Tounkara v. Republic of Sen.

Full title: ELHADJI OUSMANE TOUNKARA, Plaintiff, v. REPUBLIC OF SENEGAL, et al…

Court: United States District Court, S.D. New York

Date published: Dec 7, 2023

21-CV-8027 (JGLC) (RWL) (S.D.N.Y. Dec. 7, 2023)

Opinion

21-CV-8027 (JGLC) (RWL)

12-07-2023

ELHADJI OUSMANE TOUNKARA, Plaintiff, v. REPUBLIC OF SENEGAL, et al, Defendants.

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.

REPORT AND RECOMMENDATION TO HON. JESSICA G. L. CLARKE: MOTION TO DISMISS

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.

In September 2021, Plaintiff Elhadji Ousmane Tounkara (“Tounkara” or “Plaintiff”) commenced the instant action against the Republic of Senegal (the “Republic” or “Senegal”), the Permanent Mission of the Republic of Senegal to the United Nations (the “Mission”), and Papa Gallo Ndiaye (“Ndiaye” or “Defendant”), alleging that, in September 2018, while he was protesting outside of the Mission, Ndiaye, who was a member of the Mission at that time, seized Tounkara's phone to prevent him from making a recording thereby assaulting and seriously injuring him. Tounkara asserted claims of gross negligence, negligence, negligent infliction of emotional distress, negligent hiring and retaining, negligent training and supervising, and prima facie tort.

On December 20, 2022, I issued a Report and Recommendation that all claims be dismissed based on lack of subject matter jurisdiction (the “First R&R”). See Dkt. 36. District Judge Lewis A. Kaplan, to whom this case previously was assigned,¹ adopted the First R&R with respect to the claims against the Republic and the Mission and dismissed them with prejudice. See Dkt. 37. With respect to Tounkara's claims against Ndiaye, however, Judge Kaplan sua sponte raised the question of whether the Court potentially had subject matter jurisdiction under 28 U.S.C. § 1351, which grants district courts original and exclusive jurisdiction over members of a mission, or 28 U.S.C. § 1332 for diversity, even though Ndiaye had not asserted either basis in his Complaint. Following further briefing by the parties and an evidentiary hearing, the instant Report and Recommendation resolves those issues.

1 The case was reassigned to District Judge Jessica G. L. Clarke on August 4, 2023.

For the reasons set forth below, I find that the Court does not have subject matter jurisdiction under either § 1351 or § 1332 and recommend that Ndiaye's Motion to Dismiss be GRANTED. However, Tounkara's claims should be dismissed without prejudice and subject to the terms of New York's Civil Practice Law and Rule 205(a) so that Tounkara may bring his claims of negligence against Ndiaye in state court.

FACTUAL BACKGROUND ²

2 For purposes of describing the facts underlying the substance of Ndiaye's claim, the Court accepts as true the well-pled allegations of the Complaint and draws all reasonable inferences in favor of Tounkara, the non-moving party. See In re American Express Anti-Steering Rules Antitrust Litigation, 19 F.4th 127, 137 (2d Cir. 2021); Lotes Co. v. Hon Hai Precision Industry Co., 753 F.3d 395, 403 (2d Cir. 2014). For purposes of determining jurisdiction, however, the Court also considers evidence in the record, including materials submitted by the parties and testimony and exhibits from the evidentiary hearing held on June 27, 2023 (“June 27 Hearing”). See Otrompke v. The First Department Committee on Character & Fitness, No. 20-4107, 2021 WL 5764221, at *1 (2d Cir. Dec. 6, 2021) (“The district court may consider evidence outside the pleadings in resolving questions of subject matter jurisdiction”) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Next Generation Technology, Inc. v. Jaddou, No. 21-CV-1390, 2023 WL 2570643, at *3 (S.D.N.Y. March 18, 2023) (“In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court may consider evidence outside the pleadings”).

A. Incident

On or about September 29, 2018, Tounkara was protesting outside of the Mission located on East 44th Street, New York, NY. (Compl. ¶¶ 12-13.³) He was using his cell phone to try to record Senegal's Minister of Foreign Affairs. (Id. ¶ 14.) At some point during the protest, Ndiaye exited the Mission, approached Tounkara, and attempted to block him from making a recording. (Id. ¶ 15.) Ndiaye and Tounkara had a verbal altercation: Ndiaye demanded that Tounkara stop recording, and Tounkara insisted that he could protest. (Id. ¶¶ 16-17.) Ndiaye then “seize[d] and[/]or str[uck] [Ndiaye]'s cell phone and/or person,” causing Tounkara to “twist his right knee, injur[e] [it], and ... fall and strike the ground.” (Id. ¶¶ 18-19.) Tounkara alleges that, due to this altercation, he has suffered “[l]ife threatening physical injuries, pain and suffering, . emotional trauma, . humiliation, embarrassment, and injury to reputation.” (Id. ¶ 21.)

3 “Compl.” refers to the Complaint filed September 28, 2021 (Dkt. 4).

B. Ndiaye's Status

Ndiaye is a citizen of Senegal. (Dkt. 47 at 2, Ex. C; Hearing Tr. at 61, 64.⁴) From January 2014 to December 2019, Ndiaye worked as Second Counsellor to the Mission.⁵ (Compl. ¶ 9; First Niang Aff. ¶ 4.⁶) As such, he handled requests for accreditation for Senegalese delegates to the United Nations and assisted them when they participated in meetings; he also prepared correspondence between the Mission and both the United Nations and the United States Mission to the United Nations (the “United States Mission”). (First Niang Aff. ¶ 4.) Ndiaye did not work for the Mission's security team. (Id. ¶ 5.) After he left the Mission, Ndiaye returned to Senegal where he worked for the Minister of Foreign Affairs, including at the time the instant action commenced. (Hearing Tr. at 65.) Ndiaye is currently a counselor for Senegal in Italy, but his start date there is unknown. (Id. at 59, 65.)

4 “Hearing Tr.” refers to the transcript of the June 27 Hearing (Dkt. 74).

5 In a case management conference held on May 9, 2023, counsel for Ndiaye stated that Ndiaye worked at the Mission until 2021, or, at least, was a member of the Mission until then. (Transcript of Case Management Conference dated May 9, 2023 (“Case Mgmt. Tr.”) (Dkt. 76) at 3-4.) Counsel based that statement on a letter from the United States Mission to the United Nations (“United States Mission”) (id. at 3), which he misconstrues, and which will be discussed further below. The letter explains that Ndiaye “assum[ed] his duties as a support staff at the [Mission] effective August 1, 2014 to December 31, 2021.” (Dkt 53 Ex. A.) The letter continues, however, that “[a]ny privileges and immunities” that Ndiaye enjoyed would “terminate upon departure or 30 days after termination.” (Id.) The letter thus is not inconsistent with the fact that Ndiaye stopped working at the Mission in December 2019; rather, it suggests that, while his status could be effective until December 31, 2021, it could also end before that through termination. Indeed, at the June 27 Hearing, both Ndiaye and Cheihk Niang - the Ambassador and Permanent Representative of the Republic of Senegal to the United Nations in New York (“Ambassador Niang”) - confirmed that Ndiaye left the Mission on December 31, 2019. (Hearing Tr. at 43, 46, 49, 60-61.)

6 “First Niang Aff.” refers to Ambassador Niang's Affirmation dated February 12, 2020, attached as Ex. A to the Complaint.

C. Tounkara's Status

Tounkara is also a citizen of Senegal. (Dkt. 50 at 2; Dkt. 61 at 4.) He is a political activist and prospective candidate for office there. (Comp. ¶ 13; Dkt. 61 at 4.) While he is not a citizen of the United States, he was granted deferral on May 20, 2021, pursuant to the Convention Against Torture⁷ (“CAT”) and allowed to remain in the United States on that basis. (Dkt. 48 at 1, Ex. A,⁸ Dkt. 61 at 1-4, Ex. A.) Tounkara fears persecution and torture if he returns to Senegal. (Dkt. 48 at 1; Dkt. 61 at 1-4.)

7 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, 1465 U.N.T.S. 85. “The U.S. Senate ratified the Convention in 1990, see 136 Cong. Rec. S10091, S10093 (daily ed. July 19, 1990), the instrument of ratification was deposited with the United Nations in October 1994, and the Convention entered into force for the United States in November 1994.” Wang v. Ashcroft, 320 F.3d 130, 133 (2d Cir. 2003) (citing Regulations Concerning the Convention Against Torture, 64 Fed.Reg. 8478 (Feb. 19, 1999)).

8 In Dkt. 48 at 1, Tounkara explains that he attached a screenshot of an Immigration Judge's decision to grant CAT deferral from May 20, 2021 as Exhibit A and a police report from the incident that includes his Rockland County address as Exhibit B. There is no slip sheet identifying the exhibit before the screenshot, while the slip sheet before the police report is marked Exhibit A. Nevertheless, the Court will refer to the screenshot as Exhibit A and the police report as Exhibit B.

At the time of both the incident and when he commenced the instant action, Tounkara was a resident of the state of New York.⁹ (Compl. ¶ 4; Dkt. 42; Dkt. 61 at 2; Dkt. 48 at 1, Ex. B at 2). Tounkara first came to New York in January 1994 but traveled back to Senegal at least once. (Hearing Tr. at 7, 12.) He was married in New York in 2001; at least some of his children were born in New York; they went to school in both Bronx and New York Counties; his wife worked in New York; and he has leased apartments in New York. (Id. at 7-11; Dkt. 61 at 2.)

9 Documents submitted by Tounkara indicate that, at the time of the incident, he resided in Nanuet, New York, which is in Rockland County (Dkt. 48 at 1, Ex. B at 2), while, at the time the Complaint was filed, he had moved to Bronx County (Compl. ¶ 4). At the hearing, Tounkara reversed the two, stating that he previously lived in Bronx County and currently lives in Rockland County. (Hearing Tr. at 10.) Either way, he resided in New York State at the time of both the incident and the filing of the Complaint.

PROCEDURAL BACKGROUND ¹⁰

10 For a more complete procedural background, the Court directs the reader to the First R&R. (Dkt. 36 at 3-4.)

A. The Instant Action

Tounkara filed his Complaint on September 28, 2021, asserting assorted claims for negligence and prima facie tort against the Republic, the Mission, and Ndiaye. (Compl.) He alleged subject matter jurisdiction pursuant to 28 U.S.C. §§ 1605(a)(5), 1330, 1331, and 1367, as well as the First, Fourth, and Fourteenth Amendments of the United States Constitution. (Id. ¶ 2.) He did not assert diversity jurisdiction under 28 U.S.C. § 1332 nor jurisdiction over members of a mission under 28 U.S.C. § 1351. (See generally id.) He seeks up to $22 million in damages. (Id. ¶ 90.)

The Republic, the Mission, and Ndiaye moved to dismiss the Complaint on April 25, 2022. (Dkts. 27-28, 30.) They argued, among other things, that the Court lacked subject matter jurisdiction and requested sanctions against Tounkara for pleading a frivolous case. (Dkt. 30.) After full briefing, I issued the First R&R on December 20, 2022, recommending dismissal for lack of subject matter jurisdiction and denying the request for sanctions. (Dkt. 36.) I found that the Republic and the Mission were diplomatically immune from suit as Ndiaye acted outside of the scope of his office or employment when he allegedly assaulted Tounkara. (Dkt. 36 at 8-11.) I rejected Ndiaye's claim of diplomatic immunity because he “ha[d] not provided the Court with any proof that the State Department has accredited him with diplomatic immunity.” (Dkt. 36 at 12.)

On March 29, 2023, Judge Kaplan issued a Memorandum and Order adopting the part of the First R&R dismissing Tounkara's claims against the Republic and the Mission and denying Ndiaye's request for sanctions. (Dkt. 37.) With respect to Ndiaye, however, Judge Kaplan sua sponte raised the possibility that the court may have subject matter jurisdiction pursuant to §§ 1351 and 1332. (Id. at 2-6.) Judge Kaplan therefore remanded the matter back to me to consider those grounds for jurisdiction if the parties submitted additional evidence or argument, which they did. (Id.)

B. Additional Evidence And Argument

On March 30, 2023, Ndiaye filed a letter attaching a print out from a website, also dated March 30, 2023, listing persons who work at the Mission and their titles; the list included Ndiaye's name and title, and Ndiaye asserted that the list was the official State Department “Blue List” and proof of his diplomatic status. (Dkt. 39 & Ex. A.) Unpersuaded by the submission, I issued an order stating that the list was “insufficient to establish [ ] Ndiaye's status [as] [he] has not provided any information about what [it] is, who compiles it, or other relevant information.” (Dkt. 40.)

Ndiaye submitted another letter on April 4, 2023 with exhibits aimed at addressing the Court's concerns. (Dkt. 41.) With his letter, he included several evidentiary items, including (i) an Affirmation from Ambassador Niang dated March 31, 2023, stating that “diplomats accredited to the United States and having full diplomatic immunity are listed on the Department of State's Diplomatic List called blue list” (Second Niang Aff. at 2¹¹); a duplicate of the Blue List print out (Dkt. 41 Ex. B); (iii) the first few results for a Google search of “blue list diplomats definition,” which includes the description that “[d]iplomats accredited to the United States and having full diplomatic immunity are listed on the Department of State's Diplomatic List (Blue List)” (Dkt. 41 Ex. C); and (iv) a copy of 8 C.F.R. § 1101.3(a)(2) defining a foreign diplomatic officer as “a person listed in the State Department Diplomatic List, also known as the Blue List,” and including “individuals with comparable diplomatic status and immunities who are accredited to the United Nations or to the Organization of American States, and other individuals who are also accorded comparable diplomatic status” (Dkt. 41 Ex. D).¹²

11 “Second Niang Aff.” refers to Ambassador Niang's Affirmation dated March 31, 2023, attached as Ex. A to Dkt. 41.

12 It is unclear whether the website printout submitted by Ndiaye is in fact the official State Department Blue List. Ndiaye's document reads “e-BlueBook” at the top left, and the URL at the bottom left shows “https://bluebook.unmeetings.org/”. The Court readily found an archived version of the State Department's Diplomatic List from Fall 2020 on the State Department's website, and it looks markedly different from the list filed by Ndiaye. See “Diplomatic List,” U.S. Department of State, https://2017-2021 .state.gov/resources-forforeign-embassies/diplomatic-list/ (last visited Oct. 19, 2023).

On April 10, 2023, Tounkara filed a letter purporting to show that he was a citizen of New York State because he resided here for over five years before the filing of the suit and that he currently resides here. (Dkt. 42.) The next day, the Court issued two orders addressing the latest letters from the parties. (Dkts 45-46.) One order explained that Tounkara's letter only addressed residency, not citizenship, and instructed Tounkara to identify his country of citizenship at the time he filed the instant action. (Dkt. 45.) The other order, among other things, sought clarification of when Ndiaye left the Mission, as the Niang Affirmations stated that he left in December 2019, yet the document Ndiaye submitted as the Blue List purports to reflect his status as of March 30, 2023. (Dkt. 46.)

Ndiaye next filed a letter on April 17, 2023. (Dkt. 47.) But instead of clearly answering the Court's question about his diplomatic status at the time the Complaint was filed, he argued that “whether [his] diplomatic status ended before Plaintiff filed the instant case, or after filing ... is irrelevant” because either way he was immune. (Id. at 1-2.) His exhibits attached to the letter included (i) another Affirmation from Ambassador Niang dated April 17, 2023 (Dkt. 47 Ex. A) (Third Niang Aff.¹³); (ii) identification for Ndiaye as a diplomat issued by Italy in 2023 (Dkt. 47 Ex. B); (iii) Ndiaye's Senegalese passport (Dkt. 47 Ex. C); (iv) images of Ndiaye in alleged diplomatic meetings (Dkt. 47 Ex. D); and (v) another copy of the same Blue list print out (Dkt. 47 Ex. E).

13 “Third Niang Aff.” refers to Ambassador Niang's Affirmation April 17, 2023, attached as Ex. A to Dkt. 47.

Tounkara filed his letter responding to the Court's order on April 25, 2023, but he too did not answer the Court's question. (Dkt. 48.) Rather than identify his citizenship at the time he filed the action, he reiterated that he resides in New York under CAT. (Id.) Tounkara attached as exhibits a screenshot of an Immigration Judge's May 20, 2021 decision granting CAT deferral (Dkt. 48 Ex. A) and a police report from the incident reflecting Tounkara's Rockland County address (Dkt. 48 Ex. B). Ndiaye replied to Tounkara's letter, asserting that Tounkara is a citizen of Senegal and that residency in New York under CAT is insufficient to render him a citizen of New York for purposes of diversity. (Dkt. 50.)

On May 3, 2023, Ndiaye submitted another letter attaching a letter from James B. Donovan, the Minister Counselor for Host Country Affairs of the United States Mission to bolster his claim of diplomatic immunity (the “State Department Letter”).¹⁴ (Dkt. 53 & Ex. A.) The State Department Letter maintains that the United States Mission was notified that Ndiaye “assum[ed] his duties as a support staff member at the Permanent Mission of the Republic of Senegal to the United Nations effective August 1, 2014 to December 31, 2021.” (Id.) It also qualifies Ndiaye's immunity as “immunity from the criminal and civil jurisdiction of the United States only with respect to acts performed by him in his official capacity at the Permanent Mission,” and that this immunity would “terminate upon departure or 30 days after termination, whichever comes first.” (Id. (emphasis added).)

14 The Court takes judicial notice that the United States Mission is part of the State Department. See “About the Mission,” U.S. Mission to the United Nations, https://usun.usmission.gov/mission/ (last visited Oct. 19, 2023). Other courts refer to similar letters as State Department representations, notes, certifications, etc. See, e.g., United States v. Khobragade, 15 F.Supp.3d 383, 384 n.6, 386, 386 n.20 (S.D.N.Y. 2014) (referring to a letter from Eileen P. Merritt, a former Minister Counselor at the United States Mission to the United Nations, that ascribed immunity to a diplomat as the “Merritt Letter”); Fontaine v. Permanent Mission of Chile to United Nations, No. 17-CV-10086, 2020 WL 5424156, at *6, *6 n.2 (S.D.N.Y. Aug. 18, 2020) (referring to a letter from the same James B. Donovan, the Minister Counselor for Host Country Affairs of the United States Mission, as a “State Department ... representation]”); Devi v. Silva, 861 F.Supp.2d 135, 140 (S.D.N.Y. 2012) (calling a letter from a former Minister Counselor for Host Country Affairs of the United States Mission a “State Department[ ] Diplomatic Note”); Ahmed v. Hoque, No. 01-CV-7224, 2002 WL 1964806, at *2, *2 n.1 (S.D.N.Y. Aug. 23, 2002) (stating that “the State Department often provides a formal certification that establishes the position held by a person [at a Permanent Mission to the United Nations in New York] and the level of immunity to which that person is entitled” and calling it a “State Department certification”).

On May 8, 2023, Tounkara filed yet another letter requesting leave to replead his Complaint to assert diversity jurisdiction as ground for the Court to exercise subject matter jurisdiction over his claims against Ndiaye.¹⁵ (Dkt. 57.) Tounkara stated that the diversity question is one of first impression for the Second Circuit because it has not yet decided whether a person in the United States under CAT should be considered a citizen of a state of the United States for purposes of diversity. (Id. at 2.)

15 Having already undertaken examination of the diversity jurisdiction issue, I did not rule on Ndiaye's request to amend. As, discussed below, this Report and Recommendation determines that the Court does not have diversity jurisdiction; therefore, Tounkara's request to amend is denied.

C. Conference, Hearing, And Additional Arguments

I held a case management conference on May 9, 2023 to gain clarity on several questions: (1) Ndiaye's end date at the Mission, given the conflicting dates of the Ambassador Niang Affirmations (December 2019), the State Department Letter (December 31, 2021), and the Blue List (March 30, 2023); (2) his level of immunity, as Ndiaye argued that he was entitled to full diplomatic immunity but the State Department Letter indicated that he enjoyed immunity only with respect to acts performed in his official capacity; and (3) the status of a CAT deferral grantee. (See Case Mgmt. Tr.)

Unfortunately, the conference did not bring much clarity. Ndiaye argued that he worked at or was a member of the Mission until December 31, 2021, pointing to the State Department Letter. (Id. at 2-3, 8.) Despite submitting and relying on the purported Blue List numerous times, he was unable to explain, why then, he appeared on it as of March 2023, suggesting that perhaps it was a “bureaucracy thing.” (Id. at 20.) But while submitting the State Department Letter as evidence of when he was a member of the Mission, Ndiaye repudiated the Letter when asked about the qualified or limited immunity it ascribed to him, contending that the Letter was incorrect on that issue and not “according to the law.” (Id. at 7.) He argued that he was still a member of the Mission until December 31, 2021 as per the Letter, and so had full diplomatic immunity both at the time of the incident and at the time the Complaint was filed, and, even if he was no longer a member of the Mission at the time of the Complaint, he would “still get the immunity according to the law.” (Id. at 8-9.) Finally, Tounkara argued that, under CAT, he had “lawful residence” in the United States but not lawful permanent residence. (Id. at 28-29.)

After the conference, due to lingering factual and legal questions, I issued an order scheduling a hearing to discuss whether the Court is deprived of jurisdiction due to diplomatic immunity and/or lack of diversity and instructing the parties to submit witness and exhibit lists. (Dkt. 58.) On June 13, 2023, Ndiaye filed a letter attaching three exhibits (Dkt. 60), which included the same purported Blue List print out (Dkt. 60 Ex. A), the State Department Letter (Dkt. 60 Ex. B), and his New York driver license (Dkt. 60 Ex. C). Ndiaye also included a witness list, noting that Ndiaye and Ambassador Niang would be testifying. (Dkt. 60 Ex. D.) On the same day, Tounkara filed his letter, which contained four single-spaced pages analyzing diplomatic immunity and diversity jurisdiction and contending that, if the Court dismissed his suit, then he would be foreclosed from relief because he cannot bring a case in state court due to the statute of limitations having run, nor can he bring one in Senegal due to the “political upheaval” there. (Dkt. 61 at 3-4.) The letter attached a short exhibit list, and a witness list notifying the Court that he and his wife would testify at the hearing. (Dkt. 61 at ECF 9.)

In light of Tounkara's lengthy argument in his letter, Ndiaye responded with another letter arguing that the Second Circuit recently found that a lawful permanent resident was still an alien for diversity purposes and that Tounkara had even less status than a lawful permanent resident under CAT, as a result of which the Court could not exercise diversity jurisdiction. (Dkt. 64.) He added that he “has proved that he is a diplomat ... and therefore ... [w]hether [he] was acting outside the scope or within the scope of his employment is . irrelevant.” (Id.)

On June 27, 2023, I held an in-person hearing where the parties presented further evidence and argument on diplomatic immunity and diversity jurisdiction. Tounkara and his wife testified to their connections to New York. (Hearing Tr. 7-13, 29-31.) Ambassador Niang confirmed that Ndiaye was Second Counsellor at the Mission from January 2014 to December 2019, and that the position of Second Counsellor was “maybe the fourth layer” in the Mission's “kind of hierarchy.” (Id. at 42, 45-46, 48-49, 51.) He spoke to Ndiaye's “functions” in his position including “dealing with protocol [and] accreditation. He was also our main contact when he had visits coming from officials from Senegal.” (Id. at 46-47.)

Ambassador Niang tried to address the discrepancy between the December 2019 end date he provided for Ndiaye's tenure at the Mission and the State Department Letter's reference to 2021: He “suspect[ed]” the United States Mission had to “merely updat[e]” its records and perhaps the delay was related to COVID. (Id. at 46, 48-49.) He also testified that the State Department Letter's description of Ndiaye's level of immunity was “quite correct” but also that Ndiaye was “acting as an official of the [M]ission at the time [of the incident].” (Id. at 51, 53, 57.) Finally, Ndiaye testified and confirmed that his end date at the Mission was December 2019, and he detailed his responsibilities as Second Counsellor. (Id. at 59-60.)

The next day, the Court issued an order seeking further briefing from the parties on three questions: (1) What are the timing considerations when determining whether the Court has § 1351 jurisdiction, i.e., does it attach at the time of the incident or at the time the complaint was filed, and how does a diplomat's status as either a current or former diplomat inform that analysis? (2) What are the treaties and/or statutes that govern the level of diplomatic immunity enjoyed by a member of a mission to the United Nations in New York? The Court listed the following potentially relevant treaties and statutes and asked the parties to brief which of them were applicable in this case: (i) the Diplomatic Relations Act, 22 U.S.C. §§ 254(a)-254(c); (ii) the Vienna Convention on Diplomatic Relations¹⁶ (the “VCDR” or the “Vienna Convention”); (iii) the Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations”¹⁷ (the “Headquarters Agreement”); (iv) the Convention on Privileges and Immunities of the United Nations¹⁸ (the “CPIUN”); and (v) the International Organizations and Immunities Act (“IOIA”), 22 U.S.C. §§ 288-288(1). (3) Does a Court determine a diplomat's immunity-level at the time of the incident or at the time of the complaint? (Dkt. 70.)

16 Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes, done Apr. 18, 1961, 23 U.S.T. 3227 (entered into force with respect to the United States Dec. 13, 1972).

17 Agreement Regarding the Headquarters of the United Nations, signed June 26, 1947, T.I.A.S. No. 1676 (entered into force Nov. 21, 1947).

18 Convention on Privileges and Immunities of the United Nations, adopted by the General Assembly of the United Nations Feb. 13, 1946, 21 U.S.T. 1418 (entered into force with respect to the United States Apr. 29, 1970).

On July 27, 2023, Tounkara filed a letter addressing those questions. (Dkt. 71.) He maintained that § 1351 jurisdiction applies not only “where [a] defendant was served process while still a member of the mission” but also “notwithstanding the fact that [Ndiaye] may not have been an active member of the mission when he was served”; in other words, § 1351 applies if, at the time of the incident, the defendant was a current diplomat, even if, at the time of the complaint, he was a former diplomat. (Id. at 1, 3.) Tounkara contended that “the relevant immunities regime is the Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations,” as well as Article 39(2) of the VCDR. (Id. at 2, 2 nn.3-4.) Finally, Tounkara asserted that Ndiaye was not an “active member of the [M]ission when he was served,” i.e., a former diplomat, and therefore he has only residual immunity, which does not proscribe the Court from exercising jurisdiction over him. (Id. at 2-3.)

Ndiaye submitted his letter on August 21, 2023. (Dkt. 73.) He argued that “[t]here is no case on point concerning at the time [§ 1351] applies specifically” but that it should attach at the time the Complaint was filed, and, since Ndiaye was no longer a member of the Mission at that time, the Court does not have jurisdiction over him under § 1351. (Id. at 2-3.) Additionally, he relied on the Vienna Convention to argue that he “should be granted broad immunity” “whether he is a current or former diplomat,” but he cited the Vienna Convention on Consular Relations¹⁹ (the “VCCR”), rather than the VCDR.²⁰ (Id. at 3-5.) Tounkara did not file a reply.

19 Vienna Convention on Consular Relations and Optional Protocol Disputes, done Apr. 24, 1963, 21 U.S.T. 77 (entered into force with respect to the United States Dec. 24, 1969).

20 Ndiaye invoked provisions of the VCCR (although mistakenly identifying them as provisions of the VCDR, which does not have an Article 5(m) and its Article 43 does not pertain to immunity; in contrast, the VCCR does have an Article 5(m) and VCCR Article 43 concerns immunity). (See Dkt. 73 at 3.) The VCCR, however, is not relevant here. See United States v. Kostadinov, 734 F.2d 905, 910 (2d Cir. 1984) (distinguishing between diplomats from missions and those from consulates and explaining that, while the Vienna Convention on Diplomatic Relations applies to the former, “[u]ltimately, a separate convention was prepared to regulate consular relations, the Vienna Convention on Consular Relations”). Neither Ndiaye nor Tounkara argued that CPIUN or the IOIA applied.

DISCUSSION

The Court does not have subject matter jurisdiction over the instant action under either § 1351 or § 1332. Section 1351 provides district courts with original and exclusive jurisdiction over members of a mission. The statute's plain meaning is ambiguous as to whether it applies to former members of a mission, and its legislative history is similarly unclear. However, since diversity jurisdiction, and indeed immunity itself, are determined at the time of the complaint, § 1351 should be understood to attach at that time as well and thus does not extend to defendants who are no longer members of a mission when the complaint is filed. Since Ndiaye was a former member of the Mission when Tounkara commenced this action, the Court does not have jurisdiction under § 1351.

The Court also does not have diversity jurisdiction pursuant to § 1332. A person residing in the United States under CAT deferral, like Ndiaye, is not a citizen of a state of the United States. Accordingly, the instant suit is between two foreign subjects for which there is no diversity to support jurisdiction under § 1332. As this Court does not have subject matter jurisdiction under either § 1332 or § 1351, the case should be dismissed without prejudice and subject to the terms of N.Y. C.P.L.R. 205(a) so that Tounkara may have the opportunity to refile claims against Ndiaye in state court.

Before addressing either § 1351 or § 1332, the Court first discusses the extent to which, if any, Ndiaye is immune from suit. If he is immune, the Court would not have jurisdiction over him regardless of the jurisdictional provision that would otherwise permit the Court to hear the case. Moreover, immunity-related issues bear on the jurisdictional issues as will be seen.

I. Immunity

As the Court identified in its March 29, 2023 order, “'jurisdiction under [§] 1351 ... may be limited by statute or treaty.'” (Dkt. 37 at 3 (quoting Johnson v. United Kingdom Government, 608 F.Supp.2d 291, 295 (D. Conn. 2009)); see also Broidy Capital Management LLC v. Benomar, 944 F.3d 436, 442 (2d Cir. 2019) (“a district court must dismiss ‘[a]ny action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention [on Diplomatic Relations]'”) (citing the Diplomatic Relations Act, 22 U.S.C. § 254d); Ravelombonjy v. Zinsou-Fatimabay, 632 F.Supp.3d 239, 251 (S.D.N.Y. 2022) (same). As relevant here, diplomatic immunity is one such limitation.

The determination of whether Ndiaye is protected by diplomatic immunity entails three issues: (1) the relevant point in time for determining diplomatic immunity; (2) which statute or convention applies and what level of immunity, if any, it confers; and (3) whether that level of immunity precludes the Court from exercising jurisdiction. As explained below, diplomatic immunity is determined as of the time the complaint was filed; the applicable treaty provision is Article 39(2) of the VCDR; and Ndiaye enjoys only residual immunity for “acts performed ... in the exercise of his functions as a member of the [M]ission.” VCDR art. 39(2). As also explained below, Ndiaye's allegedly wrongful acts were not within the scope of his functions as Second Counsellor, and, as a result, Ndiaye is not immune from Tounkara's claims.

A. Courts Determine A Diplomat's Immunity At The Time Of The Complaint

Courts look to the time an action is commenced to determine diplomatic immunity. For example, in Ravelombonjy, the plaintiff brought an action alleging trafficking, mistreatment, abuse, and other claims against Jean Francis Zinsou (“Zinsou”) who was the Permanent Representative of Benin to the United Nations in New York at the time of the alleged conduct but not when the plaintiff filed the complaint. 632 F.Supp.3d at 243, 251. The court considered whether Zinsou was immune as a former diplomat, explaining that because he “was the Permanent Representative . until September 14, 2016, nearly three years before this action was filed on July 26, 2019[,] . he is eligible for [only] the residual immunity articulated by Article 39(2).” Id. at 251 (emphasis added). In other words, rather than receiving full immunity as he might have if he held his diplomatic status at the time the action was filed, Zinsou received less expansive residual immunity because, as of filing the complaint, he was no longer the Permanent Representative of Benin. (The difference between full and residual immunity is discussed in more detail below.)

Likewise, in Swarna v. Al-Awadi, 622 F.3d 123 (2d Cir. 2010), the Second Circuit looked to the defendant's diplomatic status at the time of the complaint to determine the level of immunity conferred. There, the former Third Secretary to the Permanent Mission of the State of Kuwait faced claims of trafficking, involuntary servitude, forced labor, assault, and sexual abuse, among others. 622 F.3d at 127-28. The Court held that he was entitled to only residual immunity under Article 39(2) of the Vienna Convention in light of his status as the former Third Secretary. Id. at 134. The Court ultimately found that the defendant's alleged acts were not performed in the exercise of his diplomatic functions and therefore residual immunity was not a barrier to the plaintiff's claims. Id. at 140. See also Baoanan v. Baja, 627 F.Supp.2d 155, 161-62 (S.D.N.Y. 2009) (finding former Permanent Representative of the Philippines to the United Nations was protected only by residual immunity as he did not hold his diplomatic status at the time suit was filed); cf. Devi v. Silva, 861 F.Supp.2d 135, 138, 141 (S.D.N.Y. 2012) (finding the defendant, the current Deputy Permanent Representative of Sri Lanka to the United Nations in New York at the time the complaint was filed, was entitled to full diplomatic immunity under VCDR Article 31).

At the time of the acts alleged (on or about September 29, 2018), Ndiaye was a member of the Mission (Hearing Tr. at 60-61); at the time Tounkara filed his Complaint (September 28, 2021), however, he was not (Hearing Tr. 59-60 (Ndiaye testifying that he left the Mission in December 2019); see also Dkt. 71 at 3 (Tounkara letter brief stating that Ndiaye was “not ... an active member of the [M]ission when he was served”)). The Court thus must determine whether Ndiaye is immune from Tounkara's claims based on Ndiaye's status as a former diplomat.

B. Ndiaye Enjoys Only Residual Immunity Under The Applicable Authorities

Several conventions and statutes confer diplomatic immunity. In its June 28, 2023 order, the Court asked the parties to brief which of them were applicable in this case.²¹ (Dkt. 70 at 2.) Both Tounkara and Ndiaye invoked the VCDR, and Tounkara invoked the Headquarters Agreement as well.²² (Dkt. 71 at 2-3; Dkt. 73 at 3-5). Whether one or both apply, the result is the same: Ndiaye enjoys only residual immunity.

21 As listed above, the treaties and statutes identified in the Court's June 28, 2023 order included: The Diplomatic Relations Act; the VCDR; the Headquarters Agreement; the CPIUN; and the IOIA. However, the Diplomatic Relations Act does not confer immunity separate from the VCDR; rather, it merely “gives effect to the Vienna Convention on Diplomatic Relations.” Devi, 861 F.Supp.2d at 139; see also Baoanan, 627 F.Supp.2d at 160 (S.D.N.Y. 2009) (same).

22 As explained above, Ndiaye incorrectly cited the VCCR, and neither Ndiaye nor Tounkara argued that the CPIUN or the IOIA applied.

1. Immunity Under The VCDR

The VCDR governs diplomatic immunity in the United States. See Fontaine v. Permanent Mission of Chile to United Nations, No. 17-CV-10086, 2020 WL 5424156, at *5 (S.D.N.Y. Aug. 18, 2020) (citing Broidy Capital Management LLC, 944 F.3d at 441). The treaty recognizes two principal types of diplomatic immunity: absolute or full and residual or qualified. (See VCDR art. 31(1), 39(2).)

Article 31(1) addresses full immunity. That article provides that “[a] diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction” with three exceptions for an action relating to “private immovable property,” “succession,” or “any professional or commercial activity.”²³ VCDR art. 31(1). The three exceptions are “narrow.” Fontaine, 2020 WL 5424156, at *5. Immunity under Article 31(1) thus is sometimes called “absolute immunity” or “full immunity.” See Brzak v. United Nations, 597 F.3d 107, 113 (2d Cir. 2010) (citing VCDR Article 31(1) and stating that “current diplomatic envoys enjoy absolute immunity from civil and criminal process”); Van Aggelen v. United Nations, 311 Fed.Appx. 407, 409 (2d Cir. 2009) (“Under the Vienna Convention on Diplomatic Relations [ ] art. 31, . diplomatic envoys are granted full immunity subject to narrow exceptions not relevant to this litigation”).

23 “While the precise contours of the phrase ‘professional or commercial activity,' which is not defined in the VCDR, are unsettled, it is broadly understood to refer to trade or business activity engaged in for personal profit.” Broidy Capital Management LLC, 944 F.3d at 445.

Article 39(2) of the VCDR addresses immunity of former diplomats: “When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country[.] ... However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.” VCDR art. 39(2). The continuing limited immunity of a former diplomat is typically referred to as “residual immunity.” See Swarna, 622 F.3d at 134 (“Article 39(2) of the Vienna Convention thus provides for so-called ‘residual' immunity, which is a less expansive immunity that remains with the former diplomats for certain acts committed during their occupation of the diplomatic station ... [as long as] those acts were performed in the exercise of the former diplomat's functions”) (internal quotation marks and brackets omitted); Baoanan, 627 F.Supp.2d at 161 (“the Bajas' diplomatic immunity, if any, is determined by Article 39(2)'s provision of residual immunity, and not the broader immunity from civil jurisdiction afforded by Article 31(1)”).

Examples of former members of missions to the United Nations eligible for residual immunity under VCDR have included the former Third Secretary to the Permanent Mission of the State of Kuwait to the United Nations in Swarna, 622 F.3d at 128; the former Permanent Representative of Benin to the United Nations in Ravelombonjy, 632 F.Supp.3d at 251; and the former Permanent Representative of the Philippines to the United Nations in Baoanan, 627 F.Supp.2d at 162. As former Second Counsellor to the Permanent Mission of Senegal to the United Nations, Ndiaye enjoys residual immunity under VCDR Article 39(2); however, he is only immune for acts that were performed in the exercise of his assigned functions.

2. The Headquarters Agreement

The Headquarters Agreement “establishes the seat of the United Nations in New York City and regulates the relationship between the United States and the United Nations.” Ahmed v. Hoque, No. 01-CV-7224, 2002 WL 1964806, at *2. “‘With the United States as the site of the United Nations headquarters, our Government was particularly sensitive to the problem of assuring the independence and proper functioning of the United Nations, and also to the protection of its own security. The Headquarters Agreement was one of the means adopted to protect the respective interests.'” Id. (quoting United States ex rel. Casanova v. Fitzpatrick, 214 F.Supp. 425, 431-32 (S.D.N.Y. 1963)). Like the VCDR, the Headquarters Agreement also distinguishes between full and limited immunity:

The fact that the United Nations has its headquarters in the United States requires a large number of foreign government representatives and foreign national employees to reside in the New York City area for substantial periods of time. From the standpoint of providing diplomatic immunity, it would be impractical for all concerned if each of those individuals had to be ‘approved' by the United States in advance. The accommodation reached is not to afford all such foreign nationals full immunity status. Rather, it is to permit the foreign government or international organization to undertake the selection of representatives and employees but, as a means of protecting this country's interests, to limit the availability and scope of immunity. Accordingly, under the Headquarters Agreement ..., only a limited number of persons may receive full immunity ...; all others are cloaked with immunity only when acting within the scope of their employment.

United States v. Enger, 472 F.Supp. 490, 503 (D.N.J. 1978).

The Headquarters Agreement, Article V, § 15 addresses diplomatic immunity for “Resident Representatives to the United Nations.” Headquarters Agreement art. V, § 15. It provides “the same privileges and immunities . as [the United States] accords to diplomatic envoys accredited to it” for four categories of persons. Id. The first category of persons that the Headquarters Agreement applies to is “[e]very person designated by a Member as the principal resident representative to the United Nations of such Member or as a resident representative with the rank of ambassador or minister plenipotentiary.” Id., § 15(1). The second category pertains to “such resident members of their staffs as may be agreed upon between the Secretary-General, the Government of the United States and the Government of the Member concerned.” Id., § 15(2). The third and fourth categories extend to persons in specialized agencies. Id., §§ 15(3)-(4).

If a diplomat to the United Nations in New York falls under one of the four categories of protected individuals, they are entitled to the privileges and immunities afforded by the VCDR. Finding the Economics Minister for the Permanent Mission of Bangladesh to the United Nations received full diplomatic immunity under the Headquarters Agreement and the scope of that immunity “defined by the Vienna Convention,” the court in Ahmed explained:

courts have consistently held that representatives of member states to the United Nations, specifically individuals enumerated in Section 15 of the Headquarters Agreement, are entitled to the same level of diplomatic immunity that the United States extends to accredited diplomatic envoys[.] ... The scope of immunity extended to diplomatic envoys, and accordingly the scope of immunity to be extended to United Nations representatives, is that set out in the Vienna Convention.

2002 WL 1964806, at *4-5.

Whether the Headquarters Agreement's provisions apply to Ndiaye is open to question. First, the parties have not cited, and the Court is not aware of, any cases applying the immunity provisions of the Headquarters Agreement to former as opposed to current diplomats. Second, the only one of the four categories of individuals potentially encompassing Ndiaye is the second, as he did not hold the position of a principal resident representative, ambassador, or minister plenipotentiary, and was not a member of any special agency. (See Hearing Tr. at 51 (Ambassador Niang testifying that Ndiaye, as Second Counsellor, was “maybe [in] the fourth layer” of the Mission's “kind of hierarchy”).) And, while there is some evidence of a tripartite agreement between the Secretary General, the United States, and Senegal regarding Ndiaye's diplomatic status, that evidence - the State Department Letter - accords Ndiaye only limited immunity; that is, immunity for acts performed as part of his function as Second Counsellor to the Mission.²⁴(Dkt. 53 Ex. A; Dkt. 60 Ex. B.) (stating that Ndiaye enjoyed immunity “only with respect to acts performed by him in his official capacity at the Permanent Mission”).

24 While courts have determined that a letter from the State Department as to a diplomat's level of immunity is dispositive for diplomats accredited to the United States, they have been reluctant to do so with respect to diplomats accredited to the United Nations. See United States ex rel. Casanova, 214 F.Supp. at 432-33 (“A number of leading authorities do hold that the State Department certification is conclusive where the issue pertains to a diplomatic envoy accredited to the United States. This Court is of the view that such authorities do not control the question here presented. There is a sharp distinction between a diplomatic envoy accredited to the Government of the United States and a representative of a member state to the United Nations, an international organization. ... Whether . immunity [for a representative of a member state to the United Nations] exists by reason of the agreement, is not a political question, but a justiciable controversy involving the interpretation of the agreement and its application to the particular facts”); Ahmed, 2002 WL 1964806, at *2 n.1; but see Firemen's Insurance Company of Washington D.C. v. Onwualia, No. 94-CV-0095, 1994 WL 706994, at *3 (S.D.N.Y. Dec. 19, 1994) (where parties did not dispute diplomatic status, finding a counselor for the Permanent Mission of Nigeria to the United Nations, was entitled to immunity under the Headquarters Agreement based on a letter from Robert C. Moller, the former Minister Counselor for Host Country Affairs for the United States).

In short, whether the VCDR alone applies or whether the Headquarters Agreement also applies is beside the point. Under both, the immunity conferred upon Ndiaye was limited to acts performed within the scope of his function for the Mission.²⁵

25 Ndiaye incorrectly argues that he “should be granted broad immunity” “whether he is a current or former diplomat.” (Dkt. 73 at 4, 5.) The cases he relied on are inapt as the defendants in those cases were current, not former, diplomats. See Broidy Capital Management, 944 F.3d at 440, 445-46; Tachiona v. United States, 386 F.3d 205, 209, 220 (2d Cir. 2004).

C. Ndiaye Does Not Enjoy Immunity For The Acts Alleged

As Tounkara correctly maintains, Ndiaye is not immune from this suit because the conduct alleged was not performed in the exercise of his functions as a member of the Mission.²⁶ See Swarna, 622 F.3d at 134 (“once a diplomat becomes a ‘former' diplomat, he or she is not immune from suit for prior acts unless those acts were performed ‘in the exercise of [the former diplomat's] functions as a member of the mission.' VCDR art. 39(2)”).

26 Tounkara states that “this Court is not deprived of jurisdiction due to diplomatic immunity because Defendant was acting outside the scope of his official capacity” with “the intentional touching of Plaintiff Tounkara.” (Dkt. 61 at 1.) Although, in Dkt. 61, Tounkara relied on VCDR Article 31(1)(c) rather than Article 39(2), the argument that a diplomat acted outside of his official capacity applies equally to Article 39(2) in determining whether a diplomat's residual immunity protects him from suit.

In its First R&R, the Court determined that Ndiaye's alleged conduct was not “within the scope of his office of employment” with respect to an exception to immunity under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602 et seq. (Dkt. 36 at 8-10.) The Court stated that because “Tounkara's Complaint describe[d] an alleged act of assault and battery,” and “because Ndiaye was not a security guard or the like for whom the use of physical force may be within the scope of their employment, ... his intentional touching of Tounkara” was not undertaken in the scope of his employment. (Id. at 10 (internal quotation marks omitted).) The same facts compel a similar conclusion with respect to VCDR Article 39(2).

Article 39(2) “does not immunize acts that are ‘incidental to' the exercise of [a diplomat's] functions as a member of the mission.” Swarna, 622 F.3d at 134; see also Ravelombonjy, 632 F.Supp.3d at 251 (same). Rather, it only immunizes “such acts as are directly imputable to the state or inextricably tied to a diplomat's professional activities.” Swarna, 622 F.3d at 135; accord United States v. Al Sharaf, 183 F.Supp.3d 45, 52 (D.D.C. 2016). “This immunity exists ‘not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.'” Swarna, 622 F.3d at 134 (quoting VCDR pmbl. cl. 4). Article 39(2) only extends to “official acts.” Id. at 137; see also Baoanan, 627 F.Supp.2d at 164 n.9 (“the Court must [analyze] a former diplomat's acts to determine whether those acts constitute ‘official acts' entitling him to residual immunity under Article 39(2)”). In analyzing whether a diplomat's conduct constituted official acts or acts within the exercise of their functions,

[courts] must not judge “whether the underlying conduct actually occurred, or whether it was wrongful.” Brzak, 597 F.3d at 113. Rather, our consideration is a functional one[.] ... Thus, for example, in Brzak we held that [United Nations] officials qualified for residual immunity under the Vienna Convention against alleged acts of sex discrimination, retaliation, the intentional infliction of emotional distress, and acts constituting a violation under the Racketeer Influence and Corrupt Organizations Act, all of which occurred in the course of the [United Nations] officials' management of their office. Id. at 113. We concluded that these allegations, as they were articulated by the plaintiffs in Brzak, involved “personnel management decisions falling within the ambit of the [United Nations officials'] professional responsibility.” Id.

Swarna, 622 F.3d at 137. In other words, “whether [diplomats] enjoy[ ] residual immunity ... depend[s] on whether the claims relate to acts taken in the course of the diplomat's official conduct, or instead whether the claims involve private conduct that was entirely peripheral to those official functions.” Al Sharaf, 183 F.Supp.3d at 52 (internal quotation marks omitted).

Here, even though Tounkara accuses Ndiaye of assault and battery, if Ndiaye's attempt to “protect[ ] the international officials visiting [the Mission]” and “push[ing]” Tounkara out of the way were within his professional responsibilities, then Ndiaye would be immune. (Dkt. 73 at 5.) As Ambassador Niang confirmed, however, Ndiaye's professional responsibilities did not extend to security, and “[t]he scope of his employment did not include the use of force or violence.” (First Niang Aff. ¶ 5.) Rather, his responsibilities as Second Counsellor to the Mission included accreditation, assisting officials who were visiting from Senegal and participating in meetings at the United Nations, and preparing correspondence. (Id. ¶ 4; Hearing Tr. 46-47.) Therefore, Ndiaye did not act in the exercise of his functions as a member of the Mission.²⁷

27 The case Ndiaye relies on to argue that the conduct alleged was within his function to the Mission is materially distinguishable. See Gerritsen v. Consulado General De Mexico, 989 F.2d 340 (9th Cir. 1993) (cited by Ndiaye at Dkt. 73 at 4). The court in Gerritsen found that the defendants' actions, which included “verbal warnings and threats” against a protestor outside of the Consulate General of Mexico in Los Angeles, “constitute[d] reasonable efforts to effectuate the consular function of maintaining the dignity and safety of the Consulate.” Gerritsen, 989 F.2d at 347. The court emphasized, however, that the conduct was consistent with the defendants' functions because it was “without accompanying physical contact.” Id. In contrast, the wrongful act alleged by Tounkara is premised on physical contact. (Even though Gerritsen involved the VCCR instead of the VCDR, the Court does not distinguish it on that basis because “[t]he standard for residual diplomatic immunity is virtually identical to that for consular immunity.” Rana v. Islam, 305 F.R.D. 53, 60 (S.D.N.Y. 2015).) Other cases cited by Ndiaye are similarly distinguishable. See Ewald v. Royal Norwegian Embassy, No. 11-CV-2116, 2012 WL 245244, at *5 (D. Minn. Jan. 26, 2012) (“[defendant's] acts were performed in the exercise of a valid consular function - managing and supervising the employees of the Embassy - and he is therefore entitled to consular immunity for these acts”); Politis v. Gavrill, No. H-08-2988, 2008 WL 4966914, at *5 (S.D. Tex. Nov. 19, 2008) (“The acts complained of -- writing letters to U.S. immigration officials and failing to grant requests for travel documents - all fall squarely within the consular functions defined by the Vienna Convention. Gavriil is immune from suit under the Vienna Convention on Consular Relations”); Koeppel & Koeppel v. Federal Republic of Nigeria, 704 F.Supp. 521, 524 (S.D.N.Y. 1989) (“I find that the act of allowing [a Nigerian national] to remain in the consulate overnight was ‘performed in the exercise of consular functions' by [the diplomat]”).

As a result, despite Ndiaye being entitled to residual immunity pursuant to VCDR Article 39(2), Ndiaye is not immune from Tounkara's claims. Accordingly, the Court next considers whether it may exercise jurisdiction under either § 1351 or § 1332.

II. Jurisdiction Under Section 1351

Under § 1351, district courts have “original jurisdiction, exclusive of the courts of the States, of all civil actions and proceedings against ... members of a mission ... (as such terms are defined in section 2 of the Diplomatic Relations Act).” 28 U.S.C. § 1351.

The Diplomatic Relations Act “gives effect to the Vienna Convention on Diplomatic Relations.” Devi, 861 F.Supp.2d at 139; see also Baoanan, 627 F.Supp.2d at 160 (same). Section 2 of the Diplomatic Relations Act defines “members of a mission” as “(A) the head of a mission and those members of a mission who are members of the diplomatic staff or who . are granted equivalent privileges and immunities, (B) members of the administrative and technical staff of a mission, and (C) members of the service staff of a mission, . as such terms are defined in Article 1 of the Vienna Convention.” 22 U.S.C. § 254a(1). In turn, Article 1 of the Vienna Convention defines “members of the mission” as “the head of the mission and the members of the staff of the mission”; “members of the staff of the mission” as “the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission”; and “members of the diplomatic staff” as “the members of the staff of the mission having diplomatic rank.” VCDR art. 1(b)-(d).

Tounkara and Ndiaye do not dispute that Ndiaye was a member of the Mission as required for § 1351 when he worked there as Second Counsellor. (See generally Dkts. 71, 73.) They also do not dispute that he was no longer working at the Mission when the Complaint was filed. (See Dkt. 71 at 3 (stating that Ndiaye was “not . an active member of the [M]ission when he was served”); Dkt. 73 at 3 (“At that time [September 2021], Defendant was no longer a member of the Mission”); see also Hearing Tr. 59-60 (Ndiaye testifying that Ndiaye left the Mission in December 2019).) Rather, they disagree on whether § 1351 applies in this case because Ndiaye was not a member of the Mission at the time the Complaint was filed although he was at the time of the incident. (See generally Dkts. 71, 73.) Tounkara argues that the Court has jurisdiction under § 1351 because Ndiaye was a member of the Mission at the time of the acts alleged in the Complaint; Ndiaye contends that the Court does not have jurisdiction over him because he was no longer a member of the Mission at the time the Complaint was filed. (See generally Dkts. 71, 73.) The Court agrees with Ndiaye.

A. Case Law

As Ndiaye correctly observes, case law addressing whether § 1351 applies to former members of a mission is lacking. (See Dkt. 73 at 2.) The Court has identified but one case, a district case from another Circuit, that appears to directly speak to the issue, and only then in a footnote, with no analysis and a citation to two other cases, neither of which considered the issue. Jimenez v. Delgado, 978 F.Supp.2d 726, 731 n.5 (S.D. Tex. 2013.) In Jimenez, former employees of the Consulate General for Mexico in Houston, Texas (the “Mexican Consulate”) asserted claims for wrongful termination of employment against Mexico, the Mexican Consulate, the then-current General Consul, and Carlos Garcia Delgado (“Delgado”) who at the time of the alleged wrongful acts was the Consul General. Id. at 728, 731 n.5. In exercising § 1351 jurisdiction over Delgado, the court stated in a footnote that “[a]lthough Delgado is no longer the Consul General for Mexico in Houston, Plaintiffs allege he engaged in misconduct while he served in that capacity. Thus, he is within § 1351's grant of jurisdiction.” Id. at 731 n.5. For support, the court cited Politis v. Gavrill, No. H-08-2988, 2008 WL 4966914 (S.D. Tex. Nov. 19, 2008) and Koeppel & Koeppel v. Federal Republic of Nigeria, 704 F.Supp. 521 (S.D.N.Y. 1989). The court included parentheticals characterizing both courts as “assuming” that § 1351 grants jurisdiction over the former consular officers. Yet neither Politis nor Koeppel & Koeppel even mention, let alone analyze, the issue of whether § 1351 extends to former diplomats. And Koeppel & Koeppel is not even apt since the defendant in that case held the position of Consul General of the Federal Republic of Nigeria at both the time of the alleged incident and at the time the complaint was filed; he only retired later at some point during the proceedings.²⁸ Koeppel & Koeppel, 704 F.Supp. at 521, 524.

28 In Koeppel & Koeppel, the relevant incident was a fire that took place in 1986. 704 F.Supp. at 521. The defendant was the former Consul General of the Federal Republic of Nigeria from 1984 until 1987. Id. According to the case's CV number, the action commenced in 1986. Therefore, even though the defendant was “retired from diplomatic service” at the time the decision was issued, id. at 524, he was still a diplomat at the time of both the incident and the complaint.

Another case - cited by Tounkara, not Ndiaye, and to support a different proposition but relevant to § 1351 - Lewis v. Permanent Mission of Cote D'Ivoire to United Nations, No. 19-CV-1375, 2019 WL 4198943, at *1 (S.D.N.Y. Aug. 7, 2019), is inapposite for the same reason. In Lewis, the plaintiff brought an action against the Permanent Mission of Cote D'Ivoire to the United Nations (the “Cote D'Ivoire Mission”) and Diarra Adama (“Adama”) in state court seeking damages arising out of a car accident. 2019 WL 4198943 at *1. At the time of the accident, Adama was employed by the Cote D'Ivoire Mission and was driving the car that crashed. Id. The defendants removed the case to federal court pursuant to § 1351; the plaintiff then sought to remand to state court, arguing that Adama was not “currently employed by the [Cote D'Ivoire] Mission as a driver.” Id. at *2. The court found the plaintiff's argument unavailing, however, because the plaintiff alleged in his complaint that “at all times hereinafter mentioned, Adama was employed by the Permanent Mission” as well at the time of the accident. Id. (emphasis added) (alterations omitted). Lewis thus does not speak to whether § 1351 applies to former diplomats who no longer hold their position as of commencement of the action.²⁹

29 Tounkara also relies on Baoanan, 627 F.Supp.2d at 163. (Dkt. 71 at 1.) While the Court in Baoanan found that it could exercise jurisdiction over a former member of the Permanent Mission of the Philippines to the United Nations, § 1351 was not at issue.

In short, the Court has found no persuasive authority, let alone controlling authority, analyzing the question of whether § 1351 applies to persons who were at one time members of a mission but are not at the time the complaint is filed. That does not, however, leave the Court without guidance. “Having determined that the meaning of [a provision or statute] has not been resolved by prior case law, we turn to the overall statute and its context. ... We examine the statutory text, structure, and purpose as reflected in its legislative history.” Catskill Mountains Chapter of Trout Unlimited, Inc. v. Environmental Protection Agency, 846 F.3d 492, 512 (2d Cir. 2017) (citing Li v. Renaud, 654 F.3d 376, 382 (2d Cir. 2011)).

B. Statutory Interpretation: Plain Meaning And Legislative History

“When interpreting a statute, [courts] begin by giving effect to the text's plain meaning.” J.S. v. New York State Department of Corrections & Community Supervision, 76 F.4th 32, 38 (2d Cir. 2023). “'If the statutory terms are unambiguous, we construe the statute according to the plain meaning of its words.'” Panjiva, Inc. v. United States Customs & Border Protection, 975 F.3d 171, 176 (2d Cir. 2020) (quoting Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013)).

Section 1351 states that it applies to “(1) consuls or vice consuls of foreign states; or (2) members of a mission or members of their families (as such terms are defined in section 2 of the Diplomatic Relations Act).” The statute is silent as to whether it includes persons who are no longer members of a mission at the time a complaint is filed. However, the Diplomatic Relations Act, which § 1351 references to define “members of a mission,” and the VCDR, which the Diplomatic Relations Act then points to for the same reason, do shed some, albeit dim, light on the question. The definitions of “members of a mission” in both the Diplomatic Relations Act and the VCDR are couched expressly in the present tense. See, e.g., 22 U.S.C. § 254a(1) (“the term ‘members of a mission' means - (A) the head of a mission and those members of a mission who are members of the diplomatic staff or who ... are granted equivalent privileges and immunities”) (emphasis added); VCDR art. 1(b) (“the ‘members of the mission' are the head of the mission and the members of the staff of the mission”) (emphasis added). The definitions do not refer to members who were members of the diplomatic staff, or were granted equivalent privileges and immunities, or were the head of the mission and members of the staff of the mission.

Inasmuch as § 1351 expressly incorporates those definitions, the statute should be read, for example, as follows: Federal courts shall have “original jurisdiction, exclusive of the courts of the States, of all civil actions and proceedings against the head of the mission and those members of a mission who are the head of the mission and the members of the staff of the mission.” But even that formulation does not necessarily answer the question of whether § 1351 jurisdiction should be applied based on the time of the incident or the time of the complaint. The statute could be understood to mean persons “who are the head of the mission and the members of the staff of the mission” at the time of the wrongful acts alleged, or persons “who are the head of the mission and the members of the staff of the mission” at the time the complaint is filed, or both. The statutory language thus is not definitive.

Since “'the terms [of § 1351] are ambiguous or unclear,'” the Court next “'consider[s] [its] legislative history.'” Panjiva, Inc., 975 F.3d at 176 (quoting Nwozuzu, 726 F.3d at 327); see also Springfield Hospital, Inc. v. Guzman, 28 F.4th 403, 422 (2d Cir. 2022) (“We emphasize that a court may engage with legislative history only when the plain meaning of a provision is ambiguous”). Unfortunately, that body of material is relatively thin and uninformative. The Court has only found two potentially relevant, brief mentions of § 1351 when it was amended in conjunction with the passage of the Diplomatic Relations Act in 1978, even though the legislative history surrounding the Diplomatic Relations Act is vast.³⁰

30 While much of the legislative history of the Diplomatic Relations Act lays out the amended language of § 1351, it does not actually discuss § 1351. See Legislative History of the Act of September 30, 1978, Pub. L. No. 95-393, H.R. 7819, 92 Stat. 808 (codified at the Diplomatic Relations Act, 22 U.S.C. §§ 254a-254c.).

The first reference comes from a hearing before a subcommittee of the Committee on International Relations of the House of Representatives from May and June 1977 (“House Subcommittee Hearing”³¹). In that hearing, a number of Congresspeople and Bruno A. Ristau (“Ristau”) - the Chief of the Foreign Litigation Unit of the Civil Division of the Department of Justice - debated over H.R. 6133, H.R. 3841, and H.R. 1536 - early iterations of the House bill that would ultimately become H.R. 7819 and the Diplomatic Relations Act - as well as amending § 1351 and 28 U.S.C. § 1251. House Subcommittee Hearing at 89-90, 97, 119-20, 155-56. At the time of the House Subcommittee Hearing, § 1251 conferred original and exclusive jurisdiction on the Supreme Court for actions affecting diplomats. Id. at 155; see also 14A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3663 (4th ed. 2023). The hearing participants discussed amending § 1251 so that the Supreme Court would have original but not exclusive jurisdiction over these actions and district courts would have concurrent jurisdiction over them under § 1351. House Subcommittee Hearing at 153. They also discussed amending the language of § 1351 to “track” the VCDR.³² Id. at 155. Congress ultimately adopted both of these amendments in H.R. 7819. See H.R. 7819, 95th Cong. (1978); 28 U.S.C. §§ 1251, 1351.

31 “House Subcommittee Hearing” refers to Diplomatic Privileges and Immunities: Hearings and Markup Before the Subcomm. on Int'l Rels. of the Comm. on Int'l Rels. House of Representatives, 95th Cong. (1977).

32 The language of § 1351 would change from vesting jurisdiction in the district courts “of all actions and proceedings against consuls or vice consuls of foreign states” to “of all civil actions and proceedings against (1) Consuls and Vice-Consuls of foreign states; (2) members of a mission or members of their families (as such terms are defined in Section 2 of the Diplomatic Relations Act).” Compare House Subcommittee Hearing at 97 n.10 with id. at 156; see also Legislative History of the Act of September 30, 1978, Pub. L. No. 95-393. A comparison of the previous and amended versions of § 1351 thus shows that Congress (1) extended original and exclusive jurisdiction to include not just consuls and vice-consuls, but also members of a mission and their families, and (2) qualified the actions that district courts would have jurisdiction over as “civil actions” “to remove the inadvertent prohibition on the exercise of criminal jurisdiction by state courts.” Legislative History of the Act of September 30, 1978, Pub. L. No. 95-393 at 17. Those changes, however, do not illuminate the instant question of the relevant point in time for determining when § 1351 jurisdiction attaches.

In the two-pages concerning § 1351 from the memorialization of the House Subcommittee Hearing, Ristau stated that “the important thing is ... to the extent suits will now be brought under the Vienna Convention against the persons who do not enjoy immunity, they would be brought in the district courts in civil cases.” House Subcommittee Hearing at 156. Perhaps this statement could be construed to mean that district courts would have jurisdiction under § 1351 over persons who are former diplomats and entitled to residual immunity under VCDR Article 39(2) but are not immune from suit because their alleged act was outside of their diplomatic function. At the same time, however, the statement could also simply mean that district courts would have jurisdiction under § 1351 over persons who are current diplomats but do not enjoy full immunity under VCDR Article 31(1) because the action against them involves non-immune conduct involving property, succession, or a professional or commercial activity. The Ristau statement thus does not resolve the ambiguity.

The second potentially relevant discussion of § 1351 from its legislative history comes from a hearing before a subcommittee of the Committee on the Judiciary of the Senate from February 1978 (“Senate Subcommittee Hearing”³³). At that hearing, the participants reviewed H.R. 7819, which ultimately became the Diplomatic Relations Act. Id. at 3; see also H.R. 7819, 95th Cong. (1978); 28 U.S.C. § 1351. Ristau again came before the subcommittee and delivered a statement. Senate Subcommittee Hearing at 13-19. He explained that “H.R. [7819] would add to the existing jurisdiction of the district courts of suits involving foreign consular officers - 28 U.S.C. 1351 - jurisdiction of suits against members of diplomatic missions of their families who no longer enjoy immunity from suit under the Vienna Convention,” while it would also amend § 1251 by removing the Supreme Court's exclusive jurisdiction over those kinds of suits. Id. at 16-17. Ristau's statement in the hearing is similar to his statement in the House Subcommittee Hearing; the phrase “who no longer enjoy immunity from suit” could refer to either persons with former diplomatic status, or persons who are no longer immune because of the exceptions to immunity enacted through passage of the VCDR. Therefore, this legislative history is no more illuminating.

33 “Senate Subcommittee Hearing” refers to Diplomatic Immunity: Hearings on S. 476, S. 477, S. 478, S. 1256, S. 1257, and H.R. 7819 Before the Subcomm. on Citizens and S'holders Rts. and Remedies of the Comm. on the Judiciary U.S. Senate, 95th Cong. (1978).

With case law, the statutory language, and legislative history being of limited assistance, the Court finds guidance from the law of other jurisdictional statutes, particularly for diversity jurisdiction, and from the law of immunity, which is closely tied to jurisdiction under § 1351.

C. Other Guidance: Diversity Jurisdiction, Immunity, and FSIA

The question of what point in time is relevant to determining jurisdiction arises in three other related contexts: diversity jurisdiction, diplomatic immunity, and sovereign immunity under the FSIA. In each area, well-established law holds that the relevant point in time is when the complaint is filed, not the defendant's status as the time of the incident.

As Ndiaye correctly asserts, “[i]t has long been hornbook law ... that whether federal diversity of citizenship exists is determined by examining the citizenship of the parties at the time the action is commenced by filing the complaint with the court.” (Dkt. 73 at 2 (internal quotation marks omitted) (citing CIT, Inc. v. 170 Willow Street Associates, No. 93-CV-1201, 1997 WL 528163, at *7 (S.D.N.Y. Aug. 26, 1997) and others)); see also Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570-71 (2004) (“It has long been the case that the jurisdiction of the court depends upon the state of things at the time of the action brought. This time-of-filing rule is hornbook law (quite literally) taught to first-year law students in any basic course on federal civil procedure. It measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing”) (internal quotation marks and citation omitted); Wright v. Musanti, 887 F.3d 577, 584 (2d Cir. 2018) (“[w]hether federal diversity jurisdiction exists is determined by examining the citizenship of the parties at the time the action is commenced”) (citation omitted); 13E Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3608 (3d ed. 2023) (“It has long been hornbook law, applied by courts at all levels of the federal judiciary throughout the nation, that whether federal diversity of citizenship jurisdiction exists is determined by examining the citizenship of the parties at the time the action is commenced by filing the complaint with the court”).

According to the Supreme Court, the reason for this time-of-filing rule is to “minimiz[e] litigation over jurisdiction.” Grupo Dataflux, 541 U.S. at 581. “This approach provides maximum stability and certainty to the viability of the action and minimizes repeated challenges to the court's subject matter jurisdiction and the expenditure of resources that entails.” Federal Practice and Procedure § 3608. If the rule turned on post-filing changes, then a party could readily destroy diversity jurisdiction once an action commenced, wasting time, resources, and incentivizing bath-faith litigation. Id. To be sure, post-filing change in status is not at issue here. More relevant for our purposes is why diversity jurisdiction cannot be determined before the time of the complaint:

[A] test that required diversity to be determined as of the time the cause of action accrued would be difficult to apply in various contexts. Illustratively, in New York a right of action for breach of contract accrues upon the completion of the wrongful act, whereas an action for negligence accrues upon the occurrence of harm. Since some actions can be classified as arising either out of an implied contract or from an act of negligence, the use of an accrual test would require the court to decide complex issues of state law merely to resolve the threshold issue of federal subject matter jurisdiction. In addition, if a long time has passed between the accrual of the cause of action and the commencement of the suit, the facts bearing on citizenship might be difficult to prove. Finally, it is extremely difficult to determine when the plaintiff's cause of action arose in various contexts, such as in certain types of product liability litigation or in environmental cases in which damages are claimed to have occurred over substantial periods of time. The effects of carcinogens, tobacco, Black Lung disease, and certain pharmaceuticals come to mind.

Id.

Similar logic extends to § 1351: Jurisdiction should not be determined at the time of a diplomat's alleged wrongful acts because the use of such a test “would require the court to decide complex issues of state law merely to resolve the threshold issue of federal subject matter jurisdiction” and those acts may be interspersed over a long period of time, making it “extremely difficult to determine” when jurisdiction attaches. For example, if a diplomat hires and employs a domestic servant for several years but abuses them or fails to pay them intermittently, and, sometime during that employment, the diplomat loses his diplomatic status, the court may have to jump through hoops to determine when exactly § 1351 attached: Would it attach at the first incident of abuse? Or the last? Would the court have jurisdiction only for those acts that occurred while the defendant was a member of the mission, or for all acts, including ones where they were no longer a member of the mission? A much cleaner rule would be to adhere to the hornbook law and find that the relevant time for determining whether § 1351 attaches is at the time the action is commenced.

A rule to the contrary would also conflict with diplomatic immunity, which is determined as of the time the complaint was filed, not when the events alleged occurred, as discussed above. See Ravelombonjy, 632 F.Supp.3d at 243, 251 (finding the defendant, the former Permanent Representative of Benin to the United Nations in New York at the time the complaint was filed, to be eligible for residual immunity under VCDR Article 39(2)); Swarna, 622 F.3d at 127, 133-35 (finding the defendant, the former Third Secretary to the Permanent Mission of the State of Kuwait at the time the complaint was filed, to be entitled to residual immunity under VCDR Article 39(2) but not immune from suit because his alleged acts were outside of diplomatic functions); Baoanan, 627 F.Supp.2d at 157, 161-62 (finding the defendant, the former Permanent Representative of the Philippines to the United Nations at the time of the complaint, protected only by residual immunity as he did not hold his diplomatic status at the time suit was filed); cf. Devi, 861 F.Supp.2d at 138, 141 (finding the defendant, the current Deputy Permanent Representative of Sri Lanka to the United Nations in New York at the time the complaint was filed, was entitled to full diplomatic immunity under VCDR Article 31).

The Supreme Court similarly has held that, under the FSIA, the status of an instrumentality of a foreign state is assessed “at the time suit is filed” as opposed to at the time of the alleged wrongdoing. Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003). As explained by the Second Circuit, the Court in Dole Food:

invoked ‘the longstanding principle that the jurisdiction of the Court depends upon the state of things at the time of the action brought.' ... Giving the companies immunity for a status they no longer held would, the Court concluded, do nothing to

advance the purpose of foreign sovereign immunity -protecting sovereigns from ‘the inconvenience of suit as a gesture of comity' - because, once the defendants had ceased to be instrumentalities of a foreign state, no foreign sovereign was involved.

Bartlett v. Baasiri, 81 F.4th 28, 35 (2d Cir. 2023) (citing Dole Food, 538 U.S. at 478-79).³⁴

34 In Bartlett, the Second Circuit held that the FSIA may attach not only at the time of suit but also when a defendant becomes an instrumentality of a foreign sovereign after a suit is filed. 81 F. 4th at 33. In so holding, Bartlett reaffirmed Dole Food's holding that “presuit sovereign immunity cannot be retained by a no-longer-sovereign defendant.” Id. at 35.

The Court is hard-pressed to conclude that the relevant point in time for determining § 1351 jurisdiction, which stands at the intersection of both jurisdictional and diplomatic concerns, should be different than for diversity jurisdiction and diplomatic and sovereign immunity. Federal courts have jurisdiction over diplomats because “our national tranquillity [sic], reputation, and intercourse with foreign nations ... ought ... to be uniform, and ... there can be no uniformity [in state courts since they are] distinct independent jurisdictions.” Jackson v. The Magnolia, 61 U.S. 296, 333 (1857); see also Froment v. Duclos, 30 F. 385, 386 (S.D.N.Y. 1887) (“It was deemed fit and proper that the courts of the government with which rested the regulation of all foreign intercourse should have cognizance of suits against representatives of such foreign governments”); Foxgord v. Hischemoeller, 820 F.2d 1030, 1036 (9th Cir. 1987) (“During the debates in the state conventions, the reason often mentioned for permitting federal courts to exercise exclusive jurisdiction in cases involving ambassadors, other public ministers and consuls was to perpetuate harmony between us and foreign powers”) (internal quotation marks and citations omitted). And, as explained above in discussing immunity, immunity exists “not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.” Swarna, 622 F.3d at 134. Once an individual is no longer a diplomat, the concern for uniformity, harmony with foreign powers, and the efficient performance of diplomatic missions holds less sway.

Additionally, a former diplomat like Ndiaye is entitled to only residual immunity under VCDR Article 39(2), which means he is immune from suit only if his acts are performed in the exercise of his functions as a member of a mission. If his act falls outside of the scope of his functions, then he is not immune. The Court sees little reason why federal courts should have jurisdiction over a former diplomat who is being sued under state law for conduct committed outside his diplomatic functions. Such a suit may end up in federal court anyway if the parties are diverse, but, if not, then the suit should proceed in state court.

Accordingly, the Court concludes that the relevant point in time for determining § 1351 jurisdiction is at the time of the complaint. Since Ndiaye was not a member of the Mission at the time Tounkara filed his Complaint, the Court does not have jurisdiction over Ndiaye pursuant to § 1351.

III. Diversity Jurisdiction

The Court also does not have diversity jurisdiction over Tounkara's claims against Ndiaye. Section 1332(a) provides district courts with “original jurisdiction over all civil actions where the matter in controversy exceeds the sum or value of $75,000”³⁵ and the action is between diverse parties. The amount in controversy is satisfied. The diversity requirement is not.

35 Tounkara alleges the incident caused him physical injuries and emotional trauma worth damages up to $22 million. (Compl. ¶ 90.) Ndiaye did not specifically dispute the amount in controversy in the Motion to Dismiss. (Dkt. 30.)

Section 1332(a) restricts diversity to four categories of litigants. The relevant category for the instant action is § 1332(a)(2), which provides that diversity exists between “citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State.” 28 U.S.C. § 1332(a)(2).

In other words, under § 1332(a)(2), a federal court has diversity jurisdiction when one party to an action is a citizen of a state of the United States and the other party is a citizen or subject of a foreign state. There is an exception, however, if the citizen of the foreign state is “lawfully admitted for permanent residence in the United States” and domiciled in the same state as the U.S. citizen; in which case district courts do not have § 1332 jurisdiction. See generally 13E Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3604 (3d ed. 2023); 14A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3661 (4th ed. 2023). Determining whether diversity exists under § 1332(a)(2) thus may require analysis of where parties are “domiciled.” Domicile is only relevant to § 1332(a)(2), however, if a party on one side of the “v.” is a U.S. citizen and the other party on the other side is a citizen of a foreign state who is lawful permanent resident in the United States.

Thus, where, as here, both parties are citizens of foreign states, a court does not need to delve into a domicile analysis because district courts do not have diversity jurisdiction over an action involving two citizens of foreign states on that basis alone. See, e.g., Tagger v. Strauss Grp. Ltd., 951 F.3d 124, 127 (2d Cir. 2020) (not engaging in a domicile-analysis because defendant was an Israeli corporation while plaintiff Tagger was a lawful permanent resident in Brooklyn but a citizen of Israel and thus “an alien for [ ] purposes of diversity jurisdiction”); Osei v. Standard Chartered Bank, No. 15-CIV-03992, 2015 WL 4006211, at *2-3 (S.D.N.Y. June 30, 2015) (not engaging in a domicile-analysis because defendants were foreign corporations and plaintiff was a citizen of Ghana although residing in the United States as a political asylee, and concluding that “[b]ecause there are aliens on both sides of this case, diversity jurisdiction is lacking”); see also Suedrohrbau Saudi Co. v. Bazzi, No. 21-CV-2307, 2023 WL 1807717, at *2 (2d Cir. Feb. 8, 2023) (“'diversity is lacking ... where the only parties are foreign entities, or where on one side there are citizens and aliens and on the opposite side there are only aliens'”) (quoting Universal Licensing Corp. v. Paola del Lungo S.p.A., 293 F.3d 579, 581 (2d Cir. 2002)). In other words, “‘the presence of aliens on two sides of a case destroys diversity jurisdiction.'” Suedrohrbau Saudi, 2023 WL 1807717, at *2 (quoting Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786, 790 (2d Cir. 1980)).

As noted, a lawful permanent resident is a citizen of a foreign state for purposes of diversity jurisdiction. See Tagger, 951 F.3d at 126 (discussing the 2011 amendment of § 1332 and quoting from the House Report accompanying the 2011 bill stating that “the amendment was intended to ensure that permanent resident aliens ‘would no longer be deemed to be U.S. citizens for purposes of diversity jurisdiction, thereby avoiding the possibly anomalous results'”) (quoting H.R. Rep. No. 112-10, at 7 (2011)); see also Suedrohrbau Saudi Co., 2023 WL 1807717, at *2 (stating that “until the date they obtained U.S. citizenship, the Bazzis were ‘alien[s] for purposes of diversity jurisdiction' under Tagger, even though they were lawful U.S. permanent residents”).

Neither a lengthy residence in the United States nor asylum-seeking status constitute lawful permanent residence for diversity purposes. See, e.g., Valladares v. Arceius-Jones, 2013 WL 6504655, at *2 (E.D.N.Y. Dec. 11, 2013) (“notwithstanding plaintiff's 16-year residence in the United States, because he has not been ‘lawfully admitted for permanent residence in the United States,' 28 U.S.C. § 1332(a)(2), he is considered a citizen of a foreign state suing a U.S. resident for purposes of diversity jurisdiction”); Osei, 2015 WL 4006211, at *1, 3 (finding that Plaintiff, a citizen of Ghana residing in the United States as a political asylee under “Political Asylum Status,” was an “alien”); Bao v. Wang, No. 19-CV-8062, 2023 WL 2597149, at *6 (S.D.N.Y. March 22, 2023) (“[Plaintiffs'] status as asylum seekers does not make them ‘citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States' within the meaning of 28 U.S.C. § 1332(a)(2)”).

Neither Tounkara, who does not hold U.S. citizenship, nor Ndiaye, who is indisputably a citizen of Senegal, are citizens of the United States. Diversity therefore is lacking, and the Court need not determine their domiciles even though Tounkara submitted evidence and testified to his connections to New York.³⁶ Tounkara nonetheless makes the novel argument, not yet addressed in this Circuit, that he is a U.S. citizen for diversity purposes because of his immigration status as a CAT deferral grantee. (See generally Dkts. 57, 61.³⁷) The Court disagrees; a CAT deferral grantee is not a U.S. citizen for purposes of diversity.

36 Tounkara alleged that he was married in New York; at least some of his children were born here and went to school here; and he leased apartments and continues to reside in New York. (Hearing Tr. 7-11; Dkt. 61 at 2.) Ndiaye also testified about his connections to New York. (Hearing Tr. at 62-65.) He did so most likely to preserve his argument in the alternative that, if the Court found that Tounkara was a citizen of New York, then he, Ndiaye, was a lawful permanent resident of New York, thus depriving the Court of diversity jurisdiction under § 1332(a)(2). (See Dkt. 64 at 1 (“If this Court should determine that Defendant was not a diplomat, then it would be a matter between two residents of New York”); Case Mgmt. Tr. at 11, 19.) Ndiaye's alternative argument need not be addressed further. As explained below, Tounkara is a citizen of a foreign state, and so regardless of whether Ndiaye was a lawful permanent U.S. resident or solely a Senegalese citizen, the Court does not have § 1332(a)(2) jurisdiction.

37 In Dkt. 57, Tounkara states that “he is a citizen of Bronx County and was at the time of the filing of the complaint and as such ... request[s] this Court[ ] exercise ... [diversity [j]urisdiction.” (Dkt. 57 at 1.) However, in Dkt. 61, he hedges and characterizes himself as a “non-citizen legal permanent resident.” Dkt. 61 at 4. The Court continues under the assumption that Tounkara argues that he is a U.S. citizen; otherwise, if it assumed that he argued he was a non-citizen lawful permanent resident, then there is no permutation under which the Court would have jurisdiction with Ndiaye being either a citizen of a foreign state or a lawful permanent resident. Tounkara also argues at another juncture that he is “stateless.” (Dkt. 61 at 4.) Without making a determination as to whether Tounkara is indeed stateless, the Court dispenses with this argument because, even assuming that he were stateless, the Court still would not have diversity jurisdiction because “[a] stateless person living in the United States is not a citizen of a state of the United States for diversity purposes, and, consequently, cannot invoke the statute granting federal diversity jurisdiction.” 1 John J. Dvorske et al., Federal Procedure, Lawyers Edition § 1:98 (2023); Shoemaker v. Malaxa, 241 F.2d 129 (2d Cir. 1957) (“it seems clear that a stateless person, such as Malaxa was conceded to be, is not a citizen or subject of a foreign state within the meaning of 28 U.S.C.A. § 1332(a)(2)”).

The implementing regulations for CAT in the United States set forth “two separate provisions for protection under Article 3 [of CAT] for aliens who would be tortured in the country of removal.” Regulations Concerning the Convention Against Torture, 64 Fed.Reg. 8478-01. The first provision is for “withholding of removal under [8 C.F.R.] § 208.16(c).” Id. The second provision, under [8 C.F.R.] § 208.17(a), concerns aliens who would be tortured in the country of removal but who are barred from eligibility for withholding of removal for certain reasons. Id. “[D]eferral of removal [is] a less permanent form of protection than withholding of removal and one that is more easily and quickly terminated if it becomes possible to remove the alien consistent with Article 3.” Id. Indeed, § 208.17(b)(1) explains that deferral of removal under CAT “[d]oes not confer upon the alien any lawful or permanent immigration status in the United States.” 8 C.F.R. § 208.17(b)(1); see also 2 Shane Dizon & Pooja Dadhania, Immigration Law Service § 10:236 (2d ed. 2023) (same).

Tounkara received CAT status on May 20, 2021.³⁸ According to the screenshot of the Immigration Judge's decision submitted by Tounkara (Dkt. 48 Ex. A), and by his own admission of having received “deferred action” (Hearing Tr. at 21), Tounkara received CAT deferral, the “less permanent form of protection” that “[d]oes not confer ... any lawful or permanent immigration status.”³⁹ Regulations Concerning the Convention Against Torture, 64 Fed.Reg. 8478-01.

38 Both Ndiaye and Tounkara incorrectly assert in letter briefing that Tounkara filed the instant action before he received CAT deferral. (See Dkt. 50 at 2 (“the CAT status was granted by the Immigration Judge on May 20, 2021, which means that at the time of the instant action, Mr. Tounkara was just an asylum applicant with no status. It was probably this baseless instant action that helped him get CAT status”); Dkt. 61 (“Subsequent to the filing of the complaint, Plaintiff was granted relief under CAT in New York Immigration Court”).) To the contrary, the record reflects Tounkara's having been granted CAT status as of May 20, 2021, several months before he filed his Complaint on September 28, 2021.

39 Although Tounkara states in a letter brief that he has “withholding of removal relief under CAT” (Dkt. 61 at 4), the evidence submitted by Tounkara expressly refers to “CAT deferral” (Dkt. 48 Ex. A), and, in the June 27 Hearing, Tounkara testified that he has “deferred action” (Hearing Tr. at 21).

Despite his having CAT status, and only deferred status at that, Tounkara argues that he is a U.S. citizen. He relies on a case from the Seventh Circuit, Bakhtiari v. Doe, No. 22-CV-2406, 2023 WL 415548 (N.D. Ill. Jan. 25, 2023). (See generally Dkts. 57, 61.) In Bakhtiari, the court held that it had diversity jurisdiction in a dispute between defendants, who were Illinois citizens, and the plaintiff Ali Bakhtiari (“Bakhtiari”), who was a citizen of Iran, in the United States under CAT (although unclear whether under withholding or deferral), and “a Missouri citizen for purposes of diversity jurisdiction.” Id. at *3. According to Tounkara, Bakhtiari establishes that a CAT grantee is a citizen of a state of the United States for diversity purposes. But the decision does not say that and barely engages with Bakhtiari's CAT status or Iranian citizenship at all, instead focusing on whether Bakhtiari was domiciled in Illinois or Missouri. Id. The court touches on the issue only in a footnote: “The Court considers whether Bakhtiari's domicile is Illinois or Missouri. Although Bakhtiari's complaint indicates Iranian citizenship, he does not press the argument and has lived in the United States as a lawful resident, allegedly in exile from Iran, for over twenty years - suggesting that he neither resides in Iran nor intends to return.” Id. at *3 n.3. Bakhtiari thus is of little help to Tounkara.

Moreover, the conclusion Tounkara draws from Bakhtiari cannot be squared with the relative immigration status of lawful permanent residents, who are not U.S. citizens for purposes of diversity, and persons with CAT status, whose status is far more tenuous than that of lawful permanent residents. To reiterate, a lawful permanent resident “is an alien for purposes of diversity jurisdiction,” Tagger, 951 F.3d at 126, and deferral of removal under CAT “[d]oes not confer upon the alien any lawful or permanent immigration status in the United States.” 8 C.F.R. § 208.17(b)(1). The Court does not find any authority or policy reason why Tounkara, having only CAT deferral status, should be able to avail himself of benefits and rights that Tagger, a lawful permanent resident, did not possess especially when CAT deferral does not even confer the rights that a lawful permanent resident enjoys.

Indeed, the conclusion that a CAT deferral grantee is not a U.S. citizen for diversity purposes promotes the goal alluded to in Tagger and expressly discussed in the House Report discussing the 2011 amendment of § 1332 that “Congress sought to ... avoid the threat of the expansion of jurisdiction,” or “modestly restrict[ ] jurisdiction.” H.R. Rep. No. 112-10, at 7; see also Tagger, 951 F.3d at 126-27. More specifically, “the Federal courts have taken a fairly narrow view of the scope of paragraph 1332(a)(2) jurisdiction, declining on statutory grounds to assert jurisdiction over disputes in which aliens appear on both sides of the litigation.” H.R. Rep. No. 112-10, at 6. The instant action is a dispute in which citizens of a foreign state appear on both sides of the litigation. This is exactly the type of dispute that Congress did not want a federal court to hear on the basis of diversity jurisdiction. Accordingly, the Court concludes that Tounkara's immigration status as a CAT deferral grantee does not make him a U.S. citizen for purposes of diversity jurisdiction. As the instant action is between two alien parties, the Court does not have jurisdiction under § 1332.

Tounkara maintains that, absent citizenship status for purposes of diversity, he will be “completely foreclosed from bringing his claim against Ndiaye” and “will not be able to seek any other remedy in state court because the statute of limitations has run.” (Dkt. 61 at 3-4.) Tounkara is mistaken, as explained next, pursuant to New York's “saving's statute,” C.P.L.R. 205(a), Tounkara may refile in state court his claims against Ndiaye that were timely filed in this court.

IV. N.Y. C.P.L.R. 205(a)

Since the Court does not have subject matter jurisdiction under either § 1351 or § 1332 over Tounkara's claims against Ndiaye, they must be dismissed. However, the Court should do so without prejudice and subject to N.Y. C.P.L.R. 205(a) so that Tounkara may have the opportunity to refile his claims against Ndiaye alleging negligence in state court.

N.Y. C.P.L.R. 205(a) provides:

“If an action is timely commenced and is terminated ..., the plaintiff ... may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”

N.Y.C.P.L.R. § 205(a). “Th[is] statute . [was] designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits.” Malay v. City of Syracuse, 25 N.Y.3d 323, 327 (N.Y. 2015); see also Anderson & Anderson LLP-Guangzhou v. North American Foreign Trading Corp., 844 Fed.Appx. 382, 384 (2d Cir. 2021), cert. denied, 142 S.Ct. 236 (2021) (“the very function of [N.Y. C.P.L.R.] 205(a) is to provide a second opportunity to the claimant who has failed the first time around because of some error pertaining neither to the claimant's willingness to prosecute in a timely fashion nor to the merits of the underlying claim”) (internal brackets omitted).

In short, N.Y. C.P.L.R. 205(a) permits a plaintiff, like Tounkara, whose claim is dismissed for non-merits reasons, to refile in state court within six months of the dismissal as long as the date that Tounkara filed the instant action - September 28, 2021 - is considered timely for statute of limitations purposes for his new state court action. The Court thus should dismiss his claims without prejudice so that Tounkara may pursue that option.

If Tounkara does refile in state court, it will be for the state court to determine which claims should or should not be dismissed. The Court notes, however, that at least one of Tounkara's claims would be barred by the statute of limitations as it would be even without dismissal by this Court. The incident in question occurred on or about September 29, 2018. (Compl. ¶¶ 12-13.) Tounkara's allegations against Ndiaye include gross negligence, negligent infliction of emotional distress, and prima facie tort. (Compl. 5, 12, 21.) In the First R&R, which Judge Kaplan adopted, I found that the prima facie tort alleged in Tounkara's Complaint based on the facts described therein was assault and battery. (Dkt. 36 at 10.) The statute of limitations for assault and battery under New York law is one year. N.Y. C.P.L.R. § 215; see also Johnson v. NYU Langone Health, No. 22-CV-9456, 2023 WL 6393466, at *2 (S.D.N.Y. Sept. 30, 2023) (“There is no dispute that the statute of limitations for civil assault and civil battery expired prior to Plaintiff's commencement of this action” due to the one-year statute of limitations for an action to receive damages for assault or battery) (citing N.Y. C.P.L.R. 215(3)). Since Tounkara filed the instant action just shy of three years from the incident, not only are Tounkara's claims for assault and battery before this Court barred by the statute of limitations, but they are also untimely if he were to file them in state court pursuant to N.Y. C.P.L.R. 205(a).

Tounkara's other claims, which sound in negligence, are subject to a three-year statute of limitations. See Villalobos v. Smith, No. 20-CV-9736, 2022 WL 1557660, at *10 (S.D.N.Y. May 16, 2022), reconsideration denied, 2022 WL 2703916 (S.D.N.Y. July 12, 2022) (“New York's general statute of limitations for actions seeking to recover damages for personal injury, including negligence claims ..., is three years”) (citing N.Y. C.P.L.R. 214(5));Timoshenko v. Gu, No. 17-CV-2268, 2017 WL 10221327, at *5 (S.D.N.Y. Aug. 28, 2017) (“Ordinarily, a three-year statute of limitations applies to claims for gross negligence” (citing N.Y. C.P.L.R. 214(4)); Horsburgh v. Bank of America, N.A., No. 21-CV-07945, 2023 WL 2648394, at *7 (S.D.N.Y. March 27, 2023) (“Under New York law, a three-year statute of limitations applies to Plaintiff's claim for negligent infliction of emotional distress”) (citing N.Y. C.P.L.R. 214); Carey v. State, 207 A.D.3d 1194, 1196, 171 N.Y.S.3d 722, 724 (4th Dep't 2022) (affirming that “negligence . has a three-year statute of limitations”) (citing N.Y. C.P.L.R. 214(5)). Tounkara filed his Complaint literally the day before the three-year deadline; accordingly, a state court claim alleging negligence against Ndiaye should be timely if he refiles in state court pursuant to N.Y. C.P.L.R. 205(a).

CONCLUSION

For the foregoing reasons, I recommend Ndiaye's Motion to Dismiss Tounkara's claims regarding Ndiaye be GRANTED and that Toukara's claims be dismissed without prejudice and subject to N.Y. C.P.L.R. 205(a). To the extent not discussed herein, the Court has considered all of the parties' arguments and determined them to be without merit.

DEADLINE FOR FILING OBJECTIONS AND PRESERVING APPEAL

Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Any party shall have fourteen (14) days to file a written response to the other party's objections. Any such objections and responses shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Jessica G. L. Clarke, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. Any request for an extension of time for filing objections must be addressed to Judge Clarke. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.