[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

Nos. 13-13877 & 14-12543

________________________

D.C. Docket No. 1:13-cv-20544-KMM

ARCHITECTURAL INGENIERIA SIGLO XXI, LLC,

a Florida limited liability company,

SUN LAND & RGITC LLC,

a Florida limited liability company

f.k.a. Sun Land RGITC, Co.,

Plaintiffs–Appellees,

versus

DOMINICAN REPUBLIC,

a foreign state,

INSTITUTO NACIONAL DE RECURSOS HIDRAULICOS,

a foreign government agency,

Defendants–Appellants.

________________________

Appeals from the United States District Court

for the Southern District of Florida

________________________

(June 10, 2015)

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Before HULL and DUBINA, Circuit Judges, and BOWEN,* District Judge.

DUBINA, Circuit Judge: 

These appeals arise from an action brought by two Florida companies 

against a foreign nation and one of its instrumentalities under the Foreign 

Sovereign Immunities Act, 28 U.S.C. §§ 1602–1611. Plaintiffs Sun Land & 

RGITC LLC and Architectural Ingenieria Siglo XXI, LLC sued Defendants 

Dominican Republic and INDRHI1 for breach of contract and unjust enrichment 

related to an irrigation project in the Dominican Republic.2

 Because the 

Dominican Republic and INDRHI did not timely answer the complaint, the district 

court entered a default judgment in favor of Sun Land and Architectural, awarding 

damages that cumulatively exceeded $50 million.

Eight days after the entry of the default judgment, the Dominican Republic 

and INDRHI entered an appearance; and ten days thereafter, they moved to vacate 

the default judgment for excusable neglect under Federal Rule of Civil Procedure 

60(b)(1). The district court denied their motion, and they timely appealed. While 

that appeal was pending, the Dominican Republic moved to vacate the default 

judgment for voidness under Rule 60(b)(4). On reconsideration, the district court 

 * Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District 

of Georgia, sitting by designation.

1 INDRHI is an acronym for Instituto Nacional de Recursos Hidráulicos, the National 

Institute for Hydraulic Resources.

2 It is undisputed that each Defendant is a “foreign state” under the FSIA. The

Dominican Republic is a foreign nation, and INDRHI is a governmental agency under the 

executive branch of the Dominican Republic responsible for the planning, operation and 

construction of water-works projects in that nation. See 28 U.S.C. § 1603(a)–(b).

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denied the motion on the merits, finding that the foreign nation had waived its 

sovereign immunity. The Dominican Republic timely appealed that ruling as well. 

We consolidated both appeals and now reverse the district court’s orders on the 

Defendants’ Rule 60(b) motions.

I.

Sun Land and Architectural’s breach-of-contract action is based on several

documents, which they collectively refer to as “the Contract.” Because whether 

the district court had subject-matter jurisdiction over the claims against the 

Dominican Republic depends on the nature and content of these documents, we 

begin with an overview of their key terms.

A.

In 2000, INDRHI proposed the construction of an irrigation project in the 

Dominican Province of Azua. This project, commonly referred to as Azua II, was

intended to provide irrigation to an area totaling 3000 hectares. INDRHI and STP3

(the Technical Secretary) invited contractors to bid on the project. Each bid had to 

be for a turnkey project that, among other things, provided for the financing 

necessary to complete the project. To arrange the financing component of its bid, 

Architectural asked Sun Land to participate. Ultimately, its $51.8 million bid for 

the Azua II project was the winning bid.

 3 STP is the acronym for Secretario Tecnico de la Presidencia de la República 

Dominicana, or Technical Secretary of the Presidency of the Dominican Republic. This position 

was later renamed and is currently referred to as the Ministerio de Economía, Planificación y 

Desarrollo, or Ministry for Economy, Planning, and Development. The Technical Secretary is 

not a party to this action.

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B.

In November 2001, the President of the Dominican Republic issued Special 

Power 691-01, authorizing the Technical Secretary and INDRHI—“in the name 

and representation of the Dominican State”—to enter into two agreements 

regarding the Azua II project: (1) a financing agreement with the Florida Export 

Finance Corporation and other commercial banks, with the guarantee of the 

Export–Import Bank of the United States, to obtain the funds needed to complete 

Azua II; and (2) a commercial agreement with Architectural to provide the services 

needed to complete the Azua II project.

C.

In February 2002,4 INDRHI, the Technical Secretary, and Sun Land entered 

into a purchase agreement. Under this agreement, INDRHI agreed to buy the 

“Products” (e.g., the raw materials) and the “Services” (e.g., civil engineering, 

architectural designs, and supervision) needed for the Azua II project from Sun 

Land. To fund this purchase, the Technical Secretary agreed to obtain financing 

through Sun Land, an authorized agent of the Export–Import Bank. In return, 

INDRHI and the Technical Secretary agreed to pay Sun Land the total purchase 

price of $51.8 million, an amount that was “guaranteed with the full faith and 

credit of the Dominican Government.”

Several other provisions of the purchase agreement are relevant here.

 4 While the Technical Secretary and Sun Land executed the purchase agreement in 

December 2001, INDRHI did not do so until February 2002.

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First, the purchase agreement made plain that the Technical Secretary had 

been “empowered by the Executive to sign [that agreement] with the Full Faith and 

Credit of the Government on behalf of the country.”

Second, Sun Land had “an absolute right to subcontract” any of its 

obligations or duties under the purchase agreement; and INDRHI and the 

Technical Secretary “agree[d] to execute any additional documentation [Sun 

Land] . . . may deem necessary to effectuate the terms and conditions of this 

agreement.”

Third, INDRHI and the Technical Secretary “acknowledge[d] and agree[d]” 

that they were not entitled to “immunity on the grounds of sovereignty or 

otherwise” because the activities contemplated by the purchase agreement were 

“commercial in nature rather than governmental or public.” INDRHI and the 

Technical Secretary—“in respect to themselves”—then “expressly and irrevocably 

waive[d] any such right of immunity.”

Fourth, the parties submitted to the jurisdiction of the federal court sitting in 

Miami, Florida for any action “arising out of or relating to this agreement or notes 

or any of the transactions contemplated thereby.”

Fifth, the parties agreed that Florida law would govern the construction and 

enforcement of the purchase agreement.

Sixth, INDRHI and the Technical Secretary “designate[d], appoint[ed] and 

empower[ed]” the Dominican Ambassador or any Dominican Consul to receive 

service of process on their behalf. They also agreed that service of process could 

be made personally or by mailing or delivering a copy of the summons and 

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complaint to the Dominican Ambassador, any Dominican Consul, or the address 

listed in the purchase agreement.

Once executed, the purchase agreement was submitted for legislative 

approval. In November 2002, the Dominican National Congress passed a 

resolution approving the purchase agreement, which the legislature described as a 

document executed by “the Dominican State, represented by the Technical 

Secretary of the Presidency . . . and [INDRHI]” under Special Power 691-01.5

D.

In March 2002, INDRHI and Architectural entered into Contract 10375 for 

the studies, design, and construction of the Azua II project. According to the 

preamble—“an integral part of” Contract 10375—the Technical Secretary had 

instructed INDRHI “to serve as the executing entity” for the Azua II project. Also, 

as both its preamble and articles made clear, Contract 10375 had been entered into 

and was to be performed in accordance with the purchase agreement.

Under Contract 10375, INDRHI did not submit to U.S. jurisdiction, agree to 

a special arrangement for service of process, or explicitly waive its sovereign 

immunity. Instead, the parties submitted to jurisdiction in the courts of Santo 

Domingo, agreed that Dominican law governed the agreement, and provided that 

certain disputes should be arbitrated in the Dominican Republic.

 5 In their complaint and brief on appeal, Sun Land and Architectural reference a 

certification of the Dominican Senate’s July 2002 approval of the purchase agreement, treating 

this certification as distinct from the November 2002 National Congress resolution. Given that 

the National Congress resolution is a bicameral action, it is unclear whether the Senate’s 

approval is actually distinct.

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Contract 10375 was ultimately replaced with a more comprehensive 

document and thus is not part of what Sun Land and Architectural call “the 

Contract.” As a result, Sun Land and Architectural do not allege that the 

Dominican Republic or INDRHI breached Contract 10375. Even so, this 

document remains relevant here because several documents that are part of the 

Contract explicitly incorporate Contract 10375’s terms.

E.

In February 2004, INDRHI, Sun Land, and Architectural executed the 

protocol for the execution of the purchase agreement. The protocol explicitly 

superseded Contract 10375 and set forth each party’s responsibilities regarding the 

Azua II project, including the construction and payment procedures. After 

acknowledging that “there [we]re several Agreements that relate[d] to and [we]re 

material to the construction and financing” of the Azua II project, the parties 

expressly provided that the terms of the purchase agreement trumped any 

conflicting terms in the protocol.

The protocol, like the purchase agreement, included several additional 

provisions that are relevant here.

First, INDRHI “acknowledge[d] and agree[d]” that it was not entitled to 

“immunity on the grounds of sovereignty or otherwise . . . in any legal proceeding 

arising out of or relating to THE PROTOCOL” because the activities 

contemplated by the protocol were “commercial in nature rather than governmental 

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or public.” INDRHI then “expressly and irrevocably waive[d] any such right of 

immunity.”

Second, the parties submitted to the jurisdiction of the federal court sitting in 

Miami, Florida for any action “arising out of or relating to this PROTOCOL or 

any of the transactions contemplated thereby.”

Third, the parties agreed that Florida law would govern the construction and 

enforcement of the protocol.

Fourth, INDRHI “designate[d], appoint[ed] and empower[ed]” the 

Dominican Ambassador or any Dominican Consul to receive service of process on 

its behalf. It also agreed that service of process could be made personally or by 

mailing or delivering a copy of the summons and complaint to INDRHI “in care of 

its agent designated above.”

With the purchase agreement and the protocol in place, work on the Azua II 

project was ready to begin.

F.

In March 2004, Architectural received word from INDRHI to begin the 

Azua II project, and it did so. Over the next 30 months, Architectural worked on 

the irrigation project as INDRHI directed, which included complying with its 

numerous orders to cease all work as well as its countermands to recommence.

In March 2006, INDRHI sent a letter to Architectural approving an itemized 

list of the “Components of Works in New Contract” that updated and expanded the 

scope of the Azua II project. Sun Land and Architectural have characterized this 

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letter at least three different ways: (1) in their complaint, they called it “an 

Agreement”; (2) in their motion for default judgment, they referred to it as “a 

[N]ew Contract”; and (3) in their brief on appeal, they define it as “the 

‘Amendment.’” Here, we refer to this document as “the Amendment.”

With the addition of the components referenced in “the Amendment,” the 

total cost of the Azua II project ballooned to $106.1 million. Once financing for 

this expansion was secured in June 2007, INDRHI instructed Architectural to 

begin working on the project again.

G.

In November 2007, INDRHI and Architectural entered into the first of three 

addenda. The first addendum covered structural repairs to sections of the Yaque 

del Sur-Azua Canal, a system of water pathways in the geographic region of the 

Azua II project. The total cost of this work was $63.4 million Dominican pesos. 

After Architectural performed part of the work contemplated by this addendum, it 

presented INDRHI with an invoice for $40.1 million Dominican pesos, which was 

paid in full.

In January 2008, INDRHI and Architectural entered into the second 

addendum to repair sections of the Yaque del Sur-Azua Canal damaged by 

Tropical Storm Noel. Architectural performed the work contemplated by this 

addendum and presented INDRHI with an invoice for $44.5 million Dominican 

pesos, which was paid in full.

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Finally, in July 2008, INDRHI and Architectural entered into the third 

addendum to repair sections of the Yaque del Sur-Azua Canal damaged by 

Tropical Storm Olga. After Architectural performed the work contemplated by the 

addendum, it submitted a partial invoice to INDRHI for $55.1 million Dominican 

pesos, which was paid in part. INDRHI still owes $18.4 million Dominican pesos 

on this invoice.

Each addendum purported to modify the terms of Contract 10375 between 

INDRHI and Architectural. For example, the third addendum provided, “All other 

remaining Articles of Contract 10375 that have not been modified remain in full 

effect, the same as the Documents of the Contract that are not modified by effect of 

the present Addendum.” That addendum also provided that it would “not have to 

be ratified by any other party, due to the fact that the necessary funds involved in 

[the addendum] will come directly from the Dominican state.” None of the 

addenda expressly refer to either the purchase agreement or the protocol.

According to Sun Land and Architectural’s complaint, the purchase 

agreement, the protocol, and the three addenda comprise “the Contract.” On 

appeal, as in the district court, they also contend that “the Amendment” is part of 

the Contract.

H.

In October 2008, INDRHI sent a letter to the legal counsel for the 

Dominican Executive Branch. In this letter, the agency described Architectural’s 

performance as “satisfactory, fully complying with their obligations as principal 

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contractor, despite the lack of payment of several invoices.” The agency also 

noted that Sun Land’s work had been “executed without any problems.”

Even so, in February and June 2009 as well as in October 2010, INDRHI 

sent Sun Land and Architectural correspondence attempting to terminate their 

work under the protocol and the first and third addenda. In 2011, a Brazilian 

company was hired to complete the Azua II project.

II.

In February 2013, Sun Land and Architectural filed this action against the 

Dominican Republic and INDRHI. The next day, service of the original 

summonses and complaint was made on the Office of the Consulate General of the 

Dominican Republic in Miami, Florida. These documents were received by an 

“auxiliary consul,” a person performing clerical duties at the consulate, who then 

delivered them to Gina Lacayo, “the assistant” to the Miami Consul General. This 

assistant position is a secretarial position, and there is no evidence that Lacayo had 

any management duties at the Miami consulate. Indeed, at the time of service, 

Lacayo had served in this secretarial capacity for only three months, though she 

had been an auxiliary consul (a clerical position) for nearly 12 years before taking 

this job.

After receiving these documents, Lacayo contacted Ramon Burgos, a 

Dominican lawyer in Santo Domingo, who worked as an assistant legal counsel to 

the Dominican government. According to her declaration, she did so to confirm 

her understanding that the Miami consulate was not authorized to accept service of 

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process. Without reading the complaint herself or providing Burgos a copy to 

review (and apparently he never asked to see the complaint), Lacayo explained to 

Burgos that the Miami consulate had mistakenly received legal documents naming 

the Dominican Republic as a defendant in a U.S. legal action. Burgos then 

confirmed her understanding that under both Dominican law and the Vienna 

Convention, the Miami consulate should not have received or accepted service for 

a lawsuit against the Dominican Republic.

Having confirmed her understanding, Lacayo called Sun Land and 

Architectural’s counsel to explain that the Miami consulate was not authorized to 

accept service of process. During this call, Plaintiffs’ counsel explained that the 

Miami consulate could accept service in this case because it was contractually 

authorized to do so. But Lacayo disagreed. Given her conversation with Burgos 

and the Miami consulate’s longstanding policy against accepting service of 

process, she suggested that Plaintiffs’ counsel send these documents to the 

Dominican Embassy in Washington, D.C.

In early April, Sun Land and Architectural mailed the Dominican 

Ambassador in Washington a certified letter that included copies of the summonses 

and complaint and emailed him a copy of that letter without attaching a copy of the 

complaint;6 a copy of this letter was also sent to the Miami consulate. When 

 6 According to the Dominican Republic and INDRHI, the Dominican Embassy has no 

record that it received either the letter or the email. The district court did not resolve this factual 

dispute in ruling on the Defendants’ Rule 60(b)(1) motion. Rather, the district court relied only 

on the receipt of the complaint and service papers by a secretary in the Dominican Republic’s 

Miami consulate.

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Lacayo received this letter, she again called Plaintiffs’ counsel to notify him that 

the Miami consulate was not authorized to receive service of process for the 

Dominican Republic and to request that he stop sending legal documents to the 

Miami consulate. According to counsel’s affidavit, Lacayo “advised that there 

would be no response because the Defendants had not been properly served, and 

told me to read the Vienna Convention.” Lacayo, in contrast, explained in her 

declaration that she “never said that the government of the Dominican Republic 

would not be taking any action in response to the Complaint and Summons. I was 

not then, and I am not now[,] authorized to speak on behalf of the government of 

the Dominican Republic.” In any event, Lacayo said that in light of the April 

letter, it was her understanding that the Embassy was handling this matter.

In mid-April, the clerk of the district court entered default and mailed a copy 

to the Miami consulate. Sun Land and Architectural moved for a default judgment 

a month later. A process server delivered copies of this motion to the Miami 

consulate. Although Lacayo received them, because she believed that the Embassy 

was handling this matter, she simply filed the motion. Sun Land and Architectural 

also assert that they sent copies of this motion to INDRHI and the Dominican 

Republic Ministry of Economy, Planning, and Development (formerly known as 

the Technical Secretary) by Federal Express.

In June, four months after Lacayo, the Miami Consul General’s secretary,

first received service of process, the district court entered a default judgment 

against the Dominican Republic and INDRHI, and they were served with a copy of 

this judgment at the Miami consulate and by Federal Express in the Dominican 

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Republic. Eight days later, they entered an appearance; and ten days thereafter, 

they moved to vacate the default judgment for excusable neglect under Rule 

60(b)(1). The district court denied their motion, finding that they had not 

established a good reason for failing to respond to the complaint. The Dominican 

Republic and INDRHI timely appealed.

While that appeal was pending, the Dominican Republic moved to vacate 

the default judgment for voidness under Rule 60(b)(4). On reconsideration, the 

district court denied the motion on the merits, finding that the foreign nation had 

waived its sovereign immunity. The Dominican Republic timely appealed that 

ruling as well. We consolidated both appeals.

III.

Several standards of review govern these appeals. We review jurisdictional 

questions de novo, Beg v. Islamic Republic of Pakistan, 353 F.3d 1323, 1324 (11th 

Cir. 2003), and the district court’s factual findings for clear error, Aquamar, S.A. v. 

Del Monte Fresh Produce, 179 F.3d 1279, 1290 (11th Cir. 1999).

We review the district court’s ruling on a Rule 60(b)(4) motion to set aside 

default judgment for voidness de novo. Stansell v. Revolutionary Armed Forces of 

Colom., 771 F.3d 713, 736 (11th Cir. 2014). “A judgment can be set aside for 

voidness where the court lacked jurisdiction or where the movant was denied due 

process.” Id. “Voidness for purposes of a 60(b)(4) motion contemplates lack of 

jurisdiction or defects in due process that deprive a party of notice or an 

opportunity to be heard.” Id. at 737.

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We review the district court’s denial of a Rule 60(b)(1) motion to set aside a 

default judgment for excusable neglect for an abuse of discretion. Valdez v. 

Feltman (In re Worldwide Web Sys., Inc.), 328 F.3d 1291, 1295 (11th Cir. 2001). 

An abuse of discretion occurs where the district court misapplies the law or bases 

its conclusions on clearly erroneous factual findings. Broadcast Music, Inc. v. 

Evie’s Tavern Ellenton, Inc., 772 F.3d 1254, 1257 (11th Cir. 2014).

IV.

On appeal, the Dominican Republic challenges whether the district court had 

subject-matter jurisdiction over all or part of Sun Land and Architectural’s breachof-contract claim.

A.

The FSIA is the sole “basis for obtaining jurisdiction over a foreign state,” 

Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 109 S. Ct. 

683, 693 (1989), because this Act endows a foreign state with presumptive 

immunity to suits in U.S. courts unless a statutory exception applies, Saudi Arabia 

v. Nelson, 507 U.S. 349, 355, 113 S. Ct. 1471, 1476 (1993); see 28 U.S.C. §§ 1604, 

1605(a). To determine whether subject-matter jurisdiction under the FSIA exists, a 

court looks at the plaintiff’s allegations and any undisputed facts that the parties 

have put forward. Butler v. Sukhoi Co., 579 F.3d 1307, 1313 (11th Cir. 2009). 

Once the plaintiff shows that a statutory exception to the FSIA applies, “the burden 

then shifts to the defendant to prove, by a preponderance of the evidence, that the 

plaintiff’s claims do not fall within that exception.” Id.

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For purposes of the FSIA, a foreign state expressly waives its right to 

immunity only where its intent to do so is clear and unambiguous. Aquamar, 179 

F.3d at 1292; accord World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 

F.3d 1154, 1162 (D.C. Cir. 2002). And as a general rule, “explicit waivers of 

sovereign immunity are narrowly construed ‘in favor of the sovereign’ and are not 

enlarged ‘beyond what the language requires.’” World Wide Minerals, 296 F.3d at 

1162 (quoting Library of Cong. v. Shaw, 478 U.S. 310, 318, 106 S. Ct. 2957, 2963 

(1986)).

The FSIA also recognizes that a foreign state may waive its sovereign 

immunity implicitly, but the Act itself does not define implicit waiver. See 

§ 1605(a)(1). We have recognized that implicit waiver is a narrow exception that 

generally applies only if “the foreign state reveals its intent to waive its immunity 

by: (1) agreeing to arbitration in another country, (2) agreeing that the law of a 

particular country should govern a contract, or (3) filing a responsive pleading in 

an action without raising the defense of sovereign immunity.” Calzadilla v. Banco 

Latino Internacional, 413 F.3d 1285, 1287 (11th Cir. 2005).

Here, Sun Land and Architectural alleged that the district court had subjectmatter jurisdiction over their claims against the Dominican Republic based on its 

express and implied waivers of immunity in “the [C]ontract (herein later described 

as the [Protocol], Purchase Agreement, and addenda and amendments thereto)” as 

well as its commercial activity within the United States or its extraterritorial 

commercial activity that had a direct effect within the United States. See 

§ 1605(a)(1)–(2).

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Because Sun Land and Architectural sought to invoke the jurisdiction of the 

U.S. courts to enter a judgment on their claims against the Dominican Republic, 

they had to present a prima facie case that jurisdiction existed.7

 Butler, 579 F.3d at 

1313. “Where, as here, the party asserting immunity under the FSIA does not 

contest the alleged jurisdictional facts, but rather, challenges their legal adequacy, 

we review de novo the complaint’s jurisdictional allegations to determine whether 

they were sufficient to eliminate the appellants’ presumptive immunity.” Id.

B.

The district court concluded that all of the documents comprising what Sun 

Land and Architectural call “the Contract” constituted “one overall agreement” and 

that the waivers of sovereign immunity in the purchase agreement and the protocol 

thus applied to each document.8

 This conclusion was warranted, the court 

reasoned, because this collection of documents “all relate[d] to each other and 

include[d] numerous statements that INDRHI and the Technical Secretary of the 

President signed and executed the agreements in the name of and as a 

representative of Defendant Dominican Republic.” Doc. 56 at 4. Additionally, the 

court concluded that “Defendant Dominican Republic is interchangeable as a party 

 7 Here, the Dominican Republic’s status as a “foreign state” within the meaning of the 

FSIA was uncontested; otherwise, the Dominican Republic would first have had to present a 

prima facie case that it was entitled to immunity under the Act. See Butler, 579 F.3d at 1313 n.8.

8 Although the district court’s order states that all of the documents attached to the 

complaint constitute “one overall agreement,” Sun Land and Architectural’s allegations do not 

go this far. As a result, we construe the court’s statement so that it reaches only those documents 

attached to the complaint that they contend on appeal comprise the Contract: the purchase 

agreement, the protocol, the three addenda, and “the Amendment.”

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to the agreements wherever INDRHI or the Technical Secretary of the President 

are Parties.” Id. at 5. Consequently, the court concluded that the Dominican 

Republic was subject to its jurisdiction under the FSIA for its alleged breach of the 

purchase agreement, the protocol, the addenda, and “the Amendment” because of 

the foreign nation’s waivers of sovereign immunity. Based on our review of the 

record, however, we cannot fully agree.

1.

The Azua II project began with Sun Land and Architectural’s $51.8 million 

winning bid—a bid that accounted for the financing, design, and construction of 

the 3000 hectare irrigation project. As a result, the documents (and amendments 

thereto) executed to bring this project to fruition should be read together. See

Restatement (Second) of Contracts § 202(b) (“[A]ll writings that are part of the 

same transaction are interpreted together.”). This is true even though the parties to 

these documents were not the same because “the writings form part of a single 

transaction and are designed to effectuate the same purpose.” 11 Williston on 

Contracts § 30:26 (4th ed. West 2015). And it is true even though these 

agreements were executed on different dates, given “the fact that they were made 

on different occasions [is] insignificant if they are related to and were part of the 

same transaction.” Id.; accord J.M. Montgomery Roofing Co. v. Fred Howland, 

Inc., 98 So. 2d 484, 486 (Fla. 1957) (“[I]nstruments entered into on different days 

but concerning the same subject matter, may under some circumstances be 

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regarded as one contract and interpreted together.” (quoting 7 Florida 

Jurisprudence: Contracts § 78)).

So while the purchase agreement and the protocol were executed on separate 

dates and involved different parties, we conclude from the record that they are part 

of the same transaction—the Azua II project—as both were essential to bringing 

that project to fruition. The same however cannot be said for the three addenda 

and “the Amendment” that were entered into after work began on the Azua II 

project.

The three addenda were executed by INDRHI and Architectural and 

explicitly incorporated the terms of Contract 10375. Despite this, Architectural 

contends that they were amendments to the protocol. We disagree for two reasons.

First, the protocol provided that any amendments could occur only with the 

written consent of all parties. Because Sun Land was a party to the protocol but 

not these addenda, the addenda were not properly executed amendments of the 

protocol.

Second, “where a writing expressly refers to and sufficiently describes 

another document, that other document, or so much of it as is referred to, is to be 

interpreted as part of the writing.” OBS Co. v. Pace Constr. Corp., 558 So. 2d 404, 

406 (Fla. 1990).9

 This rule applies here because INDRHI and Architectural clearly 

 9 See also 11 Williston on Contracts § 30:25 (“As long as the contract makes clear 

reference to the document and describes it in such terms that its identity may be ascertained 

beyond doubt, the parties to a contract may incorporate contractual terms by reference to a 

separate, noncontemporaneous document, including a separate agreement to which they are not 

parties, and including a separate document which is unsigned.” (footnotes omitted)).

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and unambiguously incorporated the terms of Contract 10375 into each addendum. 

Having done so, we must glean the parties’ intent from the four corners of these 

documents. Crawford v. Barker, 64 So. 3d 1246, 1255 (Fla. 2011). After all, the 

best evidence of intent is the contract’s own language, and its plain meaning 

controls. Id.

INDRHI and Architectural chose to incorporate Contract 10375’s terms, 

rather than those of the protocol, into each addendum. And they did so even 

though Contract 10375 was expressly superseded by the protocol more than three 

and a half years before the first addendum was executed. Although the repair work 

contemplated by each addendum was similar in kind to that performed as part of 

the Azua II project, the work under each addendum was not directly related to the 

Azua II project. Nor were the payment terms the same: work related to the Azua II 

project was to be paid for in U.S. dollars, but work under each addendum was to be 

paid for in Dominican pesos. For these reasons, we cannot conclude on the current 

record that the three addenda should be interpreted together with the purchase 

agreement and the protocol—documents that they never explicitly reference—nor 

can we conclude that the addenda amended the protocol.

“The Amendment” fares no better. In their complaint, Sun Land and 

Architectural allege that “the parties” executed “an Agreement” (which they refer 

to as “the Amendment” on appeal) in March 2006 to “update and define” the scope 

of the Azua II project. To substantiate their allegation, they attached a copy of this 

document to their complaint. But after reviewing it, we are unpersuaded that it 

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constitutes an amendment of either the purchase agreement or the protocol, the 

documents memorializing the Azua II project.

For starters, this document is signed only by INDRHI, not “the parties” as 

Sun Land and Architectural alleged. So this document was not a properly executed 

amendment of either the purchase agreement or the protocol. Next, the document 

itself contained no terms or obligations, nor did it incorporate the terms of any 

other contract. On its face, “the Amendment” is thus neither an amendment of a 

document that relates to the Azua II project nor a stand-alone agreement. 

Consequently, based solely on our review of “the Amendment,”10 we cannot 

conclude that the scope of the Azua II project was indeed extended in March 2006.

In sum, our review of the record persuades us that the only documents 

attached to the complaint that relate to the Azua II project are the purchase 

agreement and the protocol. Because the damages awarded via default judgment 

were partially based on the three addenda and “the Amendment,” we hold that the 

district court erred by denying the Dominican Republic’s Rule 60(b)(4) motion and 

thus must reverse the default judgment entered against the foreign nation. See 

Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001) (“[A] judgment is void under 

Rule 60(b)(4) if the court that rendered it lacked jurisdiction of the subject 

matter.”).

 10 Because “the Amendment” contradicts Sun Land and Architectural’s allegation, this 

allegation is not entitled to a presumption of veracity. See Crenshaw v. Lister, 556 F.3d 1283, 

1292 (11th Cir. 2009) (“It is the law in this Circuit that ‘when the exhibits contradict the general 

and conclusory allegations of the pleading, the exhibits govern.’” (quoting Griffin Indus., Inc. v. 

Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007))).

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Even so, the larger question remains: whether the Dominican Republic has 

any amenability to suit in U.S. courts in this action. In a word, yes.

2.

Here, because at least one statutory exception to the FSIA applies, the 

Dominican Republic is amenable to the jurisdiction of U.S. courts. See 28 U.S.C. 

§§ 1604, 1605(a); Saudi Arabia, 507 U.S. at 355, 113 S. Ct. at 1476. 

The Dominican Republic is a party to the purchase agreement. The 

Technical Secretary signed the purchase agreement and did so after having been 

“empowered by the Executive to sign [that agreement] with the Full Faith and 

Credit of the Government on behalf of the country.” Indeed, nothing in the record 

suggests that the Technical Secretary (now the Minister of Economy, Planning, and 

Development) is not simply one of many actors through which the Dominican 

Republic carries out its sovereign affairs. Cf. First Fid. Bank, N.A. v. Gov’t of 

Antigua & Barbuda—Permanent Mission, 877 F.2d 189, 192 (2d Cir. 1989) 

(“Normally, of course, a state authorizes a representative to act on its behalf.”). In 

other words, like most foreign ministers, the Technical Secretary is simply “part of 

the sovereign itself.” Garb v. Republic of Poland, 440 F.3d 579, 595 (2d Cir. 

2006) (quoting Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 152 

(D.C. Cir. 1994)); see also S & Davis Int’l, Inc. v. The Republic of Yemen, 218 

F.3d 1292, 1298 (11th Cir. 2000) (treating the Yemini Ministry of Supply & Trade 

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as “admittedly” a political subdivision of the Republic of Yemen). Thus, the 

Dominican Republic is bound by the purchase agreement’s terms.11

The Dominican Republic waived its sovereign immunity in the purchase 

agreement. As recounted above, the purchase agreement contains both a clear and 

unambiguous explicit waiver of sovereign immunity and an implicit waiver of 

sovereign immunity (i.e., a provision providing that Florida law governs the 

agreement). See Aquamar, 179 F.2d at 1292; Calzadilla, 413 F.3d at 1287. Hence, 

only one question remains: what is the scope of the waiver?

According to the Dominican Republic, the purchase agreement’s waiver of 

sovereign immunity extends only to future loans, not the construction project 

around which Sun Land and Architectural’s complaint is built. We disagree.

The purchase agreement’s waiver provision sweeps broadly. The parties to 

that agreement—which includes the Dominican Republic—submitted to the 

jurisdiction of the federal court sitting in Miami, Florida for any action “arising out 

of or relating to this agreement or notes or any of the transactions contemplated 

 11 In its reply brief, the Dominican Republic contends that nothing in the record supports 

Sun Land and Architectural’s statements that the Technical Secretary is not an agency or 

instrumentality of the Dominican Republic and that the Technical Secretary is simply part of the 

Dominican Republic. We disagree. First, to the extent that the Dominican Republic argues that 

the Technical Secretary and the Dominican Republic are separate juridical entities, the foreign 

nation waived this argument by not raising it in its opening brief. See Sapuppo v. Allstate 

Floridian Ins. Co., 739 F.3d 678, 682–83 (11th Cir. 2014). Second, even if the Dominican 

Republic has not fully waived its argument, the fact remains that foreign ministers are generally 

presumed to be part of the sovereign they represent. After all, sovereigns, like other entities, 

must act through agents. And while the burden of showing that the presumption of separateness 

has been overcome ultimately falls on the plaintiff, “the initial burden of presenting a prima facie

case that [the entity in question] is a foreign state” under the FSIA falls on the defendant. See 

Butler, 579 F.3d at 1313.

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thereby.” Purchase Agreement art. 23 (emphasis added). The design and 

construction of the Azua II project were transactions contemplated by the purchase 

agreement—indeed, they were part of the “Services” that Sun Land agreed to 

provide and the Technical Secretary and INDRHI agreed to pay for under that 

agreement. We thus conclude that the purchase agreement’s waiver of sovereign 

immunity is not limited to future loans but rather reaches the construction project 

at the heart of this action. Because the protocol merely memorializes the parties’ 

responsibilities vis-à-vis the Azua II project, the protocol constitutes a transaction 

contemplated by the purchase agreement. Accordingly, we hold that the district 

court did not err in concluding that the Dominican Republic’s waiver of sovereign 

immunity extends to the protocol.

3.

Lastly, Sun Land and Architectural contend that the Dominican Republic 

was also subject to the jurisdiction of U.S. courts based on its commercial activity. 

See § 1605(a)(2). At least for purposes of establishing subject-matter jurisdiction 

over the Dominican Republic’s alleged breach of the three addenda and “the 

Amendment,” we disagree.

The FSIA presumes that a foreign state and its instrumentalities are separate 

legal entities. See § 1603(b)(1) (defining instrumentality of a foreign state as, 

among other things, “a separate legal person”); cf. First Nat’l City Bank v. Banco 

Para El Comercio Exterior de Cuba, 462 U.S. 611, 625–28, 103 S. Ct. 2591, 

2599–2601 (1983) (discussing nature of government instrumentalities and 

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presumption of separateness for purposes of substantive liability); Alejandre v. 

Telefonica Larga Distancia de Puerto Rico, Inc., 183 F.3d 1277, 1284 (11th Cir. 

1999) (“[G]overnment instrumentalities enjoy a presumption of separate juridical 

status vis-à-vis the foreign government to which they are related.”). And the 

burden of overcoming this presumption falls on the plaintiff. S & Davis Int’l, 218 

F.3d at 1298–99 (discussing allocation of burden and two ways of overcoming this 

presumption).

Based on our review of the record, we conclude that Sun Land and 

Architectural have failed to overcome the presumption that INDRHI—the only 

Dominican entity to sign the three addenda and “the Amendment”—is separate 

from the Dominican Republic. Thus, we cannot affirm the district court’s 

conclusion that the Dominican Republic is amenable to suit in federal court for the 

foreign nation’s alleged breach of these documents under the FSIA’s commercialactivity exception.

V.

Under Rule 60(b)(1), the district court has discretion to relieve a party from 

a final judgment for “mistake, inadvertence, surprise, or excusable neglect.” Even 

so, in ruling on a Rule 60(b)(1) motion, “the discretion of the district court is not 

unbounded, and must be exercised in light of the balance that is struck by Rule 

60(b) between the desideratum of finality and the demands of justice.” Seven 

Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981). Our review 

of the district court’s ruling is informed by that same consideration; “and where 

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denial of relief precludes examination of the full merits of the cause, even a slight 

abuse may justify reversal.” Id.

At the same time, our caselaw makes clear that the party seeking relief under 

Rule 60(b)(1) must provide a justification so compelling that the district court had 

to vacate the challenged order. Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 

(11th Cir. 1993). To do so, the defaulting party must establish that “(1) it had a 

meritorious defense that might have affected the outcome; (2) granting the motion 

would not result in prejudice to the non-defaulting party; and (3) a good reason 

existed for failing to reply to the complaint.” Ehlers, 8 F.3d at 783, quoted in In re 

Worldwide Web Sys., 328 F.3d at 1295.

Here, the district court denied the Dominican Republic and INDRHI’s Rule 

60(b)(1) motion, finding that they “lacked a good reason for failing to respond to 

the Complaint or the multiple other communications that they received in this 

matter.” Doc. 30 at 9. For this reason, the court did not decide whether the 

Dominican Republic and INDRHI had a meritorious defense or whether granting 

relief would prejudice Sun Land and Architectural. On appeal, the Dominican 

Republic and INDRHI argue that the court abused its discretion in denying their 

motions. We agree.

To conclude that the Dominican Republic and the INDRHI made a “willful 

decision” to not respond to the complaint as a “tactical maneuver,” Doc. 30 at 8, 

the district court relied on several factual findings. These findings were based 

solely on the court’s assessment of Lacayo’s conduct given its conclusion that 

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resolving “the validity of the communications sent to the Embassy or the 

Dominican Republic directly” was unnecessary. Id. at 7 n.5.

The district court found that the Dominican Republic and INDRHI 

“acknowledged receiving the [c]omplaint” and that they “twice reached out to 

Plaintiffs to inform them that they would not respond because of a disagreement as 

to the validity of service.” Id. at 7. The court also found that the Dominican 

Republic and INDRHI’s failure to answer the complaint could not be excused as a 

clerical error. In the district court’s view, Lacayo was not a junior employee 

because she had been employed at the Miami consulate for twelve years and was 

“the assistant” to the Consul General. Id. at 8. Indeed, the court noted that Lacayo 

was “senior enough” (or “felt senior enough”) in this position to twice call Sun 

Land and Architectural’s counsel and “inform them that no response would be 

forthcoming.” Id. The court thus concluded that the Dominican Republic and 

INDRHI “put themselves” in a position to face a default judgment of more than 

$50 million “through their adamant and repeated refusals to participate in the legal 

process.” Id. at 9.

Based on our thorough review, we conclude that the factual findings 

underlying the district court’s decision were unsupported by the record. Contrary 

to the court’s finding, the record shows that when the complaint was served, 

Lacayo had been “the assistant” to the Miami Consul General for only three 

months; in her role as “the assistant,” she was still a secretary; and for the twelve 

years prior to becoming “the assistant,” she had held only a clerical position at the 

Miami consulate. Also, nothing in the record shows that Lacayo had any 

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management duties at the Miami consulate. Thus, the court’s finding that she was 

“senior enough” at the Miami consulate to render her mistake a nonclerical error is 

unsupported by the record and is thus clearly erroneous.

While Lacayo twice spoke with Sun Land and Architectural’s counsel, 

nothing in the record establishes that anyone with managerial responsibilities 

within the Dominican Republic government or INDRHI knew anything about this 

case. Even so, the district court found that the Dominican Republic and INDRHI 

twice told Sun Land and Architectural’s counsel that they were not going to 

respond to the complaint because they believed that service had been improper. To 

make this finding, the district court imputed Lacayo’s conduct to the Dominican 

Republic and INDRHI, yet nothing in the record supports doing so. Hence, this 

finding is also clearly erroneous.

Finally, because nothing in the record establishes that anyone at the Miami 

consulate other than Lacayo and a clerical employee knew about this action, the 

court’s conclusion that the Dominican Republic and INDRHI willfully decided not 

to respond to the complaint for tactical reasons is unsupported by the record. At 

best, the record suggests that their failure to respond was the result of negligence 

that is excusable. Thus, good reason for their failure to respond to the complaint 

exists, and we hold that the district court’s contrary finding was clearly 

erroneous.12

 12 Based on our review of the record, we also conclude that the Dominican Republic and 

INDRHI have meritorious defenses and that vacating the default judgment will not prejudice Sun 

Land and Architectural. See Ehlers, 8 F.3d at 783.

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VI.

Having carefully considered the record in this case, the parties’ briefs, and 

with the benefit of oral argument, we conclude that the district court erred by 

denying the Dominican Republic’s Rule 60(b)(4) motion to vacate for voidness the 

default judgment entered against the foreign nation. We also conclude that the 

district court abused its discretion by denying the Dominican Republic and 

INDRHI’s Rule 60(b)(1) motion to vacate for excusable neglect the default 

judgment entered against them. Accordingly, we reverse the district court’s orders 

and remand this case for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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