Lyders v. Lund

• Decision Date: 12 April 1929
• Docket Number: No. 2300K.,2300K.
• Citation: 32 F.2d 308
• Parties: LYDERS v. LUND, Consul, Etc.
• Court: U.S. District Court — Northern District of California

32 F.2d 308 (1929)

LYDERS v. LUND, Consul, Etc.

No. 2300K.

District Court, N. D. California, S. D.

April 12, 1929.

Sawyer & Cluff, of San Francisco, Cal., for plaintiff.

Morrison, Hohfeld, Foerster, Shuman & Clark, of San Francisco, Cal., for defendant.

KERRIGAN, District Judge.

This is a motion to dismiss a bill in equity, brought by a citizen of the United States against "Fin Lund as consul of Denmark at San Francisco" (this being the description of defendant used in the bill). The bill alleges that plaintiff has been employed by the present consul and his predecessors as attorney for the Royal Consulate of Denmark for a period of about 15 years, and that in the course of his employment he has incurred expenses and earned fees. He alleges that "the said consul of Denmark, being first thereunto duly authorized and empowered," from time to time assigned certain properties to plaintiff as security for reimbursement for sums paid out and as compensation for services to the consulate. The bill seeks an accounting, and a decree for balance due plaintiff, and for sale of the assets assigned to satisfy plaintiff's claim.

Defendant has appeared specially "as consul," and moves to dismiss the bill upon the ground "that the said suit is a suit against the consul of Denmark at San Francisco in his official capacity as such consul." The motion is predicated upon the theory that an action against a consul on account of his official acts is an action against the government which he represents, and that this affords the basis for an assertion of the immunity of the foreign sovereign from suit in our courts. The courts of the United States have, from a very early date, declined to exercise jurisdiction over actions against sovereign nations, sued without their consent. The Exchange, 7 Cranch, 116, 3 L. Ed. 287; Oliver American Trading Co. v. Government of U. S. of Mexico (C. C. A.) 5 F.(2d) 659.

The refusal of the District Courts of the United States to assume jurisdiction against a foreign nation is due to the principles of international comity and general law rather than to lack of jurisdiction over the subject-matter of the suit. Oliver American Trading Co. v. U. S. of Mexico, 264 U. S. 440, 44 S. Ct. 390, 68 L. Ed. 778. Judicial Code, § 24, subd. 1(c), 28 USCA § 41(1) (c), grants to the District Courts jurisdiction of a suit which "is between citizens of a state and foreign states, citizens, or subjects." The same statute (subdivision 18) gives jurisdiction "of all suits against consuls and vice consuls." In the absence of a claim of sovereign immunity from suit, the District Court has jurisdiction. A foreign state may waive its immunity as sovereign (The Sao Vicente C. C. A. 281 F. 111), or, upon proper representations, may claim such immunity from suit (Berizzi Bros. Co. v. The Pesaro, 271 U. S. 562, 46 S. Ct. 611, 70 L. Ed. 1088).

The argument of the motion before me was chiefly confined to the question as to whether this suit is or is not against the sovereign. It appears to me that the test should be similar to that used in determining whether or no a suit against a state officer is an action against a state within the meaning of the Eleventh Amendment. In such cases the suit is held to be against the state, where it is brought against the officer as representing the state's action and liability, thus making it, though not a party to the record, the real party against which the judgment will so operate as to compel it to specifically perform its contracts, and is not against the state, where the liability is predicated upon acts of the officer in excess of his authority or under void authority. Pennoyer v. McConnaughy, 140 U. S. 1, 10, 11 S. Ct. 699, 35 L. Ed. 363.

Similarly, in actions against the officials of a foreign state not clothed with diplomatic immunity, it can be said that suits based upon official, authorized acts, performed within the scope of their duties on behalf of the foreign state, and for which the foreign state will have to respond directly or indirectly in the event of a judgment, are actions against the foreign state. Acts of such officials, beyond the scope of their authority or in connection with their private business, cannot be regarded as acts of the foreign state, and the official may be sued on account of any such acts.

Applying this test to the present case, it appears that this is a case where the immunity from suit of the kingdom of Denmark might be claimed, if the judgment will in fact affect the foreign sovereign. But the kingdom of Denmark is not joined as a defendant in the suit, nor has it been made clear that, as between that kingdom and the defendant consul, such transactions as those sued upon are not considered as the personal acts and liabilities of the consul in the event of suits by third parties.

The question then remains as to whether sovereign immunity is sufficiently claimed by the present special appearance of Fin Lund as consul of Denmark, and his motion to dismiss. The Supreme Court of the United States has had occasion to discuss the proper channels through which such a claim may be made, where the foreign state is not a party to the suit, in a series of late cases. Ex parte Muir, 254 U. S. 522, 41 S. Ct. 185, 65 L. Ed. 383; The Pesaro, 255 U. S. 216, 41 S. Ct. 308, 65 L. Ed. 592; The Sao Vicente, 260 U. S. 151, 43 S. Ct. 15, 67 L. Ed. 179; The Gul...