Opinion
No. C 01-1800 MMC
August 8, 2001
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Before the Court is the motion of defendants Bong Kil Shin and Mee Sook Shin to dismiss, to quash service of the summons and complaint, and to strike plaintiff's jury demand. Plaintiff Tae Sook Park filed opposition, to which defendants have replied. The matter came on regularly for hearing on July 6, 2001. Hina B. Shah of the Asian Law Caucus, Inc., appeared for plaintiff. Esra Jung and Marguerite E. Meade appeared for defendants.
Having considered the papers submitted in support of and in opposition to the motion, and the arguments of counsel, the Court rules as follows.
In addition to the initial papers, defendants, following the hearing, filed a Supplemental Declaration of Bong Kil Shin, and plaintiff filed a supplemental memorandum in opposition.
BACKGROUND
Defendant Bong Kil Shin is the Deputy Consul General of the Republic of Korea Consulate General in San Francisco (see Compl. at ¶ 5; Bong Kil Shin Decl. at ¶ 1); defendant Mee Sook Shin is his wife. (See Compl. at ¶ 6; Mee Sook Shin Decl. at ¶ 1.) Plaintiff began working as a domestic servant for defendants in 1996 while Deputy Consul Shin was stationed at the Korean Embassy in China. (See Compl. at ¶ 11; Bong Kil Shin Decl. at ¶ 2.) In February 1999, defendants moved to the United States when Deputy Consul Shin was transferred to the Korean Consulate in San Francisco. (See Bong Kil Shin Decl. at ¶ 1; Mee Sook Shin Decl. at ¶ 1.) Deputy Consul Shin obtained for plaintiff, a Chinese national, an "A-3 visa" to allow her to come to the United States and continue working for defendants. (See Bong Kil Shin Decl. at ¶ 2 and Ex. A.)
The parties agree the position of "Deputy Consul General" is the same as "Vice-Consul."
Personal employees of consular officers are "non-immigrant aliens" classified as "A-3" by the Immigration and Naturalization Service. See 8 C.F.R. § 214.1 (providing persons falling within 29 U.S.C. § 1101 (a)(5)(iii) are classified as "A-3"); 8 U.S.C. § 1101 (a)(15)(A)(iii) (providing personal employees of consular officers are non-immigrant aliens).
Plaintiff worked in the United States as a domestic servant for defendants from February 28, 1999 to October 3, 2000, while residing in defendants' home in San Mateo County. (See Compl. at ¶¶ 4, 17.) The Republic of Korea pays the monthly rent on defendants' home. (See Supp. Bong Kil Shin Decl. at ¶¶ 2, 11, Ex. B.)
Plaintiff's work included cooking, cleaning, performing other household duties, and taking care of defendants' three children. (See Complaint at ¶ 17.) Plaintiff's duties also included preparing and serving food when Deputy Consul Chin "entertained guests on behalf of the Korean consulate at [the] home." (See Supp. Bong Kil Shin Decl. at ¶¶ 15, 16.) These guests include consuls and diplomats from other countries, members of the Korean business community, and church leaders. (See id. at ¶¶ 11, 15; see also Complaint at ¶ 17 ("Plaintiff had additional duties and responsibilities when the Defendants entertained guests.")) The Korean government reimbursed Deputy Consul Shin for expenses incurred when entertaining guests at the home. (See Supp. Bong Kil Shin Decl. at ¶ 18.)
The Korean Consulate does not have an area to entertain guests. (See id. at ¶ 15.) According to Deputy Consul Shin, "it is customary to entertain at a consul's residence." (See id.)
On May 9, 2001, plaintiff filed the instant complaint, alleging multiple federal and state statutory claims, as well as common law claims, all arising from her employment relationship. Plaintiff alleges that during the course of her employment with defendants, she was not paid the minimum wage or overtime pay, (see id. at ¶ 25), that on numerous occasions defendants did not take plaintiff to the hospital when she was ill, (see id. at ¶ 21), and that defendants "confiscated" her passport. (See id. at ¶¶ 16, 22-24.)
Defendants returned plaintiff's passport after the instant action was filed. (See Jung Decl. Ex. A.)
DISCUSSION
Defendants contend that they are entitled to immunity from suit because of Deputy Consul Shin's status as a consular officer."Jurisdiction by the district court over consular official[s] is premised on 28 U.S.C. § 1351, which states `[t]he district courts shall have original jurisdiction . . . of all civil actions and proceedings against — (1) consuls or vice consuls of foreign states.'" Joseph v. Office of Consulate General of Nigeria, 830 F.2d 1018, 1027 (9th Cir. 1987) (quoting 28 U.S.C. § 1351). "However, the district court does not have jurisdiction over [a consular officer] if he is protected by consular immunity." id.
Consular immunity derives from the Vienna Convention on Consular Relations and Optional Protocols ("the Vienna Convention"). See Vienna Convention on Consular Relations and Optional Protocols, April 24, 1963, 21 U.S.T. 77. Article 43, subsection 1, of the Vienna Convention provides as follows: "Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions." See Vienna Convention, 21 U.S.T. at 104. Article 53, subsection 2, provides that family members of a consular officer are extended the same immunity. See id. at 111.
Article 43, subsection 1, of the Vienna Convention does not apply to civil actions "arising out of contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State." See Vienna Convention, 21 U.S.T. at 105. Plaintiff, however, does not contend that such exception applies to this action, and expressly states that the exception is "inapplicable to the present situation." (See Pl.'s Opp. at 7:24.)
Article 5 of the Vienna Convention, subsections (a) through (l), identifies twelve "consular functions," see id. at 82-84, none of which is relied upon by defendants in support of their claim of consular immunity. Defendants instead rely on the "catch-all provision," Article 5(m), which states that a consul is performing consular functions when he is "performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State." See id at 85 Gerritsen v. Consulado General de Mexico, 989 F.2d 340, 345 (9th Cir. 1993) (referring to Article 5(m) as "catch-all provision").
Where a consular officer relies on Article 5(m) to establish entitlement to consular immunity, a district court must determine whether the functions claimed are "legitimate consular functions" and, if so, determine whether the acts for which the consular officer seeks immunity were "performed in the exercise of the consular functions in question." See id. at 346 and n. 8 (citation and internal quotation omitted).
Defendants contend their hiring and supervision of domestic workers is a consular function. In Ford v. Clement, 834 F. Supp. 72 (S.D. N.Y. 1993), the Vice-Consul of the Republic of Panama brought suit against the Consul General, alleging the Consul General had orchestrated a campaign of harassment to force her out of the Consulate in New York. See id. at 73-74. The district court concluded the Consul General's acts were performed in the exercise of the legitimate consular function of "managing and supervising the consular staff," see id. at 78, reasoning that management and supervision of consular staff was "fundamental to the efficient execution of all of the consulate functions enumerated by the Vienna Convention." See id. at 75.
Plaintiff argues Ford is distinguishable in that plaintiff worked in defendants' home, rather than in the consulate, and provided services for the personal benefit of defendants. Although plaintiff is correct that the facts in Ford differ from those in the instant case, such differences are not dispositive. What plaintiff's argument omits is the fact that plaintiff's work included providing services necessary to the performance of official consular functions, in particular entertaining foreign diplomats and other dignitaries on behalf of the government of Korea. (See Supp. Bong Kil Shin Decl. at ¶¶ 11, 15.) Those functions were performed at defendants' residence as there was no space provided for entertaining officials guests at the consulate itself. (See id. at ¶ 10.)
Plaintiff argues that because the "majority of Plaintiff's service was of a personal nature to benefit Defendants," defendants are not entitled to immunity. (See Pl.'s Supp. Opp. at 3:7-9.) Plaintiff's salary, however, and the other terms and conditions of her employment were not allocated among her various duties, nor, for that matter, are plaintiff's claims. Moreover, plaintiff creates a false dichotomy in characterizing as purely "personal" all of her duties other than those performed directly in connection with formal events.
First, as part of Deputy Consul Shin's official duties, the residence "was always open to members of the Korean community" and "[s]uch guests were welcomed and served refreshments." (See Supp. Bong Kil Shin Decl. at ¶ 17.) In effect, defendants' residence served as an adjunct to the consulate proper. Under such circumstances, plaintiff's maintenance of the residence benefitted not only defendants "personally," but the Republic of Korea as well. See Vienna Convention, 21 U.S.T. at 82 (consular functions include "protecting in the receiving State the interests of the sending State and of its nationals"); id. at 83 (consular functions include "helping and assisting nationals, both individuals and bodies corporate, of the sending State").
Second, the management of day-to-day living services, whether performed on the premises of the consulate itself, such as when the consular officer resides at the consulate, or at another location, such as when the consular officer maintains a separate residence, are necessary to the consular officer's ability to efficiently perform his or her other consular functions. Cf. Tabion v. Mufti, 73 F.3d 535, 538-39 (4th Cir. 1996) (holding diplomat immune from suit by domestic servant alleging, inter alia violations of minimum wage and overtime laws, as well as false imprisonment, as "day-to-day living services such as . . . domestic help were not meant to be treated as outside a diplomat's official functions" for purposes of Article 31(1)(c) of the Vienna Convention on Diplomatic Relations); Ford, 834 F. Supp. at 75 (holding the management and supervision of consular staff is "fundamental" to the execution of all consular functions). Nothing in Ford or the Vienna Convention suggests that a function is any less "consular" simply because it is performed at a location other than on the premises of the consulate itself.
Needless to say, Deputy Consul Shin would have little time to attend to the many consular functions enumerated in the Vienna Convention if he were to devote a significant part of each day to cooking, cleaning, and child care.
Moreover, the nature of the particular relationship at issue here lends further support to a finding that such relationship should not be the subject of litigation in this court. Under the Agreement Between the Government of the Republic of Korea and the Government of the United States of America Regarding the Issuance of Nonimmigrant Visas, plaintiff's ability to enter the United States, and thus the very existence of the employment contract at issue, is dependent on an employment relationship with the Deputy Consul acting in his official capacity. (See Meade Decl. Ex. C at 858.)
Under that agreement, a consular officer is entitled to obtain A-3 visas for his servants and personal employees. (See id.) Plaintiff was able to obtain an A-3 visa to enter the United States solely due to her status as a domestic servant of Deputy Consul Shin.
Plaintiff, in reliance on Joseph, 830 F.2d 1018, argues that even if defendants' management and supervision of plaintiff's employment is deemed a consular function, defendants nevertheless are not entitled to immunity because their alleged conduct was not in furtherance of that function. In Jose h the court held that a consular official was not entitled to immunity as to claims for trespass, conversion and waste based on allegations that he "severely damaged" and removed furnishings and fixtures from real property leased to the consulate. See id. at 1020, 1027-28. Unlike the situation in Joseph, however, which, as that court found, involved unlawful conduct not performed in the exercise of any consular function, defendants' alleged failures here, even if in violation of the law, reflect decisions made in the course of performing the consular function at issue, managing and supervising plaintiff's employment. "Article 5(m) requires that the function be legal, but Article 43 does not require that the conduct in the exercise of that function also be legal." Berdakin v. Consulado de la Republica de El Salvador, 912 F. Supp. 458, 465 (C.D. Cal. 1995) (holding consular officer who leased office for use as consulate was engaged in consular function when leasing premises and entitled to consular immunity as to claim that he breached lease by vacating premises early and ceasing payment of rent). If the law were otherwise, "consular immunity would only immunize legal conduct, and the doctrine would thus be a nullity." See id.
The complaint in Joseph alleged excessive damage to appliances, fixtures and landscaping, as well as removal of fully grown trees, appliances, furniture, solid wood doors, floor boards, and shutters and drapes from 33 windows. See id. at 1020, n. 1.
Finally, the nature of the claims here, predominantly violations of federal and state regulatory schemes, point up the need for immunity under the circumstances presented. It is not unusual for a consular officer to be transferred from one consular post to another, and, as was the case here, to transfer one's household, including household employees, as well. Absent immunity, the terms of the agreements between consular officers and their household employees would be subject to change with each new posting in accordance with that nation's own peculiar expectations and regulations concerning the subject of employment. To inject such uncertainty into these contractual relationships would hardly be conducive to the efficient and orderly transfer and performance of consular functions.
Accordingly, the Court finds defendants are entitled to immunity from suit pursuant to Article 43 of the Vienna Convention.
In light of the Court's finding on the issue of consular immunity, the Court need not address defendants' additional grounds for dismissal and other relief. As to plaintiff's Second Cause of Action to recover overtime pay under the Fair Labor Standards Act ("FLSA"), however, the Court hereby GRANTS defendants' motion to dismiss on the separate ground that the FLSA expressly exempts from its overtime provisions an employee "who is employed in domestic service in a household and who resides in such household." See 29 U.S.C. § 213 (b)(21).
CONCLUSION
For the reasons expressed, defendants' motion to dismiss for lack of subject matter jurisdiction is hereby GRANTED.The Clerk shall close the file and terminate all pending motions.
IT IS SO ORDERED.