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Nwoke v. The Consulate of Nigeria

United States District Court, N.D. Illinois, Eastern Division

February 27, 2018

CHINYERE U. NWOKE, Plaintiff,
v.
THE CONSULATE OF NIGERIA, Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE EDMOND E. CHANG UNITED STATES DISTRICT JUDGE.

         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 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 ...


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