Nwoke v. The Consulate of Nigeria, NY

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHINYERE U. NWOKE, )

)

Plaintiff, ) No. 17-cv-00140

)

v. )

) Judge Edmond E. Chang

THE CONSULATE OF NIGERIA, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This case arises from Plaintiff Chinyere U. Nwoke’s unsuccessful attempt to

secure passports for herself and her son from the Consulate of Nigeria. R. 1, Compl.

¶ 4.1 Nwoke filed this lawsuit (on her own, without a lawyer) against the Consulate

alleging breach of contract and civil theft.2 Id. The Consulate now moves to dismiss,

arguing that this Court lacks personal jurisdiction and subject matter jurisdiction,

and (alternatively) that Nigeria is a more convenient forum. See R. 35, Decl. of Ike

Agwuegbo in Supp. of Mot. to Dismiss ¶¶ 4-5, 10-11; R. 35, Mem. in Supp. of Def.’s

Mot. to Dismiss at 15-20. For the reasons discussed below, the Consulate’s motion is

granted and the case is dismissed with prejudice.

I. Background

For purposes of deciding the pending motions, the Court accepts Nwoke’s

factual allegations as true. In early February 2016, Nwoke sent two money orders to

1Citations to the record filings are “R.” followed by the docket number and, when

necessary, a page or paragraph number.

2Initially, Nwoke also named two individuals as defendants, but they were later

dismissed from the case. R. 31, July 7, 2017 Minute Entry.

the Consulate of Nigeria in New York, totaling $412.00 for two passports (one for

her son and one for herself). Compl. ¶¶ 4-10. Consulate employees then traveled to

Chicago to process passport applications for Chicago-area residents, including

Nwoke and her son. Id. ¶¶ 3, 10, 13. The employees took their fingerprints and took

photos for the passports. Id. ¶ 11. Nwoke gave the employees two stamped self-

addressed envelopes for mailing the passports back. Id. ¶ 12. Later, Nwoke

repeatedly attempted to contact the Consulate to find out the status of her

passports but received no response. Id. ¶¶ 14-15.

Because the passports have not yet been received, Nwoke brought this

lawsuit for breach of contract and civil theft. Id. ¶ 16. Nwoke requests money

damages or injunctive relief, and court costs. Id. p. 4. The Consulate filed a motion

to dismiss for lack personal jurisdiction, subject matter jurisdiction, and forum non

conveniens. See Decl. of Ike Agwuegbo in Supp. of Mot. to Dismiss ¶¶ 4-5, 10-11;

Mem. in Supp. of Def.’s Mot. to Dismiss at 15-20.

II. Standard of Review

A motion to dismiss under Rule 12(b)(1) tests the jurisdictional sufficiency of the

complaint. Bultasa Buddhist Temple of Chi. v. Nielsen, 878 F.3d 570, 573 (7th. Cir.

2017). If there are no factual disputes, then the Court accepts the allegations in the

complaint as true, and draws all reasonable inferences in the plaintiff’s favor. See

Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993). Having said that,

“a plaintiff faced with a 12(b)(1) motion to dismiss bears the burden of establishing

that the jurisdictional requirements have been met.” Ctr. for Dermatology and Skin

Cancer, Ltd. v. Burwell, 770 F.3d 586, 588 (7th Cir. 2014).

III. Analysis

A. Service of Process

The Consulate argues that service was not properly effectuated according to the

requirements of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et

seq. The Foreign Sovereign Immunities Act contains special requirements for

service of process on foreign states and their political subdivisions. 28 U.S.C.

§ 1608(a). The Consulate argues that, as the official representative of Nigeria in the

United States, the Consulate is a foreign state. Nwoke does not contest that point.

Indeed, a consulate is not an entity with a separate legal existence from its nation,

and is instead the foreign state itself, so service must be made under § 1608(a). See

Gray v. Permanent Mission of People’s Republic of Congo to United Nations, 443

F.Supp. 816, 820 (S.D.N.Y. 1978).

Specifically, the FSIA requires service on a foreign state to be made in one of

four ways—in fact, the statute goes so far as to dictate that the four ways have to be

considered in a particular sequence. First, service can be made in accordance with a

“special arrangement” between a plaintiff and a defendant. 28 U.S.C. § 1608(a)(1).

Although Nwoke seems to assert that she had a special arrangement with the

Consulate, she provides no support for this assertion (which is just a conclusion, not

a set of facts). See R. 21, Pl. Supp. Mot. for Default J. ¶ 10. Because there is no

evidence or allegation that the contract or any other communication provided for a

special arrangement for service of process, § 1608(a)(1) does not apply.

Second, if no special arrangement exists, then service can be made “in

accordance with an applicable international convention.” 28 U.S.C. § 1608(a)(2).

Nwoke points to the Hague Service Convention for service of process as a qualifying

treaty. Pl. Supp. Mot. for Default J. ¶ 11. But in fact Nigeria is not a signatory to

the Hague Convention. See HCCH, HCCH Members, https://www.hcch.net

/en/states/hcch-members (last visited Feb. 26, 2018). Nor is Nigeria a signatory to

the other multilateral treaty on service of process that the United States has signed,

the Inter-American Convention on Letters Rogatory. See Organization of American

States, B-36: Inter-American Convention on Letters Rogatory, oas.org,

http://www.oas.org/juridico/english/treaties/b-36.html (last visited Feb. 26, 2018). So

there is no applicable international convention, and § 1608(a)(2) does not apply to

this case either.

Third, if there is no applicable international convention, then service can be

made by sending a copy of the summons, complaint, and notice of suit by mail

requiring signed receipt, through the “clerk of the court to the head of the ministry

of foreign affairs of the foreign state.” 28 U.S.C. § 1608(a)(3). Nwoke did not invoke

this provision. Instead, she attempted to effectuate service on the Consulate

through a private process server, via in-person delivery. Pl. Supp. Mot. for Default

J. ¶ 2; R. 11, Affidavit of Service Regarding Summons/Complaint Served on the

Consulate of Nigeria, NY. The process server apparently served an “agent” of the

Consulate, who refused to give his name, at the Consulate’s address in New York.

R. 11, Affidavit of Service. This plainly does not qualify as mailed notice to Nigeria’s

ministry of foreign affairs through the clerk, which is what § 1608(a)(3) requires.

Lastly, the fourth method is service through the United States Secretary of

State, but that only applies if “service cannot be made within 30 days under

paragraph (3).” 28 U.S.C. § 1608(a)(4). Because service was not attempted under

paragraph (3), this method does not apply here. At the end of the day, service was

not properly made under any of the four methods identified in the statute.3

It might be possible to give Nwoke another chance to effectuate service of

process, and her pro se status does counsel in favor of flexibility. But she had almost

eight months to effectuate service (before the Consulate filed the dismissal motion),

and the Court twice pointed out the availability of the Pro Se Help Desk. R. 13, 24.

So, at this point, even if Nwoke had asked for another shot at service, unfortunately

the Court would not have granted it. And it would be fruitless anyway. As explained

next, this Court does not have subject matter jurisdiction.

3It is worth noting that some courts are willing to forgo strict compliance with the

service methods dictated by § 1608. For example, some hold that substantial compliance is

all that is required. See, e.g., Sherer v. Construcciones Aeronauticas, S.A., 987 F.2d 1246,

1250 (6th Cir. 1996) (holding substantial compliance is sufficient for compliance with

FSIA); Velidor v. L/P/G Benghazi, 653 F.2d 812, 821 (3d Cir. 1981) (same); Peterson v.

Islamic Republic of Iran, 627 F.3d 1117, 1129 (9th Cir. 2010) (same). Other courts require

strict compliance with § 1608. See, e.g., Magness v. Russian Federation, 247 F.3d 609, 615

(5th Cir. 2001); Barot v. Embassy of the Republic of Zambia, 785 F.3d 26, 28-29 (D.C. Cir.

2015). The Seventh Circuit does not appear to have explicitly decided this issue. See Wyatt

v. Syrian Arab Republic, 800 F.3d 331, 342 n.5 (7th Cir 2015) (noting the split), overruled

on other grounds, Rubin v. Islamic Republic of Iran, 830 F.3d 470 (7th Cir. 2016), aff’d, —

U.S. —, 2018 WL 987348 (Feb. 21, 2018). In any event, Nwoke does not ask the Court to

weigh in on the substantial compliance debate; her only argument is that service was

properly made. It was not, so the Court lacks personal jurisdiction over the defendant.

B. Subject Matter Jurisdiction

District courts have subject matter jurisdiction over “any nonjury civil action

against a foreign state” if the foreign state is not entitled to immunity under the

statute (or any applicable international agreement). 28 U.S.C. § 1330(a). Under

FSIA’s burden-shifting framework, the party asserting immunity bears the initial

burden of establishing that it satisfies FSIA’s definition of a foreign state. See

Enahoro v. Abubakar, 408 F.3d 877, 882 (7th Cir. 2005). If this burden is met, then

the foreign state is presumed to have immunity unless an exception applies. See id.

As noted earlier, both parties assume, and neither contests, that the

Consulate is a foreign state. So the Consulate of Nigeria enjoys sovereign immunity

unless one of the listed exceptions applies. There are really only two exceptions that

can possibly apply here. The first is the “commercial activity” exception: if Nigeria

was just engaged in commercial activity, then immunity is inapplicable. 28 U.S.C.

§ 1605(a)(2). The test for commercial activity is whether the government is acting as

“a regulator of the market” or a “private player within it.” Republic of Argentina v.

Weltover, Inc., 504 U.S. 607, 614 (1992). The inquiry is objective; that is, the

question is simply whether private parties engage in the type of conduct at issue.

See id. The nation’s motive for engaging in the conduct is irrelevant. See id.

Here, the Consulate was engaged in a paradigmatic sovereign act: the

processing of applications for passports. Private parties cannot issue passports. To

be sure, Nwoke’s brief insinuates that the Nigerian Consulate had a profit motive

for processing the passport applications,4 but the motive for issuing (or not issuing)

a passport is irrelevant for § 1605(a)(2) purposes. See Weltover, 504 U.S. at 616. In

Weltover, the Supreme Court had the converse situation: a foreign state’s motive for

engaging in a commercial activity could not transform the commercial activity into

a sovereign act. In that case, Argentina issued bonds to raise funds, just as private

companies regularly issue bonds to refinance debt. See id. at 616. The Supreme

Court deemed it irrelevant that Argentina sold the bonds in order to stabilize the

bond market rather than to make a profit, and held that Argentina could be sued

because the commercial activity exception applied. Id. at 614, 617. The reverse is

true too: even if the Consulate has a profit motive for processing the passport

applications, the act itself remains a sovereign act of regulation—as opposed to the

type of activity that a private party could conduct. So the commercial activity

exception does not apply.

Next, Nwoke argues that the FSIA’s “tortious act” exception applies.

28 U.S.C. § 1605(a)(5). To the extent that Nwoke brings a breach of contract claim,

that claim does not comprise a tort, so it does not fall within the exception. See, e.g.,

Felland v. Clifton, 682 F.3d 665, 674 (7th Cir. 2012) (distinguishing between

contract and tort for personal jurisdiction analysis); Snap-On Inc. v. Ortiz, 1999 WL

592194, at *20 (N.D. Ill. Aug. 3, 1999) (“Mere breach of contract is not a tort.”);

Bloomington Partners, LLC v. City of Bloomington, 2005 WL 3536340, at *9 (N.D.

Ill. Dec. 23, 2005) (same). To the extent that Nwoke asserts a fraud or civil-theft

4See R. 38, Pl. Resp. ¶¶ 8-9, 12.

claim, those claims do qualify as torts. But that is not the end of the analysis

because the tortious activity exception itself has two exceptions that apply to

Nwoke’s claims.

First, the tortious activity exception does not apply to, among other things,

suits arising out of the performance or failure to perform “a discretionary function

regardless of whether the discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). Because

this provision of FSIA is modeled on a similar exception to jurisdiction under the

Federal Tort Claims Act (FTCA), courts generally look to FTCA cases to determine

whether an act qualifies as “discretionary.” See, e.g., Joseph v. Office of Consulate

General of Nigeria, 830 F.2d 1018, 1026 (9th Cir. 1987). The Supreme Court has

stated that Congress’s purpose for creating the discretionary function exception in

the FTCA was to “prevent judicial ‘second-guessing’ of legislative and

administrative decisions grounded in social, economic, and political policy through

the medium of an action in tort.” United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), 467 U.S. 797, 814 (1984). Congress wished to take

“steps to protect the Government from liability that would seriously handicap

efficient government operations.” Id. (quoting United States v. Muniz, 374 U.S. 150,

163 (1963)). In order for a governmental act to qualify for the discretionary function

exception, it must (1) involve “an element of judgment or choice”; and (2) the

decision or action “must be based on considerations of public policy.” Lipsey v.

United States, 879 F.3d 249, 254 (7th Cir. 2018).

Reviewing a foreign country’s decision on whether to issue a passport is

precisely the kind of judicial second-guessing of a governmental act that this

exception was meant to prevent. Nwoke does not point to any Nigerian statute that

eliminates Nigeria’s judgment in deciding to issue a passport, and the decision to

issue a passport is infused with foreign policy and national security considerations,

cf. Haig v. Agee, 453 U.S. 280, 307-308 (1981) (holding that the State Department

had valid public policy reasons for revoking a passport). The discretionary nature of

the processing of a passport application takes Nwoke’s claim outside of the tortious

activity exception.

The second carve-out to the tortious activity exception also preserves

Nigeria’s immunity. The tortious activity exception does not apply to, as pertinent

here, “misrepresentation, deceit, or interference with contract rights.” 28 U.S.C.

§ 1605(a)(5)(B). If Nwoke is arguing that the Consulate was engaged in outright

fraud, as her brief implies,5 then that claim would also fall outside of the tortious

activity exception because fraud involves misrepresentation and deceit. See Ombegu

v. United States, 475 Fed. Appx. 628, 628 (7th Cir. Apr. 12, 2012) (non-precedential

disposition) (in FTCA case, holding that fraud claim was barred because it is a

claim for “misrepresentation” and “deceit”); Huynh v. Massenya, 2017 WL 2377831,

at *4 (D. Md. 2017) (in deciding FSIA immunity, holding that “fraud by definition

requires misrepresentation or deceit”). So this second exception too takes Nwoke’s

5In her response brief, Nwoke contends that the Consulate “uses ‘lost’ passport false

alarms to scam consumers.” Pl.’s Resp. ¶ 8(c). Ordinarily, allegations in a response brief do

not comprise a valid amendment to a complaint, Shanahan v. City of Chicago, 82 F.3d 776,

781 (7th Cir. 1996), but it does not matter here because a fraud claim runs into the obstacle

of sovereign immunity.

fraud claim outside of the tortious activity exception. No other exception applies, so

the Consulate is entitled to sovereign immunity and this Court has no subject

matter jurisdiction over this case.6

IV. Conclusion

For the reasons given above, the Consulate’s motion to dismiss for lack of

personal jurisdiction and lack of subject matter jurisdiction is granted. There is no

reason to grant leave to amend the complaint in light of the impossibility that

Nwoke could overcome the problem of sovereign immunity, so final judgment will be

entered. The status hearing of March 22, 2018 is vacated.

ENTERED:

s/Edmond E. Chang

Honorable Edmond E. Chang

United States District Judge

DATE: February 27, 2018

6In light of the personal jurisdiction and subject matter jurisdiction flaws, there is no

need to address the Consulate’s argument that Nigeria is the more convenient forum.