GEORGE JARROD HAZEL, District Judge.
This Memorandum and Order addresses Defendant's Motion to Dismiss and/or for Summary Judgment, ECF NO.7, and supporting memorandum, ECF No. 7-1, and Plaintiff's Opposition to Defendant's Motion to Dismiss, ECF No.8, and supporting memorandum ECF No. 8-1. I find that a hearing is unnecessary in this case. See Local Rule 105.6. For the reasons stated below, Defendant's Motion to Dismiss and/or for Summary Judgment is denied.
This action arises out of a motor vehicle accident that occurred in Montgomery County, Maryland on November 12, 2012 that was allegedly caused by Tchouli Gombo ("Gombo"), a citizen of the nation of Chad and an employee of the Embassy of Chad. ECF No.1 at ¶¶ 2, 7, 8. Christopher Rodriguez ("Plaintiff') was a passenger in a vehicle that was stopped at a red light when the vehicle he was in was rear-ended by Gombo. Id. at ¶¶ 2, 8. As a result of the collision, Plaintiff suffered serious physical injuries. Id. at ¶ 12. The vehicle operated by Gombo was insured by the defendant, Hanover Insurance Co. ("Hanover') Id. at ¶ 4.
Plaintiff has commenced this Negligence action against Hanover pursuant to 28 U.S.C. § 1364(a), which grants the federal district court "original and exclusive jurisdiction" over direct actions brought against any liability insurer "who by contract has insured an individual, who is ... a member of a [diplomatic] mission," as defined in 22 U.S.C. § 254(a) of the Diplomatic Relations Act or in § 19 of the Convention on Privileges and Immunities of the United Nations of February 13, 1946. See 28 U.S.C. § 1364(a)
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint if it fails to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). The purpose of Rule 12(b)(6) "is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). To that end, the Court bears in mind the requirements of Fed. R. Civ. P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and must state "a plausible claim for relief," as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal, 556 U.S. at 678-79. See Bhari Info. Tech. Sys. Private Ltd. v. Sriram, 984 F.Supp.2d 498, 501 (D. Md. 2013) (discussing standard from Iqbal and Twombly). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663.
Furthermore, "[t]he appropriate venue of an action is a procedural matter that is governed by federal rule and statutes." Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d 643, 650 (4th Cir. 2010) (citing Fed.R.Civ.P. 12(b)(3), 28 U.S.C. § 1391, and 28 U.S.C. § 1406(a)). A defendant may move to dismiss an action for improper venue pursuant to Fed.R.Civ.P. 12(b)(3). In the Fourth Circuit, "when venue is challenged by a motion to dismiss, the plaintiff bears the burden of establishing that venue is proper." Jones v. Koons Auto., Inc., 752 F.Supp.2d 670, 679-80 (D. Md. 2010).
Section 1364 was enacted in 1978 as part of the Diplomatic Relations Act (the "Act"), Pub.L. No. 95-393, 92 Stat. 808 (1978). The Act, which constituted a substantial revision of the law of diplomatic immunity, contains three provisions which are of relevance to this lawsuit. First, "Section 5 of the Act
Int'l Grp., No. 96-1177, 1997 WL 223076, at * 1 (S.D.N.Y. May 1, 1997) (citing Windsor, 509 F.Supp. at 344-45 ("The Diplomatic Relations Act (the Act) was designed, in part, to deal with the inequities associated with the immunity of members of diplomatic missions in civil court proceedings.")). This inequity was remedied by (1) requiring diplomats to obtain insurance and (2) allowing injured persons to sue the diplomats' insurers directly. See Windsor, 509 F.Supp. at 345. Thus, the inequity the statute was intended to remedy is precisely the inequity Hanover's motion would seek to impose in this case.
Here, Plaintiff has brought a direct action of Negligence against Hanover. In support of the claim, Plaintiff has alleged that he was injured as a result of a collision negligently caused by Gombo; that Havover insured Gombo at the time of the accident and that Gombo is a diplomat from the African nation of Chad. See ECF No.1 at ¶ 2-4. As such, Plaintiff contends that he has stated a direct cause of action against Hanover and that jurisdiction under § 1364(a) is proper. Id. at ¶ 5. Hanover disagrees. Hanover contends that Maryland "does not allow a direct suit by an alleged injured party against an insurance company for the alleged tort-feasor." ECF No. 7-1 at 2. Hanover further contends that jurisdiction under § 1364(a) is improper because Plaintiff has failed to adequately allege "that Mr. Gombo was a member of a mission that would be protected by 22 U.S.C. 254(a)(3)." Id. at 3. The Court rejects both contentions.
In support of its position that Plaintiff cannot bring a direct suit against an insurer, Hanover cites Freed v. State Farm Auto. Ins. Co., 491 F.2d 972 (5th Cir. 1974). While Freed does address the issue of a direct claim against an insurer, Freed is inapposite insofar as it did not involve the application of 28 U.S.C. § 1364(a) and, as explained above, § 1364(a) provides a direct cause of action against the insurer of a diplomat. See 28 U.S.C. § 1364(a). Thus, Freed is unhelpful to Hanover and its argument fails.
Hanover's argument that Plaintiff has not adequately alleged that Gombo was a member of a mission and therefore fails to establish jurisdiction under § 1364(a) also fails. 22 U.S.C. § 254a(3), the provision of the Diplomatic Relations Act referenced in 28 U.S.C. § 1364(a), explains that "the term `mission' includes missions within the meaning of the Vienna Convention and any missions representing foreign governments, individually or collectively, which are extended the same privileges and immunities, pursuant to law, as are enjoyed by missions under the Vienna Convention." See 22 U.S.C. § 254a(3). In turn, Article 1 of the Vienna Convention defines "members of a mission" as "the head of the mission and the members of the staff of the mission." Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes art. 1, Apr. 18, 1961, 23 U.S.T. 3227, 1972 WL 122692. Despite Hanover's contention that "[t]he only facts pled are that Mr. Gombo was operating a vehicle owned by the Embassy of Chad" (ECF No. 7-1 at 3), Plaintiff quite clearly alleges that "at all relevant times, [Gombo], was employed on the staff of His Excellency the Ambassador from Chad, Bechir Mahamoud Adam." ECF NO.1 at ¶ 2. Taking this allegation as true. as this Court must at this stage of the proceeding. Plaintiff has adequately alleged that Gombo was a staff member of the Embassy of Chad and thus a member of a mission protected by 22 U.S.C. 254(a)(3). Accordingly, Plaintiff has adequately alleged jurisdiction under § 1364(a).
Finally, Hanover contends that this case must be dismissed because venue is improper. See ECF No. 7-1 at 3. In essence, Hanover argues that Plaintiff cannot properly establish venue since it has not adequately pled facts to conclusively establish Hanover's residence. See id; see also 28 U.S.C. § 1391(1) (venue proper in "a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located"). For present purposes, however, Hanover's residency is irrelevant to establishing venue. Under § 1391(b)(2), a civil action may be brought in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. . . ." 28 U.S.C. § 1391(2). Here, there is no dispute that the events giving rise to this action — the automobile collision purportedly caused by Gombo — occurred in Montgomery County, Maryland, which is found in the District of Maryland. See ECF NO.1 at ¶¶ 3, 7-9. Plaintiff has therefore carried its burden of showing that venue is proper, irrespective of Hanover's residency.
Accordingly, for the aforementioned reasons, Defendant's Motion to Dismiss and/or for Summary Judgment is DENIED.
(a) The district courts shall have original and exclusive jurisdiction, without regard to the amount in controversy, of any civil action commenced by any person against an insurer who by contract has insured an individual, who is, or was at the time of the tortious act or omission, a member of a mission (within the meaning of section 2(3) of the Diplomatic Relations Act (22 U.S.C. 254(a)(3))) or a member of the family of such a member of a mission, or an individual described in section 19 of the Convention on Privileges and Immunities of the United Nations of February 13, 1946, against liability for personal injury, death, or damage to property.
(b) Any direct action brought against an insurer under subsection (a) shall be tried without a jury, but shall not be subject to the defense that the insured is immune from suit, that the insured is an indispensable party, or in the absence of fraud or collusion, that the insured has violated a term of the contract, unless the contract was cancelled before the claim arose.
