Mourmouni v. Permanent Mission of the Republic of South Sudan to the United…

Background

Ridwane Mourmouni and Issifi Kalikoye brought a wage-and-hour case against the Permanent Mission of the Republic of South Sudan to the United Nations and Cecilia Adeng. They alleged that they worked as chauffeurs between 2015 and 2019 and were not paid minimum wage or overtime. They also alleged that the defendants did not provide pay stubs or keep records of their hours. Their claims arose under the Fair Labor Standards Act, New York Labor Law, and theories including breach of contract, unjust enrichment, and tort.

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which concerns the court’s jurisdiction. Adeng asserted diplomatic immunity, while the Permanent Mission asserted immunity under the Foreign Sovereign Immunities Act. In the alternative, the Permanent Mission moved under Rule 12(b)(6), which concerns whether a complaint states a legally sufficient claim, to dismiss certain state-law claims.

Diplomatic immunity for Adeng

The court held that Adeng was entitled to absolute diplomatic immunity because of her current role as South Sudan’s Deputy Permanent Representative to the United Nations. The court explained that the Vienna Convention on Diplomatic Relations did not apply directly because permanent missions to the United Nations do not fit the Convention’s framework for embassies managing relations between a sending state and a receiving state. Instead, the Headquarters Agreement between the United States and the United Nations gave permanent-mission diplomats the same privileges and immunities provided to diplomatic envoys under the Convention.

Because Adeng had absolute immunity, the court concluded that it lacked jurisdiction over the claims against her and dismissed those claims.

Foreign-state immunity for the Permanent Mission

The court rejected the Permanent Mission’s jurisdictional challenge. The Foreign Sovereign Immunities Act generally protects foreign states from being sued in U.S. courts, but it contains an exception for conduct based on commercial activity carried on in the United States. The court held that employing chauffeurs generally falls within that exception because chauffeur work can be performed by private-sector businesses and is not ordinarily a uniquely governmental activity.

The court distinguished cases involving chauffeurs who served ambassadors, diplomats, their families, or royalty. Here, the plaintiffs’ alleged duties were limited to driving the Permanent Mission’s staff and their families, delivering packages, and maintaining the Mission’s vehicles. The court determined that these duties were comparable to work performed in the private sector and that the commercial-activity exception applied. The Permanent Mission therefore could not obtain dismissal for lack of jurisdiction on that basis.

State-law claims

The court granted the Permanent Mission’s Rule 12(b)(6) motion as to certain claims. It dismissed the plaintiffs’ New York Labor Law claims based on Article 6 because that provision excludes governmental agencies from its covered employers. It also dismissed the unjust-enrichment and tort claims because, as pleaded, they merely repeated the alleged failure to pay contractually agreed wages, and the validity of the contract was not disputed.

The plaintiffs’ Fair Labor Standards Act claims, New York minimum-wage and overtime claims, and breach-of-contract claim against the Permanent Mission were allowed to proceed to discovery.

Disposition

The court granted in part and denied in part the defendants’ Rule 12(b)(1) motion to dismiss for lack of jurisdiction and granted the Rule 12(b)(6) motion to dismiss certain claims for failure to state a claim. The Permanent Mission was directed to answer the remaining claims by October 20, 2021. The opinion states that the plaintiffs were proceeding without lawyers at that point.