The case of the day is 101-115 W. 116th St. Corp. v. Consulate General of the Republic of Senegal (N.Y. Sup. Ct. 2023). In 2014, the plaintiff leased premises on West 116th Street in New York to the Consulate General of Senegal for a term of five years. The lease expired, but the Consulate did not leave the property until a few months after the lease expiration. The landlord brought an action for damages in the New York Supreme Court. The consulate appeared and defended, but surprisingly, it did not remove the case to federal court. Thus today’s case is a relatively rare state court decision in a case governed by the FSIA.
The consulate argued that the landlord should have named Senegal itself as the defendant. This is, I think correct as a general rule, though there are many cases naming embassies or consulates as defendants. But the court didn’t agree. The consulate also claimed that it was a diplomatic agent entitled to immunity under the Vienna Convention. This was obviously wrong, and the court rejected it. The court found that the waiver and commercial activity exceptions to FSIA immunity applied.
I want to focus on the case because of the service of process issue it presents. It’s an issue that’s on my mind this month, as I’m briefing it in the DC Circuit. The lease had the following notice provision:
Except as otherwise in this lease provided, a bill, statement, notice or communication which owner may desire or be required to give to Tenant, shall be deemed sufficiently given or rendered if, in writing, delivered to Tenant personally or sent by registered or certified mail addressed to Tenant at the building of which the demised premises form a part or at the last known residence address or business address of Tenant or left at any of the aforesaid premises addressed to Tenant, and the time of the rendition of such bill or statement and of the giving of such notice or communication shall be deemed to be the time when the same is delivered to Tenant, mailed, or left at the premises as herein provided.”
Under the FSIA, if the parties have agreed to a “special arrangement for service,” then the plaintiff must serve process according with the agreement. The lease clause is not limited to notices authorized or permitted by the lease itself, and it is not really limited in any other way. It applies to all notices “which owner may desire or be required to give to tenant.” The precedents, mostly from the federal court in Washington, distinguish “all-encompassing” notice clauses, which apply to all notices whatsoever, from notice clauses that are limited, for example, to notices under the contract. The former are “special arrangements for service,” the latter are not. With a single exception (a case that several judges have concluded was plainly wrong), all of the cases fit into this pattern. But they are all district court decisions (or in this case, a trial court decision in the state courts).
The judge held, correctly in light of the precedents, that service of process under the contract’s notice provision was proper under the FSIA. This is a fairly typical decision under the statute, 28 U.S.C. § 1608(a)(1), because the party arguing for the special arrangement for service was the private plaintiff, and the party arguing for use of the more traditional methods of service under the FSIA (e.g., service on the foreign minister by mail sent by the clerk) was the foreign state. My case is highly unusual because it was the foreign state arguing for the contract notice clause, and the private plaintiff arguing for service on the foreign minister.
I’ll post the briefs on March 31, once mine is filed, and you can make your own judgments about when notice clauses in contracts with foreign states amount to special arrangements for service of process.