By Rudi Keller
U.S. District Judge Stephen Limbaugh, in a 38-page ruling, wrote that a federal law setting rules for when a sovereign foreign entity could be sued in U.S. courts doesn’t allow any part of the lawsuit filed by Schmitt in April 2020 to continue.
“All in all, the court has no choice but to dismiss this novel complaint for lack of subject matter jurisdiction,” Limbaugh wrote.
Schmitt’s office filed a notice of appeal immediately after Limbaugh made his ruling.
When Schmitt filed the lawsuit, he claimed China was responsible for allowing the novel coronavirus to cause a global pandemic by covering up the initial infections in Wuhan.
“The Chinese government lied to the world about the danger and contagious nature of COVID-19, silenced whistleblowers, and did little to stop the spread of the disease,” Schmitt said in a news release when the lawsuit was filed. “They must be held accountable for their actions.”
It took more than a year to get any of the nine defendants served with notice of the lawsuit and $12,000 to translate the complaint into Chinese.
The lawsuit was the first of its kind in the U.S. attempting to hold the Chinese government and the Chinese Communist Party liable for COVID-19, Chris Nuelle, a spokesman for Schmitt’s office, said in an email statement to The Independent.
“The office disagrees with the court’s decision to let China off the hook, and today promptly filed a notice of appeal in this case to continue Attorney General Schmitt’s efforts to hold China accountable – we look forward to prevailing on appeal,” Nuelle wrote. “Our fight continues on to make China pay.”
Schmitt, attorney general since 2019, is a candidate in the Republican primary for U.S. Senate and has touted the lawsuit as an example of his willingness to confront Chinese power if elected.
Soon after it was filed, legal experts predicted that it would fail.
Chimène Keitner, an international law professor at the University of California at Hastings College of Law, told the Washington Post in April 2020 that she did not “see any portion of this lawsuit succeeding under the law as it currently stands.”
Along with the Chinese government and the Communist Party, the lawsuit named three national Chinese government agencies, the governments of Hubei Province and Wuhan, the Wuhan Institute of Virology and the Chinese Academy of Sciences.
“After the complaint was filed, plaintiff attempted Hague Convention service, but China posted notice on its web site that it was refusing service under Article 13 of the Convention, which allows signatories to refuse service that would violate sovereignty,” Limbaugh wrote.
The Hague Convention is an international agreement that creates a central agency in each signatory nation for accepting service of court papers on behalf of its citizens and entities. By refusing service, the government agencies are immune from being held liable, Limbaugh wrote.
The only remaining question, Limbaugh wrote, was whether Schmitt was correct in describing the Communist Party, the Wuhan Institute of Virology and the Chinese Academy of Sciences as non-government entities.
Schmitt’s complaint alleges that the Communist Party controls everything in China. While it is technically a separate legal entity in China, it has effective total control, making it part of the government, Limbaugh wrote.
Limbaugh listed the allegations – failure to contain the virus within China, lying about
transmissibility and delaying, censoring, or withholding critical information and noted it is “not the type of conduct by which a private party engages in ‘trade and traffic or commerce’ and thus it is not commercial activity.”
Schmitt’s argument that the actions of the institute and the academy fit commercial activity exceptions in the law, is not convincing, Limbaugh wrote. The alleged conduct has to have a “direct effect” on commercial activity, he wrote.
“The court cannot conclude that the core misconduct had an immediate consequence – a ‘direct effect’ – in the United States,” Limbaugh wrote. “Many intervening events would necessarily have occurred before the mishandling and coverup resulted in COVID cases inside the United States.”
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