situs of the property involved in this case. Additionally, the 

act of state doctrine is not applicable merely because a foreign sovereign is a party to a lawsuit. 

See Torres, 113 F.3d at 542–43 (“That Peru has injected itself into this lawsuit does not, standing 

alone, create a question of federal law.”). 

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Second, the state-law claims in the complaint do not appear to precipitate a determination 

of the validity of any foreign sovereign act. Put differently, nowhere in its complaint does the 

State of Chihuahua interject a federal issue in this case by seeking to employ the Texas state 

court to enforce one of its sovereign acts taken within its own territory. In the parallel case of 

Republic of Phil. v. Marcos, 806 F.2d 344 (2d Cir. 1986) [hereinafter, Marcos I], the foreign 

government brought an action in a New York state court against its former head of state to 

recoup property that he allegedly looted during his tenure as head of state. Before removal to the 

federal court, the President of the Republic of the Philippines issued an executive order 

authorizing the Commission on Good Government to appeal to foreign countries to freeze the 

defendants’ assets abroad. This order, the Second Circuit noted, “contributed heavily to 

interjecting a federal issue into the case sufficient to confer federal question subject matter 

jurisdiction.” Id. at 347. The Second Circuit reasoned that “federal jurisdiction [was] present in 

any event because the claim raise[d], as a necessary element, the question whether . . . the 

American courts [should] enforce the foreign government’s directives to freeze property . . . .” 

Id. at 354. But here, unlike in Marcos I, the state-law claims in the complaint are not premised 

on the enforcement of some sovereign act either from the State of Chihuahua or the Mexican 

government. No such foreign sovereign act, executive order, or directive exists here. 

And third, most importantly, the act of state doctrine does not apply to Duarte’s alleged 

acts for private financial benefit “purported to be done in the name of the foreign sovereign.” 

New York Land Co. v. Republic of Phil., 634 F. Supp. 279, 289 (S.D.N.Y. 1986), aff'd sub nom. 

Republic of Phil. v. Marcos, 806 F.2d 344 (2d Cir. 1986). Defendants attempt to interject the act 

of state doctrine by arguing that the state-law claims in the complaint raise issues of acts of state 

because “they require consideration of the State of Chihuahua’s ‘official’ actions during 

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[Duarte’s] tenure, i.e., whether contracts were properly awarded to certain vendors.” Resp. in 

Opp’n at 9; see, e.g., Grynberg Prod. Corp. v. British Gas, p.l.c., 817 F. Supp. 1338, 1357–58 

(E.D. Tex. 1993) (finding that the asserted state-law claims raised a federal question because 

they implicated the act of state doctrine by challenging the validity of a foreign government 

award of mineral rights in its own territory). 

 “The major underpinning of the act of state doctrine is the policy of foreclosing court 

adjudications involving the legality of acts of foreign states on their own soil that might 

embarrass the Executive Branch of our Government in the conduct of our foreign relations.” 

Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 697 (1976) (citing Sabbatino, 

376 U.S. at 427–428, 431–433). But the act of state doctrine “is not a promise to the ruler of any 

foreign country that his conduct, if challenged by his own country after his fall, may not become 

the subject of scrutiny in our courts.” Republic of the Phil. v. Marcos, 862 F.2d 1355, 1360 (9th 

Cir. 1988) (en banc) [hereinafter, Marcos II]. The doctrine does not guarantee immunity to an 

ex-chief magistrate that invokes the magic words “act of state” to cover his or her past 

performance because “[t]he doctrine is meant to facilitate the foreign relations of the United 

States, not to furnish the equivalent of sovereign immunity to a deposed leader.” Id. at 1360–61. 

Put plainly, the doctrine generally does not protect foreign officials from adjudication as to their 

acts for personal profit “that do not purport to be done in the name of the foreign sovereign.” 

New York Land Co., 634 F. Supp. at 289; see also Jimenez v. Aristeguieta, 311 F.2d 547, 557–58 

(5th Cir. 1962) (“Appellant’s acts constituting the financial crimes of embezzlement or 

malversation, fraud or breach of trust, and receiving money or valuable securities knowing them 

to have been unlawfully obtained as to which probable cause of guilt had been shown were not 

acts of Venezuela sovereignty.”). 

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As such, none of the foreign policy justifications that warrant a federal forum insofar as 

they relate to the act of state doctrine are present here. This Court has received no statement of 

interest or other indication, either from our political branches or from the Mexican government, 

that U.S.-Mexico foreign relations would be hindered or affected by judicial consideration of 

these state-law claims in state court. Cf. Torres, 113 F.3d at 542 (“The state of Peru has 

protested the lawsuit by filing a letter with the State Department and by submitting an amicus 

brief to this court. Peru maintains that the litigation implicates some of its most vital interests 

and, hence, will affect its relations with the United States.”); Grynberg, 817 F. Supp. at 1356-57 

(“Further evidence of substantiality is the fact that the Government of the Republic of 

Kazakhstan has taken the time and effort to write this court with respect to this case. Kazakhstan 

demands that any resolution of Grynberg's rights to mineral interests in the Karachaganak Field 

take place in Kazakhstan.”). If anything, the record strongly suggests that U.S.-Mexico foreign 

relations are not at stake because it is the foreign sovereign itself which has affirmatively chosen 

adjudication in Texas state court, not federal court—and in fact, resists such a forum. 

Duarte is also not the State of Chihuahua’s head of state anymore. Indeed, Duarte’s 

“former domain has turned against him and seeks the recovery of what it claims he has stolen.” 

Marcos II, 862 F.2d at 1361. Moreover, Duarte was not an “absolute autocrat” or the “state” 

itself, “but the head of state, bound by the laws that applied to him.” Id. Duarte cannot inject a 

federal question into this case merely by invoking the act of state doctrine as a former head of a 

foreign sovereign, especially when that foreign sovereign now asserts that there is no danger of 

interfering with the conduct of foreign policy or of the adjudication in state court giving offense 

to it. In short, Duarte cannot invoke the act of state doctrine to cover alleged tortious conduct 

under Texas law because “[t]he doctrine is meant to facilitate the foreign relations of the United 

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States, not to furnish the equivalent of sovereign immunity to a [former] leader.” Id. at 1360–61. 

Therefore, the act of state doctrine has no bearing in this case. 

B. Foreign Official Immunity. 

Defendants next argue that the State of Chihuahua’s state-law claims “necessarily 

implicate the foreign official immunity doctrine [because] . . . [c]ourts must apply the foreign 

official immunity doctrine when the claims in the complaint arise from acts taken by foreign 

officials in their official capacity.” Notice of Removal at 6 (citing Samantar v. Yousuf, 560 U.S. 

305, 325 (2010) [hereinafter, Samantar I]). According to Defendants, since the state-law claims 

arise from Duarte’s “official acts” during his tenure as governor, they argue that the “claims 

necessarily require a federal court to adjudicate the federal question of . . . Duarte’s entitlement 

to foreign official immunity.” Id. After reviewing the record, the Court concludes that foreign 

official immunity is also not present as a necessary element to resolve any of the State of 

Chihuahua’s state-law claims. 

The doctrine of foreign sovereign immunity developed as a matter of common law long 

before the Foreign Sovereign Immunities Act (“FSIA”) was enacted in 1976. Samantar I, 560 

U.S. at 311. The case of Schooner Exchange v. McFaddon, 7 Cranch 116 (1812), is generally 

viewed as the source of foreign sovereign immunity in the United States. Republic of Austria v. 

Altmann, 541 U.S. 677, 688 (2004). In that case, the Supreme Court explained that foreign 

sovereign immunity was a matter of comity between nations because members of the 

international community had implicitly agreed to waive the exercise of jurisdiction over other 

sovereigns in certain classes of cases, such as those involving foreign ministers or the person of 

the sovereign. Id. (citing McFaddon, 7 Cranch at 134). 

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Under the common law, courts applied a two-step procedure to address claims of foreign 

sovereign immunity. Samantar I, 560 U.S. at 311. Under this procedure, the diplomatic 

representative of the sovereign could request a suggestion of immunity (“SOI”) from the U.S. 

State Department, which would then file an SOI with the court if it saw fit. Id. (citations 

omitted). The court would then surrender its jurisdiction because a grant of immunity from the 

State Department was binding. Id. (citations omitted). But if the State Department did not 

recognize immunity in its filing or did not file anything after the request, a court went to the 

second step and “had authority to decide for itself whether all the requisites for such immunity 

existed.” Id. at 311–12 (citations omitted). In making that decision, a district court inquired 

whether the ground of immunity was one which it was the established policy of the State 

Department to recognize. Id. at 312 (citations omitted). “Although cases involving individual 

foreign officials as defendants were rare, the same two-step procedure was typically followed 

when a foreign official asserted immunity.” Id.

In 1952, State Department policy dictated that foreign sovereign immunity was confined 

to suits involving the foreign nation's public acts, not a nation’s purely commercial acts. Id. at 

313. This policy threw immunity determinations into disarray after a series of inconsistent 

applications in the lower courts, prompting Congress to respond by enacting the FSIA in 1976. 

Id. As it stands today, the FSIA provides foreign states presumptive immunity with some 

exceptions, including one for purely commercial acts. Id.; Altmann, 541 U.S. at 691. But in 

2010, the Supreme Court concluded in Samantar v. Yousuf, 560 U.S. 305 (2010), that the FSIA 

does not provide immunity to individual foreign officials, who must instead rely on traditional 

common-law immunity that predated the FSIA. Samantar I, 560 U.S. at 324. Thus, to date, the 

common law procedure still applies to foreign officials claiming immunity. 

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In this case, no indication in the record exists to suggest that foreign official immunity is 

even at issue. After Samantar I, foreign officials claiming immunity must still follow the twostep common law procedure, which includes requesting an SOI from the State Department. See 

Abiola v. Abubakar, 267 F. Supp. 2d 907, 912 (N.D. Ill. 2003), aff'd and remanded, 408 F.3d 877 

(7th Cir. 2005) (“Because the FSIA does not apply to heads of state, the pre-1976 suggestion of 

immunity procedure survives the statute’s enactment with respect to heads of state.”). However, 

the record contains no indication that Duarte has made any effort to request an SOI directly from 

the State Department, or to contact the Mexican government to request one on his behalf.2

 Cf. 

Lewis v. Mutond, 918 F.3d 142, 146 (D.C. Cir. 2019), cert. denied, 19-185, 2020 WL 3492651 

(U.S. June 29, 2020) (“On August 9, 2016, the DRC Ambassador to the United States sent a 

letter to the United States Department of State denying Plaintiff’s allegations and requesting that 

the State Department submit a suggestion of immunity to the court. This request was reiterated 

in a December 13, 2016 follow-up letter. However, the State Department did not accede to the 

plea of the DRC, and never issued a request that the District Court surrender its jurisdiction.”); 

Dogan v. Barak, 932 F.3d 888, 891 (9th Cir. 2019) (“In December 2015, Israel asked the U.S. 

Department of State to file a[n] . . .[SOI] on behalf of Barak.”); Yousuf v. Samantar, 699 F.3d 

763, 767 (4th Cir. 2012) [hereinafter, Samantar II] (“The United States submitted to the district 

court a[n] [SOI] announcing that the Department of State, having considered ‘the potential 

impact of such an immunity decision on the foreign relations interests of the United States,’ . . . 

had determined that Samantar was not entitled to immunity from plaintiffs’ lawsuit.”); 

Habyarimana v. Kagame, 821 F. Supp. 2d 1244, 1258 (W.D. Okla. 2011), aff'd, 696 F.3d 1029 

2

 If anything, in view of Duarte’s recent arrest on an extradition request, it is doubtful that either 

the State Department would file an SOI on Duarte’s behalf or the Mexican government would request one 

for him. 

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(10th Cir. 2012) “([T]he government of the Republic of Rwanda transmitted to the U.S. 

Government a request for the State Department to submit to this Court a statement of interest in 

the claims underlying this lawsuit, or a suggestion of immunity regarding President Kagame.”); 

Doe v. Roman Catholic Diocese of Galveston-Houston, 408 F. Supp. 2d 272, 279 (S.D. Tex. 

2005) (“In this case, the United States, through its Suggestion of Immunity and letter from the 

Department of State Legal Adviser, has explicitly requested that Cardinal Ratzinger, now Pope 

Benedict XVI and the head of the Holy See, be dismissed from this lawsuit on the basis of headof-state immunity.”). 

Although Defendants need not request an SOI to make a showing that foreign official 

immunity is at issue in this case, case law from other courts suggests that they could have made 

this showing, at the very least, through statements of interest or other filings from the foreign 

government from which Duarte would have derived his foreign immunity. See, e.g., Victory 

Transport Inc. v. Comisaria Gen. de Abastecimientos y Transportes, 336 F.2d 354, 358 (2d Cir. 

1964) (addressing the issue of foreign official immunity despite the fact that “the court ha[d] 

received no communication from the State Department concerning [its] immunity” because the 

Spanish Ambassador to the United States had written a letter to the court claiming immunity for 

the Comisaria General); In re Terrorist Attacks on September 11, 2001, 122 F. Supp. 3d 181, 

187–89 (S.D.N.Y. 2015) (“Neither Al–Swailem nor Saudi Arabia has sought a suggestion of 

immunity from the State Department, and the Executive Branch has not indicated a desire to 

weigh in. . . . [But] the Saudi government, through its Ambassador, has requested that this Court 

grant common law sovereign immunity to Al–Swailem, and has declared that all alleged actions 

were taken by Al–Swailem in his official capacity as head of the SRC and the SJRC.”); Rishikof 

v. Mortada, 70 F. Supp. 3d 8, 10–12 (D.D.C. 2014) (addressing the issue of foreign official 

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immunity because the Swiss Confederation, a co-defendant, conceded that Mortada was one of 

its employees, despite the fact that “there [was] no indication that Mortada or the Swiss 

Confederation requested a suggestion of immunity from the State Department.”). Yet, the record 

here is devoid of any such statements of interests or filings. 

Further, the Court declines to hold that any defendant can freely invoke foreign official 

immunity, with neither a showing that they attempted to obtain an SOI, or a statement of interest 

or filing from the foreign sovereign from which the immunity would derive, to obtain federal 

question jurisdiction. Such a holding would open the floodgates to federal court for any 

defendant with some minimal connection to a foreign sovereign in any state-law matter. See Doe 

1 v. Buratai, 318 F. Supp. 3d 218, 231 (D.D.C. 2018), aff'd, 18-7170, 2019 WL 668339 (D.C. 

Cir. Feb. 15, 2019), and aff'd sub nom. Doe v. Buratai, 792 F. App’x. 6 (D.C. Cir. 2019) 

(“Significant, high-level ‘decision-making authority is not ... required’ for immunity and . . . the 

rank of the agent who performed the act [is] not the determining factor.”) (quoting Rishikof, 70 

F. Supp. 3d at 13). Under such holding, while a federal court may ultimately determine that 

immunity has no bearing in the case after removal, the court would still have to entertain the 

merits of the remaining non-federal claims before it out of judicial efficiency and economy. See 

28 U.S.C.A. § 1367 (“In any civil action of which the district courts have original jurisdiction, 

the district courts shall have supplemental jurisdiction over all other claims that are so related to 

claims in the action within such original jurisdiction that they form part of the same case or 

controversy under Article III of the United States Constitution.”). Hence, any defendant could 

easily protract the litigation by frivolously asking the presiding court to determine whether 

foreign official immunity is at issue before it addresses the merits of any remaining non-federal 

claims. Therefore, the Court concludes that Defendants cannot simply inject a federal issue by 

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hastily implicating foreign official immunity with neither a showing that they attempted to obtain 

an SOI for Duarte, or at the very least, a statement of interest or filing from the foreign sovereign 

from which the immunity would derive. 

Moreover, by bringing this civil lawsuit, the State of Chihuahua has already preempted 

Duarte from raising foreign official immunity because it has waived any immunity Duarte could 

have possibly asserted. Foreign official immunity is not an individual right but an “attribute of 

state sovereignty,” a privilege that can be revoked by the foreign state from which it derives. In 

re Doe, 860 F.2d 40, 45 (2d Cir. 1988); see also Paul v. Avril, 812 F. Supp. 207, 211 (S.D. Fla. 

1993) (“Immunity is a grant in a sense awarded at the sovereign's discretion.”). Thus, it logically 

follows that whatever immunity may survive for a former head of state may be waived by the 

current government of the foreign sovereign. Id. Some courts have found that “[s]uch waiver 

must be explicit.” Lafontant v. Aristide, 844 F. Supp. 128, 134 (E.D.N.Y. 1994) (citing Libra 

Bank Ltd. v. Banco Nacional de Costa Rica, 676 F.2d 47, 49 (2d Cir. 1982)). 

Here, Duarte is the former head of state of the State of Chihuahua. Thus, any foreign 

official immunity Duarte could raise before a court in the United States would derive exclusively 

from the State of Chihuahua, not from the federal Mexican government. See Omari v. Ras Al 

Khaimah Free Trade Zone Auth., 16 CIV. 3895 (NRB), 2017 WL 3896399, at *10 (S.D.N.Y. 

Aug. 18, 2017), aff'd sub nom. El Omari v. Kreab (USA) Inc., 735 F. App’x. 30 (2d Cir. 2018) 

(finding that defendant, the former head of a political subdivision of his foreign country, could 

not derive immunity from his foreign country’s government). From the record, the State of 

Chihuahua has evidently waived Duarte’s foreign official immunity by bringing this civil lawsuit 

against him for acts outside the scope of his authority as governor of the state and arguing 

against Duarte’s bid for immunity. Hilao v. Estate of Marcos (In re Est. of Ferdinand Marcos, 

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Human Rights Litig.), 25 F.3d 1467, 1472 (9th Cir. 1994) (“Immunity is extended to an 

individual only when acting on behalf of the state because actions against those individuals are 

the practical equivalent of a suit against the sovereign directly.”); Samantar II, 699 F.3d at 774–

75 (“A foreign official or former head-of-state will therefore not be able to assert this immunity 

for private acts that are not arguably attributable to the state, such as drug possession or fraud.”). 

In effect, while it has not filed a “waiver” stating that it “has hereby waived Cesar 

Duarte’s foreign official immunity,” the State of Chihuahua has explicitly waived any immunity 

Duarte could have raised by asserting that (1) it has indicted Duarte with more than 21 counts of 

corruption and fraud; (2) it repudiates any of Duarte’s private acts that he purportedly performed 

within the scope of his duty as an official; and (3) “Defendants cannot now seek the shelter of the 

same state which expressly disavows the former administration and seeks the recovery of its 

stolen assets.” Mot. at 11; In re Est. of Ferdinand Marcos, Human Rights Litig., 25 F.3d at 1472 

(“A lawsuit against a foreign official acting outside the scope of his authority does not implicate 

any of the foreign diplomatic concerns involved in bringing suit against another government in 

United States courts. This is evidenced by the Philippine government's agreement that the suit 

against Marcos proceed.”). Therefore, foreign official immunity is not at issue in this case. 

C. Federal Common Law of Foreign Relations. 

Defendants finally argue that the state-law claims in the complaint arise under “the 

federal common law of foreign relations because they involve a [foreign sovereign] state suing 

its former governor for conduct occurring within its own borders pursuant to the exercise of 

official authority.” Notice of Removal at 7 (citing Marcos I, 806 F.2d at 354). Also, Defendants 

assert that the fact “that a foreign sovereign is the plaintiff in this case is all the more reason to 

conclude that the case has serious implications for U.S.-Mexico relations.” Resp. in Opp’n. at 

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13. Hence, Defendants contend that “[b]ecause such claims ‘raise substantial questions of 

federal common law by implicating important foreign policy concerns,’ they are properly 

removed to federal court.” Notice of Removal at 7 (quoting Torres, 113 F.3d at 543). After due 

consideration, the Court concludes that this case does not arise under the federal common law of 

foreign relations. 

In Torres v. Southern Peru Copper Co., 113 F.3d 540 (5th Cir. 1997), the Fifth Circuit 

held that “a complaint raises substantial questions of federal common law” when it implicates 

“important foreign policy concerns.” Torres, 113 F.3d at 543. In that case, more than 700 

Peruvian plaintiffs sued a Peruvian mining company in Texas state court, “seeking damages for 

activities and policies in which the [Peruvian] government actively ha[d] been engag[ing].” Id.

at 541–43. The Peruvian government “protested the lawsuit by filing a letter with the State 

Department and by submitting an amicus brief to [the] court.” Id. at 542. The Fifth Circuit 

found federal question jurisdiction grounded on the federal common law of foreign relations 

because the action struck “not only at [Peru’s] vital economic interests but also at Peru’s 

sovereign interests.” Id. at 543. However, the Fifth Circuit noted that Peru’s opposition to the 

suit alone did not create a question of federal law, but rather its “vigorousness in opposing the 

action” which alerted the court to important foreign policy implications. Id.; see also Pacheco 

de Perez v. AT&T Co., 139 F.3d 1368, 1377 (11th Cir. 1998) (noting that federal question 

jurisdiction exists in cases “[w]here a state law action has as a substantial element an issue 

involving foreign relations or foreign policy matters.”).

But the Fifth Circuit has subsequently clarified that “[f]ederal jurisdiction based on the 

[federal] common law of foreign relations is limited in scope,” and “federal jurisdiction does not 

attach to every suit that involves foreign nationals.” Espinola-E v. Coahoma Chem. Co., 248 

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F.3d 1138, 2001 WL 85834, at *1 (5th Cir. 2001) (citing Marathon Oil Co. v. Ruhrgas, A.G., 

115 F.3d 315, 320 (5th Cir. 1997), rev'd on other grounds sub nom. Ruhrgas AG v. Marathon Oil 

Co., 526 U.S. 574 (1999); Aquafaith Shipping, Ltd. v. Jarillas, 963 F.2d 806, 808 (5th Cir. 

1992)); see also Delgado v. Shell Oil Co., 890 F. Supp. 1324, 1348 (S.D. Tex. 1995), aff'd, 231 

F.3d 165 (5th Cir. 2000) (“[N]ot every claim implicating the international law of foreign 

relations will give rise to federal question jurisdiction.”); Unión De Pasteurizadores De Juárez 

Sociedad Anónima De Capital Variable v. Fuentes, EP-16-CV-137-KC, 2016 WL 3512272, at 

*3 (W.D. Tex. June 21, 2016) (same). 

Here, none of the state-law claims in the complaint involve the federal common law of 

foreign relations because they do not implicate any foreign relations concerns or foreign policy 

matters. The fact that the State of Chihuahua is a named party in the case does not alone 

implicate foreign relations concerns to warrant a finding of federal jurisdiction—especially when 

this foreign sovereign is the plaintiff that affirmatively seeks to adjudicate its state-law claims in 

state court. Torres, 113 F.3d at 542–43. Moreover, as already discussed in detail supra, none of 

the State of Chihuahua’s state-law claims involve issues of act of state or foreign official 

immunity. Defendants also fail to identify any other uniquely federal or substantial foreign 

policy interests that justify a federal forum, either from the State of Chihuahua or the Mexican 

government. Instead, they only superficially discuss Mexico’s “sovereign interests and foreign 

relations” in a footnote. Resp. in Opp’n at 14 n.3. 

 But above all, neither our political branches nor the Mexican government have protested 

against this lawsuit as the Peruvian government did in Torres. Defendants point out that, 

throughout this year, the State of Chihuahua has released official pubic statements related to this 

lawsuit, which “confirms that this case raises political issues that implicate important federal 

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foreign relations considerations.” Resp. in Opp’n at 10 n.2.3

 Surely, if this assertion is true, why 

has neither the State Department nor the Mexican government intervened or filed anything in this 

case since its filing on February 19, 2020? See 28 U.S.C.A. § 517 (“The Solicitor General, or 

any officer of the Department of Justice, may be sent by the Attorney General to any State or 

district in the United States to attend to the interests of the United States in a suit pending in a 

court of the United States, or in a court of a State, or to attend to any other interest of the United 

States.”). 

Neither have our political branches, the Mexican government, nor the State of Chihuahua 

expressed that they find the litigation of this case in state court offensive. Indeed, the opposite is 

true: the State of Chihuahua, as “master of its claims”, affirmatively seeks to avoid and resists a 

federal forum for its state-law claims. Williams, 482 U.S. at 392. The State of Chihuahua’s 

conduct strongly indicates that it requests the state court to treat it like any other private plaintiff 

that might have been wronged by a defendant’s tortious conduct. “To the extent that the federal 

common law of foreign relations is premised on the notion that the federal courts must protect 

foreign sovereigns from diverse decisions by state courts, such protection ought not to be 

provided when it is not sought—and in fact is resisted—by foreign sovereigns, as is the case 

here.” In re Tobacco/Govtl. Health Care Costs Litig., 100 F. Supp. 2d at 37. “Indeed, to the 

3

 Defendants’ footnote includes citations for some these official public statements: 

See, e.g., Chihuahua, Gobierno del Estado (“State Government”), Dará Chihuahua batalla 

jurídica por bienes de César Duarte en Estados Unidos (“Chihuahua will give legal battle 

for César Duarte's assets in the United States”) (Jan. 17, 2020), 

http://www.chihuahua.gob.mx/contenidos/dara-chihuahua-batalla-juridica-por-bienes-decesar-duarte-en-estadosunidos; Argelia Dominguez, Con Demanda Estado Busca 

Recuperar 50 Propiedades A Nombre De Duarte Y Prestanombres (“State Seeks To 

Recover 50 Properties In The Name Of Duarte And Strawman via Lawsuit”) (Apr. 7, 

2020), https://entrelineas.com.mx/local/con-demanda-estado-busca-recuperar-50-

propiedades-a-nombre-de-duartey- prestanombres/. 

Resp. in Opp’n at 10 n.2. 

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extent that the tortious conduct alleged occurred in Texas[,] . . . [the] state[] possess[es] [its] own 

strong domestic interests in adjudicating this lawsuit.” Id. 

To be sure, this lawsuit may raise issues requiring the application of foreign law, either 

from the State of Chihuahua or Mexico. But application of such foreign law does not by itself 

present federal question jurisdiction, nor are state courts precluded from applying foreign law. 

Delgado v. Zaragoza, 267 F. Supp. 3d 892, 899 (W.D. Tex. 2016) (citing Fuentes, 2016 WL 

3512272, at *6). “Our courts have had no difficulty in distinguishing the legal acts of a [former] 

ruler from his acts for personal profit that lack a basis in law.” Marcos II, 862 F.2d at 1361. 

And finally, contrary to Defendants’ claim, this type of cases—namely, “a civil case 

where a foreign sovereign accused a former government official of misconduct during his tenure 

as an official”—has not been decided exclusively and without exception by federal courts. Resp. 

in Opp’n at 4. In fact, as to the act of state doctrine, the Court found at least in one post-Marcos 

I case in which a state court—ironically, in New York—applied federal common law and 

determined that the act of state doctrine did not preclude a foreign government’s action rooted in 

state law against its former head of state. See Republic of Haiti v. Duvalier, 211 A.D.2d 379, 

382–83 (N.Y. App. Div. 1st Dept. 1995) (“The issues remaining on this appeal then are whether 

plaintiff Haiti's conversion claim may be adjudicated in the courts of this state, and if so, whether 

Haiti has established its claim prima facie such that summary judgment is warranted. It is the 

opinion of this court that these questions be answered in the affirmative.”).4

 And as to foreign 

4

 In that case, the New York state court considered the applicability of the act of state doctrine 

because “the United States [had taken] an official stance in support of the Republic of Haiti’s position in 

[that] lawsuit. In a Statement of Interest filed in [that] action, the United States asserted that it ha[d] “a 

substantial foreign policy interest . . . in assisting the Haitian government in recovering its assets.” 

Duvalier, 211 A.D.2d at 382–83. Even with “a substantial foreign policy interest” justifying a federal 

forum, the state court went on to apply federal common law and determine whether the doctrine applied. 

In comparison, as discussed supra, no such “substantial foreign policy interest” justifying a federal forum 

is present in the instant case. 

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official immunity, the Court found at least one case in which a New Jersey state court applied 

federal common law to determine whether the defendants were entitled to foreign official 

immunity. Ben-Haim v. Edri, 183 A.3d 252, 257 (N.J. Super. App. Div. 2018) (affirming the

lower court’s dismissal because the State Department’s SOI granting immunity to defendants, all 

foreign officials, was binding on the state court). Accordingly, even if the act of state doctrine or 

foreign official immunity were at issue in this case, it stands to reason that, just like the New 

York and New Jersey state courts did in those cases, a Texas state court can also apply federal 

common law and determine any related issues. 

Therefore, the Court concludes that the State of Chihuahua’s claims do not turn on 

substantial questions of federal law, that it lacks subject matter jurisdiction, and thus, that this 

lawsuit must be remanded to the state court 

IV. CONCLUSION 

IT IS THEREFORE ORDERED that Plaintiff Free and Sovereign State of Chihuahua’s 

“Motion to Remand” (ECF No. 7) is GRANTED.

IT IS FURTHER ORDERED that the instant action is REMANDED to the District 

Court of the 448th Judicial District, sitting in El Paso County, Texas.

IT IS FURTHER ORDERED that the Clerk of the Court shall MAIL a certified copy 

of this Order to the District Clerk of El Paso County, Texas.

 IT IS MOREOVER ORDERED that all pending motions, if any, are DENIED AS 

MOOT.

IT IS FINALLY ORDERED that the Clerk of the Court shall CLOSE this case. 

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So ORDERED and SIGNED this 14th day of July 2020.

____________________________________ 

DAVID C. GUADERRAMA 

UNITED STATES DISTRICT JUDGE

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