Sabbithi v. Al Saleh

• Decision Date: 20 March 2009
• Docket Number: Civil Action No. 07-115 (EGS).
• Citation: 605 F.Supp.2d 122
• Parties: Mani Kumari SABBITHI, et al., Plaintiffs, v. Major Waleed KH N.S. AL SALEH, et al., Defendants.
• Court: U.S. District Court — District of Columbia

605 F.Supp.2d 122

Mani Kumari SABBITHI, et al., Plaintiffs, v. Major Waleed KH N.S. AL SALEH, et al., Defendants.

Civil Action No. 07-115 (EGS).

United States District Court, District of Columbia.

March 20, 2009.

COPYRIGHT MATERIAL OMITTED

Araceli Martinez-Olguin, Steven M. Watt, American Civil Liberties Union Foundation, Lenora M. Lapidus, ACLU Women's Rights Project, New York, NY, Allison Hawley, Catherine Rosato, Craig Gerald Falls, Matthew Sheehan, Dechert, LLP, Philadelphia, PA, David A. Kotler, Jennifer L. Rellis, Dechert LLP, Princeton, NJ, Tara R. Kelly, Dechert, LLP, Washington, DC, for Plaintiffs.

Thomas B. Wilner, Shearman & Sterling, Washington, DC, for Defendants.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Plaintiffs Mani Kumari Sabbithi, Joaquina Quadros, and Gila Sixtina Fernandes, domestic workers from India, bring this action against their former employers Major Waleed KH N.S. Al Saleh, his wife, Maysaa KH A.O.A. Al Omar, (together "defendants"), and the State of Kuwait.¹ Plaintiffs bring suit under the Trafficking Victims Protection Act of 2000 ("TVPA"), 18 U.S.C. § 1581, et seq., the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., and assert various contract and tort claims.² Before this Court is the defendants' motion to dismiss the complaint and quash service of process based on diplomatic immunity. Upon consideration of the motion, the responses and replies thereto, the amici curiae brief and response thereto, the Statement of the United States and responses thereto, and the applicable law, the Court GRANTS defendants Al Saleh and Al Omar's motion to dismiss and quashes service of process as to those defendants.

I. BACKGROUND

Defendant Major Waleed KH N.S. Al Saleh is a Kuwaiti diplomat. Al Saleh and his wife, defendant Maysaa KH A.O.A. Al Omar, lived in the United States from 2005 to 2007, while Al Saleh served as Attaché to the Embassy of Kuwait. See Compl. ¶ 9; see also Pls.' Sur-rep. 2. Prior to moving to the United States, the defendants employed plaintiffs as domestic workers in the defendants' home in Kuwait. The individual plaintiffs worked for the defendants in Kuwait for a period ranging from five and a half years to eight and a half months. See Compl. ¶¶ 16-46. In Kuwait, plaintiffs allegedly worked seven days a week, for long hours each day, and were paid between 35 Kuwaiti Dinar (KD) (approximately $121 U.S. dollars) and 40 KD (approximately $138 U.S. dollars) per month. Id. According to plaintiffs, however, before coming to the United States the defendants signed an employment contract promising to pay plaintiffs $1,314 U.S. dollars per month and agreeing to comply with United States labor laws in exchange for plaintiffs' domestic work in the defendants' home in the United States. Id. Plaintiffs assert that these employment contracts were presented to the United States Embassy in Kuwait for the purpose of obtaining plaintiffs' A-3 visas, which authorized plaintiffs to work as live-in domestic servants in defendants' home in McLean, Virginia. Id.

Plaintiffs claim that once in the United States, the defendants did not comply with the terms of the employment contracts. Allegedly, plaintiffs worked sixteen to nineteen hours per day, seven days a week, and were not paid directly, but instead defendants sent wages of 70 KD (approximately $242 U.S. dollars) to 100 KD (approximately $346 U.S. dollars) per month to plaintiffs' families overseas. See id. ¶¶ 47-93. Plaintiffs allege that the defendants deprived them of their passports, threatened plaintiffs with physical harm, and physically abused Sabbithi. Id.

Plaintiffs eventually escaped the defendants' home, and, on January 18, 2007, plaintiffs filed this complaint against defendants and the State of Kuwait. In addition to this civil action, plaintiffs pursued criminal charges against the defendants through the U.S. Department of Justice ("DOJ"). Pursuant to the DOJ's request, the U.S. Department of State ("State Department") asked the State of Kuwait to waive the defendants' diplomatic immunity. Pls.' Sur-rep. Ex. A. According to the State Department, Kuwait declined to waive the defendants' immunity. Id. As a result, the DOJ closed its investigation into defendants' alleged illegal conduct. Id.

On July 18, 2007, the Court granted Break the Chain Campaign, Casa of Maryland, Inc., Asian American Legal Defense and Education Fund, Global Rights, and Boat People SOS, Inc. leave to file as amici curiae a memorandum of law in support of plaintiffs' opposition to the defendants' Motion to Dismiss and Quash Service of Process. On March 20, 2008, this Court invited the State Department to submit its views regarding this case. The State Department responded on July 22, 2008.

II. DISCUSSION

A. Diplomatic Immunity

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1351, which states that district courts "have original jurisdiction, exclusive of the courts of the States, of all civil actions and proceedings against . . . members of a mission or members of their families (as such terms are defined in section 2 of the Diplomatic Relations Act)." 28 U.S.C. § 1351(2); see also Gonzalez Paredes v. Vila, 479 F.Supp.2d 187, 191 (D.D.C.2007).

Defendants argue that they have diplomatic immunity, and that their immunity deprives this Court of jurisdiction in this case, pursuant to the Vienna Convention on Diplomatic Relations ("the Vienna Convention," "Convention" or "VCDR"), to which both Kuwait and the United States are parties. The Vienna Convention provides that a "diplomatic agent shall . . . enjoy immunity from [the receiving state's] civil and administrative jurisdiction. . . ." VCDR, Article 31(1). The Convention further provides that the "members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36." VCDR, Article 37. The Vienna Convention also provides that a diplomatic agent "shall not in the receiving State practice for personal profit any professional or commercial activity." VCDR, Article 42. Diplomatic immunity can be forfeited "in the case of . . . an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions." Id.; see also Article 32(3).

In accordance with the Vienna Convention, Congress enacted 22 U.S.C. § 254d, which provides that "[a]ny action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations . . . shall be dismissed." 22 U.S.C. § 254d. Therefore, if the Court concludes that defendants are immune, it must dismiss the action pursuant to 22 U.S.C. § 254d. Gonzalez Paredes, 479 F.Supp.2d at 191.

A defendant's diplomatic immunity "may be established upon motion or suggestion by or on behalf of the individual. . . ." 22 U.S.C. § 254d. Defendants filed as an exhibit to their motion to dismiss a letter from the State Department dated March 15, 2007. In that letter, the State Department confirmed that in August 2004, the Embassy of Kuwait had notified the State Department that Al Saleh was a diplomatic agent at the Embassy of Kuwait and, as of March 2007, Al Saleh continued to serve in that capacity. Mot. to Dismiss Ex. 2. The State Department also certified that the Embassy of Kuwait had confirmed that Al Omar was a national of Kuwait and Al Saleh's spouse residing in his household. Id. In addition, defendants filed the State Department's Diplomatic List from the summer of 2006, in which the defendants' names appear as diplomats of Kuwait. Mot. to Dismiss Ex. 3.

In view of the State Department's determination that the defendants are diplomats and its certification that as diplomats they are immune from suit pursuant to the Vienna Convention, the Court concludes that these defendants are entitled to diplomatic immunity. See Gonzalez Paredes, 479 F.Supp.2d at 192; see also Carrera v. Carrera, 174 F.2d 496, 497 (D.C.Cir.1949) ("The courts are disposed to accept as conclusive of the fact of the diplomatic status of an individual claiming an exemption, the views thereon of the political department of their government." (citation and internal quotation marks omitted)).

B. Proposed Liability Despite Diplomatic Immunity

Despite defendants' status as diplomats, plaintiffs contend that diplomatic immunity should not shield the defendants from liability in this case. In support of this position, plaintiffs argue that: (1) defendants' alleged trafficking of plaintiffs falls within the commercial activities exception to immunity under the Vienna Convention; (2) diplomatic immunity cannot bar plaintiffs' claims challenging defendants' conduct in violation of the Thirteenth Amendment; (3) diplomatic immunity cannot bar plaintiffs' claims because defendants' actions were so egregious they violate jus cogens norms prohibiting slavery and slavery-like practices; and (4) plaintiffs' claims under the TVPA prevail over defendants' conflicting claims of diplomatic immunity according to the "subsequent-in-time" rule. Amici curiae filed a brief in support of plaintiffs' arguments, specifically with respect to plaintiffs' assertion that the defendants' conduct constituted human trafficking and that the alleged trafficking constitutes "commercial activity" within the meaning of the Vienna Convention. See Amici Brief at 8-14.

1. The "Commercial Activity" Exception to Diplomatic Immunity

The purpose of diplomatic immunity is "to `contribute to the development of friendly relations among nations' and to `ensure the efficient performance of the functions of diplomatic missions'". Hellenic Lines, Ltd. v. Moore, 345 F.2d 978, 980 (D.C.Cir.1965) (citing the Vienna Convention preamble). Consistent with that purpose, the Vienna Convention provides that a...