## Facts

- A San Francisco landlord leased a residential house to the Nigerian Consulate General under a standard-form lease to house consular employees and their families.
- After the lease term ended, the landlord alleged the premises were left severely damaged and that property/fixtures were removed.
- The landlord sued Nigeria and the Consulate for breach of the lease and for torts (conversion, trespass, and waste), and sued a resident consular employee personally for the same torts.
- Defendants defaulted; the district court entered a default judgment, then set it aside on a Rule 60(b)(4) motion raising sovereign and consular immunity.
- The district court held FSIA jurisdiction existed over the tort claims but not the contract claim, held the employee lacked consular immunity, and refused to reinstate the default judgment.

## Issues

1. Whether FSIA exceptions eliminated sovereign immunity and supplied subject-matter jurisdiction over the foreign state and consular office for (a) the lease-based contract claim and (b) the alleged torts causing property damage in the United States.
2. Whether a consular employee was immune from suit under the Vienna Convention on Consular Relations for alleged torts connected to occupancy of consular housing.
3. Whether the district court abused its discretion by setting aside, and refusing to reinstate, the default judgment.

## Decision

- The Ninth Circuit held the district court had FSIA jurisdiction over both the contract and tort claims against Nigeria and the Consulate.
- The court ruled the lease was “commercial activity” under FSIA, so sovereign immunity did not bar the breach-of-contract claim.
- The court agreed the alleged property damage and removals in the United States fell within FSIA’s noncommercial tort exception and were not protected as discretionary governmental functions.
- The court affirmed that the consular employee had no consular immunity because the alleged tortious acts were not performed in the exercise of consular functions.
- The court affirmed the order setting aside the default and the refusal to reinstate the default judgment, finding no abuse of discretion.
- Disposition: affirmed in part and reversed in part on FSIA jurisdiction (contract claim reinstated for jurisdiction), and otherwise affirmed.

## Legal Principles

- Under the FSIA, foreign states are presumptively immune from suit unless a statutory exception applies; FSIA provides the basis for subject-matter jurisdiction in such cases.
- The FSIA commercial-activity exception applies when the nature of the foreign state’s conduct is the type of act private parties perform; leasing U.S. residential property on ordinary terms qualifies even if done for official housing and without profit motive.
- The FSIA noncommercial tort exception permits suits for tortious injury or property damage occurring in the United States, subject to statutory limitations such as the discretionary-function carve-out.
- Consular immunity under the Vienna Convention on Consular Relations is function-based; it protects only acts performed in the exercise of consular functions, not private conduct incident to residential occupancy.
- District courts have discretion under Rule 60(b) to set aside defaults, and strong policy favors resolving cases on the merits when defendants raise substantial jurisdictional defenses and prejudice is limited.

## Conclusion

The Ninth Circuit held that a foreign state and its consular office could be sued in federal court over both a residential lease dispute and related U.S.-based property-damage torts under FSIA exceptions, that a consular employee was not immune for alleged residential torts outside consular functions, and that the district court acted within its discretion in setting aside and declining to reinstate a default judgment.


Joseph v. Off. of the Consulate Gen. of Nigeria, 830 F.2d 1018 (9th Cir. 1987)