The case of the day is Rana v. Islam (S.D.N.Y. 2015). Mashud Rana alleged that the defendant, Monirul Islam, Bangladesh’s former consul general in New York, and his wife, Fahima Tahsina Prova, had lured him to the United States to work as a domestic servant with false promises and then mistreated him. We’ve seen similar cases before, including my bête noire, Gurung v. Malhotra. Here, Islam moved to dismiss for want of subject matter jurisdiction and on grounds of insufficient service of process.
The jurisdictional issue was consular immunity. To name the issue is to give the answer: unlike diplomatic immunity, consular immunity extends only to acts undertaken in the exercise of consular functions. Hiring a domestic employee abroad and making promises abroad to the new employee are not acts undertaken in the exercise of the consular function. Moreover, under Article 43 of the Vienna Convention on Consular Relations, there is an exception to consular immunity in cases where the claim arises out of a contract the consular official made in which the official did not contract as agent for the sending state.
Service of process was made on the concierge of an apartment building in New York where Islam and Prova had lived. If the defendants had actually been living in the building at the time of the service, service on the concierge would have been valid. However, Islam and Prova submitted affidavits, where were not contradicted, stating that the day prior to the service, they had flown to Morocco with no intent to return, and that since then they have been residing in Morocco. Moreover, they had never owned the New York apartment; it was owned by the Bangladeshi consulate general. The timing was unfortunate for Rana, but the decision seems clearly correct.
But in a twist, the court authorized Rana to make service on Islam and Prova’s US lawyers under FRCP 4(f)(3). This seems permissible. So Islam and Prova’s reprieve from US jurisdiction will be short-lived.