Gerritsen v. Consulado General De Mexico

Decision Date03 March 1993
Docket NumberNo. 92-55226,92-55226
Citation989 F.2d 340
PartiesJack GERRITSEN, Plaintiff-Appellant, v. CONSULADO GENERAL DE MEXICO, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Jack Gerritsen, in pro. per.

Carlos Pujalte Pineiro, Deputy Legal Advisor, Ministry of Foreign Affairs, United Mexican States.

Lourdes G. Baird, U.S. Atty., Leon W. Weidman, Asst. U.S. Atty. Chief, Civ. Div., Peter Hsiao, Asst. U.S. Atty., Los Angeles, CA, for federal defendants-appellees FBI and Carlos Berrios.

Appeal from the United States District Court for the Central District of California.

Before: D.W. NELSON, WIGGINS, LEAVY, Circuit Judges.

D.W. NELSON, Circuit Judge:

Appellant Jack Gerritsen ("Gerritsen") appears pro se, challenging the district court's grants of motions to dismiss and motions for summary judgment in favor of the defendants. 1 Specifically, he claims error in the district court's dismissal of the claims against the Federal Bureau of Investigation ("FBI") and FBI agent Carlos Berrios ("Berrios"); he also challenges the district court's summary judgment ruling in favor of the Consulate General of Mexico ("the Consulate" or the "Mexican Consulate"), and several officers or employees of the Consulate--Consul Javier Escobar y Cordova, Consul Agustin Garcia Lopez Santaolalla, Vice-consul Enrique Silva Guzman, and Assistant Salvador Uribe (collectively, "the consular defendants" or "the Mexican defendants"). We affirm the district court.

I. Background

In 1985, Gerritsen brought suit against more than 20 defendants, including the defendants named above, the City of Los Angeles, several of its employees, the Los Angeles Police Department (LAPD), and others. The district court eventually dismissed all of the defendants; Gerritsen does not appeal the vast majority of those dismissals. Gerritsen claimed that the defendants violated his constitutional rights under the First, Ninth and Fourteenth amendments, the Racketeering Influenced and Corrupt Organizations Act (18 U.S.C. § 1962(c), (d) (1988)), 42 U.S.C. § 1983 (1988), and 42 U.S.C. § 1985 (1988).

Gerritsen's claims essentially arise out of his political protest activities near the Mexican Consulate in Los Angeles in 1982, 1983 and 1984. The Consulate is housed in a building leased from the City of Los Angeles and located in El Pueblo State Historic Park. Gerritsen frequently chose the Consulate, with its long lines of people seeking visas and other paperwork, as a site to express his political views, which are extremely critical of the Mexican government. He distributed Spanish and English language pamphlets, newspapers, and handbills near the Consulate; he gave speeches (sometimes using a loudspeaker or megaphone) there; and, sometimes attempted to confront the Consulate officials directly about various policies of the Mexican government.

Gerritsen's theory is that Mexican Consulate officials, the City of Los Angeles and its employees, park security guards, the LAPD, and the FBI conspired to deprive him of his First Amendment rights to distribute political literature, engage in political speech, and participate in other expressive activities. He alleges that the consular defendants inhibited his activities by asking him to desist in his protests and disruptions of consular business, threatening to take legal action against him, assaulting him, falsely imprisoning him, and kidnapping him.

In 1986, the district court dismissed with prejudice the complaint as to the Mexican defendants on the basis of lack of subject matter jurisdiction. Gerritsen appealed that decision to this court, which reversed and remanded the case with instructions to allow the plaintiff to amend his complaint. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511 (9th Cir.1987) ("Gerritsen I "). Gerritsen subsequently amended his complaint in October 1987 and again in December 1987, now claiming subject matter jurisdiction over the Consulate and the Mexican defendants under 28 U.S.C. §§ 1330(a) and 1351 (1988).

The district court again ruled in favor of these defendants, finding that Gerritsen did not perfect service on the Consulate, Garcia or Uribe and that the court did not have subject matter jurisdiction over Escobar or Silva. Gerritsen v. Cordova, et al., 721 F.Supp. 253 (C.D.Cal., 1988). Gerritsen immediately appealed to this court, but this court refused to hear the appeal as it was not a final, appealable order.

In December 1987, the district court granted the FBI's motion to dismiss on the grounds that it lacked jurisdiction over suits brought against a federal agency eo nomine absent an explicit authorization of Congress. Nearly two years later, the district court granted FBI Agent Berrios' motion for summary judgment, finding that the statute of limitations had expired.

In late 1991 and early 1992, the district court dismissed the remaining defendants--two private security companies, the City of Los Angeles, and several City employees. Gerritsen does not appeal the decisions as to these defendants. These dismissals transformed the earlier dismissals and grants of summary judgment into final orders, thus clearing the way for Gerritsen's timely appeal of the rulings in favor of the FBI, FBI Agent Berrios, the Mexican Consulate, and the Consulate officials. 2

II. Dismissal of the FBI

Whether or not the FBI was immune from suit is a question of law which we review de novo. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir.1984). The district court dismissed the FBI as a defendant in this case because it lacked jurisdiction over suits against a federal agency absent express statutory authorization.

The law of this circuit compels our affirmance of the court's dismissal. See City of Whittier v. United States Department of Justice, 598 F.2d 561, 562 (9th Cir.1979); accord, Abbott Bldg. Corp. Inc. v. Federal Savings and Loan Ins. Corp., 739 F.Supp. 532 (D.Nev.1990), aff'd, 951 F.2d 191 (9th Cir.1991). Gerritsen's assertion that none of these cases concern the FBI is correct but irrelevant; what matters is that the FBI is a federal agency and that Congress has not revoked its immunity. 3

III. Dismissal of the FBI Agent

The district court dismissed FBI Agent Berrios in 1989, finding that the statute of limitations for the alleged injury had expired. We review an application of the statute of limitations de novo. Felton v. Unisource Corp., 940 F.2d 503, 508 (9th Cir.1991). When such application turns on what a reasonable person should know, a mixed question of law and fact is presented which we review for clear error. Rose v. United States, 905 F.2d 1257, 1259 (9th Cir.1990).

In California, a so-called Bivens action against a federal agent is subject to a four year statute of limitations. Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir.), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987). Gerritsen alleges that Berrios violated his constitutional rights by lying about the legality of his protest activities at the Consulate. This allegation is based on a conversation between Gerritsen and Berrios in August 1983. Gerritsen filed his original complaint in 1985, but he did not add Berrios as a defendant until December, 1987.

"[T]he touchstone for determining the commencement of the limitations period is notice: 'a cause of action generally accrues when a plaintiff knows or has reason to know of the injury which is the basis of his action.' " Hoesterey v. City of Cathedral City, 945 F.2d 317, 319 (9th Cir.1991) (quoting Cline v. Brusett, 661 F.2d 108, 110 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1941, 118 L.Ed.2d 546 (1992)). In this case, then, the limitations began tolling in August 1983, yet Gerritsen did not name Berrios as a defendant until December 1987--more than four years after the alleged violation. Thus, the district court properly found that the statute of limitations had expired.

The district court also made findings of fact regarding the relating back and tolling exceptions, and it concluded that these provisions did not apply in this case. The district court found that Berrios never received actual notice of the original 1985 complaint from Gerritsen; that Berrios had no way of knowing he would be sued at a later date; and that Berrios' himself had nothing to do with causing Gerritsen's delay in adding him to the complaint. As these factual findings are not clearly erroneous, we will not reverse them.

IV. Grant of Summary Judgment for the Mexican Defendants

The district court granted the motion for summary judgment filed by the Mexican Consulate and the consulate defendants on two grounds. First, it found that it lacked personal jurisdiction due to improper service over the Consulate itself and two individual defendants--Garcia and Uribe. Regarding the two remaining individual defendants, Escobar and Silva, the district court found that it lacked subject matter jurisdiction over them because they were immune under the Vienna Convention on Consular Relations ("Vienna Convention"). 21 U.S.T. 77. We affirm the district court in both respects.

A district court's ruling on whether or not there is personal jurisdiction is reviewed de novo. Bourassa v. Desrochers, 938 F.2d 1056, 1057 (9th Cir.1991). Whether or not the district court has subject matter jurisdiction is a question of law which we review de novo. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511 (9th Cir.1987); see also Joseph v. Office of the Consulate General of Nigeria, 830 F.2d 1018 (9th Cir.1987), cert. denied, 485 U.S. 905, 108 S.Ct. 1077, 99 L.Ed.2d 236 (1988). We accept the factual findings on which the district court bases its jurisdictional conclusions as correct unless they are clearly erroneous. Reebok Int'l, Ltd. v. Marnatech Enterprises, Inc., 970 F.2d 552, 554 (9th Cir.1992).

A. Lack of Personal Jurisdiction
1. Improper Service as to Garcia and Uribe

Gerritsen sued the four...

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