United States District Court, E.D. North Carolina, Western Division
C.G. a minor child, by and through, his parents and legal guardians JANNA GARCIA and JEAN GARCIA, JANNA GARCIA and JEAN GARCIA, Plaintiffs,
MONICA LORENA COLIN GUTIERREZ, Defendant.
EARL BRITT SENIOR U.S. DISTRICT JUDGE.
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.
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.)
Motion to Dismiss for Lack of Jurisdiction
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
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).
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.
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.”).
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).
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).)
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.'” 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
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 ...