The case of the day is Hilt Construction & Management Corp. v. Permanent Mission of Chad to the United Nations (S.D.N.Y. 2016). The claim was that Hilt had a contract with Chad’s mission to the United Nations and its ambassador, Cherif Mahamat, for the renovation of the ambassador’s official residence in New Rochelle. Hilt claimed it was not paid for part of its work and it sued for breach of contract and on a quantum meruit theory. The mission and the ambassador moved to dismiss.
The court granted the ambassador’s motion in light of his diplomatic immunity. Hilt argued that the exception from the otherwise almost absolute immunity of diplomats in Article 31(1)(c) of the Vienna Convention on Diplomatic Relationship applied. That article provides an exception in case of “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” But the ambassador had contracted on behalf of his government, and the property belonged to the mission. He was acting in his official capacity and not engaging in commercial activity on his own account. So the exception did not apply, and the ambassador had diplomatic immunity that entitled him to dismissal.
The mission claimed it had immunity from suit under the FSIA, but the court held the commercial activity exception in 28 U.S.C. § 1603(d) applied. Yes, the contract was for renovation of an ambassador’s residence, but the commercial character of an act depends on the nature of the act itself, not its purpose. However, Hilt had failed to make service as provided by the FSIA. It claimed that it had ““attempted personal service of the Summons and Complaint on both Defendants, pursuant to 28 U.S.C. § 1608(a)(1), based on the working relationship between the parties, directly at the Mission headquarters at 801 Second Avenue, New York, New York.” Nice try. This sort of course of informal course of dealing is not a special arrangement for service. So the court dismissed the claim without prejudice, so Hilt could attempt service via § 1680(a)(3).