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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Price v. Unisea, Inc. (12/7/2012) sp-6732

Price v. Unisea, Inc. (12/7/2012) sp-6732

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

        corrections@appellate.courts.state.ak.us. 



                THE SUPREME COURT OF THE STATE OF ALASKA 



CHRISTOPHER LEE PRICE,                        ) 

                                              )       Supreme Court No. S-14184 

                       Appellant,             ) 

                                              )       Superior Court No. 3AN-07-08143 CI 

        v.                                    ) 

                                              )       O P I N I O N 

UNISEA, INC., INTERNATIONAL                   ) 

PACIFIC HALIBUT COMMISSION                     )      No. 6732 - December 7, 2012 

& SOMPO JAPAN INSURANCE                       ) 

COMPANY OF AMERICA,                           ) 

                                              ) 

                       Appellees.             ) 

                                              ) 



               Appeal from the Superior Court of the State of Alaska, Third 

               Judicial District, Anchorage, William F. Morse, Judge. 



               Appearances:       Marc   W.   June,   Anchorage,   for   Appellant. 

               Charles     Jordan,   Danielson     Harrigan    Leyh    &   Tollefson 

               LLP,     Seattle,  for  Appellee    International   Pacific   Halibut 

               Commission. 



               Before:       Carpeneti,    Chief   Justice,  Fabe,   Winfree,    and 

                Stowers, Justices. [Christen, Justice, not participating.] 



               CARPENETI, Chief Justice. 



I.      INTRODUCTION 



               A worker at a fish processing plant was injured   while on the job.              His 



employer,   an   international   organization,   asserted   that   it   did   not   maintain   workers' 



compensation and that it was immune from suit, so the worker filed a negligence action 


----------------------- Page 2-----------------------

in state court seeking reimbursement for medical expenses, compensation for lost wages, 



and attorney's fees.      The superior court granted the employer's motion to dismiss on 



immunity grounds.        Because the international organization enjoys absolute immunity 



from   suit   and   it   has   not   waived   this   immunity,   we   affirm   the   superior   court   in   all 



respects. 



II.     FACTS AND PROCEEDINGS 



                Appellant Christopher Lee Price was hired by International Pacific Halibut 



Commission (IPHC) on February 28, 2006.  Price was employed as a "port sampler" at 



Unisea's fish processing plant in Dutch Harbor.  His duties included collecting data and 



supporting   information   used   in   the   stock   assessment   of   Pacific   halibut.   Exhibit   A, 



attached to his employment contract (Employment Agreement), specified that "[t]he 



work is performed in and around fish docks . . . [and] [w]orking platforms . . . are often 



cold and wet."  On August 17, 2006, Price suffered a slip and fall injury while on the job. 



                IPHC   is   an   international   organization   with   its   headquarters   in   Seattle, 



Washington. It was established by treaty between the United States and Canada in 1923. 



President   John   F.   Kennedy   issued   an   executive   order   designating   IPHC   as   a   public 



international organization on October 23, 1962.  Accordingly, it is subject to most of the 



privileges and immunities of the International Organizations Immunity Act of 1945 

(IOIA).1 



                Both   parties   signed   the   Employment   Agreement,   a   form   employment 



contract.   The agreement stated that "[it] shall be governed by the laws of the State of 



Washington."      The agreement also contained an "insurance and benefits" provision in 



Paragraph 12, which indicated that workers' compensation would only be available to 



        1       International Organizations Immunity Act of 1945, Pub. L. No. 79-291, 59 



Stat. 669 (codified as amended in scattered sections, including 22 U.S.C.  288). 



                                                   -2-                                               6732 


----------------------- Page 3-----------------------

employees based in British Columbia. 



                After his injury, Price sought medical and disability benefits under the 



Alaska Workers' Compensation Act.  After failing to respond initially, a representative 



of IPHC, Michael Larsen, attended a prehearing conference with the Alaska Workers' 



Compensation Board on January 31, 2007. Larsen explained that as a public international 



organization, IPHC does not carry workers' compensation insurance and is otherwise 



immune from suit.   A second prehearing conference to discuss unpaid medical costs was 



held on March 7, 2007.   At that hearing, Larsen stated that IPHC's insurer, Premera, was 



supposed to pay the medical costs resulting from Price's injuries. 



                In June 2007, after failing to resolve the dispute, Price brought a tort action 



in state court, alleging that IPHC had negligently failed to secure workers' compensation 



insurance for him and thereby failed to provide a safe work place.                Price claimed that 



IPHC agreed to comply with applicable state law mandating that employers provide 



workers' compensation insurance by entering into the Employment Agreement.  IPHC 



moved   to   dismiss,   asserting   that   it   was   immune   from   all   forms   of   judicial   process, 



including the jurisdiction of the Alaska courts and any discovery requests made by Price. 



Price responded that IPHC had expressly waived its immunity by including a choice of 



law provision in the Employment Agreement and by agreeing to comply with applicable 



state   law.   At   the  very   least,  Price  maintained,     the  Employment       Agreement      was 



ambiguous and therefore should be construed against the drafter. 



                Extensive motion practice ensued.   Price asked that, at a minimum, IPHC 



provide his personnel file, the disability policy included in his employee benefits, and 



documentation of       medical bills paid by his IPHC health insurance.             IPHC refused to 



provide these documents, again insisting that its immunity extended to any documents, 



archives, or records.      Price then filed a motion to compel in the superior court, which 



granted limited discovery.       Oral argument was held on IPHC's motion to dismiss. 



                                                  -3-                                            6732
 


----------------------- Page 4-----------------------

                Following argument, the superior court granted IPHC's motion to dismiss. 



It found that neither Paragraph 25 of the Employment Agreement (choice of law) nor 



Paragraph 12 (explanation of insurance and benefits) constituted a waiver of IPHC's 



absolute immunity.       Price filed a motion for reconsideration, asking the trial court to 



(1)  reconsider   its   decision   based   on   Price's   inability   to  conduct   discovery   due   to 



assertions of immunity or (2) interpret IPHC's Employment Agreement as a contract of 



adhesion     to   be   construed   against   the   drafter. The   superior   court   issued   an   order 



requesting Price to provide a summary of the discovery materials he wished to pursue. 



After considering Price's response and IPHC's opposition, the superior court denied his 



motion for reconsideration in September 2008. 



                Price's claims against Unisea were tried, and in December 2010 a jury 



found Unisea negligent.        Final judgment against Unisea was entered in January 2011. 



The jury found $1,154,896 in damages, but it apportioned fault 75% to Unisea and 25% 



to Price; thus, the amount awarded to Price was $993,475.                 After this judgment was 



entered, IPHC moved for attorney's fees under Alaska Civil Rule 82.  Although the rule 



normally awards the prevailing party 20% of its fees, IPHC asked for an enhanced award 



given the extensive motion practice and complexity of the case.  Alleging total fees of 



about $112,000, IPHC sought an award of 30% or almost $34,000.  Price filed a motion 



opposing   the   grant   of   attorney's   fees,   claiming   that   (1)   the   proposed   amount   was 



excessive, (2) IPHC had not provided proper documentation, and (3) the award should 



be   reduced   to   10%   of   actual   fees   since   the   Employment   Agreement   constituted   a 



fraudulent contract.  IPHC submitted billing records totaling only about $89,900.  From 



this   amount   the   superior    court   deducted    about   $8,400    because    the  fees  were   not 



reasonably or necessarily incurred and about $3,300 because the fees were incurred post- 



dismissal.    The superior court thus deducted about $11,700 of IPHC's alleged costs. 



After adjustments, the court entered a final judgment awarding   IPHC $15,642.60 in 



                                                  -4-                                             6732
 


----------------------- Page 5-----------------------

attorney's fees, 20% of actual fees of $78,213.   Price filed a motion for reconsideration 



of   the   award,   which   was   denied   by   the   superior   court   in   April 2011. This   appeal 



followed. 



III.    STANDARD OF REVIEW 



                "When   materials   outside   the   pleadings   are   submitted   with   regard   to   a 



motion to dismiss [under Rule 12(b)(6)], the superior court must either explicitly exclude 



the materials or convert the motion into one for summary judgment under Alaska Rule 

of Civil Procedure 56."2        Here, the superior court took the Employment Agreement 



signed by the parties into account when granting IPHC's motion to dismiss.                   Although 



the superior court did not explicitly state that a conversion had taken place, we will treat 



the decision as a grant of summary judgment under Rule 56. 



                We review a grant of summary judgment de novo, "drawing all reasonable 

inferences in favor of the nonmoving party."3          Summary judgment will be upheld "if no 



genuine issue of material fact exists."4 



                The     superior     court's    interpretation    of   contracts,    specifically     the 

Employment Agreement in this case, raises "questions of law" and is reviewed de novo.5 



        2       Kaiser v. Umialik Ins. , 108 P.3d 876, 879 (Alaska 2005) (citing Alaska R. 



Civ. P. 12(b); Martin v. Mears , 602 P.2d 421, 425-26 (Alaska 1979)). 



        3       Dominic Wenzel, D.M.D. P.C. v. Ingrim , 228 P.3d 103, 106 (Alaska 2010) 



(quoting Nichols v. State Farm Fire & Cas. Co. , 6 P.3d 300, 303 (Alaska 2000)). 



        4       Id . 



        5       Beal v. McGuire , 216 P.3d 1154, 1162 (Alaska 2009) (citing Norville v. 



Carr-Gottstein Foods Co., 84 P.3d 996, 1000 n.1 (Alaska 2004)). 



                                                  -5-                                             6732
 


----------------------- Page 6-----------------------

The superior court's grant of attorney's fees is reviewed using an abuse of discretion 

standard.6    An   abuse   of   discretion   occurs   when   an   award   is   "arbitrary,   capricious, 



manifestly unreasonable, or improperly motivated."7 



IV.	    DISCUSSION 



        A.	     The International Pacific Halibut Commission Is Immune From Suit. 



                1.	     The IPHC is an international organization. 



                Both parties agreed that the IPHC has been classified as an "international 



organization"   by   executive   order   and,   as   such,   is   entitled   to   the   protections   of   the 

International Organizations Immunities Act of 1945.8             The IOIA provides that covered 



entities "enjoy the same immunity from suit and every form of judicial process as is 



enjoyed   by   foreign   governments,   except   to   the   extent   that   such   organizations   may 



expressly waive their immunity for the purpose of any proceedings or by the terms of 

any contract."9 



                2.	     The     IOIA     provides      absolute    immunity       to   international 

                        organizations. 



                Many courts have explored the scope of immunity granted under the IOIA. 



The main debate is whether the IOIA grants the absolute immunity enjoyed by foreign 

governments when it was enacted in 194510 or whether it was intended to be modified by 



        6       Okagawa v. Yaple, 234 P.3d 1278, 1280 (Alaska 2010) (citing Krone v. 



State, Dep't of Health & Soc. Servs., 222 P.3d 250, 252 (Alaska 2009)). 



        7       Id . (quoting Cook Schuhmann & Groseclose, Inc. v. Brown & Root, Inc., 



116 P.3d 592, 597 (Alaska 2005)) (internal quotation marks omitted). 



        8       Exec. Order No. 11,059, 27 Fed. Reg. 10,405 (Oct. 23, 1962). 



        9       22 U.S.C.  288a(b) (2006). 



        10      See, e.g., Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983) 



                                                                                      (continued...) 



                                                 -6-	                                           6732
 


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subsequent statutes affecting the immunity of foreign governments.11           After the IOIA was 



enacted,   Congress   adopted   the   Foreign   Sovereign   Immunities   Act   of   1976   (FSIA),12 



which carved out certain exceptions to immunity for foreign sovereigns.13                The FSIA 



made no mention of international organizations, so it was unclear whether the principle 



of restricted immunity should be adopted by reference or whether Congress intended for 

international organizations to enjoy a greater immunity than foreign sovereigns.14                 In 



Broadbent v. Organization of American States ,15 one of the early cases to address the 



application of the FSIA to international organizations, the D.C. Circuit seemed to suggest 



the latter because the FSIA is "generally silent about international organizations" and "by 



its own terms the IOIA provides for the modification, where appropriate, of the immunity 

enjoyed by one or more international organizations."16         But Broadbent never reached the 



        10      (...continued) 



(when Congress enacted the IOIA in 1945, foreign sovereigns enjoyed virtually absolute 

immunity). 



        11     Atkinson v. Inter-Am. Dev. Bank , 156 F.3d 1335, 1340 (D.C. Cir. 1998); 



Boimah v . United Nations Gen. Assembly, 664 F. Supp. 69, 71 (E.D.N.Y. 1987). 



        12      Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 



2891 (codified as amended in scattered sections of 28 U.S.C.). 



        13      See Broadbent v. Org. of Am. States, 628 F.2d 27, 30-31 (D.C. Cir. 1980). 



        14      Id. at 29. 



        15      628 F.2d 27. 



        16      Id. at 31-32.   "Under the statute, the President can withdraw or restrict the 



immunity and privileges thereby conferred."  Id. at 32. 



                                                 -7-                                           6732
 


----------------------- Page 8-----------------------

issue because it held that the organization in that case was immune from suit even under 

a restrictive theory.17 



                 The leading case that ruled in favor of absolute immunity for international 

organizations was Atkinson v. Inter-American Development Bank .18                    Atkinson overruled 



an   earlier   case,  Rendall-Speranza   v.   Nassim ,19      in   which   the   district   court   held   that 



"[i]naction   on   the   part   of   Congress   implies   that   Congress   felt   the   more   restrictive 



immunity afforded foreign governments under the FSIA was to apply in like fashion to 

international      organizations."20      In  Atkinson ,     the  D.C.    Circuit   disagreed     with   this 



reasoning and decided that Congress's failure to include international organizations in 



the language of FSIA indicated an intent to leave organizational immunity subject to the 



provisions set forth in the IOIA: 



                 [T]he IOIA sets forth an explicit mechanism for monitoring 

                 the immunities of designated international organizations . . . 

                 [so] therefore . . . Congress was content to delegate to the 

                 President the responsibility for updating the immunities of 

                 international      organizations       in   the   face    of   changing 

                 circumstances.      This built-in mechanism for updating the 

                 IOIA     undermines      [the]   claim   that  Congress      intended    a 

                 different updating mechanism: automatic alteration of the 

                 scope    of   immunity     under    the  IOIA    in  accordance      with 

                 developments in the law governing the immunity of foreign 

                 sovereigns.[21] 



        17       Id . at 32-33. 



        18       156 F.3d 1335 (D.C. Cir. 1998). 



        19       932 F. Supp. 19 (D.D.C. 1996). 



        20       Id . at 24. 



        21       Atkinson , 156 F.3d at 1341. 



                                                    -8-                                               6732
 


----------------------- Page 9-----------------------

Because      Congress     explicitly    created   a  means     to  modify     the  immunity      afforded 



international organizations - that is, presidential authority to revoke or modify existing 



immunity - the Atkinson  court reasoned that no new mechanism for change need be 

implied from Congressional silence in a later statute.22          Given this understanding, at least 



one other court has concluded that "[a]n international organization that has been granted 



immunity   from   suit   can   only   have   that   immunity   restricted   in   two   ways:   First,   the 



organization   itself   may   expressly   waive   its   immunity.     Second,   the   President   of   the 

United     States   may    specifically   limit   the  organization's     immunities     .   .   .  ."23 The 



Broadbent court explained that this system aligned with legislative intent because leaving 



discretion to the president allowed for quick and easy changes if an organization abused 

its immunity.24 



                Although the Rendall-Speranza court found it unlikely that Congress would 



intentionally provide a greater immunity for international organizations than foreign 



governments, allowing greater immunity for international organizations respects the 



special   position   held   by   such   organizations.    "[I]nternational   organizations   .   .   .   are 



creatures of treaty and by virtue of treaty stand in a different position with respect to the 

issue of immunity than sovereign nations."25              International organizations differ from 



        22      Id. 



        23       Vila v. Inter-Am. Inv. Corp., 536 F. Supp. 2d 41, 46-47 (D.D.C. 2008), aff'd 



and remanded, 570 F.3d 274 (D.C. Cir. 2009) (quoting Mendaro v. World Bank , 717 

F.2d 610, 613 (D.C. Cir. 1983)) (internal quotation marks omitted). 



        24      "[I]n   floor debate on the legislation, its supporters pointed again to this 



provision [granting authority to the president to modify an organization's immunity] as 

a limitation on commercial abuses by an international organization." Broadbent v. Org. 

of Am. States, 628 F.2d 27, 32 (D.C. Cir. 1980). 



        25      Broadbent , 628 F.2d at 29. 



                                                   -9-                                              6732
 


----------------------- Page 10-----------------------

sovereign nations and private corporations because their actions are governed by the 

laws of several nations and they are not subject to the policies of any one state.26              The 



premise      underlying     restricted   immunity      for  sovereign     nations    rests  upon    an 



understanding that 



                [the exceptions listed in the FSIA] leave[] foreign states free 

                to   conduct    "governmental"       matters   through    their  own 

                citizens.    A   comparable      exception    is  not  applicable   to 

                international organizations, because their civil servants are 

                inevitably drawn from either American citizens or "third" 

                country nations.      In the case of international organizations, 

                such an exception would swallow up the rule of immunity 

                for civil service employment disputes.[27] 



Subjecting international organizations to the restricted immunity codified in the FSIA 



would effectively eliminate any immunity they currently enjoy.              By omitting reference 



to   international   organizations   in   FSIA,   "the   1976   Congress   wished   to   clarify   that 

international organizations deserve special protection."28 



                Almost      every    court   since  Atkinson      has   agreed    that  international 



organizations   retain   the   absolute   immunity   granted   when   the   IOIA   was   enacted   in 

       29 However, the Third Circuit recently ruled that the FSIA, and its exceptions to 

1945. 



        26      See Mendaro, 717 F.2d at 619. 



        27      Broadbent , 628 F.2d at 34. 



        28      Atkinson , 156 F.3d at 1342. 



        29      See, e.g., In re Dinastia, L.P. , No. 04:07-cv-02501, 381 B.R. 512 (S.D. Tex. 



Nov. 8, 2007); Banco de Seguros del Estado v. Int'l Fin. Corp ., Nos. 06 Civ. 2427(LAP), 

06 Civ. 3739(LAP), 2007 WL 2746808 (S.D.N.Y. Sept. 20, 2007); Ashford Int'l, Inc. v. 

World Bank Group, No. 1:04-CV-3822-JOF, 2006 WL 783357 (N.D. Ga. Mar. 24, 2006); 

Atlantic Tele-Network Inc. v. Inter-Am. Dev. Bank , 251 F. Supp. 2d 126 (2003); Bro Tech 

Corp. v. European Bank for Reconstruction & Dev., No. CIV.A. 00-2160, 2000 WL 

                                                                                      (continued...) 



                                                 -10-                                           6732
 


----------------------- Page 11-----------------------

immunity, applied to international organizations.30             This new interpretation contradicts 



the precedent established by Atkinson , and we decline to follow it.  Instead, we adopt the 



holding   of  Atkinson      and   its   progeny   that   the   IOIA   provides   absolute   immunity   to 

international organizations such as the IPHC.31 



                 3.      There is no waiver of immunity here. 



                 Since we conclude that international organizations enjoy absolute immunity 



from   suit,   the   only   way   to   dissolve   such   immunity   is   through   an   express   waiver   or 



presidential   order.      "[T]he   immunity       from   employee   suits   may      be   waived    by  the 



members   of   the   international   organization,   or   its   administrative   directors.   However, 



under national and international law, waivers of immunity must generally be expressly 

stated."32   Immunity is not absolute in the sense that it can never be waived, but courts 



are hesitant to read waiver into a contract when the intent of the organization is unclear.33 



        29       (...continued) 



1751094 (E.D. Pa. Nov. 29, 2000). 



        30       See Oss Nokalva, Inc. v. European Space Agency, 617 F.3d 756 (3d Cir. 



2010). 



        31       We   add   that   even   if   the   restrictive   immunity   of   the   FSIA   applied   to 



international organizations, we have serious doubts that this employment dispute would 

fall under the "commercial activity" exception. 



        32       Mendaro v. World Bank , 717 F.2d 610, 617 (D.C. Cir. 1983). 



        33       Courts   are    generally    hesitant   to  find   that   a   sovereign  has   waived    its 



immunity.  See C & L Enters., Inc. v. Citizen Band of Potawatomi Indian Tribe of Okla., 

532    U.S.   411,   418   (2001)    ("to   relinquish    its  immunity,   a   tribe's   waiver    must   be 

'clear' ");Allen v. Gold Country Casino , 464 F.3d 1044, 1047 (9th Cir. 2006) ("waivers 

of tribal sovereign immunity may not be implied"); State Commercial Fisheries Entry 

Comm'n        v.  Carlson,    65  P.3d    851,   874-75    (Alaska    2003)    ("waivers     of  sovereign 

immunity   imposing   monetary   liability   on   the   federal   or   state   government   must   be 

                                                                                           (continued...) 



                                                    -11-                                              6732
 


----------------------- Page 12-----------------------

                 Price argues that IPHC expressly waived its immunity in two provisions of 



the Employment Agreement.   First, he contends that the statement in Paragraph 12 that 



he "shall be entitled to insurance benefits, in accordance with . . . applicable state law" 



is a waiver of immunity for claims related to those benefits.   Second, he alleges that the 



choice of law clause in Paragraph 25 of the Employment Agreement is an express waiver 



of immunity for claims arising under the contract. 



                 In some cases, an express arbitration or dispute resolution clause has been 

held to constitute a waiver of immunity.34            However, Paragraph 12 is neither a dispute 



resolution nor arbitration clause, but rather an explanation of benefits. It explicitly states 



that IPHC would provide "Worker's Comp" benefits to "B.C. based employees only," 



in effect putting Price, an employee not based in British Columbia, on notice that he was 



not entitled to such benefits.  The fact that Paragraph 12 used the words "in accordance 



with . . . applicable state law" in the context of discussing benefits does not transform it 



into a clause waiving immunity for suits related to these benefits in state court.  The 



superior court correctly held that even though the provision implied that IPHC should 



have   had   insurance   in   order   to   comply   with   "applicable"   state   law,   it   in   no   way 



authorized   suit   based   on   a   lack   of   such   insurance.  Paragraph   12   does   not   address 



immunity and cannot be construed as an express waiver. 



        33       (...continued) 



narrowly interpreted"). 



        34       See, e.g., C & L Enters., Inc., 532 U.S. at 414, 420  (tribe waived immunity 



from   suits   to   enforce   an   arbitral   award   in   state   court   by   signing   arbitration   clause); 

Nenana   Fuel   Co.   v.   Native   Vill.   of   Venetie ,   834   P.2d   1229,   1232-33   (Alaska   1992) 

("remedies on default" clause was waiver of immunity); Native Vill. of Eyak v. GC 

Contractors, 658 P.2d 756, 757-58 (Alaska 1983) (arbitration clause in contract was 

waiver). 



                                                    -12-                                              6732
 


----------------------- Page 13-----------------------

                Price's assertion that Paragraph 25 constitutes an express waiver is similarly 



unpersuasive.  Paragraph 25 is a choice of law clause, which states that the interpretation 



of the contract will be governed by the laws of the State of Washington.                  Washington 



courts have held that a choice of law clause, unlike a choice of forum clause, is not a 



waiver of immunity.  "To determine whether a particular agreement shows consent, it is 



necessary   to   distinguish   between   a   choice-of-forum   clause,   on   the   one   hand,   and   a 



choice-of-law clause on the other.   A choice-of-forum clause is one in which the parties 

agree on a presiding tribunal."35        A choice of law clause, on the other hand, indicates 



which jurisdiction's law will govern the interpretation of a contract if litigation ensues.36 



It does not indicate an agreement on IPHC's part to subject itself to the jurisdiction of 



any court.   As the superior court explained, "[t]he choice of law provision would act as 



a springing clause, contingent upon a future waiver that might never take place." 



                Price claims that even if neither provision constitutes an express waiver of 



immunity, Paragraph 12 is ambiguous at best and should be further analyzed by the 



court.   The   superior   court   rejected   his   argument   and   we   similarly   disagree.    In   the 



absence of express waiver, IPHC is immune from suit. 



        B.	     Price   Was   Not   Entitled   To   Further   Discovery   On   Immunity   And 

                Waiver. 



                Price argues that the superior court should have allowed more discovery on 



the immunity and waiver issues.  The superior court did permit limited discovery on the 



        35      Kysar v. Lambert , 887 P.2d 431, 440 (Wash. App. 1995) (citing Carnival 



Cruise Lines, Inc. v. Shute, 499 U.S. 585, 587-88 (1991)). 



        36      See C & L Enters., 532 U.S. at 415, 419 (holding that although arbitration 



clause is waiver of immunity, choice of law clause merely dictates which state's law will 

govern disputes after arbitration occurs). 



                                                  -13-	                                            6732
 


----------------------- Page 14-----------------------

topic of immunity before issuing a judgment on the motion to dismiss.37                  As the court 



explained      when    denying    Price's   motion     for  reconsideration,     "the   Court   granted 



Plaintiff's motion to compel discovery in the form of initial disclosures and specific 



documents identified by Plaintiff."          After the court granted the motion to dismiss, it 



accommodated Price's repeated complaints regarding discovery, but first required a list 



of   specific   documents   he   sought.    After   receiving   this   list,   the   court   denied   Price's 



request for further discovery, explaining that "the discovery sought would not be likely 



to provide information . . . in support of Price's contention that the IPHC waived its 



immunity."      Price still believes that he was entitled to more discovery on this issue, 



particularly     regarding    how    IPHC     intended    to  resolve   disputes    arising   from   the 



Employment Agreement. 



                The IOIA states that "[i]nternational organizations, their property and their 



assets, wherever located, and by whomsoever held, shall enjoy the same immunity from 

suit and every form of judicial process as is enjoyed by foreign governments . . . ."38 



IPHC contends that this immunity to all forms of judicial process includes subpoenas and 



discovery requests except those that will materially change the court's jurisdictional 



analysis.  "[I]mmunity, where justly invoked, properly shields defendants not only from 



the   consequences       of  litigation's   results   but  also   from   the   burden    of  defending 

themselves."39      Accordingly,      "[t]he    premises,    archives,    and    communications        of 



        37      Price believes these orders were mischaracterized as limited discovery. 



Although he admits that he received access to his personnel records due to the court's 

order, he maintains that these documents were insufficient to fulfill the initial disclosures 

to which he was entitled under Alaska Civil Rule 26. 



        38      22 U.S.C.  288a(b) (2006) (emphasis added). 



        39      Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (D.C. Cir. 1981) (quoting 



                                                                                        (continued...) 



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international organizations are shielded from interference by member states . . . ."40 



Discovery requests seeking to access these internal documents are shielded under IPHC's 



immunity. 

                 Price relies on Tuck v. Pan American Health Organization41 and Polak v. 



International Monetary Fund42 to support his assertion that "[w]here jurisdictional issues 



are in dispute, a party has a right to limited discovery."             Although this premise may be 



true, his analysis skews the holdings of these cases.  The Tuck court stated in a footnote 



that "because the issues often are so intertwined, it may be impossible in some suits to 

resolve   a   claim   of   immunity   without   first   conducting   a   limited     factual   inquiry."43 



However, the court went on to say that "[s]uch is not the case here" because the court 



had already determined that the international organization being sued was entitled to 

immunity under the IOIA.44   Tuck does not support an assertion that a party has a right 



to any discovery.  Polak involved a situation similar to this case, where the plaintiff 



requested   a   stay   of   decision   in   order   to   conduct   limited   discovery   on   the   scope   of 



        39       (...continued) 



and citing Dombrowski v. Eastland , 387 U.S. 82, 85 (1967)) (internal quotation marks 

omitted). 



        40      Mendaro   v.   World   Bank ,   717   F.2d   610,   615   (D.C.   Cir.   1983)   (citing 



RESTATEMENT OF  FOREIGN  RELATIONS  LAW OF THE  UNITED                       STATES (Revised)  465 

(Tentative Draft No. 4, 1983)). 



        41       668 F.2d 547 (D.C. Cir. 1981). 



        42       657 F. Supp. 2d 116 (D.D.C. 2009). 



        43       Tuck, 668 F.2d at 549 n.4 (citing Forsyth v. Kleindienst , 599 F.2d 1203 (3d 



Cir. 1979), cert. denied, 453 U.S. 913 (1981)). 



        44      Id. 



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immunity of an international organization.45  The court noted that "limited discovery may 



be proper if pertinent facts bearing on the issue of jurisdiction are in dispute," but "the 



only pertinent fact bearing on the jurisdictional issue is whether the defendant has . . . 

expressly waived its immunity . . . ."46  Instead of limiting his discovery requests to the 



existence of such a waiver, the plaintiff wanted "a broad range of information relating 

to the defendant's liability in, and immunity from, prior tort claims."47               Therefore, the 



court denied the plaintiff's requests for further discovery. 



                Price did not limit his discovery requests to documents regarding immunity 



and   waiver,   but   he   also   wanted   information   on   IPHC's   intended   dispute   resolution 



process,   IPHC's   other   employment   contracts,   IPHC's   payroll   information,   IPHC's 



attempts to obtain workers' compensation in other forums, and other litigation involving 



IPHC.  The superior court did not err in holding that Price's discovery requests were too 



broad   and   were   not   designed   to   lead   to   information   on   the   immunity   issue.  IPHC 



emphasizes that Price was not entitled to any further discovery on the jurisdictional issue 

unless the information found could materially change the court's analysis.48                  This rule 



holds true even under a FSIA analysis.49         The information sought by Price about IPHC's 



        45      Polak , 657 F. Supp. 2d at 121-22. 



        46      Id. at 122 (quoting Osseiran v. Int'l Fin. Corp., 498 F. Supp. 2d 139, 145 



n.2 (D.D.C. 2009)) (internal quotation marks omitted). 



        47      Id. 



        48      See   Blackburn   v.   United   States,   100   F.3d   1426,   1436   (9th   Cir.   1996) 



(Plaintiff   "does   not   show   how   allowing   additional   discovery   would   have   precluded 

summary judgment.  Therefore, the district court did not abuse its discretion in limiting 

the scope and length of discovery."). 



        49      See Peterson v. Islamic Republic of Iran, 563 F. Supp. 2d 268, 274 (D.D.C. 



                                                                                         (continued...) 



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----------------------- Page 17-----------------------

grievance mechanisms and dispute resolution procedures are not relevant to whether it 



waived its immunity here.  Since further discovery would not have changed the superior 



court's immunity analysis, it was properly denied by the superior court. 



        C.	     The     Superior     Court    Did   Not    Err   In  Awarding       Attorney's      Fees 

                Pursuant To Civil Rule 82.50 



                Price argues that the attorney's fees awarded to IPHC are excessive and 



unreasonable under the circumstances.  He maintains that the superior court should have 



required   IPHC   to   provide   him   with   the   basis   for   its   fee   claim   and   allowed   him   an 



opportunity to respond.        This requested information was subsequently provided, but 



Price contends that the amount awarded still does not accurately reflect the costs of 



litigation because it is disproportional to his own costs and IPHC should not be rewarded 



for "wrongfully resisting minimal discovery and charging depositions that it did not even 



attend." Price's legal fees totaled $31,473.50. IPHC claims that it incurred $111,988.50 



in attorney's fees and requested that it be awarded 30% of those fees due to the extensive 



        49      (...continued) 



2008) ("Requests for jurisdictional discovery   should   be granted only if the plaintiff 

presents non-conclusory allegations that, if supplemented with additional information, 

will materially affect the court's analysis with regard to the applicability of the FSIA." 

(quoting El-Fadl v. Cent. Bank of Jordan , 75 F.3d 668, 671 (D.C. Cir. 1996))) (internal 

quotation marks omitted). 



        50      We     note    that  different    rules   govern     attorney's    fees   in  workers' 



compensation cases.       See AS 23.30.145(regarding fee awards by the Alaska Workers' 

Compensation Board); AS 23.30.008(d) (regarding fee awards by the Alaska Workers' 

Compensation   Appeals   Commission);   and   Alaska   R.   App.   P.   508(g)   (regarding   fee 

awards in appeals from the Alaska Workers' Compensation Appeals Commission). This 

is not a workers' compensation case - after determining that IPHC had not secured 

workers' compensation insurance for his employment, Price brought an action at law for 

IPHC's negligent failure to maintain a safe workplace. See AS 23.30.055 (providing that 

if an employer fails to secure payment of workers' compensation, employee may elect 

to claim workers' compensation or file an action at law for damages). 



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----------------------- Page 18-----------------------

motion practice in this case.        "That practice included the submission of no less than 



eighteen memoranda of law citing to over 80 cases as well as attendance at oral argument 



requested by plaintiff." 



                 Alaska Civil Rule 82(a) commands that "the prevailing party in a civil case 



shall be awarded attorney's fees . . . ."       IPHC was the prevailing party in this litigation 



since it was found immune from suit.            Rule 82(b)(2) explains that "[i]n cases in which 



the   prevailing   party   recovers    no   money   judgment,   the   court   shall   award    .   .   .   the 



prevailing party in a case resolved without trial 20 percent of its actual attorney's fees 



which were necessarily incurred." No money judgment was rendered here because IPHC 



was excused from the litigation before trial, so it should presumptively receive 20% of 



its fees.  Rule 82(b)(3) lists factors that may justify a court's deviation from the 20% 



formula, including complexity of the litigation, reasonableness of the attorney's hourly 



rates, reasonableness of claims, and bad conduct. The superior court found none of these 



factors present and used the default 20% formula despite requests by IPHC to raise the 



proportion to 30% and requests by Price to lower it to 10%. 



                The superior court found that IPHC had incurred $78,213 of necessary legal 



fees and awarded 20% of that amount, $15,642.40.                This award took into account the 



extensive motion practice in this case, which spanned well over one year.  The superior 



court removed "unreasonable costs" incurred by IPHC in its calculation, such as those 



incurred after IPHC's motion to dismiss was granted and those incurred by IPHC in 



opposing the petition for review before this court.           This argument over attorney's fees 



is indicative of the extensive motion practice that occurred throughout this case.  The 



superior court made its decision after considering IPHC's original motion for attorney's 



fees and costs, Price's opposition to this motion, and IPHC's reply in support of the 



motion for fees as well as supplemental supporting documents and declarations.  Price 



then filed a motion for reconsideration and IPHC responded.  The court then denied the 



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----------------------- Page 19-----------------------

motion for reconsideration stating that the "fact alone [that IPHC incurred higher fees] 



does not mean the party who incurred greater fees did so unreasonably."       We find no 



evidence that the superior court abused its discretion in calculating attorney's fees nor 



is the award unreasonable, arbitrary, or capricious. 



V.       CONCLUSION 



              Because the International Pacific Halibut Commission is an international 



organization that enjoys absolute immunity from suit and it did not waive its immunity, 



we AFFIRM the superior court in all respects. 



                                           -19-                                     6732
 

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