LaVenture v. United Nations ( 2018 )


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  • 17-2908-cv
    LaVenture v. United Nations
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    Rulings by summary order do not have precedential effect. Citation to a summary order filed
    on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
    Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document
    filed with this Court, a party must cite either the Federal Appendix or an electronic database
    (with the notation “summary order”). A party citing a summary order must serve a copy of it
    on any party not represented by counsel.
    At a stated term of the United States Court of Appeals for the Second Circuit, held at
    the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
    on the 28th day of December, two thousand eighteen.
    PRESENT:           JOSÉ A. CABRANES,
    CHRISTOPHER F. DRONEY,
    RICHARD J. SULLIVAN,
    Circuit Judges.
    MARIE LAVENTURE, each individually and on behalf
    of the Estate of CHERYLUSSE LAVENTURE, and the
    Estate of MARIE THERESE FLEURICIANE DELINAIS,
    and the additional persons and their representatives
    listed on Exhibit 1, and on behalf of all others
    similarly situated, MAGGIE LAVENTURE, each
    individually and on behalf of the Estate of
    CHERYLUSSE LAVENTURE, and the Estate of MARIE
    THERESE FLEURICIANE DELINAIS, and the additional
    persons and their representatives listed on Exhibit 1,
    and on behalf of all others similarly situated, SANE
    LAVENTURE, each individually and on behalf of the
    Estate of CHERYLUSSE LAVENTURE, and the Estate
    of MARIE THERESE FLEURICIANE DELINAIS, and the
    additional persons and their representatives listed on
    Exhibit 1, and on behalf of all others similarly
    situated, CARMEN LAVENTURE, each individually and
    on behalf of the Estate of CHERYLUSSE LAVENTURE,
    and the Estate of MARIE THERESE FLEURICIANE
    DELINAIS, and the additional persons and their
    representatives listed on Exhibit 1, and on behalf of
    all others similarly situated,
    1
    Plaintiffs-Appellants,                         17-2908-cv
    v.
    UNITED NATIONS; UNITED NATIONS STABILIZATION
    MISSION IN HAITI, BAN KI-MOON, former Secretary-
    General of the United Nations; EDMOND MULET,
    former Under-Secretary-General for the United
    Nations Stabilization Mission in Haiti, CHANDRA
    SRIVASTAVA, former Chief Engineer for the United
    Nations Mission to Haiti; PAUL AGHADJANIAN, Chief
    of Mission Support for the United Nations Mission to
    Haiti; PEDRO MEDRANO, Assistant Secretary-General
    of the United Nations; MIGUEL DE SERPA, Under
    Secretary for Legal Affairs,
    Defendants-Appellees.
    FOR PLAINTIFFS-APPELLANTS:                                 James F. Haggerty, Law Office of James
    F. Haggerty, New York, NY.
    Paul M. Tarr, Lester Schwab Katz &
    Dwyer, LLP, New York, NY.
    Mark A. Gottlieb, Northeastern
    University School of Law, Boston, MA.
    FOR DEFENDANTS-APPELLEES:                                  No appearance.
    Appeal from an order of the United States District Court for the Eastern District of New
    York (Sandra L. Townes, Judge).
    UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
    ADJUDGED, AND DECREED that the order of the District Court be and hereby is
    AFFIRMED.
    Plaintiffs-Appellants (“plaintiffs”) appeal from the August 24, 2017 judgment of the District
    Court dismissing the case for lack of subject matter jurisdiction pursuant to Federal Rule of Civil
    Procedure 12(h)(3). Plaintiffs are citizens of the United States or Haiti “who have been or will be
    injured or who are or will be the personal representative of a person who was or will be killed by
    cholera contracted in Haiti on or after October 9, 2010.” App. 172. Plaintiffs brought this putative
    class action against defendants the United Nations (“UN”), the UN Stabilization Mission in Haiti
    (“MINUSTAH”), and various UN officials, seeking to hold them responsible for negligently causing
    the cholera outbreak in Haiti. We recently addressed a substantially similar putative class action
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    premised on the same facts. See Georges v. United Nations, 
    834 F.3d 88
    (2d Cir. 2016). We assume the
    parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal.
    Plaintiffs contend that the District Court erred in dismissing this action against defendants
    for lack of subject matter jurisdiction based on defendants’ immunity from suit. In reviewing a
    dismissal of a complaint for lack of subject matter jurisdiction “we review factual findings for clear
    error and legal conclusions de novo, accepting all material facts alleged in the complaint as true and
    drawing all reasonable inferences in the plaintiff’s favor.” 
    Georges, 834 F.3d at 92
    (internal quotation
    marks omitted).
    It is well established that the UN and MINUSTAH have absolute immunity from suit in
    domestic courts pursuant to the Convention on Privileges and Immunities of the United Nations,
    Feb. 13, 1946, entered into force with respect to the United States Apr. 29, 1970, 21 U.S.T. 1418,
    (“CPIUN”). See Brzak v. United Nations, 
    597 F.3d 107
    , 112 (2d Cir. 2010); 
    Georges, 834 F.3d at 97
    .
    Section 2 of the CPIUN provides that the UN “shall enjoy immunity from every form of legal
    process except insofar as in any particular case it has expressly waived its immunity.” CPIUN, art. II,
    § 2. This immunity applies even where the UN allegedly fails to fulfill its obligations under the
    CPIUN to make provisions to settle certain disputes. 
    Georges, 834 F.3d at 97
    .
    Plaintiffs attempt to circumvent this immunity by arguing that the UN expressly waived its
    immunity from suit in domestic courts for torts arising out of peacekeeping operations. To support
    this contention, plaintiffs rely on two reports from the 1990s that address the UN’s procedures for
    settling claims arising out of UN peacekeeping operations. The first report was issued in 1996 and
    addresses the procedures for settling third-party claims arising from UN peacekeeping missions.
    U.N. Secretary-General, Administrative and Budgetary Aspects of the Financing of United Nations Peacekeeping
    Operations: Financing of the United Nations Peacekeeping Operations, U.N. Doc. A/51/389 (September 20,
    1996) (“Report 51/389”). A related report was issued in 1997 and addresses developing specific
    measures for implementing the principles described in Report 51/389. U.N. Secretary-General,
    Administrative and Budgetary Aspects of the Financing of United Nations Peacekeeping Operations: Financing of
    the United Nations Peacekeeping Operations, U.N. Doc. A/51/903 (May 21, 1997) (“Report 51/903”).
    Both reports were adopted by resolution by the General Assembly of the UN. G.A. Res. 52/247,
    U.N. Doc. A/RES/52/247 (June 26, 1998).
    Plaintiffs argue that these reports’ repeated use of the term “liability” constitutes express
    waiver of immunity from legal process in domestic courts. This is plainly incorrect. The reports
    describe procedures for redress for third-party claims through standing claims commissions or
    internal UN procedures. See Report 51/389, ¶ 20 (describing the two procedures). It is clear that the
    reports’ descriptions of the UN’s “liability” refer only to their responsibility in these non-judicial
    forums and do not constitute an express waiver of immunity from legal process in domestics courts.
    In a section entitled “the principle of liability,” Report 51/389 clearly states that the UN “has, since
    the inception of peacekeeping operations, assumed its liability for damage caused by members of its
    forces in the performance of their duties.” 
    Id. ¶ 7.
    It further provides that such responsibility is
    discharged “by means of a standing claims commission” addressing claims “which for reasons of
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    immunity of the Organization and its Members could not have been submitted to local courts.” 
    Id. Similarly, Report
    51/903 notes that the rationale for establishing standing claims commissions is to
    settle disputes “over which local courts have no jurisdiction because of the immunity of the
    Organization or its members.” Report 51/903, ¶ 7. Nowhere in either report does the UN expressly
    waive its immunity to any form of legal process. The mere use of the word “liability” in these
    reports about non-judicial dispute resolution falls well short of the express waiver required under the
    CPIUN.
    To the contrary, the UN has always maintained and continues to maintain its immunity from
    legal process in domestic courts. See Letter from Stephen Mathias, Assistant Secretary-General for
    Legal Affairs, to Nikki R. Haley, Permanent Representative of the United States of America to the
    United Nations (May 2, 2017).
    We conclude that the United Nations enjoys absolute immunity from the instant suit and
    that the UN has not expressly waived its immunity. Moreover, plaintiffs’ only argument that
    MINUSTAH and the individual defendants are not immune is fully derivative of their claim that the
    UN expressly waived immunity. Because we have rejected that argument, we conclude that
    MINUSTAH and the individual defendants are similarly immune from this suit. Accordingly, the
    District Court did not err in dismissing all claims against all defendants for lack of subject matter
    jurisdiction based on immunity.
    In the alternative, plaintiffs argue that the District Court should have granted them
    jurisdictional discovery to help establish that the UN waived its immunity. They contend that
    internal discussions within the UN around the time that it accepted responsibility for the cholera
    outbreak may shed light on whether the UN waived its immunity with respect to this event. This
    argument is without merit. Under the CPIUN, waiver must be “express[].” 
    Brzak, 597 F.3d at 112
    .
    Internal discussions concerning the extent or nature of the UN’s liability that were never
    communicated to the public would not be relevant to determining whether the UN expressly waived
    its immunity. Plaintiffs identify no other way in which jurisdictional discovery could help them
    establish that the UN expressly waived its immunity, and none is apparent.
    CONCLUSION
    We have reviewed all of the arguments raised by plaintiffs on appeal and find them to be
    without merit. For the foregoing reasons, we AFFIRM the August 24, 2017 judgment of the
    District Court.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
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Document Info

Docket Number: 17-2908-cv

Filed Date: 12/28/2018

Precedential Status: Non-Precedential

Modified Date: 12/28/2018