The opinion of the court was delivered by: WHITMAN KNAPP
WHITMAN KNAPP, SENIOR D.J.
Plaintiff moves for default judgment against the United Nations and eight U.N. officials and employees under Federal Rule of Civil procedure 55(b)(2). On March 30, 1993, plaintiff filed a complaint pro se alleging breach of contract, forgery, negligence and the violation of federal civil rights and employee medical benefits law. When plaintiff served process upon defendants during April, May and June 1993, the U.N. Legal Counsel wrote the court explaining that the organization and the individual defendants -- with respect to acts performed by them in their official capacity -- are immune from all legal process under international and United States law. None of the defendants have answered the complaint. Presently, the U. N., on behalf of itself and the eight individual defendants, moves to dismiss the complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency of service of process and on the basis of immunity. The United States appeared at oral argument on the motions on September 10, 1993, and has submitted a statement of interest in support of defendants motion to dismiss.
For reasons that follow, we deny plaintiff's motion for default and, on the basis of immunity, grant defendants' motion to dismiss the complaint.
Plaintiff, a United States citizen, was employed by the U.N. as a security officer from June 1977 until December 31, 1988, the effective date of his resignation. pursuant to regulations set forth by its General Assembly, the U.N. withholds the estimated federal and local taxes of staff members whose national governments require them to pay such taxes based on their U.N. salaries. It then reimburses the employees, enabling them to pay their taxes directly to their national governments. Between 1977 and 1987, the U.N. withheld plaintiff's estimated federal, state and local income taxes and then reimbursed him in the form of checks made payable to himself and the Internal Revenue Service. However, for the tax year 1988 the U.N. withheld plaintiff's estimated taxes but never reimbursed him. The U.N. claims that it did so because plaintiff failed to provide it with certified copies of his 1988 tax return. Plaintiff alleges that the U.N. reported to the I.R.S. that it had reimbursed his withheld taxes for 1988. This information, plaintiff contends, led the I.R.S. to audit him for those tax years between 1990 and 1992. Moreover, because the U.N. never reimbursed him in 1988, plaintiff was personally required to pay $ 6,801.36 in federal, state and local tax for that year.
After plaintiff left the U.N., on April 20, 1989, its Finance Division issued a "final pay statement" which indicated that plaintiff had received $ 850.72 in retroactive pay and compensatory time which he alleges he never received. Plaintiff further alleges that this final pay statement contained his forged signature and was issued with the intent of defrauding him of his remaining salary and compensatory time.
Finally, plaintiff claims that the U.N. denied him continuation of his medical benefits after his resignation in violation of 29 U.S.C.A. § 1161 (Supp. 1993), which requires certain employers to allow former employees to elect continued coverage under the employer's group health insurance plan.
Plaintiff contends that he is entitled to default judgment against defendants because they failed to answer his complaint, which alleges damages in the amount of $ 1,408,504.76. The U.N. argues that plaintiff's complaint must be dismissed under Fed. R. Civ. Pro. 12(b) because both itself and the individual defendants, who are alleged to have been acting in the course of their employment, are cloaked with immunity under international and federal law. On a motion to dismiss, a district court must construe the complaint in favor of the pleader, see Scheuer v. Rhodes (1974) 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683, and must accept as true its factual allegations. See LaBounty v. Adler (2d Cir. 1991) 933 F.2d 121, 123. We separately discuss plaintiff's claims against the United Nations and those against the individual defendants.
Under the Convention on the privileges and Immunities of the United Nations ("U.N. Convention"), Feb. 13, 1946, 21 U.S.T. 1418, 1422, T.I.A.S. 6900, acceded to by the United States in 1970, the U.N. and "its property and assets" enjoy immunity from "every form of legal process except insofar as in any particular case it has expressly waived its immunity." U.N. Convention, art. II, sec. 2; see also Boimah v. United Nations General Assembly (E.D.N.Y. 1987) 664 F. Supp. 69, 71.
A district court may dismiss a complaint based on a defendant's established immunity. Properly invoked immunity shields a defendant "not only from the consequences of litigation's results, but also from the burden of defending themselves." Davis B. Passman (1979) 442 U.S. 228, 235 n.11, 60 L. Ed. 2d 846, 99 S. Ct. 2264, quoting Dombrowski v. Eastland (1967) 387 U.S. 82, 85, 18 L. Ed. 2d ...