Opinion
03 Civ. 4972 (LAK)
October 7, 2003
ORDER
Plaintiff, the father of Cody Simons, brings this action against the Lycee Francais de New York ("Lycee"), Raymonde Kavanagh, Consulate General de France ("French Consulate"), Lawyers for Children, Inc., and Hal Silverman, Esq., claiming essentially that the Lycee, a school that his son, a French and United States citizen, attended on a French government scholarship, failed in its alleged responsibilities toward the child. The French Consulate moves to dismiss for lack of subject matter jurisdiction, lack of jurisdiction over its person, insufficiency of process and of service of process, sovereign immunity, and lack of standing. All other defendants join in so much of the motion as seeks dismissal for lack of standing.
1. While defendants seek dismissal for lack of standing, their real complaint is that plaintiff, a non-attorney, may not pursue this action on behalf of his minor child. They are right. E.g., Wenger v. Canastota Central School District, 146 F.3d 123, 124 (2d Cir. 1998), cert. denied, 526U.S. 1025 (1999); Cheung v. Youth Orchestra Foundation of Buffalo, 906 F.2d 59, 61 (2d Cir. 1990).
2. The Foreign Sovereign Immunities Act ("FSIA") confers on the district courts subject matter jurisdiction over civil actions against foreign states to the extent that they are not entitled to immunity. 28 U.S.C. § 1330(a). "Foreign state" is defined to include political subdivisions and agencies or instrumentalities. Id. § 1603(a). An "agency or instrumentality" of a foreign state is defined in relevant part as an entity which is (1) "a separate legal person, corporate or otherwise," (2) "an organ of a foreign state or political subdivision thereof," and (3) "neither a citizen of a State of the United States . . . nor created under the laws of any third country." Id. § 1603(b).
Some courts have assumed that a foreign consul is a "foreign state" within the meaning of the FSIA. By parity of reasoning, one might regard a foreign consulate, which in substance is the office of a foreign consul, as a "foreign state." It might be argued also, however, that a foreign consulate is an agency or instrumentality of a foreign state, although it is unclear whether a foreign consulate is "a separate legal person" and thus within the statutory definition. But it ultimately is unnecessary to decide the point.
Compare Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1517 (9th Cir. 1987) (assuming that Mexican Consulate is "a separate legal person" and, in consequence, holding that it is a "foreign state"); Gray v. Permanent Mission of the People's Republic of the Congo to the United Nations, 443 F. Supp. 816, 820 (S.D.N.Y. 1978) (Congo Mission is "foreign state"), with Chuidian v. Philippine Nat. Bank, 912 F.2d 1095, 1101-03 (9th Cir. 1990) (Philippine solicitor general not foreign state).
Service under the FSIA on a foreign state must be made by any of four methods. First, service may be effected by "delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the agency or instrumentality . . ." 28 U.S.C. § 1608(a)(1). Second, if no special arrangement exists, copies of the summons and complaint may be delivered "in accordance with an applicable international convention on service of judicial documents . . ." Id. § 1608(a)(2). If service cannot be effected by either of these methods, it may be made by sending copies of the summons and complaint and a notice of suit, together with a translation of each, by a form of mail requiring a return receipt, "to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned . . ." Id. § 1608(a)(3). Finally, if service cannot be effected within 30 days under Section 1608(a)(3), the foreign state maybe served by sending the papers noted in that section, by a form of mail requiring a return receipt, "to be addressed and dispatched by the clerk of the court to the Secretary of State . . . to the attention of the Director of Special Consular Services" followed by transmission to the foreign state through diplomatic channels. Id. § 1608(a)(4).
Service under the FSIA on agencies and instrumentalities of foreign states is governed by 28 U.S.C. § 1608(b), which provides three alternate methods. First, service maybe made by "delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the agency or instrumentality . . ." Id. § 1608(b)(1). Second, if no special arrangement exists, service may be made by delivery to an officer, a managing or general agent, or an agent authorized to receive service in the United States or in accordance with an applicable international convention. Id. § 1608(b)(2). If service cannot be effected in either of these ways, it may be accomplished by delivery of the summons and complaint, "together with a translation of each into the official language of the foreign state," as directed by the foreign state in response to a letter rogatory or request, by mail dispatched by the clerk of the court and requiring a signed receipt, or as directed by the court. Id. § 1608(b)(3).
While there is a dispute as to how plaintiff tried to effect service here the French Consulate claims that plaintiff left a summons-notice and verified complaint with a security guard at the French Consulate who was employed by an independent security firm while plaintiff claims that the summons and complaint were handed to a Ms. Vanthuyns, who introduced herself as a representative of the French Consulate — the dispute is immaterial. There is no special arrangement for service of process between plaintiff and either the Republic of France or the French Consulate. There is nothing before the Court to suggest that Ms. Vanthuyns, assuming that the documents were given to her, then was an individual coming within the description of 28 U.S.C. § 1608(b)(2). The purported service plainly did not comply with 28 U.S.C. § 1608(a)(3), 1608(a)(4) or 1608(b)(3). In consequence, the purported service of process on the French Consulate was insufficient.
3. Even if service of process on the French Consulate had been sufficient, the Court nevertheless would dismiss for lack of subject matter jurisdiction.
The FSIA confers on the district courts subject matter jurisdiction over nonjury civil actions against foreign states to the extent that they are not entitled to immunity. 28 U.S.C. § 1330(a). The act contains a number of exceptions to the sovereign immunity of foreign nations. And while the complaint does not expressly rely upon any particular exception, the fact that it sounds generally in tort makes 28 U.S.C. § 1605(a)(5) the only possibility.
Section 1605(a)(5) creates an exception for certain tort claims, but excludes from the exception any claims based upon "the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused . . ." Id. Even the most cursory review of the complaint demonstrates that the alleged activities of the French Consulate — allegedly ignoring or being unresponsive to the supposed problems of plaintiff s while attending the Lycee — all involved the alleged exercise or failure to exercise discretionary functions. In consequence, the complaint fails to allege any claim against the French Consulate that comes within any exception to the sovereign immunity of the Republic of France.
For the foregoing reasons, the motion of the Consulate General de France to dismiss the complaint is granted on the grounds that service of process upon it was insufficient, the Court lacks both personal and subject matter jurisdiction over the claims asserted against it, and plaintiff may not proceed pro se on behalf of his son. The applications of all of the other defendants based upon the fact that plaintiff may not proceed pro se on behalf of his son also are granted to the extent that the action will be dismissed without prejudice in the event an appearance of a duly admitted attorney on behalf of plaintiff is not entered on or before November 7, 2003.
The Court has considered whether to appoint counsel for plaintiff. There is no right to the appointment of counsel in civil cases. Where the Court considers the appointment of counsel in such a matter, it must rely on attorneys willing to make their services available without charge. In making such appointments, the Court considers the factors enumerated in Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986), and its progeny, bearing in mind that pro se representation is not an option here because the action is brought on behalf of plaintiff's minor child. Having reviewed the papers, the Court has concluded that the scare resource that counsel willing to take on civil cases pro bono represent should not be used in this case — even assuming a showing of indigence, which has not been made — because it does not now appear that plaintiff has a meritorious claim, regardless of how sincerely he may believe that his son's interests were not served adequately by the Lycee.
SO ORDERED.