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ABDI HOSH ASKIR v. BOUTROS-GHALI

July 29, 1996

ABDI HOSH ASKIR, Plaintiff, against BOUTROS BOUTROS-GHALI, individually and in his official capacity; JOSEPH E. CONNOR, individually and in his official capacity; BROWN & ROOT SERVICES CORP.; and "DOE" CORPORATIONS 1 through 10, Defendants.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 This is an action to recover in excess of $ 190 million in damages relating to the alleged unauthorized and unlawful possession of the plaintiff's property in Mogadishu, Somalia during the United Nations' military and humanitarian operations there beginning in or about April 1992. The plaintiff's property is a compound encompassing approximately one million square meters containing an office complex, a hotel, recreational facilities, restaurants, and other facilities. The compound was allegedly occupied and used as a military logistics and supply base by the United Nations and its agents, Brown & Root Services Corp. ("Brown & Root"), and the Doe Corporation defendants. The plaintiff alleges that the United Nations wrongfully and without proper authorization occupied approximately one-quarter of the compound for a period of about eighteen months. The plaintiff maintains that the fair rental value of the compound over that period of time is approximately $ 190 million, one quarter of which he alleges is allocable to the United Nations. The plaintiff asserts claims against the Secretary General of the United Nations, Boutros Boutros-Ghali and the Under Secretary General for Administration and Management, Joseph E. Connor, (the "U.N. Defendants"), in their official and individual capacities, claiming lost rental value, (Count 1); gross negligence in failing to ensure payments to the plaintiff, (Count 2); and violations of the New York Human Rights Law, Executive Law § 296, arising out of the failure to pay the plaintiff based on his race and national origin, (Count 3). In addition to his claim for compensatory damages of $ 193,779,447, the plaintiff also seeks exemplary damages of $ 750 million and prejudgment interest at 18% per year compounded daily, and attorney's fees and costs.

 This action is based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(2). The plaintiff is a citizen of the Republic of Somalia. Boutros-Ghali is a citizen of Egypt, Connor is a citizen of either New York, New Jersey, or Connecticut, and Brown & Root is incorporated in Delaware and has its principal place of business in Texas. At a hearing held on July 18, 1996, the Court raised the issue of whether the inclusion of aliens as both plaintiff and defendant served to destroy diversity. See, e.g., International Shipping Co., S.A. v. Hydra Offshore, Inc., 875 F.2d 388, 391-92 (2d Cir.), cert. denied, 493 U.S. 1003, 107 L. Ed. 2d 558, 110 S. Ct. 563 (1989); Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786, 790 (2d Cir. 1980), cert. denied, 449 U.S. 1080, 66 L. Ed. 2d 804, 101 S. Ct. 863 (1981). In response, and on consent of defendant Brown & Root, the plaintiff has dropped defendant Boutros-Ghali as a defendant in this case, thus remedying any jurisdictional defect. *fn1"

 The U.N. Defendants have not been served with the summons and complaint. Legal counsel for the United Nations has submitted papers, however, asserting absolute immunity of the United Nations and the U.N. Defendants and requesting the Court dismiss the Complaint sua sponte. At the Court's request, the United States, while not a party in this case, has submitted papers in support of the U.N. Defendants' suggestion of dismissal. *fn2" The plaintiff opposes dismissal of the U.N. Defendants and seeks an order permitting the U.S. Marshal Service to serve the U.N. Defendants.

 After considering the submissions, and after listening to oral argument at the hearing on July 18, 1996, the Court dismisses the Complaint sua sponte as to the remaining U.N. Defendant, Connor, for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) because Connor is immune from this suit. *fn3"

  I.

 Article 2 of the Convention on the Privileges and Immunities of the United Nations ("U.N. Convention"), Feb. 13, 1946, 21 U.S.T. 1418, T.I.A.S. 6900, acceded to by the United States in 1970, provides, in relevant part:

 
The United Nations, its property and assets wherever located and by whomsoever held, shall 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. 2, § 2, 21 U.S.T. at 1422. See Boimah v. United Nations General Assembly, 664 F. Supp. 69, 71 (E.D.N.Y. 1987)("Under the [U.N.] Convention the United Nations' immunity is absolute, subject only to the organization's express waiver thereof in particular cases."). There has been no waiver of immunity in this case by the United Nations. With respect to officials of the United Nations, immunity is provided under article 5, which provides, in relevant part:

 
Officials of the United Nations shall: (a) be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity . . . .

 U.N. Convention, art. 5, § 18, 21 U.S.T. at 1432.

 The plaintiff offers three arguments against dismissal ...


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