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CABIRI v. ASSASIE-GYIMAH

April 18, 1996

BAWOL CABIRI, Plaintiff, against BAFFOUR ASSASIE-GYIMAH, Defendant.


The opinion of the court was delivered by: SCHWARTZ

 ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 This matter is before the Court on defendant Baffour Assasie-Gyimah's motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(5) and 12(b)(6). For the reasons set forth below, defendant's motion is denied.

 BACKGROUND

 Plaintiff Bawol Cabiri brings this action under the Torture Victim Protection Act of 1991, Pub.L. No. 102-256, 106 Stat. 73, and the Alien Tort Claims Act, 28 U.S.C. ยง 1350. *fn1" Cabiri is an alien from the Republic of Ghana who resides in the State of New York, having been granted political asylum by the United States in 1993. Defendant, a citizen and resident of Ghana, is a Commander in the Ghanaian Navy and the Deputy Chief of National Security.

 This action arises from events which allegedly took place from July 1986 until June 1991 in the Republic of Ghana. For purposes of ruling on defendant's motion to dismiss the action, the Court construes in plaintiff's favor any well-pleaded factual allegations in the Complaint. See Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991).

 Prior to July 1986, Cabiri served as Trade Counsellor for the Republic of Ghana in New York, where he and his family lived in a residence owned by the Ghanaian government, located in Westbury, New York. In July 1986, Cabiri was recalled to Ghana for a "consultation" at the Ministry of Trade. The Ghanaian government suspected plaintiff of being involved in the planning of a coup to overthrow the government. See Affidavit of Baffour Assasie-Gyimah in Support of Defendant's Motion to Dismiss, dated May 27, 1994 ("Assasie-Gyimah Aff."), at P 7. On the instructions of defendant, in his capacity as Deputy Head of National Security, Cabiri was arrested and investigated for treason and subversion. Id. at P 8. Cabiri alleges that he was imprisoned for nearly one year at a camp run by the Bureau of National Investigation ("BNI") without cause and without charge. See Compl. at P 9. During his detention, Cabiri claims that defendant subjected him to ongoing physical and mental abuse, in violation of his basic human rights, and denied him all contact with his family in the United States. In particular, plaintiff alleges that under the direction of Assasie-Gyimah, BNI security officers beat him and administered electric shocks to his body, particularly to his genitals, sometimes as often as three times a night. Id. at P 15. In addition, plaintiff alleges that defendant personally interrogated him on at least two occasions, during which Cabiri was beaten and his life threatened when his answers were not satisfactory. Id. at P 16. Cabiri claims that he was released on June 3, 1987, without having been charged with any wrongdoing, and that he was subjected to internal exile in Ghana until June 1991, when he was allowed to return to the United States.

 In March 1987, while Cabiri was imprisoned in Ghana, the Ghanaian government retired Cabiri from the Civil Service, with retroactive effect from October 31, 1986, "for assisting subversive elements based in the USA in their attempts to destabilize the government whilst an officer of the Ghana Mission of New York." Assasie-Gyimah Aff. at P 12 (quoting Notice of Retirement, Ex. B). Following Cabiri's termination, his wife, Efua Cabiri, refused to vacate the house in Westbury, New York owned by the Ghanaian government.

 In October 1987, Ghana filed a petition to recover the residence in the Nassau County District Court, captioned Government of the Republic of Ghana v. Bawol Cabiri, Efua Cabiri, and All Other Persons Occupying the Premises at 34 Marietta Drive, Westbury, New York 11590, Index No. SP 4353/87 (the "State Action"). In response to Ghana's petition for possession, Mrs. Cabiri served an answer which included counterclaims for breach of contract, intentional infliction of emotional distress and prima facie tort. In addition, Mrs. Cabiri moved the court for an order directing Ghana to produce plaintiff so that he could testify in the State Action. Ghana cross-moved for summary judgment and for dismissal of Mrs. Cabiri's affirmative defenses and counterclaims. The Nassau County District Court granted Ghana's cross-motion and denied Mrs. Cabiri's motion.

 However, the Appellate Term of the Supreme Court of the State of New York reversed the judgment of the Nassau County District Court, denying Ghana's cross-motion and reinstating Mrs. Cabiri's defenses and counterclaims. In so doing, the court held that a triable issue of fact had been raised as to the conditions of plaintiff's employment as Trade Counsellor. The Appellate Term further held that Mrs. Cabiri's counterclaims were permissible under the Foreign Sovereign Immunities Act. See Affidavit of Scott A. Kamber, Esq. in Opposition to Defendant's Motion to Dismiss, dated July 6, 1994 ("Kamber Aff."), at P 8. In light of the decision of the Appellate Term, Mrs. Cabiri moved the Nassau County District Court for an order to stay the proceedings until Ghana released plaintiff and allowed him to return to the United States. The court granted the motion.

 In November 1993, more than two years after Cabiri's return to the United States, Ghana moved to enforce a settlement agreement which was allegedly reached while plaintiff was being held in Ghana. Plaintiff cross-moved for discovery with respect to the issues raised by the Government's petition and the Cabiris' answers and counterclaims. In December 1993, plaintiff also filed his verified answer and counterclaims for breach of contract, abuse of trust, fraudulent misrepresentation, false imprisonment and intentional infliction of emotional distress. In February 1994, the court denied Ghana's motion to enforce the settlement agreement and granted plaintiff's motion for discovery. In addition, the court denied a motion made by Ghana to strike Cabiri's answer as untimely and to sever or dismiss his counterclaims pursuant to the Foreign Sovereign Immunities Act and Act of State Doctrine. Ghana has moved that this decision be reconsidered by the Nassau County District Court.

 Pursuant to the court's discovery order, Cabiri served Ghana with a request for documents and a notice of depositions. Cabiri's notice of depositions demanded that Ghana produce for oral examination 21 officials and officers of the Ghanaian government, most of whom reside in Ghana. Ghana requested a conference with the court, at which it agreed to produce three witnesses of its own choosing. One of those witnesses was Assasie-Gyimah. The parties also agreed that a conference would be held on May 13, 1994, "at which representatives of the respective parties will appear with authorization to enter into a settlement agreement with respect to the matter." Affidavit of S. Reid Kahn, Esq. in Support of Defendant's Motion to Dismiss, dated June 20, 1994 ("Kahn Aff."), at P 17 and Ex. F thereto (Ordered Stipulation dated April 25, 1994).

 Defendant arrived in the United States on or about May 3, 1994. On May 6, 1994, the oral examinations commenced at the offices of plaintiff's counsel. Depositions of Ghana's witnesses were conducted from May 6 to May 13, 1994; the defendant attended each day of depositions and testified on May 10 through May 12, 1994. At his deposition, Assasie-Gyimah testified that he had ordered the police to arrest Cabiri at the Ministry of Trade in Ghana and that he was "solely in charge of the investigation," which he "conducted and supervised." Kamber Aff., Ex. F. at 142, 255, 356. Having heard this testimony, as well as the allegations of torture made by his client, Cabiri's counsel determined that a cause of action lied against Assasie-Gyimah under the Torture Victim Protection Act of 1991. See Kamber Aff. at P 21.

 On May 16, 1994, a conference was held in the State Action, which was attended by the parties to that action, their counsel, and the three Ghanaian witnesses. Following the conference, the parties and counsel engaged in settlement negotiations outside the courthouse. When the discussion ended, no settlement having been reached, plaintiff's counsel served defendant with a summons and complaint in the instant action.

 DISCUSSION

 Defendant moves to dismiss the Complaint on the grounds that (1) the Court lacks personal jurisdiction over defendant, (2) the action is barred by the applicable statutes of limitations, (3) plaintiff's claims are barred by the Foreign Sovereign Immunities Act, and (4) under the doctrine of forum non conveniens, the action should have been brought in Ghana.

 1. Personal Jurisdiction

 Defendant moves to dismiss the Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(5), on the ground that the Court lacks jurisdiction over his person. Assasie-Gyimah argues that he was immune from service of process at the time plaintiff's counsel handed him the summons and complaint in this action because he was in the United States for the sole purpose of facilitating the proceedings in the State Action.

 It is well established that witnesses, parties and attorneys coming from another jurisdiction are exempt from service of civil process while in attendance upon court, and during a reasonable time in coming and going. Stewart v. Ramsay, 242 U.S. 128, 129, 37 S. Ct. 44, 45, 61 L. Ed. 192 (1916). In Lamb v. Schmitt, 285 U.S. 222, 52 S. Ct. 317, 76 L. Ed. 720 (1932), the Supreme Court explained that

 
the general rule that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit, are immune from service of process in another, is founded, not upon the convenience of the individuals, but of the court itself. As commonly stated and applied, it proceeds upon the ground that the due administration of justice requires that a court shall not permit interference with the progress of a cause pending before it, by the service of process in other suits, which would prevent, or the fear of which might tend to ...

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