UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK LISETTE D. MUNTSLAG, Plaintiff, No. 12 Civ. 7037 BSI) ¥, PVDA; JAN PRONK; GEMEENTE AMSTERDAM; | STIPULATION and EBERHARD VAN DER LAAN, Defendants IT IS HEREBY STIPULATED AND AGREED that: 1. The time for Defendant Gemeente Amsterdam to serve an answer or responsive pleading or otherwise respond to Plaintiff's complaint is hereby extended to November 9, 2012; 2. If Defendant moves to dismiss the complaint on or before November 9, 2012, the time for Plaintiff to oppose such motion shall be extended to" December 7, 2012, and Defendant shall have until December 21, 2012 to serve a reply; 3. This stipulation shall not be construed as a waiver of any jurisdictional defenses, defenses based on the manner of service of process, or any other defenses, and ail such defenses are hereby expressly preserved. Dated: October 78, 2012 October _, 2012 GEMEENTE AMSTERDAM LISETTE D. MUNTSLAG Amstel 1 19 South Hamilton Street, Apt. 3° 1011 PN Amsterdam Poughkeepsie, New York 12601 Nether By: By: Lisette D. Muntslag On behalf of the City of Amsterdam Prose spos2647 M 9395886,Jan Pronk Mrs. Lisette D. Muntslag 19 South Hamilton Street, Apt 3° Poughkeepsie, New York 1260 USA Re: US District Court, Southern District New York, Civil Action 12 CIV 7037 Dear Mrs Muntslag, This is in order to reply to the complain” sent to me at my office address in The Hague, Jie-Netheriands, and to inform ou that I reject the claim. Yours sincerely, L Jan Proj c/o: P.O. Box 29776 2502 LT The Hague, The Netherlands October 4, 2012 Ce: US District Court Southern District New York, USAPRY Kingdom of the Netherlands The Honorable Cathy Seibel United States District Judge ‘The Honorable Charles L. Brieant, Jr. Federal Building and United States Courthouse 300 Quarropas Street White Plains, New York 10601-4150 Date November 6, 2012 Dear Judge Seibel: I represent the Government of the Kingdom of the Netherlands in the United States. It was recently brought to my attention that a lawsuit has been filed against Mr. Jan Pronk in his capacity as the former Secretary of State for International Development of the Netherlands, as well as the City of Amsterdam, the Mayor of Amsterdam, and the Dutch Labor Party. The lawsult Is captioned Lisette D. Muntslag v. PVDA, Jan Pronk, Gemeente Amsterdam, and Eberhard van der Laan, No. 12 Civ. 7037 (S.D.N.Y., filed Sept. 18, 2012), and has been assigned to Your Honor. The allegations in the Complaint concern each of the defendants’ respective roles, at various times during 1980 and the present, in local and national government in the Netherlands. ‘The lawsult is based on the Alien Tort Statute (ATS). Earlier this year, the Kingdom of the Netherlands has submitted to the United States Supreme Court on the application of the ATS that “[t]he basic principles of international law have never included civil jurisdiction for claims by foreign nationals against other foreign nationals for conduct abroad that have no sufficiently close connection with the forum State” (Brief of the Governments of the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of Neither Party in Esther Kiobel, et al., Petitioners, v. Royal Dutch Petroleum Co., et al., Respondents, at 6). This statement also applies to the present lawsuit. ‘The Brief continues to point out that “[flor the U.S. to allow the ATS to provide the basis for such claims would clearly interfere with other nations’ sovereignty and be plainly inconsistent with International law and the concept of international comity” (ibid.). 4200 Unnean avenue ni ‘Washington, OC 26008, Our reference waedoy083 2012 end,Taking also into account the entitlement of defendants to immunity from Bate suit, I respectfully request that the Court immediately dismiss this lawsuit Nevemver 2012 sua sponte and without need for defendants to incur the costs of ow rwerane Preparing a motion to dismiss. Respectfdily, Ruddtf Bekink Ambassador of the Kingdom of the Netherlands to the United States393 MAIN STREET + ARMONK. NY 10504 + PM. 914.749.8200 + FAX 914.749.8300 November 7, 2012 land-Delives ‘The Honorable Cathy Seibel, U.S.D.J ‘The Hon. Charles L. Brieant, Jr. Federal Building and United States Courthouse 300 Quarropas Street White Plains, New York 10601-4150 Ret Muntslag v. PVDA, et al., No. 12 Civ. 7037 (CS) (LMS) ‘Dear Judge Seibel: We represent defendants PVDA (the “Dutch Labor Party”), the City of Amsterdam, the ‘Netherlands (the “City” or “Amsterdam”), and the Mayor of Amsterdam, Mr. Eberhard Van der Laan (collectively, “Defendants") in the above-captioned matter. We write to advise the Court that the Kingdom of the Netherlands formally objects to the Court exercising jurisdiction over this matter. “The allegations in the Complaint concem the discretionary and non-commercial policies of a foreign government and Defendants’ roles in that government's n governmental affairs. The Netherlands is a sovereign nation; its political subdivision, agencies and instrumentalities are immune from suit under the common law and the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1604. Accordingly, we respectfully request sua sponte dismissal without further burden or cost to Defendants. In the altemative, we request a pre- motion conference to discuss the filing of a motion to dismiss. ‘The plaintiff, Ms. Muntslag, is a citizen of the Netherlands, who admits that she has lived in the United States illegally since 1999. Compl. at pp. 1, 30 and $f 25, 35. On or about September 18, 2012, she filed three pro se complaints against eleven foreign defendants under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350. Two of these complaints concer not her, but her daughter's, contract dispute with a car dealer in Belgium over a cancelled order and a €9,000 down payment, for which Ms. Muntslag seeks $85 million in damages. See Muntslag v. D'leteren, et al, No. 12 Civ. 7038 (TPG) (S.D.N.Y.); Mumslag v. N.V. Berens, et al, No. 12 Civ. 7168 (TPG) (S.D.N.Y.). ‘The Complaint in the present matter is a rambling recitation of Ms. Muntslag’s life story. Apparently, Ms. Muntslag intends to bring claims under the ATS, as well as claims for intentional and negligent infliction of emotional distress, for which she seeks $100 million in damages. She makes four categories of allegations: * The Complaint describes Ms. Muntslag’s various encounters during 1980-1999 with the Dutch welfare state. During this time-frame, the City apparently provided her with housing in a women’s shelter for two years (Compl. {4 7, 15), paid for her psychiatricBOlES, SCHILLER & FLEXNER LLP Honorable Cathy Seibel November 7, 2012 Page 4 of 5 Period under Dutch law, Neth. Civ. Code Art. 3:310(1), available at www.dutcheivillaw.com/ civileodebook033.htm, and under New York law, the limitations periods for intentional and negligent infliction of emotional distress are one year and three years respectively. Oshinsky v. N.Y.C. Hous. Auth, 2000 WL 1225796, at *7 (S.D.N.Y. Aug. 28, 2000) (citing N.Y. CPLR §§ 215(3), 214(5)). Accordingly, no matter what limitations period applies, Ms. Muntslag’s claims are time-barred Fifth, the emotional distress claims fail as a matter of law. They require the Court to determine that plaintiff's emotional damage did not result from lawful actions. Neth. Civ. Code Art. 6:162(1)-(), available at www dutchcivillaw.comv/civileodebook066.htm. But the Act of State doctrine precludes a U.S. court from questioning the legality of a foreign sovereign’s official acts within its own territory. See, e-g., W.S. Kirkpatrick & Co. v. Envi. Tectonics Corp., 493 U.S. 400, 409 (1990) (“[T]he acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.”); Friedar v. Gov't of Israel, 614 F. Supp. 395, 400 (S.D.N.Y. 1985) (holding that it would be “presumptuous for a United States court to review a foreign state’s intemal administrative activity"). ‘The ATS does not alter this conclusion, It is well-established that the ATS applies only to a violation of “the law of nations.” 28 U.S.C. § 1350; see Sasa v. Alvarez-Machain, 542 U.S. 692, 732 (2004) (ATS does not govern violations of international law “with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted,” such as offenses against ambassadors, violations of safe conduct, and piracy). The Complaint identifies no such violation of international law, Sixth, this case should be dismissed on forum non conveniens grounds because it has no nexus with the United States (other than the fact that New York is where Ms. Muntslag chose to illegally reside). All Defendants are Dutch, and reside or have their official seat in the ‘Netherlands. Presumably, all witnesses are in the Netherlands, and all evidence is in Dutch. All alleged conduct occurred in the Netherlands, so that any cognizable tort claims are governed by Dutch law. “Dutch courts are far better situated to apply and interpret Dutch law,” Beekmans v, JP. Morgan & Co., 945 F. Supp. 90, 94 (S.D.N.Y. 1996), and they have repeatedly been held to provide adequate alternative forums. See, e-g., Lust v. Nederlandse Programma Stichting, 20\1 WL 3279183, at *2 (S.D.N.Y. July 18, 2011). There is nothing that justifies a trial in this Court Ms. Muntslag appears to have suffered a great many traumatic experiences and misfortunes in her life, including the suicides of her friend and her lawyer (id. $§ 19, 23) and the passing of her mother. id. 4 31. In addition, Ms. Muntslag has suffered significant emotional injury from welfare benefits being paid weekly, which put her “on the verge of a nervous breakdown” (id. 47), as well as the rejection by various re-migration programs (id. J¥ 18, 21), the denial of a small business loan by a commercial bank (id. 23), the denial of political asylum in the United States (id. $7 28, 32), the U.S. Citizen and Immigration Services’ notice that she is a “fugitive from the law” (id. §¥ 35-36), and the assassination of a prominent Dutch politician (Who she does not appear to have known personally but whose death she experienced as “theBOIES, SCHILLER & FLEXNER LLP Honorable Cathy Seibel November 7, 2012 Page 3 of 5 USS, 349, 355 (1993) (°[A] foreign state is presumptively immune from the jurisdiction of United States courts.”); 28 U.S.C. § 1603(a)-(b) (defining “foreign state” to include political subdivision, organ, agency, or instrumentality). This immunity also extends to foreign government ministers, see, e.g., First Nat'l City Bank v. Banco para el Comercio Exterior de Cuba, 462 U.S. 611, 618 n.5 (1983) (Cuba's Ministry of Foreign Trade “is no different than the Goverment of which its minister is a member”); Garb v. Rep. of Poland, 440 F.3d 579, 595 (24 Cir. 2006) (Poland’s Ministry of the Treasury falls within FSIA’s political subdivision provision); Smith v. Ghana Commercial Bank, Lid. 2012 WL 2930462, at *10 (D. Minn, June 18, 2012) (Ghana's Attomey General immune from suit), and any other goverument official with respect to acts performed in his official capacity. Heaney v. Gov't of Spain, 445 F.2d 501, 504 (2d Cir. 1971) (citation omitted), accord Underhill v. Hernandez, 65 F. 577, 600 (24 Cir. 1895) (“[lndividuals are not answerable in foreign tribunals for acts done in their own country, in behalf of their government, by virtue of their official authority.”). It also extends’ to municipalities. O°Connell Mach. Co. v. MY. Americana, 734 F.2d 115, 116 (2d Cir. 1984) (local governments” are political subdivisions); Malewiez v. City of Amsterdam, 362 F. Supp. 2d 298, 306 (D.D.C. 2005) (“The City of Amsterdam is clearly a ‘political subdivision’ of The Kingdom of the Netherlands and is therefore a “foreign state’ within the meaning of the FSIA.”), As for the Dutch Labor Party, the Complaint alleges no conduct independent of its role in national and local government. See Saludes v. Rep. de Cuba, 577 F. Supp. 24 1243, 1253 (S.D. Fla, 2008) (ruling party is “agency or instrumentality” of forcign state); Kalasho v. Rep. of Irag, 2007 WL 2683553, at *6 (E.D. Mich. Sept. 7, 2007) (formerly ruling Socialist Party fits definition of agency or instrumentality), Second, service of process was improper. Pursuant to Rule 4, service on foreign defendants must be made by “intemationally agreed means of service . . . such as those authorized by the Hague [Service] Convention. .. .” Fed. R. Civ. P. 4(6)(1); see also 28US.C. § 1608(a)(2) (service on foreign state or political subdivision). In her October 24, 2012 letter to the Court, Ms. Muntslag concedes that the manner of service she used was in error and not Pursuant to the Hague Service Convention. Third, this Court lacks personal jurisdiction over Defendants, who are not alleged to have even minimum contacts with the State of New York. Int’! Shoe Co. v. Wash., 326 U.S. 310, 320 (1945) (due process requires, at a minimum, that defendant carries on “systematic and continuous” activities with the territory of the forum). Nor are any of their actions alleged to have occurred in the United States. See 28 U.S.C. §§ 1605(a)(5), 1330(a)-(b). Fourth, all of plaintiff's claims are time-barred. Ms. Muntslag moved to New York in October 1999. Id. 25. She alleges no conduct by, or any contact with, any Defendant since that time. The ATS “carries a 10 year limitations period.” Sikhs for Justice v. Nath, 2012 WL 4328329, at *28 (S.D.N.Y. Sept. 21, 2012); accord Ellul v. Congregation of Christian Bros., 2011 WL 1085325, at *4 (S.D.N.Y. Mar. 23, 2011), Tort claims carry a five-year limitationsBOlES, SCHILLER & FLEXNER LLP Honorable Cathy Seibel November 7, 2012 Page 2 of 5 treatment for three years (id. $49, 19), and paid “generous” welfare benefits for some fifteen years. [d. 4913, 7, 16-17, 19-20, 22. Ms. Muntslag’s primary grievances are that these benefits had certain conditions—that she actively seek and remain available for full-time employment, not travel to South America for six weeks, and accept certain jobs the government offered her. {d. $f 16-20, 22. According to Ms. Muntslag, these conditions amounted to “continuous and inhumane treatment as a slave of the state [of the Netherlands)” and implied a “life of torture and violence against [her] person.” Id. Ff 1, 4. * A lower-level government worker in Amsterdam, a certain Jan Beerenhout, wrote Ms. Muntslag letters “more of a personal nature” and once solicited sexual favors. id. $f] 11- 13. This is alleged to have occurred in Amsterdam, on or about 1993. Id. * The Dutch Labor Party is alleged to have had government responsibility, both nationally and locally, in Amsterdam. The Complaint contains no allegations about the Dutch Labor Party that go beyond its role in national and municipal government, other than the assertion that Mr. Beerenhout and the City official to whom Ms. Muntslag complained about Mr, Beerenhout were “members” of this political party. Id. | 12. + Defendant Jan Pronk, also a member of the Dutch Labor Party, is sued in his capacity as the former Secretary of State (International Development) of the Kingdom of the Netherlands from 1973 to 1977. Id. 438. Ms. Muntslag alleges that in this capacity Mr. Pronk facilitated Suriname’s independence in 1975. Id. She also alleges that a non-profit organization that denied Ms. Muntslag entry into a government-run re-migration program in 1997 was first created during Mr. Pronk’s tenure. Id. [21 Mayor Van der Laan is apparently sued pro forma, in his capacity as Mayor of Amsterdam. ‘There are no allegations regarding any conduct by this Defendant. Ms. Muntslag only alleges that before he was Mayor she had a brief communication with him in 1993. Id. 4 10. ‘The Complaint is patently frivolous, and should be dismissed with prejudice for at least six independent reasons. First, and most importantly, this Court has no subject matter jurisdiction. Foreign states, including municipalities and other political subdivisions, enjoy statutory and common law immunity from suit in a U.S. court. See Saudi Arabia v. Nelson, 507 ' Ms, Muntslag also alleges that when she flew to Amsterdam on @ Suriname passport in 1980, five years after Suriname gained independence from the Netherlands, the Dutch Immigration authorities trated her as a Surinamese, not a Dutch, citizen. Because her petition for Dutch citizenship to Her Majesty the Queen was ineffective, Ms. Muntslag felt “forced” to obtain Dutch citizenship through fraud, by entering into a fake marriage with her sister’s boyfriend. Compl. 9f 1-2. The Queen and the Immigration authorities are not part of Amsterdam’s municipal government.BOIES, SCHILLER & FLEXNER LLP Honorable Cathy Seibel November 7, 2012 Page 5 of 5 ultimate assault on (her) person,” id. at p. 29), In her own words, these occurrences made her “furious” and “very distraught” (id. $9 21, 35), caused “anxiety” and “emotional distress” (id. 28, 32), and put her in “a state of shock,” “another episode of acute depression,” “emotional turmoil,” and “an existential crisis.” 1d. $Y 19, 23, 31. Emotional issues like these, and the realization that she “had enough” of living under “substandard conditions,” apparently caused Ms. Muntslag to abandon her nine-year old daughter for four years so that Ms. Muntslag herself could “blossom[]” in New York. /d. fff 4-6. It is obvious that Ms. Muntslag has issues that cannot be resolved in a court of law. For these reasons, Defendants respectfully request a sua sponte dismissal for lack of subject matter jurisdiction, without further burden or cost to them, or in the alternative, a pre- motion conference at the Court’s earliest convenience so that Defendants may proceed with their motion to dismiss. pectfully, Enel cc: Ms, Lisette D. Muntslag, pro se (by email)SDNY-WP. Teev-7037 Seibel J United States Court of Appeals SECOND CIRCUIT Ata 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 25 day of June, two thousand thirteen. Present: Chester J. Straub, Peter W. Hall, Denny Chin, Circuit Judges. Lisette D. Muntslag, Plaintiff-Appellant, v. 13-364 PVDA, etal, Defendants-Appellees. Appellant, pro se, moves for appointment of counsel. Upon due consideration, it is hereby ORDERED that the motion is DENIED and the appeal is DISMISSED because it lacks an arguable basis in law or fact. See 28 U.S.C. § 1915(€); Neitzke v. Williams, 490 U.S. 319, 325 (1989) (defining when an action lacks an arguable basis in law or fact). FOR THE COURT: Catherine O”Hagan Wolfe, ClerkUNITED STATES DISTRICT COURT CAS Wh SOUTHERN DISTRICT OF NEW YORK © [P if LISETTE D. MUNTSLAG, Plaintiff, ae 12-CV-1037 (C8) PVDA, JAN PRONK, GEMEENTE AMSTERDAM, and ORDER EBERHARD VAN DER LAAN, Defendants. Seibel, J, Plaintiff filed her pro se Complaint against various persons and entities in The Netherlands on September 18, 2012. (Doc. 1.) By letters dated November 6, 2012, (Doc. 8), and November 7, 2012, (Doe. 9), Defendants seek sua sponte dismissal. A district court must read pro se pleadings liberally and construe them to raise the strongest arguments they suggest. See Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Buta district court also has the inherent power to dismiss a case on its own motion, even if the plaintiff has paid the filing fee, if the claims are frivolous. See Morse v. Network of Al-Queda Attorneys, No. 12-CV-1102, 2012 WL 1155821, at *4 (E.D.N.Y. Apr. 5, 2012) (collecting cases).' “An action is frivolous if it lacks an arguable basis in law and fact—~i.e., where it is bbased on an indisputably meritless legal theory or presents factual contentions which are clearly baseless.” Scanion v. Vermont, 423 F. App’x 78, 79 (2d Cir. 2011) (summary order) (intemal quotation marks and alteration omitted). The Complaint here is frivolous. Although it purports to be brought pursuant to the Alien Tort Statute, 28 U.S.C. § 1350, and although it sets out a lengthy narrative of unfortunate ‘ Plaintiff will be provided with copies of all unpublished decisions cited in this Order.occurrences, it nowhere sets forth, and I cannot discern, what tort(s) Plaintiff is alleging, Defendants committed, Even if I could ascertain the basis of the claims, they would be barred essentially for the reasons set forth in Doe. 9. For example, as set forth in that letter, no conduct by the Defendants within the statute of limitations is alleged; no basis for personal jurisdiction is alleged; and foreign states, municipalities and officials are immune from suit in this country for their actions in their own country. Accordingly, the Complaint is dismissed. Leave to amend should be “freely give[n} .. . when justice so requires.” Fed. R. Civ. P, 15(a)(2); see Zucker v. Five Towns Coll., No. 09-CV-4884, 2010 WL 3310698, at *3 (E.D.N.Y. ‘Aug. 18, 2010). Itis within the discretion of the district court to grant or deny leave to amend, MeCarthy v. Dun & Bradstreet Corp., 482 F.34 184, 200 (2d Cir. 2007), and “{lJeave to amend, though liberally granted, may properly be denied for,” among other things, “futility of amendment,” Ruotolo v. City of N.Y., 514 F.34 184, 191 (24 Cir. 2008) (internal quotation marks omitted), I decline to grant Plaintiff leave to amend because it seems clear that such amendment would be futile, ‘The reason for dismissal is substantive, and better pleading would not lead toa different result. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (leave to amend should be denied as futile where problem with complaint is substantive and better pleading would not cure it), Nevertheless, | will give Plaintiff a chance to convince me otherwise. Should Plaintiff wish to amend, and should she have a good-faith basis for believing she can advance non-frivolous claims, she should make a motion for leave to amend. Plaintiff should: 1) attach a proposed First Amended Complaint (“FAC”) to her motion; 2) explain clearly in that proposed FAC what tort(s) she is alleging have been committed by what Defendant(s), and specify the acts that constitute those tort(s); and 3) address in her motion the issues raised inDoc. 9. Any such motion for leave to amend should be filed within thirty (30) days of the date of this Order. For the foregoing reasons, the Complaint is DISMISSED on the court’s own motion. ‘The Clerk of Court is respectfully directed to close the case. SO ORDERED. Dated: November A& 2012 White Plains, New York