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Nicol v. United Nations Missions in Liberia

July 30, 2009


The opinion of the court was delivered by: Slomsky, J.


Before the Court is a Motion to Dismiss under the Federal Rules of Civil Procedure 12 (b)(6) filed by Defendants United Nations, United Nations Missions in Liberia ("UNMIL") and Rudillo Anida Phillipino. For the reasons stated below, the Court will grant the Motion to Dismiss filed by the three Defendants in their entirety.*fn1

I. FACTS*fn2

This case stems from events occurring entirely overseas. On December 16, 2005, a United Nations vehicle in Monrovia, Liberia, driven by Defendant Phillipino, a United Nations employee, struck a pedestrian, Plaintiff Exingo Paye Nicol. Plaintiff received his initial care at Jormed Level III Hospital. The United Nations later moved Plaintiff to the Military Hospital, Neghelli Barracks, ACCRA, where physicians inserted plates and screws into his legs. (Id.) After the accident, Plaintiff traveled to Philadelphia, Pennsylvania where he currently resides. Physicians at Jefferson Hospital in Philadelphia believe they must remove the plates and screws inserted at Defendants' hospital.*fn3

Plaintiff is a Liberian citizen who has been granted asylum in the United States. He no longer maintains a residence in Liberia.*fn4 While Plaintiff is not a United States citizen, he is currently eligible to adjust his status to one of a lawful permanent resident. (Id.) Defendant United Nations is an international organization with its principle place of business located on international territory at 405 E. 42nd Street New York, N.Y. 10017. Defendant UNMIL is a United Nations Mission with its principle place of business located at P.O. Box 4677, Grand Central Station, New York, N.Y. 10163. Defendant Rudillo Anida Phillipino is the operator of the United Nations truck whose last known address is Star Base Bishrod Island, Monrovia, Liberia.

Defendants argue that Plaintiff's claims are barred because the United Nations, UNMIL, and the driver enjoy broad immunity from legal process. Plaintiff argues to the contrary that Defendants waived their immunity because: (1) they initially paid for Plaintiff's medical expenses; (2) the driver acted outside his official capacity; and (3) they are covered by liability insurance for this accident.


A. Motion to Dismiss Standard

Defendants have moved to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted under Federal Rules of Civil Procedure 12(b)(6). In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under a reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotations omitted) (reasoning that this statement of Rule 12(b)(6) standard remains acceptable following U.S. Supreme Court's decision in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007)).

To withstand a motion to dismiss under Rule 12(b)(6), "factual allegations must be enough to raise a right to relief above the speculative level." Phillips, 515 F.3d at 234. When a complaint contains well-pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, No. 07-1015, 2009 U.S. LEXIS 3472, at *31 (2009)(reaffirming rationale set forth in Twombley). However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 29. "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id.

B. Immunity

1. United Nations

Plaintiff's claims against Defendant United Nations are barred by absolute immunity. While no decision from the Third Circuit Court of Appeals or courts located in the Eastern District of Pennsylvania is on point, other courts have held that the United Nations enjoys absolute immunity from suit on three independent grounds*fn5: (1) The Convention on the Privileges and Immunities of the United Nations, General Convention art. 2 § 2, Feb. 13, 1946, 21 U.S.T. 1418, 1422 (emphasis added) ("The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process . . ."); (2) International Organizations Immunities Act ("IOIA"), 22 U.S.C. § 288a(b) § 2(b) ("International organizations, their property and their assets, wherever located, and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract."); and (3) U.N. Charter art. 105 (providing the United Nations "shall enjoy . . . such privileges and immunities as are necessary for the fulfilment of its purposes" and "[r]epresentatives . . . and officials . . . shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions"). See, e.g., Van Aggelen v. United Nations, 311 Fed. Appx. 407 (2d Cir. 2009).

The immunity of the United Nations is "absolute unless expressly waived." Emmanuel v. United States, 253 F.3d 755, 756 (1st Cir. 2001). Courts have "widely and uniformly upheld" this immunity. See Restatement (Third) of Foreign Relations Law: Privileges and Immunities of International Organizations ยง 467 (1987). Moreover, immunity extends to tortious conduct. See generally Bisson v. United Nations, 2008 WL 375094 (S.D.N.Y. Feb. 11, 2008) (dismissing gross negligence and intentional tort suit against United Nations). Confronted by this broad application of absolute immunity, Plaintiff argues that the United Nations waived its immunity by providing him with medical treatment. Plaintiff claims that the United Nations undertook a duty to fully treat him and compensate him for damages when it (a) provided medical care for over a month after the accident and (b) did not claim immunity at that time. This Court will not find an implied waiver under these circumstances. The United Nations must expressly state its intention to waive its absolute immunity in order to do so. See, e.g., Emmanuel, 253 F.3d at 756 (emphasis added). The United Nations never expressly waived its immunity and had no ...

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