United States District Court, N.D. Illinois, Eastern Division
CHINYERE U. NWOKE, Plaintiff,
THE CONSULATE OF NIGERIA, Defendant.
MEMORANDUM OPINION AND ORDER
HONORABLE EDMOND E. CHANG UNITED STATES DISTRICT JUDGE.
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. ¶
Nwoke filed this lawsuit (on her own, without a lawyer)
against the Consulate alleging breach of contract and civil
theft. 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.
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 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.
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.
Standard of Review
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).
Service of Process
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).
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.
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
(last visited Feb. 26, 2018). So there is no applicable
international convention, and § 1608(a)(2) does not
apply to this case either.
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.
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 ...