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.
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 discourage, the voluntary attendance of those whose presence is necessary or convenient to the judicial administration in the pending litigation.
Id., 285 U.S. at 225, 52 S. Ct. at 318 (citations omitted).
The court in Lamb, however, carved out an exception to this general rule, holding that the above considerations are outweighed where "the immunity itself, if allowed, would so obstruct judicial administration in the very cause for the protection of which it is invoked as to justify withholding it." Id., 285 U.S. at 228, 52 S. Ct. at 319. The court found that the defendant in Lamb was not immune from service of process, reasoning, inter alia, that the two suits were "not independent of each other or unrelated," that the "second was brought in aid of the first," and that the second suit was brought "to secure rights asserted in the first suit which, but for the acts charged against the petitioner in the second, would have been secured in the first." Lamb, 285 U.S. at 227, 52 S. Ct. at 318-19.
The application of this exception appears to be rare but not unknown. The Second Circuit has held that the "mere presence of [a] relationship [between the two actions] is insufficient to dispel the immunity" from service of process in the second action. Shapiro & Son Curtain Corp. v. Glass, 348 F.2d 460, 461 (2d Cir. 1965), cert. denied, 382 U.S. 942, 86 S. Ct. 397, 15 L. Ed. 2d 351 (1965). However, where there is a "closer relationship" between two actions, and the "two proceedings involve vindication of the same cluster of rights and interests," the Second Circuit has affirmed the withholding of immunity. McDonnell v. American Leduc Petroleums, Ltd., 456 F.2d 1170, 1179-80 (2d Cir. 1972). In McDonnell, the Second Circuit agreed with the district court's reasoning that, "where you have two proceedings that are as closely related as this, both of them seeking substantially the same objectives . . . the reason for the immunity has been swept away and . . . this man cannot complain because the very subject matter for his appearance in the first instance is the subject matter for the lawsuit which is being brought against him." Id., 456 F.2d at 1180.
In February 1994, Cabiri requested the production of all documents relating to his recall to Ghana, his detention there and his release; and he noticed the depositions of 21 Ghanaian officials who may have had such documents in their possession, custody, or control. See Kahn Aff., Ex. E. In response, Assasie-Gyimah and two other witnesses were produced by the government of Ghana to be deposed. Clearly, the purpose of Cabiri's document request and notice to take depositions in the State Action was to gather evidence to support his counterclaims. At his deposition, Assasie-Gyimah was asked, and he answered, questions relating to Cabiri's recall to Ghana, his arrest, imprisonment and release, events which are the subject of the instant action. In other words, "the very subject matter for [Assasie-Gyimah's] appearance in the [State Action] is the subject matter for the lawsuit which is being brought against him" now, and the "two proceedings involve vindication of the same cluster of rights and interests." McDonnell, 456 F.2d at 1180.
Defendant argues that McDonnell is distinguishable on its facts. In that case, the defendant was served with a subpoena duces tecum requiring his appearance in connection with a pending Section 167 bankruptcy proceeding. The defendant appeared and was requested to return several days later. Upon leaving the courthouse after his second appearance, he was served with a supplemental summons and the first amended complaint relating to a fraudulent conveyance action brought by the bankruptcy trustee in the Section 167 proceeding. The court found it significant that "the very purpose of a section 167 investigation is to uncover for the trustee conducting it possible causes of action, including actions against those called to testify," and that the Section 167 proceeding "was actually used as a discovery device for the present action." McDonnell, 456 F.2d at 1180.
Assasie-Gyimah argues that, in contrast, the landlord/tenant proceeding brought by the government of Ghana is not a "discovery device" for Cabiri's action against defendant, and the instant action does not "carry out the purpose of the earlier . . . proceeding," as the court in McDonnell found. See 456 F.2d at 1180.
The Court rejects defendant's contention that the Second Circuit's holding in McDonnell is limited to the factual circumstances found in that case. Independent of the fact that the first action was a Section 167 bankruptcy proceeding, which was used as a discovery device for the second action, McDonnell stands for the proposition that where there is a close relationship between the two actions, and both involve vindication of the same cluster of rights and interests, then immunity from service of process should be withheld. The Court finds that these conditions are met in the instant action. Accordingly, defendant's motion to dismiss for lack of personal jurisdiction is denied.
2. Statute of Limitations
Defendant moves to dismiss the Complaint on the ground that it is barred by the applicable statutes of limitations. Plaintiff's claims are based on events which occurred up to seven years before this action was commenced. Defendant argues that jurisdiction is premised on the Alien Tort Claims Act, 28 U.S.C. § 1350, and at the time when plaintiff's cause of action accrued, Congress had not provided a statute of limitations for claims brought pursuant to the Alien Tort Claims Act. Therefore, defendant submits, the statutes of limitations of the most analogous state law claims apply; and under these statutes of limitations, plaintiff's action must be dismissed.
plaintiff responds that the ten year statute of limitations contained in the Torture Victim Protection Act of 1991 (the "Torture Act") applies retroactively to his claims, even though the events alleged in the Complaint took place prior to the enactment of the Torture Act.
The Torture Act was promulgated to
carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights by establishing a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing.