Case of the Day: Avelar v. J. Cotoia Construction, Inc.

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In the case of the day, Avelar v. J. Cotoia Construction, Inc. (E.D.N.Y. 2011), the Permanent Mission to the UN of the People’s Republic of the Congo owned land in Bronxville, New York. It hired J. Cotoia Construction as a demolition contractor, and Cotoia subcontracted with National Waterproofing Systems, LLC, which employed Avelar. Avelar was injured on the job, and he sued Cotoia and the Congolese permanent mission for damages in the Queens County Supreme Court.

At the outset of the case, Avelar served the summons and complaint (in English) on a receptionist at the mission’s premises in Manhattan. The Congolese mission never answered, but Cotoia and its insurer “forwarded various discovery materials” to the mission by mail as the case progressed. Three months after service of process, Avelar’s lawyer wrote to the mission and stated that if the mission did not answer the complaint, he would seek a default judgment. The ambassador, Raymond Serge Balé, wrote back and expressed the view that the mission was not liable, but the mission still took no action in court. Eventually, the state court awarded Avelar a default judgment against the mission in the amount of $475,000.

Avelar filed judgment liens against the mission’s real property and attached its bank account. This finally roused the mission from its slumber. The mission filed a notice of removal, removing the case to the District Court. Avelar moved to remand. The mission, joined by the United States, opposed the motion on the grounds that the service of process on the mission was flawed under the FSIA and that the resulting judgment and the liens and attachments were similarly flawed. The court denied the motion to remand on the grounds that the mission was a foreign state entitled to remove under 28 U.S.C. § 1441(d), and that the thirty-day period for removal never began to run because the mission had never been properly served under the FSIA—a point that Avelar could hardly contest.

The mission then moved to dismiss for want of personal jurisdiction and to vacate the state court’s default judgment and the liens and attachments.

Rule 60(b) provides:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
* * *
(4) the judgment is void.

This judgment was void because both in general and in FSIA cases, a judgment is void if personal service of the summons and complaint was not properly effected. There is no question that service was improper under the FSIA—a point the judge explained in detail but we will not rehash here. Thus the judgment and the post-judgment remedies that Avelar obtained were vacated. The post-judgment remedies were also improper because under Article 22 the Vienna Convention on Diplomatic Relations, the mission premises are “inviolable” and the “premises of the mission, their furnishings and other property thereon” are “immune from search, requisition, attachment or execution.” The precedents also hold that bank accounts used for diplomatic purposes are immune from execution, since under Article 25, the US is required to “accord full facilities for the performance of the functions of the mission.”

The court went on to dismiss for want of personal jurisdiction, because under the FSIA, proper service is a prerequisite to the exercise of jurisdiction.

Surely the Congolese government could have acted more promptly, but this case is correctly decided on all points.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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