## Facts

- Daniel Berdakin (plaintiff) leased office space in Los Angeles, California (2412 W. Seventh Street) to the Consulado de la Republica de El Salvador (the Consulate) for a 72-month term beginning March 15, 1992.
- Gerardo Sol Mixco, the Consul General of El Salvador (the Consul), executed the lease on the Consulate’s behalf in his official capacity.
- Before the lease term ended, the Consulate moved its operations to a different location in Los Angeles and stopped paying rent (around July 1995).
- Berdakin sued the Consulate and the Consul in California state court seeking unpaid rent and other lease-related damages.
- Berdakin attempted to serve process by delivering the summons and complaint to Vice-Consul Victor Ollua at the Consulate’s new premises (August 14, 1995).
- Defendants removed the case to the U.S. District Court for the Central District of California and specially appeared to contest jurisdiction.
- Defendants moved to vacate the summons and dismiss for lack of jurisdiction, asserting: (1) consular immunity for the Consul under the Vienna Convention on Consular Relations (VCCR), and (2) foreign sovereign immunity for the Consulate under the Foreign Sovereign Immunities Act (FSIA), as well as defective service under FSIA procedures.

## Issues

1. Whether the Consul General was immune from suit under the VCCR for executing the lease on behalf of the Consulate, such that the court lacked jurisdiction over him.
2. Whether the Consulate was immune under the FSIA, or whether the FSIA commercial-activity exception applied to a breach-of-lease claim for consular office space in Los Angeles.
3. Whether Berdakin’s service on a vice-consul at the Consulate’s office satisfied the FSIA’s exclusive service requirements (28 U.S.C. § 1608), permitting personal jurisdiction over the Consulate.

## Decision

- The court granted the motion to dismiss the Consul with prejudice, holding the court lacked jurisdiction over him because the conduct alleged was undertaken in the exercise of consular functions and was protected by consular immunity under the VCCR.
- The court held it had subject-matter jurisdiction over Berdakin’s claim against the Consulate under the FSIA commercial-activity exception because entering and breaching an office lease is commercial activity of the kind a private party may carry on in the United States.
- The court nevertheless granted the motion as to the Consulate because Berdakin did not complete service in the manner required by the FSIA; without proper § 1608 service, the court lacked personal jurisdiction over the Consulate.
- The dismissal as to the Consulate was qualified to allow Berdakin to attempt proper service under § 1608.

## Legal Principles

- Consular officers receive functional immunity under the VCCR for acts performed in the exercise of consular functions; when the alleged conduct consists of official acts carried out on behalf of the consulate, a U.S. court lacks jurisdiction over the officer.
- The FSIA provides the sole basis for obtaining jurisdiction over a foreign state (and covered entities) in U.S. courts; a foreign state is presumptively immune unless a statutory exception applies.
- Leasing office space for consular operations is “commercial activity” within the meaning of 28 U.S.C. § 1605(a)(2) because it is the type of transaction private parties commonly enter; a suit for rent and lease damages based on that lease can fall within the commercial-activity exception when the activity occurs in the United States.
- Even when an FSIA exception permits the claim to proceed, personal jurisdiction over the foreign state depends on valid service of process under 28 U.S.C. § 1608; the statute’s service methods are exclusive and require strict compliance.
- Delivery of process to consular personnel at a consulate office, without following the steps set out in § 1608 for the foreign state entity, is insufficient to establish personal jurisdiction.

## Conclusion

In Berdakin v. Consulado de la Republica de El Salvador, the court dismissed the Consul General with prejudice based on consular immunity under the VCCR, held that the Consulate’s lease of office space in Los Angeles fit the FSIA commercial-activity exception (supporting subject-matter jurisdiction over the lease dispute), but dismissed the Consulate because the plaintiff’s attempted service on a vice-consul did not satisfy FSIA service requirements, permitting a renewed attempt at proper § 1608 service.


Berdakin v. Consulado de la Republica de El Salvador, 912 F. Supp. 458 (1995)