Plaintiff also cites several FSIA cases involving consuls general who entered into real estate transactions on behalf of their consulates. See Doc. 25 at 12 (citing Joseph v. Office of Consulate Gen. of Nigeria, 830 F.2d 1018 (9th Cir. 1987); Berdakin v. Consulado de la Republica de El Salvador, 912 F. Supp. 458 (C.D. Cal. 1995); Miles Mgmt. Corp. v. Republic of S. Africa, No. 94 Civ. 1318, 1994 WL 714584, at *1 (N.D. Ill. Dec. 19, 1994)). While these cases are, to varying degrees, relevant, they are not on point because none of those sovereign defendants disputed that its officials lacked the authority to enter into the transactions for the purposes of challenging jurisdiction under the FSIA.

Other cases interpreting Article 5(m) have broadly construed this provision. See, e.g., Gerritsen II, 989 F.2d at 346 (threatening a protestor and protecting consular premises were consular functions); Heaney, 445 F.2d at 505–06 (entering into a contract to help publicize British abuses in Northern Ireland was a consular function); Berdakin v. Consulado de la Republica de El Salvador, 912 F.Supp. 458, 465 (C.D.Cal.1995) (“obtaining space in which to operate the Consulate is a legitimate consular function,” stating “the suit against the Consul arises out of his performance of a function inherent in his position ... since without a lease such as the one entered into by the Consul, there would be no Consulate at all”); Koeppel & Koeppel, 704 F.Supp. at 523 (providing shelter within the consulate premises to a citizen of the consul's state was a consular function). While Plaintiffs attempt to focus this Court on their refusal to engage in illegal activities on behalf of Defendants, Plaintiffs' Memorandum [Doc. # 19], at 6–7, their argument is unavailing. First, it bears noting that Plaintiffs have not asserted any viable independent cause of action that protects them against such alleged wrongs.

Consular functions are defined in the Vienna Conventions at Article 5, which includes a general provision defining consular functions as "performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State to which no objection is taken by the receiving State . . . ." Vienna Convention, art. 5(m). Courts have held various activities to be legitimate consular functions under Article 5, including protecting the consulate premises, Consulado Gen. deMexico, 989 F.2d at 346 ("The functions of protecting the dignity and premises of the Consulate are reasonable functions of a foreign mission in this country, and they are not illegal in and of themselves."), obtaining office space, Berdakin v. Consulado de la Republica de El Salvador, 912 F. Supp. 458, 465 (C.D. Cal. 1995) ("The Consul clearly was entrusted with the function of entering into a lease in order to secure office space . . . since without a lease . . ., there could be no Consulate at all."), and entering into contracts, Heaney v. Government of Spain, 445 F.2d 501, 505 (C.A.N.Y. 1971) ("[plaintiff] points to nothing which would suggest that [contracting] would not be embraced by the catch-all definition [of Article 5(m)], and such a narrow reading of the treaty would be inconsistent with its apparent purpose. . . .").

Once the plaintiffs meet this burden, however, the party claiming immunity bears the burden of proving by a preponderance of the evidence that the exception does not apply. Berdakin v. Consulado De La Republica De El Salvador, 912 F. Supp. 458 (C.D.Ca. 1995); Joseph, 830 F.2d at 1021. It is uncontested that the Republic and the Consulate qualify as "foreign states" under the FSIA.

The Consulate is a foreign state under the language of the statute. Berdakin v. Consulado de la Republica de El Salvador, 912 F.Supp. 458, 461 (C.D. Cal. 1995); Bardales v. Consulate General, 490 F.Supp.3d 696, 701 (S.D.N.Y. 2020)

The court also found that the same distinction could be found in other jurisdictions. See Orange Middle E. & Afr., 2016 WL 2894857, at *4 (citing Berdakin v. Consulado de la Republica de El Sal., 912 F.Supp. 458, 466 (C.D. Cal. 1995) ; Glencore Ltd. v. Occidental Arg. Expl. and Prod., Inc., No. 11–3070, 2012 WL 591226, at *5 (S.D. Tex. Feb. 22, 2012) ). As HEPI correctly argues, the Orange Middle East & Africa decision appears to conflict with G.E. Transportation S.P.A. v. Republic of Albania , 693 F.Supp.2d 132 (D.D.C. 2010).

Courts in other districts have adopted the same distinction. See, e.g., Berdakin v. Consulado de la Republica de El Salvador, 912 F. Supp. 458, 466 (C.D. Cal. 1995) (finding no special arrangement in lease provision addressing "any demand, notice or declaration of any kind" made "under this Lease"); Glencore Ltd. v. Occidental Argentina Exploration and Production, Inc., No. H-11-3070, 2012 WL 591226, at *5 (S.D. Tex. Feb. 22, 2012) (finding no special arrangement in contract stating "'[a]ll notices and other communications required to be given hereunder;" because such "language patently does not cover service of process, as service is not a notice or communication required to be given under the contract") (emphasis in original). The provision in the Agreement between Orange MEA and Equatorial Guinea was restrictive.

The defendant's alleged criminal activity of creating and using shell companies and bank accounts to conceal her transactions in embezzled funds has neither "a logical connection" to the official responsibilities that the defendant was supposed to fulfill, nor provides "a reasonable means to the fulfillment" of any official function.' " Berdakin v. Consulado de La Republica de El Salvador , 912 F.Supp. 458, 463–464 (C.D.Cal.1995) (articulating a two-pronged test to determine whether consular immunity applies to conduct alleged to have been "in the exercise of" a consular function (quoting Gerritsen v. Escobar Y Cordova , 721 F.Supp. 253, 259 (C.D.Cal.1988) )). Simply put, while residual immunity may bar legal action against even illegal acts performed by a diplomat in an effort to carry out diplomatic functions or duties successfully, when the activity being scrutinized was not necessary or a part of any official function or responsibility, the VCDR provides no protection.

Similarly, the court in Berdakin v. Consulado de la Republica de El Salvador considered a contractual provision stating that "[w]henever under this Lease a provision is made for any demand, notice or declaration of any kind, it shall be in writing and served either personally or sent by registered or certified United States mail." 912 F. Supp. 458, 466 (C.D. Cal. 1995) (emphasis added) (internal quotation marks omitted). The court concluded that this language applied only to demands, notices, and declarations provided for by the lease; because the lease did not mention service of process, its notice provision did not cover service.

" 21 U.S.T. 82-85. When consular officials are performing consular functions, they are immune from suit in the United States under the Vienna Convention. See, e.g., Gerritsen v. Consulado General de Mexico, 989 F.2d 340, 346 (9th Cir. 1993) (holding that Mexican consular officers who allegedly threatened a protester and subjected him to a "citizen's arrest" were entitled to immunity under the Vienna Convention, because the officials acted to protect "the dignity and premises of the Consulate"); Risk v. Halvorsen, 936 F.2d 393, 397-98 (9th Cir. 1991) (holding that Norwegian consular officials who assisted a Norwegian national in returning to Norway with her children in violation of a state-court order were immune from suit under the Vienna Convention, because the officials' aid was a discretionary consular function); Berdakin v. Consulado de la Republica de El Salvador, 912 F. Supp. 458, 467-68 (C.D. Cal. 1995) (holding that an El Salvadoran consul was entitled to consular immunity because he exercised consular functions); Koeppel Koeppel v. Federal Republic of Nigeria, 704 F. Supp. 521, 524 (S.D.N.Y. 1989) (holding that a Nigerian consul was immune from suit for providing refuge to a Nigerian national who allegedly started a fire, because the consul's action was a "consular function" as described in the Vienna Convention). Cf. Joseph v. Consulate General of Nigeria, 830 F.2d 1018, 1027-28 (9th Cir. 1987) (holding that an employee of the Nigerian consulate was not protected by consular immunity for conversion, trespass, and waste to a leased residence, because the employee's actions were not "consular functions" as described in the Vienna Convention); Gerritsen, 819 F.2d at 1516 (holding that wrongful acts, including kidnapping and assault, allegedly committed by Mexican consular officials to suppress criticism of Mexico within the United States were not "consular functions" providing immu