Gerritsen v. de la Madrid Hurtado

• Decision Date: 18 June 1987
• Docket Number: No. 86-5726,86-5726
• Citation: 819 F.2d 1511
• Parties: Jack GERRITSEN, Plaintiff-Appellant, v. Miguel DE LA MADRID HURTADO, Javier Escobary Cordova, Agustin G. Santaolalla, Consulado General De Mexico, Enrique S. Guzman, Salvador Uribe, Defendants- Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1511

819 F.2d 1511

Jack GERRITSEN, Plaintiff-Appellant, v. Miguel DE LA MADRID HURTADO, Javier Escobary Cordova, Agustin G. Santaolalla, Consulado General De

Mexico, Enrique S. Guzman, Salvador

Uribe, Defendants- Appellees.

No. 86-5726.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 8, 1987.

Decided June 18, 1987.

Jack Gerritsen, Monterey Park, Cal., for plaintiff-appellant.

Eduardo De-Ibarolla Nicolin and Alfonso de Rosenzweig-Diaz, Los Angeles, Cal., for appellees.

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

Before PREGERSON and NORRIS, Circuit Judges, and REED, ^* District Judge.

PREGERSON, Circuit Judge:

Jack Gerritsen, alleging various torts and civil rights violations, filed a complaint pro se against the President of Mexico, the Mexican Consulate, and several consular officials and employees associated with the Mexican Consulate in Los Angeles. The Mexican government filed a motion to dismiss the complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim. The district court dismissed the complaint against all of the defendants for lack of subject matter jurisdiction. Gerritsen appeals the district court's order dismissing the complaint. We reverse.

We hold that the district court has subject matter jurisdiction over the claims against the two consuls general, the vice consul, and the Mexican Consulate. We further hold that Gerritsen must be allowed to amend his complaint, if he wishes, to gain jurisdiction over the other defendants as well.

BACKGROUND

Gerritsen filed a complaint pro se in which he alleged various wrongful acts by the Mexican government and its employees. There has been no proof at this stage of the proceedings that the acts alleged in Gerritsen's complaint occurred. In reviewing a dismissal for lack of subject matter jurisdiction, we are required to assume that the allegations in the complaint are true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (dismissal for lack of subject matter jurisdiction and failure to state a claim); Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985) (dismissal for failure to state a claim), cert. denied, --- U.S. ----, 106 S.Ct. 795, 88 L.Ed.2d 773 (1986).

The complaint alleges that on several occasions, when Gerritsen was distributing leaflets critical of the Mexican government in front of the Mexican Consulate in Los Angeles, consulate staff acted in various unlawful ways to stop him from distributing the leaflets. The staff's alleged acts included striking Gerritsen with a heavy metal object, threatening him with a club and with a gun, kidnapping and interrogating him, and forcibly taking his leaflets and camera. Gerritsen also alleges that the consulate staff on one occasion asked the Los Angeles Police to arrest him.

The complaint alleges jurisdiction under 28 U.S.C. Sec. 1343. ¹ It names as defendants In its sua sponte order dismissing the complaint, the district court held that the Mexican government could not represent the defendants pro se, that there is no personal jurisdiction over the president of Mexico, and that there is no subject matter jurisdiction under 28 U.S.C. Sec. 1343 because of the absence of state action. ² Gerritsen appeals only the third holding. ³

the president of Mexico, the Mexican Consulate, two consuls general of Mexico, a vice consul of Mexico, an administrative assistant at the Mexican Consulate in Los Angeles, and unidentified employees of the Mexican government. The Mexican government is not itself a party. However, the motion to dismiss below and the appellate brief filed on behalf of these defendants were filed by the Mexican government pro se.

DISCUSSION

I. Appealability

The district court's sua sponte order dismissing the complaint concludes with the following language: "Accordingly, for the reasons stated above, President de la Madrid is dismissed from this action with prejudice; plaintiff's complaint is dismissed for lack of subject matter jurisdiction."

Ordinarily an order dismissing the complaint rather than dismissing the action is not a final order and thus not appealable. However, "[i]f it appears that the district court intended the dismissal to dispose of the action, it may be considered final and appealable." Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984).

The order did not grant Gerritsen leave to amend the complaint. Failure to allow leave to amend supports an inference that the district court intended to make the order final. See Scott v. Eversole Mortuary, 522 F.2d 1110, 1112 (9th Cir.1975). Furthermore, the court's intention of finality is evinced by its apparent conclusion that amendment of the complaint could not save the action. See Scanlon v. Atascadero State Hosp., 677 F.2d 1271, 1272 (9th Cir.1982), vacated on other grounds, 465 U.S. 1095, 104 S.Ct. 1583, 80 L.Ed.2d 117 Because the complaint could not properly have been amended to allege state action, it is clear that the district court intended its order dismissing the complaint to dispose of the action. Thus, we hold that the order is final and appealable.

(1984). The district court dismissed the complaint because of the absence of state action (i.e., conduct under color of state law required by 28 U.S.C. Sec. 1343(a)(3)). In doing so, the district court noted that "[t]he alleged unconstitutional actions taken against plaintiff were all taken by members of the Mexican consulate or officials of the Mexican government," and that acts by the Mexican government, including the Mexican Consulate, cannot constitute conduct under color of state law. The complaint, therefore, could not be amended to allege that the defendants' conduct was under color of state law as required by section 1343(a)(3).

II. Subject Matter Jurisdiction

Whether subject matter jurisdiction exists is a question of law reviewable de novo. Peter Starr Prod. Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.1986).

The only statutory provision under which the complaint asserted subject matter jurisdiction is 28 U.S.C. Sec. 1343 (granting subject matter jurisdiction over certain actions seeking protection of civil rights and elective franchise). The district court considered no other ground for subject matter jurisdiction. However, in determining the existence of subject matter jurisdiction, we are not limited to the jurisdictional statutes identified in the complaint. "[T]he court may sustain jurisdiction when an examination of the entire complaint reveals a proper basis for assuming jurisdiction other than one that has been improperly asserted...." 5 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1206 (1969); see Williams v. United States, 405 F.2d 951, 954 (9th Cir.1969) ("If facts giving the court jurisdiction are set forth in the complaint, the provision conferring jurisdiction need not be specifically pleaded."). Therefore, we will consider jurisdiction under 28 U.S.C. Sec. 1351 (granting subject matter jurisdiction over civil actions against consuls, vice consuls, and members of a diplomatic mission) and 28 U.S.C. Sec. 1330 (granting subject matter jurisdiction over certain actions against foreign states) as well as jurisdiction under 28 U.S.C. Sec. 1343.

A. Jurisdiction Under 28 U.S.C. Sec. 1351

28 U.S.C. Sec. 1351 provides: "The district courts shall have original jurisdiction, exclusive of the courts of the States, of all civil actions and proceedings against--(1) consuls or vice consuls of foreign states...." By virtue of this statute the federal courts may exercise jurisdiction over the two consuls general and one vice consul who are defendants in this action. ⁴

Jurisdiction, however, may be limited by treaty. See Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 458, 31 L.Ed. 386 (1888) ("By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation"). To determine the power of the district court to exercise jurisdiction over the defendants in this case, we must examine the provisions of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S. 6820, 596 U.N.T.S. 261. See Silva v. Superior Court, 52 Cal.App.3d 269, 275-78, 125 Cal.Rptr. 78, 82-84 (1975). The Vienna Convention is the most recent and most authoritative treaty binding on both Mexico and the United States that deals with consular relations and consular immunity. ⁵

Article 43 of the Vienna Convention provides as follows: "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." 21 U.S.T. at 104. Jurisdiction can be gained over consular officers and employees, therefore, only with respect to acts that do not constitute "consular functions." The term "consular functions" is defined in Article 5 of the Vienna Convention. Only two sections of Article 5 are relevant to the present case:

Consular functions consist in: (a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law; ... (m) 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.

21 U.S.T. at 82-85 (emphasis added).

There appears to be no authority interpreting the vague term "within the limits permitted by international law" in Article 5(a) of the Vienna Convention. It would appear, however, that the treaty does not include interference with the internal affairs of...