Plaintiff contends that the U.N.'s actions constituted breach of his employment contract, prima facie tort, injurious falsehood and employment discrimination prohibited by Title VII, 42 U.S.C.A. 2000e et seq. (1981 & Supp. 1991). He alleges that in 1987, in retaliation for pressure exerted by the United States on the U.N. to reduce its personnel during the mid-1980s, U.N. Secretary-General Javer Perez de Cuellar initiated an unprecedented tax audit of United States nationals employed by the organization, including himself. Plaintiff claims that U.S. nationals were singled out in the audit, as the U.N. never audited the nationals of four other countries which, like the U.S., require that U.N. employees pay national taxes.
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.
A. THE UNITED NATIONS
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 577, 87 S. Ct. 1425. Plaintiff has not alleged that the U.N. has expressly waived its immunity in this instance and no evidence presented in this case so suggests. Finding the U.N. to be immune from plaintiff's claims, we dismiss them.
B. INDIVIDUAL DEFENDANTS
Of the eight current or former U.N. officials and employees named as individual defendants, two currently serve as Assistant Secretaries-General -- Luis Maria Gomez and Kofi Annan. The U.N. Convention confers upon such officers "the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law." U.N. Convention art. V, sec. 19. In the United States, Article 31 of the Vienna Convention on Diplomatic Relations ("Vienna Convention"), Apr. 18, 1961, 22 U.S.T. 3227, T.I.A.S. 7502 (entered into force for the U.S. Dec. 1, 1972), governs the privileges and immunities of diplomatic envoys and provides, in pertinent part:
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property . . .