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C.G. v. Gutierrez

United States District Court, E.D. North Carolina, Western Division

April 21, 2017

C.G. a minor child, by and through, his parents and legal guardians JANNA GARCIA and JEAN GARCIA, JANNA GARCIA and JEAN GARCIA, Plaintiffs,
v.
MONICA LORENA COLIN GUTIERREZ, Defendant.

          ORDER

          W. EARL BRITT SENIOR U.S. DISTRICT JUDGE.

         These matters are before the court on defendant Monica Lorena Colin Gutierrez's (“defendant”) motion to dismiss, (DE # 15), and plaintiffs C.G, a minor child, Janna Garcia, and Jean Garcia's (“plaintiffs”) motion to amend the complaint and to join a party, (DE # 17). These matters are ripe for disposition.

         I. BACKGROUND

         On 1 March 2014, defendant struck plaintiff C.G., who was six years old at the time, while he was crossing the street. (Compl., DE # 1, ¶¶ 11, 18.) The car defendant drove was owned by and registered to the Consulate General of Mexico. (Id. ¶ 14.) Defendant, at the time of the incident, was a Consul for Community, Political, Economic and Cultural Affairs with the Mexican Consulate and was acting in the course and scope of her employment. (Def.'s Mem. Supp. Mot. Dismiss, DE # 16, at 1-2; Pls.' Mem. Opp. Mot. Dismiss, DE # 18, at 6.) This incident caused severe bodily injuries to the child. (Compl., DE # 1, ¶ 19.) Plaintiffs assert negligence by defendant and seek compensatory damages, including medical expenses. (Id. ¶¶ 20-31.)

         II. DISCUSSION

         A. Motion to Dismiss for Lack of Jurisdiction

         Defendant brings a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2). Defendant contends that she is protected by common law foreign official immunity despite an exception existing under the Vienna Convention on Consular Relations (“VCCR”) that specifically removes immunity in cases brought by a third person for damages caused by a vehicle operated by a consular officer or employee. (Def.'s Mem. Supp. Mot. Dismiss, DE # 16, at 8-9.)

         When a defendant brings a motion to dismiss under Rule 12(b)(1), challenging subject matter jurisdiction, “the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citations omitted). The initial burden lies with the plaintiff to prove jurisdiction exists, but “[o]nce a plaintiff offers evidence that an exception to immunity applies, the defendant bears the burden of proving by a preponderance of the evidence that the exception does not apply.” Velasco v. Gov't of Indonesia, 370 F.3d 392, 397 (4th Cir. 2004) (citations omitted).

         "When a court's personal jurisdiction is properly challenged by a Rule 12(b)(2) motion, the jurisdictional question thus raised is one for the judge, with the burden on the plaintiff ultimately to prove the existence of a ground for jurisdiction by a preponderance of the evidence.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989) (citation omitted). "In considering a challenge on such a record, the court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction.” Id. (citation omitted).

         Federal district courts have original jurisdiction over all civil actions and proceedings against consuls. 28 U.S.C. § 1351. However, this jurisdiction can be limited “by statute or treaty, such as . . . the [VCCR].” Johnson v. United Kingdom Gov't, 608 F.Supp.2d 291, 295 (D. Conn. 2009); see also Whitney v. Robertson, 124 U.S. 190, 194 (1888) (“[A] treaty is placed on the same footing, and made of like obligation, with an act of legislation.”).

         The VCCR, to which both the United States and Mexico are signatories, provides immunity from jurisdiction for consular officers and employees. VCCR, art. 43, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. A “consular officer” “means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions.” Id., art. 1. A “consular employee” “means any person employed in the administrative or technical service of a consular post.” Id. While consular officers and employees are generally immune from the jurisdiction of the receiving State, so long as their actions are “performed in the exercise of consular functions, ” the treaty provides an exception for a civil action brought “by a third party for damage arising from an accident in the receiving State caused by a vehicle . . . .” Id., art. 43(2)(b).

         Recognizing that plaintiffs' action might otherwise fall within the VCCR's vehicle exception, defendant nonetheless maintains that she is immune from the jurisdiction of this court based on common law. Defendant claims, and plaintiffs do not dispute, that defendant is a consul who was performing her consular functions at the time of the incident. (See Def.'s Mem. Supp. Mot. Dismiss, DE # 16, at 1-2 (“Consul Colin was driving a consular vehicle owned and registered with the Mexican Consulate and in performance of her consular function . . . .”); Pls.' Mem. Opp. Mot. Dismiss, DE # 18, at 6) (“‘On March 1, 2014, at the time and place alleged in the Complaint, I was acting in the course and scope of my employment as a Consul and performing an act in the exercise of my consular functions.' Thus, there is no dispute between the parties . . . on this material jurisdiction fact.” (quoting Affidavit of Consul Colin).)

         Under common law, a foreign official may be entitled to either status-based immunity or conduct-based immunity. Yousuf v. Samantar, 699 F.3d 763, 774 (4th Cir. 2012). Defendant is claiming conduct-based immunity, which applies to “‘any public minister, official, or agent of the foreign state with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be to enforce a rule of law against the state.'”[1] Rishikof v. Mortada, 70 F.Supp.3d 8, 12 (D.D.C. 2014) (quoting Restatement (Second) of Foreign Relations Law of the United States § 66 (Am. Law Inst. 1986)) (emphases and alterations removed). The requisite elements thus are: “(1) the actor must be a ‘public minister, official, or agent of the foreign state;' (2) the act must have been performed as part of the actor's ‘official duty;' and (3) ‘exercising jurisdiction' would have the effect of ‘enforcing a rule of law against the foreign state.'” Id. (quoting Restatement (Second) of Foreign Relations Law of the United States § 66) (internal quotations and alterations removed). The parties agree that neither the first nor second element is at issue; therefore, the only element for this court to consider is the third.

         In Rishikof, the case on which both parties rely, a pedestrian was struck and killed by a driver employed by the Swiss Confederation. Id. at 10. The pedestrian's estate brought an action against the driver as well as the Swiss Confederation, and the defendants moved to dismiss for lack of jurisdiction. Id. The Rishikof court found in favor of the defendants and dismissed the case for lack of jurisdiction. Id. The court determined that all three elements required for common law ...


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