Mukaddam v. Permanent Mission of Saudi Arabia

• Citation: 111 F.Supp.2d 457
• Decision Date: 08 September 2000
• Docket Number: No. 99 Civ. 3354(LAK).,99 Civ. 3354(LAK).
• Parties: Rajaa Al MUKADDAM, Plaintiff, v. PERMANENT MISSION OF SAUDI ARABIA TO THE UNITED NATIONS, Defendant.
• Court: U.S. District Court — Southern District of New York

111 F.Supp.2d 457

Rajaa Al MUKADDAM, Plaintiff, v. PERMANENT MISSION OF SAUDI ARABIA TO THE UNITED NATIONS, Defendant.

No. 99 Civ. 3354(LAK).

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

September 8, 2000.

COPYRIGHT MATERIAL OMITTED

Bobbi C. Sternheim, Rochman, Platzer, Fallick & Sternheim, LLP, for plaintiff.

Alexandra A.E. Shapiro, Matthew T. Martens, Latham & Watkins, for defendant.

Ralph Zacklin, Assistant Secretary-General for Legal Affairs, United Nations Office of Legal Affairs, for amicus curiae The United Nations.

Wendy H. Schwartz, Assistant United States Attorney, Mary Jo White, United States Attorney, Stephen D. McCreary, Office of Diplomatic Law and Litigation, United States Department of State, for amicus curiae United States Department of State.

MEMORANDUM OPINION

KAPLAN, District Judge.

Plaintiff Rajaa Al Mukaddam ("Mukaddam") was employed by the defendant Permanent Mission of Saudi Arabia to the United Nations (the "Mission") for over 14 years. Plaintiff contends that she was wrongfully terminated by the defendant in April 1998 following a pattern of harassment and gender discrimination that began in 1996 and asserts claims of wrongful termination and retaliation under Title VII of the Civil Rights Act of 1964¹ and the New York State Human Rights Law.²

The defendant contends that its status as the Permanent Mission of Saudi Arabia entitles it to immunity from suit in the United States and renders the statutes under which plaintiff sues inapplicable. It therefore moves to dismiss plaintiff's claims on the grounds that this Court lacks subject matter and personal jurisdiction and that plaintiff's complaint fails to state a claim upon which relief can be granted.

Submissions by the United States and the United Nations

Mindful of the diplomatic and sovereign immunity concerns raised by this case, the Court invited the United States Department of State and the Office of Legal Affairs of the United Nations to express any views they might have on the Mission's motion to dismiss.³

The Department of State submitted a Statement of Interest in which it set forth the United States' view on the parameters of immunity to suit of Saudi Arabia under the Foreign Sovereign Immunities Act ("FSIA")⁴ and the Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes (the "Vienna Convention").⁵ In a thorough analysis of the FSIA and relevant case law, the United States concluded that jurisdiction is determined by the FSIA and depends on whether the FSIA's "commercial activity" exception applies to this case. That, in turn, depends on whether the Court finds that plaintiff was a member of the Saudi Arabian civil service.⁶ The United States does not interpret Article 7 of the Vienna Convention as providing immunity from claims by employees of diplomatic missions, but rather as limiting receiving states from imposing restrictions, other than those set forth in the articles enumerated in Article 7, on the acceptance of mission personnel.⁷ The United States acts consistently with this view and defends cases in foreign courts involving conditions of employment or discharge at its diplomatic and consular missions in other countries, generally considering them to be commercial in nature.⁸

The United Nations submitted a letter setting forth its position that any measure, such as legal process, that might impede the maintenance of Permanent Missions to the United Nations or their ability to discharge their official functions would contravene the Charter of the United Nations and the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations.⁹ In addition, the United Nations interprets the Vienna Convention's grant of authority to "freely appoint" mission staff¹⁰ as extending to the freedom to decide whether to continue or terminate such appointments and finds that subjecting such decisions to the jurisdiction of the receiving state would violate the sending state's sovereign immunity. The United Nations concluded that this case does not arise out of commercial activities of Saudi Arabia and that the exercise of jurisdiction in this case would contravene all three of the aforementioned international agreements.

The Court appreciates and has considered each of these submissions, as well as the international agreements that they cite, in deciding this motion.

Standard for Dismissal under Rule 12(b)(1), (2) and (6)

In resolving a motion to dismiss, the Court must accept as true the factual allegations set forth in the complaint and draw all reasonable inferences in favor of plaintiff.¹¹ A complaint may not be dismissed under Rule 12 "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief."¹² In other words, the issue before the Court on this motion to dismiss "is not whether ... plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support [her] claims."¹³

As an additional matter, the Court will consider the plaintiff's employment contract in the Rule 12 dismissal determination. Rule 12(b) motions are made solely upon the pleadings.¹⁴ In passing on such a motion, however, the Court may consider also those documents to which plaintiff refers in the complaint.¹⁵ Plaintiff's employment contract is incorporated by reference in the complaint and therefore is properly considered by the Court in deciding this motion.¹⁶

Discussion

The Mission argues that plaintiff's suit is barred by the Foreign Sovereign Immunities Act ("FSIA") and the Vienna Convention on Diplomatic Relations (the "Vienna Convention") and, in any case, that it is not an "employer" within the meaning of either Title VII or the New York Human Rights Law. Additionally, the Mission argues that, under the FSIA, there is no right to jury trial in actions against foreign states and moves to strike plaintiff's jury demand.¹⁷

A. The Foreign Sovereign Immunities Act

Traditionally, foreign states have enjoyed broad sovereign immunity from suit in United States courts. In 1976 Congress enacted the FSIA, codifying a "restrictive theory" of sovereign immunity, and established it as the sole basis for obtaining subject matter jurisdiction over a foreign state, its agencies, or its instrumentalities.¹⁸ Under the FSIA a foreign state is immune from suit in the United States absent an express waiver of immunity or an applicable statutory exception.¹⁹ Where there is no immunity, the federal district courts have subject matter jurisdiction over nonjury civil actions against foreign states and their instrumentalities and, if service of process is made in accordance with the FSIA, there is personal jurisdiction over the foreign defendant.²⁰

The parties agree that the defendant is a foreign state, or an agency or instrumentality of a foreign state, within the meaning of the FSIA.²¹ Thus, the FSIA applies to this action and, since the Mission has not waived immunity, it is immune from suit unless one of the FSIA's statutory exceptions applies.²² The exception that plaintiff seeks to invoke is found at 28 U.S.C. § 1605(a)(2) and covers cases involving commercial activities of a foreign state that either take place or have a direct effect in the United States.²³

1. Exceptions to Immunity Under § 1605(a)(2)

The language of Section 1605(a)(2) is precise and should be construed narrowly.²⁴ It provides:

"A foreign state or its instrumentalities shall not be immune from the jurisdiction of courts of the United States or of the States in any case —

* * * * * *

"(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;

...."²⁵

Plaintiff relies on the first clause of this subsection and argues that the commercial activity relevant to this action is her employment by the Mission.²⁶ The Mission disputes that its employment of plaintiff constituted commercial activity, asserting that she was employed as a professional civil servant whose duties were to carry out a foreign policy function.²⁷

2. Was Plaintiff's Employment Commercial Activity?

Commercial activity is defined in the FSIA as "a regular course of commercial conduct or a particular commercial transaction or act."²⁸ The statute goes on to state that "[t]he commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose."²⁹ Thus, in determining whether a specific act is commercial, courts first must determine the nature of the act, considering its purpose "only so far as is absolutely necessary to define the nature of the act in question."³⁰ In making this determination, an important inquiry is whether the specific act under consideration is one in which private parties normally engage.³¹ An affirmative answer indicates a commercial act, upon which suit against a foreign sovereign may be based, as opposed to a public or governmental act, which is immunized from suit.

Plaintiffs duties during her employment with the Mission are not in dispute. They included writing speeches that Saudi government officials delivered to the United Nations and were published in local newspapers, establishing and maintaining a data bank classification system, establishing a system for registering and responding to correspondence to and from the Mission, drafting correspondence and public statements, writing memos, letters, faxes and reports to the Ministry of Foreign Affairs in Saudi Arabia and, on one occasion, speaking with students concerning Saudi...