Camacho Jimenez et al v. Garcia Delgado et al

Filing 26

MEMORANDUM AND ORDER (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
GILBERTO CAMACHO JIMENEZ,
et al.,
Plaintiffs,
v.
CARLOS GARCIA DELGADO and
NOBERTO SAUL TERRAZAS
ARREOLA,
Defendants.

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CIVIL ACTION NO. 4:13-cv-0834

MEMORANDUM AND ORDER
This employment case is before the Court on the Second Motion to Dismiss
filed by Defendants Carlos Garcia Delgado (“Delgado”) and Noberto Saul TerrazasArreola (“Terrazas-Arreola,” and, together with Delgado, “Defendants”) [Doc. # 12].
Also before the Court is the Motion to Remand filed by Plaintiffs Gilberto Camacho
Jimenez, Ana Bertha Rodriguez, and Candido Soto Velazquez (collectively,
“Plaintiffs”) [Doc. # 16]. Plaintiffs filed a Response to Defendants’ Motion to
Dismiss [Doc. # 17], to which Defendants filed a Reply [Doc. # 22]. Defendants filed
a Response to Plaintiffs’ Motion to Remand [Doc. # 25].1 Having considered the
1

Defendants filed their Motion to Dismiss at Doc. # 12 and a brief in support of that
motion at Doc. # 13. Plaintiffs filed their Motion to Remand at Doc. # 16 and a brief
in support of that motion at Docs. # 18 and # 19. Plaintiffs filed a Response to the
Motion to Dismiss at Doc. # 17 and a brief in support of the Response at Doc. # 20.
(continued...)

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parties’ briefing, the applicable legal authorities, and all matters of record, the Court
denies Plaintiffs’ Motion to Remand and grants Defendants’ Motion to Dismiss.
I.

BACKGROUND
Plaintiffs are former employees of the Consulate General of Mexico in Houston,

Texas (the “Consulate”). Plaintiff’s First Amended Original Petition [Doc. # 1-2]
(“Complaint”), ¶ 5. On or about December 28, 2010, Plaintiffs’ employment at the
Consulate ceased.2 Id. On December 28, 2012, Plaintiffs filed this suit in the 152nd
Judicial District Court in Harris County, Texas, against Terrazas-Arreola, Delgado,
the United Mexican States (“Mexico”), and the Consulate, alleging claims of
negligence, negligence per se, gross negligence, and breach of contract or implied
contract [Docs. # 1-1 and # 1-2]. Plaintiffs assert that their employment was
terminated for “refusing to participate in unlawful activities.” Complaint, ¶ 5.3
1

(...continued)
The briefs docketed at Docs. # 18, # 19, and # 20 are identical.

2

Plaintiffs each claim that his or her employment was terminated. Complaint [Doc. # 12], ¶ 5. Defendants counter that Plaintiffs’ employment contracts had expired and
were not renewed. Defendants’ Reply [Doc. # 22], at 2.

3

Gilberto Camacho Jimenez and Candido Soto Velazquez state that “[TerrazasArreola] and [Delgado] wanted my self [sic] and others to recruit persons, both male
gay and female straight to have sex with them and their friends.” Affidavit of
Gilberto Camacho Jimenez [Doc. # 17-5]; Affidavit of Candido Soto [Doc. # 17-7].
Ana Bertha Rodriguez Ramirez avers in an affidavit that “[Terrazas-Arreola] and
[Delgado] wanted myself and other persons to have sex for money with them and/or
other persons associated with them. For this they would protect our jobs and make
sure we received additional compensation.” Affidavit of Ana Bertha Rodriguez
(continued...)

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2

Defendants, along with Mexico and the Consulate, removed the case to this Court on
March 25, 2013 [Doc. # 1].
On June 11, 2013, Terrazas-Arreola, Delgado, Mexico, and the Consulate filed
a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2),
12(b)(4), and 12(b)(5) [Doc. # 7]. The Court granted the motion as to the country of
Mexico and its Consulate, but denied the motion without prejudice as to the
Defendants at bar. Defendants’ original Motion to Dismiss urged that each defendant
was a “foreign state” and immune from suit under the Foreign Sovereign Immunities
Act of 1976 (the “FSIA”). Memorandum and Order [Doc. # 11], at 2. The Court held
that both Mexico and the Consulate were “foreign states” within the meaning of the
FSIA, id. at 3-4, and thus the Court was without subject matter jurisdiction to
adjudicate the case against those entities, id. at 6-7. This Court also held that
Terrazas-Arreola and Delgado were not foreign “states” under the FSIA and denied
the motion as to them. Id. at 4-5. The Court reserved decision on the question
whether “Defendants . . . [could] assert a basis for immunity other than the FSIA, such
as Article 43 of the Vienna Convention on Consular Relations.” Id. at 4 n.2.
Plaintiffs seek remand of this case to state court pursuant to 28 U.S.C.

3

(...continued)
Ramirez [Doc. # 17-6].

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§ 1447(c). Plaintiffs’ Motion to Remand [Doc. # 16], at 3. Defendants argue there
is jurisdiction under 28 U.S.C. § 1351 for the Court to decide the application of the
Vienna Convention, but that under the Convention, there is no subject matter
jurisdiction because Defendants are protected by the doctrine of consular immunity.
Defendants’ Response [Doc. # 25], at 3-4.
II.

LEGAL STANDARD
A.

Removal Jurisdiction

Federal jurisdiction is limited. Congress allows for removal to federal court of
“any civil action brought in a State court of which the district courts of the United
States have original jurisdiction.” 28 U.S.C. § 1441(a). The party invoking this
Court’s removal jurisdiction bears the burden of establishing federal jurisdiction. See
Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002);
Miller v. Diamond Shamrock Co., 275 F.3d 414, 417 (5th Cir. 2001); Frank v. Bear
Stearns & Co., 128 F.3d 919, 921-22 (5th Cir. 1997) (citation omitted). The removal
statute “is subject to strict construction because a defendant’s use of that statute
deprives a state court of a case properly before it and thereby implicates important
federalism concerns.” Frank, 128 F.3d at 922; see also Manguno, 276 F.3d at 723
(“Any ambiguities are construed against removal because the removal statute should
be strictly construed in favor of remand.”). In evaluating the propriety of removal,

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this Court must evaluate all factual allegations in the light most favorable to the
plaintiff, must resolve all contested issues of fact in favor of the plaintiff, and must
resolve all ambiguities of controlling state law in favor of the plaintiff. See Burden
v. General Dynamics Corp., 60 F.3d 213, 216 (5th Cir. 1995) (citations omitted).

B.

Subject Matter Jurisdiction

Defendants’ argue, pursuant to Federal Rule of Civil Procedure 12(b)(1), that
this Court has authority to decide its subject matter jurisdiction to the extent that it
must ascertain the effect of the Vienna Convention. Memorandum in Support of
Defendants’ Second Motion to Dismiss [Doc. # 13], at 10. “A case is properly
dismissed for lack of subject matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.” Krim v. pcOrder.com, Inc., 402 F.3d
489, 494 (5th Cir. 2005) (citations omitted).
In considering a challenge to subject matter jurisdiction, the district court is
“free to weigh the evidence and resolve factual disputes in order to satisfy itself that
it has the power to hear the case.” Id. When the court’s subject matter jurisdiction is
challenged, the party asserting jurisdiction bears the burden of establishing it. See
Castro v. U.S., 560 F.3d 381, 386 (5th Cir. 2009). A motion to dismiss for lack of
subject matter jurisdiction should be granted only if it appears certain that the plaintiff

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cannot prove a plausible set of facts that establish subject matter jurisdiction. Id. The
Court must “take the well-pled factual allegations of the complaint as true and view
them in the light most favorable to the plaintiff.” Lane v. Halliburton, 529 F.3d 548,
557 (5th Cir. 2007).
C.

Vienna Convention on Consular Relations

Whether the causes of action against Defendants are subject to the jurisdiction
of this Court is governed by the Vienna Convention on Consular Relations (the
“Vienna Convention”). Federal district courts have “original jurisdiction, exclusive
of the courts of the states, of all civil actions and proceedings against (1) consuls or
vice consuls of foreign states . . .” 28 U.S.C. § 1351. That jurisdiction only extends,
however, so long as it is not limited by treaty. See Gerritsen v. de la Madrid Hurtado,
819 F.2d 1511, 1515 (9th Cir. 1987) (“Gerritsen I”) (“By virtue of [§ 1351] the
federal courts may exercise jurisdiction over the two consuls general and one vice
consul who are defendants in this action . . . Jurisdiction, however, may be limited by
treaty.”). Thus, under the Vienna Convention, “Consular officers and consular
employees shall not be amenable to the jurisdiction of the judicial or administrative
authorities of the receiving state in respect of acts performed in the exercise of
consular functions.”4 Vienna Convention on Consular Relations, April 24, 1963, 21
4

Article 43 also provides two exceptions to this rule for certain civil actions. See
(continued...)

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U.S.T. 77, T.I.A.S. 6820, 596 U.N.T.S. 261, Art. 43(1). “The purpose of consular
immunity is not to benefit individuals but to ensure the efficient performance of
functions by consular posts on behalf of their respective states.” Ewald v. Royal
Norwegian Embassy, No. 11-2116 SRN/SER, 2012 WL 245244, at *3 (D. Minn. Jan.
26, 2012) (unpublished). Courts have cautioned against a narrow reading of this
provision, stating:
[A] narrow reading of the treaty would be inconsistent with its apparent
purpose to eliminate the last vestiges of the notion that a consul was
simply a ‘commercial representative’ . . . [I]t would hardly be
appropriate, in the face of such a broadly worded provision as Art. 5(m),
for the court to second-guess the State Department in this regard for
purposes of determining whether consular immunity exists.
Heaney v. Gov’t of Spain, 445 F.2d 501, 505 (2d Cir. 1971) (Friendly, J.). While the
effects of consular immunity can often be harsh, the Court is bound by the limits of
jurisdiction granted to it by Congress through laws and treaties. See Ford v. Clement,
834 F. Supp. 72, 74 (S.D.N.Y. 1993) (Sotomayor, D.J.) (“Thus, no matter how
troubling Mr. Clement’s alleged actions may be, the Court cannot address them if he
is immune from the jurisdiction of this Court.”); Koeppel & Koeppel v. Fed. Republic
of Nigeria, 704 F. Supp. 521, 524 (S.D.N.Y. 1989) (Leval, J.) (“Some unfairness to
the wronged party is inherent in the notion of immunity.”).

4

(...continued)
Vienna Convention, Art. 43(2). Neither exception is applicable to the claims alleged.

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As numerous courts have recognized, determining whether an action was
“performed in the exercise of consular functions” involves a two-part inquiry. First,
the Court must determine whether the action in question involved a “consular
function.” Second, the Court must determine whether the action in question was
performed “in the exercise of” that function. See Gerritsen v. Consulado General de
Mexico, 989 F.2d 340, 346 (9th Cir. 1993) (“Gerritsen II”); Ford, 834 F. Supp. at 75;
Ewald, 2012 WL 245244, at *4.
The term “consular function” is defined in Article 5 of the Vienna Convention.
The first twelve subsections of Article 5 list specific consular functions. Article 5(m)
is a “catch-all” that extends consular functions to include “any other functions
entrusted to a consular post by the sending State which are not prohibited by the laws
and regulations of the receiving state or to which no objection is taken by the
receiving State or which are referred to in the international agreements in force
between the sending State and the receiving State.” Vienna Convention, Article 5(m).
III.

ANALYSIS
A.

Motion to Remand

Plaintiffs filed this lawsuit in the 152nd Judicial District Court in Harris
County, Texas [Docs. # 1-1 and # 1-2]. Defendants, together with Mexico and the
Consulate, initially removed the case to federal court on the basis of 28 U.S.C. § 1331

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(the existence of a federal question) and the FSIA. Notice of Removal [Doc. # 1], at
2. Plaintiffs seek a remand to state court because, after Mexico and the Consulate
were dismissed from the case, Plaintiffs’ claims arise solely under state law and there
is no diversity of citizenship. Plaintiffs’ Motion to Remand [Doc. # 16], at 2.
Defendants contend that jurisdiction in this court remains proper under 28 U.S.C.
§ 1351 (which vests federal district courts with jurisdiction over all civil actions
against consuls). Defendants’ Response [Doc. # 25], at 3.
Defendants are the current Consul General and the former Consul General of
Mexico in Houston, Texas. As such, civil actions against them are within the
jurisdiction granted by Congress to this Court pursuant to 28 U.S.C. § 1351,5
regardless of whether Defendants are sued in their individual or official capacities.
See Gerritsen II, 989 F.2d at 344 (finding jurisdiction proper under § 1351 where
Plaintiff sued consular officials in both their official and individual capacities).
Accordingly, Plaintiffs’ Motion to Remand [Doc. # 16] is denied.

5

Although Delgado is no longer the Consul General for Mexico in Houston, Plaintiffs
allege he engaged in misconduct while he served in that capacity. Thus, he is within
§ 1351’s grant of jurisdiction. See Politis v. Gavriil, No. H-08-2988, 2008 WL
4966914 (S.D. Tex. Nov. 19, 2008) (assuming, without deciding, that § 1351 grants
jurisdiction over the former consul of Greece and holding that consul was immune
from suit under the Vienna Convention); Koeppel & Koeppel v. Federal Republic of
Nigeria, 704 F. Supp. 521 (S.D.N.Y. 1989) (assuming § 1351 vests jurisdiction in
federal district court in case against former Consul General of Nigeria).

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B.

Motion to Dismiss

Plaintiffs assert claims of “negligence,” “negligence per se,” “gross
negligence,” and “breach of contract and/or implied contract” against Defendants,
stemming, apparently, from Defendants’ alleged wrongful termination of Plaintiffs’
employment with and/or by Defendants in 2010.6 At the core, Plaintiffs challenge
6

Notably, Plaintiffs allege almost no facts in their Complaint. See Complaint, ¶ 5,
which states in its entirety:
On or about December 28, 2010 and thereafter, the Plaintiffs,
GILBERTO CAMACHO JIMENEZ, ANA BERTHA
RODRIGUEZ and CANDIDO SOTO VELAZQUEZ were each
separated by and from their employment with and/or by Defendants for
refusing to participate in unlawful activities to their damage in an
amount within the jurisdictional limits of this Court. Plaintiffs were
employed by and performed their employment duties for the
Defendants in the State of Texas. Defendants submitted to the Laws of
the State of Texas specifically in the contracts of employment entered
into with the Plaintiffs.
The separations, terminations, constructive terminations and/or failure
to keep employed the Plaintiffs by the Defendants constitutes
negligence, negligence per se, gross negligence and/or breach of
contract and/or implied contract which was a proximate and/or
producing cause of Plaintiffs’ damages as stated above.
Defendants have not sought dismissal for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6). The Court notes, however, that the Complaint does
not meet the pleading standards required under the Supreme Court’s decisions in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009). However, Plaintiffs have filed affidavits with their Motion to Remand [Doc.
# 16] and Response [Doc. # 17], explaining that allegedly Plaintiffs were asked to
have sex, or recruit others to have sex, with Defendants in exchange for compensation
and job protection. In sum, Plaintiffs assert that their employment was terminated
(continued...)

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employment decisions made by Defendants.
Plaintiffs’ claims are barred by the consular immunity codified in Articles 5 and
43 of the Vienna Convention.

Analysis under the Gerritsen II two-part test

demonstrates that this suit must be dismissed because the remaining Defendants are
immune from all of Plaintiffs’ claims. First, managing and supervising consular
employees is a “consular function” within the “catch-all” provision of Article 5(m) of
the Vienna Convention. See, e.g., Ford, 834 F. Supp. at 75. Mexico necessarily
“entrusts” these functions to the Consul General in order to enable that officer and the
Consulate to carry out other consular functions. Second, terminating employees’
employment or not renewing their employment contracts are acts “performed in the
exercise of” that function. See Ewald, 2012 WL 245244, at *5. Thus, even if
Plaintiffs’ employment was terminated wrongfully, Defendants’ actions fall within the
jurisdictional bar of Article 43 of the Vienna Convention and Defendants are immune
from Plaintiffs’ claims.
The few cases that have addressed claims against consular officials stemming
from employment decisions are consistent with this conclusion and instructive. In
Ford v. Clement, 834 F. Supp. 72 (S.D.N.Y. 1993) (Sotomayor, D.J.), the plaintiff (a
6

(...continued)
because they refused to perform functions for the Consuls General that Plaintiffs
contend were improper or unlawful.

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former vice consul) alleged that Panama’s Consul General in New York engaged in
a “campaign of harassment” against her “designed to force [her] out of the Consulate.”
Id. at 74. The former vice consul asserted, inter alia, tort causes of action against the
Consul General and others for compensatory damages. Id. The court dismissed the
claims on the grounds of consular immunity, citing Article 5(m) of the Vienna
Convention. In pertinent part, District Judge Sotomayor noted that:
[C]onsular functions are implicated in this action—in particular, the
management and supervision of the Vice Consul and other consular staff.
These tasks come within the scope of Article 5(m) since they are
fundamental to the efficient execution of all of the other consulate
functions enumerated by the Vienna Convention. Moreover, they are
necessarily entrusted to the Consul General by the sending State and
indeed lie at the core of any efforts by theConsul General to perform its
designated functions . . . . Mr. Clement’s actions in dealing with Mrs.
Ford and in communicating with Panamanian officials regarding Mrs.
Ford were ‘performed in the exercise of’ his consular functions of
managing and supervising the consular staff so as to effectuate other
consular functions.
Id. at 75-77.
Similarly, in Ewald v. Royal Norwegian Embassy, No. 11-2116 SRN/SER,
2012 WL 245244 (D. Minn. Jan. 26, 2012) (unpublished), a former consular employee
sued the Norwegian Embassy and the Honorary Consul for Norway in Minnesota on
grounds of promissory estoppel, gender discrimination, reprisal, aiding and abetting,
retaliatory harassment, and violation of the Equal Employment Pay Act. Id. at *2.

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The court, as in Ford, dismissed the case, holding: “Ewald’s Complaint alleges causes
of action all stemming from her hiring, employment, workplace atmosphere, and
termination. All of these alleged actions implicate the consular function of managing
and supervising consulate employees, and as such fall within the consular function
under Article 5(m) of the Vienna Convention.” Id. at *4 (internal citation omitted).
The Court then addressed the second factor of the two-part inquiry: “Specifically, the
acts included in Ewald’s Complaint all relate to Gandrud’s management and
supervision of her as an employee of the Embassy. Accordingly, his acts were
performed in the exercise of a valid consular function—managing and supervising the
employees of the Embassy—and he is therefore entitled to consular immunity for
these acts.” Id. at *5.
Other cases interpreting Article 5(m) have broadly construed this provision.
See, e.g., Gerritsen II, 989 F.2d at 346 (threatening a protestor and protecting consular
premises were consular functions); Heaney, 445 F.2d at 505-06 (entering into a
contract to help publicize British abuses in Northern Ireland was a consular function);
Berdakin v. Consulado de la Republica de El Salvador, 912 F. Supp. 458, 465 (C.D.
Cal. 1995) (“obtaining space in which to operate the Consulate is a legitimate consular
function,” stating “the suit against the Consul arises out of his performance of a
function inherent in his position . . . since without a lease such as the one entered into

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by the Consul, there would be no Consulate at all”); Koeppel & Koeppel, 704 F. Supp.
at 523 (providing shelter within the consulate premises to a citizen of the consul’s
state was a consular function).
While Plaintiffs attempt to focus this Court on their refusal to engage in illegal
activities on behalf of Defendants, Plaintiffs’ Memorandum [Doc. # 19], at 6-7, their
argument is unavailing. First, it bears noting that Plaintiffs have not asserted any
viable independent cause of action that protects them against such alleged wrongs.
In any event, Defendants’ motive in exercising a consular function (here, terminating
an employee’s employment or refusing to renew an employment contract) is irrelevant
to the question of Defendants’ consular immunity. See Berdakin, 912 F. Supp. at 465
(“[A]s the term ‘consular functions’ suggests, it is the fact that an act is not a
legitimate consular function—whether or not the act is illegal—that renders its
performance outside the exercise of consular function . . . . [I]t is irrelevant that the
manner in which the Consul performed this function is alleged to have violated the
law.”); Ewald, 2012 WL 245244, at *5 (“Where the consular function is legitimate,
the intentional or tortious nature of the acts performed in its exercise does not preclude
consular immunity.”). Finally, as a New York district court explained:
Plaintiff’s argument suggests that no immunity should be afforded if the
consular official’s conduct involves breach of the law. If this were the
rule, however, there would be no immunity. Every lawsuit asserted

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against a consular official accuses him or her of some violation of legal
rights. Some unfairness to the wronged party is inherent in the notion of
immunity.
Koeppel & Koeppel, 704 F. Supp. at 523-24. Plaintiffs’ claims are barred by consular
immunity and the Court thus lacks subject matter jurisdiction to resolve this case.
IV.

CONCLUSION
The Court has jurisdiction under 28 U.S.C. § 1351 to address the claims

Plaintiffs assert against current and former consular officials. Plaintiffs’ motion to
remand this case is denied.
The Defendants are entitled to consular immunity under the Vienna Convention
on all the claims Plaintiffs assert. Accordingly, Defendants’ motion to dismiss this
case pursuant to Rule 12(b)(1) is granted.7
For the foregoing reasons, it is hereby
ORDERED that Plaintiffs’ Motion to Remand [Doc. # 16] is DENIED. It is
further
ORDERED that Defendants’ Second Motion to Dismiss [Doc. # 12] is
GRANTED. This case is DISMISSED WITH PREJUDICE.
A final judgment will be filed separately.
7

The Court does not reach Defendants’ arguments under Federal Rule of Civil
Procedure 12(b)(2) (lack of personal jurisdiction) and 12(b)(5) (insufficient service
of process).

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SIGNED at Houston, Texas, this 15th day of October, 2013.

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