Ford v. Clement

• Decision Date: 08 September 1993
• Docket Number: No. 92 Civ. 3508 (SS).,92 Civ. 3508 (SS).
• Citation: 834 F. Supp. 72
• Parties: Mason FORD and Sonia Ford, Plaintiffs, v. Luis Felipe CLEMENT, Consul General of Panama in New York; U.S. State Department; and/or Republic of Panama, Defendants.
• Court: U.S. District Court — Southern District of New York

834 F. Supp. 72

Mason FORD and Sonia Ford, Plaintiffs, v. Luis Felipe CLEMENT, Consul General of Panama in New York; U.S. State Department; and/or Republic of Panama, Defendants.

No. 92 Civ. 3508 (SS).

United States District Court, S.D. New York.

September 8, 1993.

Mason Ford and Sonia Ford, pro se.

Anastasios Sarikas, New York City, for defendants Luis Felipe Clement and, on a limited basis, the Republic of Panama.

MEMORANDUM OPINION AND ORDER

SOTOMAYOR, District Judge.

Defendants move to dismiss the Third Amended Complaint ("Complaint") under principles of consular immunity and foreign sovereign immunity, and for failure to state a claim upon which relief may be granted. For the reasons stated below, the motion is GRANTED and the case is DISMISSED.

I. Background

The pro se plaintiffs in this action are Sonia Ford, formerly Vice Consul of the Republic of Panama in New York, and her husband, Mason Ford. In their Complaint, plaintiffs allege harms caused by defendant Luis Felipe Clement, Consul General of the Republic of Panama in New York.

Mrs. Ford, a citizen of Panama, is also a naturalized United States citizen. According to the Complaint, she has endeavored since December of 1989 to assist Panamanian diplomats working in New York City. Her labors were recognized when, in May of 1990, she was formally appointed Vice Consul of Maritime Affairs in New York. Her efforts apparently led to the reopening of the "Segumar" maritime office, which had been closed. She also attempted to locate a new office for the consulate; she was directed in this search by "SECNAVES", the maritime bureau of the Ministry of the Treasurer in Panama.

Things changed for Mrs. Ford when Mr. Luis Felipe Clement was appointed in Panama to serve as Consul General in New York, an appointment which, according to plaintiffs, represented "a continuation of the personal patronage system of the military government" in Panama. According to the Complaint, once Mr. Clement arrived in New York late in 1990, he "built up his own staff and began isolating Mrs. Ford ... and began working against her accreditation," allegedly indulging in "a campaign of harassment designed to force Mrs. Ford out of the Consulate in direct contradiction to the official Panama government appointment of Mrs. Ford." Mr. Clement purportedly had Mrs. Ford "surveilled," and spread "false allegations against both her and Mr. Ford, verbally and in writing to Ambassador Vallarino and Ministers Galindo and Linares."

The allegations set out in the Complaint are no doubt quite distressing, not only with respect to the plaintiff's well-being but because there are claims that Mr. Clement "engaged in activities designed to further his own financial interests at the expense of both Panama and the U.S." Indeed, the Complaint notes that Panamanian newspapers portrayed Mr. Clement as "expropriating government funds for his own use."

In any event, Mr. Clement's "activities against Mrs. Ford" allegedly "created such personal stress on her to cause her to become ill and also injure herself, and he ultimately and improperly caused her to be discharged." The Complaint states that Mr. Clement refused to pay her, and has interfered with an order that he pay her.

In addition to Mr. Clement, plaintiffs formally name, but have not served, the United States State Department and the Republic of Panama as defendants in this action. Other than the failure of these governments to provide the "courtesy of a response" to the plaintiffs' requests for assistance, however, the Complaint attributes no wrong actions to these defendants.

Plaintiffs seek as relief a formal apology from the Government of Panama for their treatment of Mrs. Ford, "as well as written assurances that any and all negative or derogatory materials against Mrs. Ford have been removed from the files and destroyed." The plaintiffs also seek letters thanking Mrs. Ford for her efforts on behalf of the Panamanian agencies. Plaintiffs demand that Mr. Clement be censured for his treatment of Mrs. Ford, and they seek $250,000 in compensation for Mrs. Ford's past efforts and $10,000,000 for damages to her reputation and her well being.

Mr. Clement has moved to dismiss the claims brought against him on several grounds, including the consular immunity bestowed by the Vienna Convention on Consular Relations, April 24, 1983, 21 U.S.T. 77, T.I.A.S. 6820-, 596 U.N.T.S. 261 (the "Vienna Convention"). The Republic of Panama has entered a limited appearance for purposes of moving, on various grounds, to dismiss the claims against it. These motions are now before me.

II. Discussion

Consular Immunity of Mr. Clement Under the Vienna Convention

Jurisdiction over Mr. Clement, a consular official, is premised on 28 U.S.C. § 1351, which invests in the district courts "original jurisdiction ... of all civil actions and proceedings against — (1) consuls or vice consuls of foreign states." This Court does not have jurisdiction over Mr. Clement, however, if he is protected by consular immunity. Thus, no matter how troubling Mr. Clement's alleged actions may be, the Court cannot address them if he is immune from the jurisdiction of this Court.

The appointment of defendant Luis Felipe Clement as the Consul General of the Republic of Panama was approved by the Panamanian Minister of Foreign Relations, the Honorable Julio Linares. According to a September 21, 1990, letter from Richard Gookin, Associate Chief of Protocol for the United States Department of State, the United States had, effective September 5, 1990, recognized Mr. Clement as a consular officer in New York and extended to him the immunities set out in the Vienna Convention on Consular Relations, April 24, 1983, 21 U.S.T. 77, T.I.A.S. 6820-, 596 U.N.T.S. 261 (the "Vienna Convention"). It is on the basis of these immunities, et alia, that Mr. Clement moves to dismiss the claims against him.¹

Article 43 of the Vienna Convention provides as follows:

1. Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving state in respect of acts performed in the exercise of consular functions.

2. The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either:

(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or

(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

"Under this governing standard a consular officer is not immune from all legal process, but must `respond to any process and plead and prove immunity on the ground that the act or omission underlying the process was in the performance of his official functions.'" Koeppel & Koeppel v. Federal Republic of Nigeria, 704 F.Supp. 521, 522 (S.D.N.Y. 1989), citing Restatement (Third) of the Law of Foreign Relations of the United States (1987) ("Restatement"), § 465, comment A. There is no claim that either of the exceptions in Paragraph 2 applies to this action, and therefore the sole issue is whether or not Mr. Clement may avail himself of the immunity conferred under Paragraph 1 — in other words, the issue is whether or not the actions giving rise to this suit were "performed in the exercise of consular functions." This involves a two-part inquiry. First, the Court must determine that the actions of the consular officials implicated some "consular function." Second, the "acts for which the consular officials seek immunity must be `performed in the exercise of the consular functions' in question." Gerritsen v. Consulado General de Mexico, 989 F.2d 340, 346 (9th Cir.1993), citing Joseph v. Office of the Consulate General of Nigeria, 830 F.2d 1018, 1027-28 (9th Cir.1987), cert. denied, 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236 (1988). Before turning to the first prong of the inquiry, I note that there is little guidance on this subject from the October 28, 1992, certificate of Richard Gookin, which simply states that "whether a particular action or activity would be considered to be an exercise of a person's consular functions is a matter for judicial determination."

"Consular functions" include such activities as "affording protection to the interests of the sending state or its nationals and furthering commercial, economic, cultural and scientific relations between the sending state and the receiving state by lawful means," among others. Restatement § 465, Reporters' Note 4, citing Vienna Convention, Article 5. By virtue of the catch-all provision of Article 5(m) of the Vienna Convention, consular functions also include

performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State.

Although there is little case law as to what constitutes a consular function, the Court nevertheless concludes that consular functions are implicated in this action — in particular, the management and supervision of the Vice Consul and other consular staff. These tasks come within the scope of Article 5(m) since they are fundamental to the efficient execution of all of the other consulate functions enumerated by the Vienna Convention. Moreover, they are necessarily entrusted to the Consul General by the sending State² and indeed lie at the core of any efforts by the Consul General to perform its designated functions. Finally, the Second Circuit has cautioned against a narrow reading of the immunity provided by the Vienna convention, in particular Article 5(m). See Heaney v. Government of Spain, 445 F.2d 501 (2d Cir.1971).

As to the second prong of the test, there are no clear rules...