Tounkara v. Republic of Sen.

Decision Date20 December 2022
Docket Number21-CV-8027 (LAK) (RWL)
CourtU.S. District Court — Southern District of New York


ROBERT W. LEHRBURGER, United States Magistrate Judge.

Plaintiff Elhadji Ousmane Tounkara (“Tounkara” or Plaintiff) asserts claims and seeks damages for alleged negligence, negligent hiring and retention, and negligent training and supervision against the Republic of Senegal (Senegal) and the Permanent Mission of Senegal to the United Nations (“Mission”), as well as gross negligence, negligent infliction of emotional distress, and prima facie tort against Senegal, the Mission and Mission employee Papa Gallo Ndiaye (Ndiaye). Tounkara previously filed an action in this District raising substantially the same claims against the same Defendants which was dismissed. The Court refers to that action, No. 19-CV-9029, as Tounkara I or the Prior Action, and the instant action as Tounkara II. Before the Court for report and recommendation is Defendants' motion to dismiss the instant action and for sanctions. For the reasons that follow, I recommend that the motion to dismiss be GRANTED and the motion for sanctions be DENIED.


As required on a motion to dismiss, the Court accepts as true all well-pleaded allegations of the Complaint and draws all reasonable inferences in favor of Tounkara, the non-moving party.

Senegal is a foreign state. (Tounkara II, Compl. ¶ 5.[1]) Senegal maintains a Mission located in New York City by virtue of the Vienna Convention on Diplomatic Relations (“Vienna Convention”). (Id. ¶ 6.) The Mission is owned, operated, supervised, and otherwise controlled by Senegal and its agents. (Id. ¶ 8.) As of September 29, 2018, Ndiaye served as Second Counsellor for Senegal and/or the Mission. (Id. ¶ 10.) In that role, Ndiaye was responsible for “promoting international candidates and elections to the various bodies of the United Nations, corresponding with various United Nations entities, handling requests for accreditation and assisting delegates at the United Nations.” (Id.) Ndiaye did not work as security for the Mission or any of the officials at the Mission. (Id. ¶ 11.) Tounkara describes himself as a political activist and prospective candidate for political office in Senegal. (Id. ¶ 13.)

Tounkara alleges that on September 29, 2018, he was lawfully present outside of the Mission exercising his First Amendment right to protest and “attempt[ed] to take a video of the Minister of Foreign Affairs and Senegalese Abroad, head of Delegation.” (Id. ¶¶ 12-14.) Upon observing Tounkara, Ndiaye exited the Mission, rapidly walked towards him, stood in front of his phone, and demanded that he stop recording. (Id. ¶ 15.)

Tounkara insisted upon his right to record the Foreign Minister. (Id. ¶ 17.) Nonetheless, Ndiaye “forcefully seize[d] and[/]or str[uck] Plaintiff's cell phone and/or person and also demanded that Plaintiff stop recording and cease and desist from exercising his right to peacefully assemble and protest.” (Id. ¶ 18.) As a result of Ndiaye's “sudden violent contact,” Tounkara twisted his knee and fell to the ground. (Id. ¶ 19.) Tounkara seeks damages to compensate him for violation of his First Amendment rights as well as physical injury, pain and suffering, trauma expenditure of money for medical treatment, economic damages, humiliation, embarrassment, and injury to reputation. (Id. ¶ 21.)

A. Tounkara's Prior Action Against Senegal, The Mission, And Ndiaye

On September 27, 2019, Tounkara filed suit in this District against Senegal, the Mission, and Ndiaye (collectively, Defendants) for assault, battery, negligent infliction of emotional distress, and intentional infliction of emotional distress arising out of the same confrontation outside of the Mission described in the present Complaint. (Tounkara I, Dkt. 4 (Complaint).) Tounkara also asserted claims against Senegal for negligent hiring and retention, negligent training and supervision, and prima facie tort. (Id. ¶¶ 39, 48, 57.) Tounkara alleged that he was struck by Ndiaye while lawfully protesting and, as a result, twisted his knee and fell to the ground. (Id. ¶¶ 11, 15.)

Defendants filed a motion to dismiss arguing that the Court lacked subject matter and personal jurisdiction over Ndiaye, that the Court lacked subject matter jurisdiction over claims against Senegal and the Mission, that Tounkara had failed to state a claim, and that Tounkara's claim was barred by the statute of limitations. (Tounkara I, Dkt. 21 at 11-12; Dkt. 21-1 at 16, 18-19.) Tounkara voluntarily dismissed all of his claims against Senegal and the Mission, and the negligent infliction of emotional distress claim against Ndiaye, invoking Federal Rule of Civil Procedure 41 (Rule 41), specifically Rule 41(a)(1). (Tounkara I, Dkt. 28.) After oral argument on the remaining intentional tort claims against Ndiaye, which were governed by state law, the Court dismissed the case for lack of subject matter jurisdiction. (Tounkara I, Tr. at 68-69.[2]) The Court explained that [t]he status of this case is that [there remains] three common law claims, state law claims alleged against this individual, the assault and battery and intentional infliction of emotional distress. There's nothing about the nature of those claims in the abstract or in the particular that raises a federal question or is based on any application or determination of federal law.” (Id.)

B. Tounkara's Current Action Against The Same Defendants

On September 28, 2021, Tounkara again filed suit against Senegal, the Mission, and Ndiaye. (Tounkara II, Compl.) Once more, Plaintiff sought damages for prima facie tort, negligent infliction of emotional distress, negligent hiring and retention, and negligent training and supervision. (Id. ¶¶ 49, 65, 75, 85.) Based on the same facts alleged in Tounkara I, Tounkara added claims of negligence against Senegal and the Mission and gross negligence against all Defendants. (Id. ¶¶ 23, 41.)

Defendants moved to dismiss on April 25, 2022, based on lack of subject matter jurisdiction, lack of personal jurisdiction, failure to state a claim, and res judicata. Defendants also moved for sanctions against Tounkara under Rule 11, arguing that his withdrawal of claims in Tounkara I prevents him from relitigating the same claims and renders frivolous his instant complaint. Tounkara filed his opposition on June 17, 2022. Defendants filed their reply on July 2, 2022, at which point the motion was fully briefed.


Defendants advance five arguments why Tounkara's Complaint should be dismissed: (1) Senegal and the Mission have immunity under the Foreign Sovereign Immunity Act (FSIA), the only federal claim Tounkara asserts, thus depriving the Court of subject matter jurisdiction; (2) Ndiaye has immunity under Article 31(1) of the Convention of Vienna and, therefore, the Court lacks both subject matter and personal jurisdiction (3) all of Tounkara's claims are barred by the doctrine of res judicata based on Tounkara I; (4) the Complaint does not assert a cause of action under state law as required for Tounkara's vicarious liability claims; and (5) the Complaint does not assert a plausible cause of action for negligent hiring, retention, and/or supervision of an employee. (Tounkara II, Def. Mem. at 13, 15, 18-21.) Defendants also purport to move to dismiss for insufficient service of process pursuant to Rule 12(b)(5), but do not elaborate on that ground in their briefs. (Id. at 5.)

The Court recommends that Defendants' motion to dismiss be granted. The Court agrees with Defendants' first argument that Senegal and the Mission have immunity under FSIA, as a result of which the Court lacks subject matter jurisdiction over the claims against Senegal and the Mission. The Court thus does not address Defendants' fourth and fifth arguments, which concern the merits of the claims against Senegal and the Mission. The Court disagrees with Defendants' second argument that Ndiaye has immunity under the Vienna Convention. The Court finds, however, that Plaintiff has not met his burden of establishing subject matter jurisdiction over his claims against Ndiaye.

Additionally, as a prelude to addressing Defendants' motion for sanctions, the Court considers and rejects Defendants' third argument that res judicata bars Tounkara's claims.[3] Finally, the Court finds that sanctions are not warranted and recommends that Defendants' motion for sanctions under Rule 11 be denied.

A. The Court Does Not Have Subject Matter Jurisdiction Over Tounkara's Claims Against Senegal And The Mission Under 28 U.S.C. § 1605(a)(5)

The sole basis for federal subject matter jurisdiction asserted by Tounkara against Senegal and the Mission is FSIA; Tounkara argues his claims fall under a FSIA exception to immunity permitting the exercise of jurisdiction over Senegal and the Mission. (See Compl. ¶ 2.) Tounkara is incorrect; no exception applies. Accordingly, Senegal and the Mission are immune from suit, Tounkara has no FSIA claim, and the Court has no subject matter jurisdiction over the claims against Senegal and the Mission.

On a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, a court must dismiss a claim if it “lacks the statutory or constitutional power to adjudicate it.” Morrison v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted), aff'd, 561 U.S. 247 130 S.Ct. 2869 (2010). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of...

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