Iskandar v. Embassy of the State of Kuwait , 106 F. Supp. 3d 226 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RANDA ISKANDAR,
Plaintiff,
Civil Action No. 14-721 (CKK)
v.
EMBASSY OF THE STATE OF KUWAIT,
Defendant.
MEMORANDUM OPINION
(May 28, 2015)
Plaintiff, who is represented by counsel, filed suit against her former employer, the
Embassy of the State of Kuwait, on April 24, 2014, alleging breach of contract as well as gender
discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. 2000e et seq. On September 17, 2014, Plaintiff moved for entry of default. A
day later, Defendant filed a Motion to Dismiss the Complaint. Presently before the Court are
Plaintiff’s and Defendant’s Motions. Upon consideration of the pleadings,1 the relevant legal
authorities, and the record as a whole, the Court shall DENY Plaintiff’s Motion for Entry of Default
and GRANT Defendant’s Motion to Dismiss.
I. BACKGROUND
For the purposes of Defendant’s Motion to Dismiss, the Court presumes the following facts
pled in Plaintiff’s Complaint to be true, as required when considering a motion to dismiss. From
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Plaintiff’s Motion for Entry of Default (“Pl.’s Mot.”), ECF No. [6]; Defendant’s Motion
to Dismiss Complaint (“Def.’s Mot.”), ECF No. [7]; Plaintiff’s Opposition to Defendant’s Motion
to Dismiss (“Pl.’s Opp’n”), ECF No. [8]; Defendant’s Opposition to Motion for an Order of
Default (“Def.’s Opp’n”), ECF No. [9].
2006 until her termination in January 2014, Plaintiff was employed as a claims processor at the
Health Office of the Embassy of the State of Kuwait. Compl. ¶ 10. The Health Office “acts as a
health insurance provider to Kuwaiti nationals,” id. ¶ 8, and “engages in activities similar to any
other health insurance provider, which include evaluating the validity of claims for health care
treatment, negotiating and issuing payment for claims to health care providers, and reimbursing
Kuwaiti citizens for out-of-pocket health care expenses,” id. ¶ 9. Plaintiff alleges that her
supervisor discriminated against her on the basis of her gender by engaging in various actions of
sexual harassment. Id. ¶¶ 13-23. Plaintiff also alleges that her supervisor retaliated against her
when she protested against his actions by creating a hostile work environment and, ultimately,
terminating Plaintiff’s employment. Id. ¶¶ 24-35.
Plaintiff filed suit against the Embassy of the State of Kuwait on April 24, 2014, alleging
breach of contract as well as gender discrimination, sexual harassment, and retaliation in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. On July 17, 2014, Plaintiff
filed an Affidavit of Proof of Service showing that Plaintiff served the First Secretary of the
Embassy of the State of Kuwait with the Complaint and Summons on July 15, 2014. See Affidavit
of Service, ECF No. [5]. As Defendant did not timely file an Answer, Plaintiff filed a Motion for
Entry of Default on September 17, 2014. The following day, Defendant filed a Motion to Dismiss
arguing that Plaintiff’s Complaint should be dismissed for failure to properly serve process, for
lack of personal jurisdiction, and for failure to state sufficient facts to establish the Court’s subject
matter jurisdiction over Defendant. Plaintiff filed an Opposition to Defendant’s Motion to Dismiss
and Defendant filed an Opposition to Plaintiff’s Motion for Entry of Default. No replies were
filed. Accordingly, Plaintiff’s and Defendant’s Motions are ripe for the Court’s review.
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II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Rule
12(b)(1). In so doing, the Court may “consider the complaint supplemented by undisputed facts
evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198
(D.C. Cir. 2003) (citations omitted). “At the motion to dismiss stage, counseled complaints, as
well as pro se complaints, are to be construed with sufficient liberality to afford all possible
inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm’n, 429 F.3d
1098, 1106 (D.C. Cir. 2005). In spite of the favorable inferences that a plaintiff receives on a
motion to dismiss, it remains the plaintiff’s burden to prove subject matter jurisdiction by a
preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90
(D.D.C. 2000). Furthermore, a court need not accept inferences drawn by the plaintiff if those
inferences are not supported by the facts alleged in the complaint. Odhiambo v. Republic of Kenya,
930 F. Supp. 2d 17, 22-23 (D.D.C. 2013), aff’d 764 F.3d 31 (D.C. Cir. 2014) (citing Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)).
B. Federal Rule of Civil Procedure 12(b)(4)
Federal Rule of Civil Procedure 12(b)(4) provides that a Court may dismiss a case due to
insufficiency of process if the plaintiff fails to establish that he or she has properly effected service
upon the defendant(s) pursuant to Federal Rule of Civil Procedure 4. Light v. Wolf, 816 F.2d 746,
751 (D.C. Cir. 1987). “The party on whose behalf service is made has the burden of establishing
its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied
the requirements of the relevant portions of Rule 4 and any other applicable provision of law.” Id.
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(quoting C. Wright & A. Miller, Federal Practice & Procedure § 1083, at 334 (1969)); see also
Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003) (holding that “the plaintiff carries the burden of
establishing that he has properly effected service”) (citation omitted).
III. DISCUSSION
At the outset, the Court notes that the parties agree that this case is governed by the Foreign
Sovereign Immunities Act (“FSIA”), since Defendant is an embassy of a foreign state and the
FSIA provides the sole basis for obtaining subject matter jurisdiction over a foreign sovereign
nation in the United States. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S.
428, 439 (1989). The parties also agree that an embassy must be served in the same manner as a
foreign state itself, i.e., pursuant to FSIA § 1608(a). See Howe v. Embassy of Italy, --- F.Supp.3d
---, 2014 WL 4449697, *6 (D.D.C. Sept. 11, 2014) (finding that “Embassy of Italy in Washington,
D.C., is an ‘integral part of a foreign state’s political structure,’ making it a ‘foreign state’ for the
purposes of the FSIA, subject to the service requirements of 28 U.S.C. § 1608(a)”); Ellenbogen v.
The Can. Embassy, No. 05–1553, 2005 WL 3211428, *2 (D.D.C. Nov. 9, 2005) (“[I]t is well-
settled that an embassy is a ‘foreign state’ . . . not an ‘agency or instrumentality’ thereof”);
Underwood v. United Republic of Tanzania, 1995 WL 46383, *2 (D.D.C. Jan. 27, 1995) (“[W]e
conclude that as a matter of law the embassy of a sovereign nation is a foreign state which must
be served pursuant to §1608(a)”).
Section 1608(a) provides that service be made: 1) by delivery of the summons and
complaint in accordance with any special arrangement between the Plaintiff and the foreign state
or political subdivision; or 2) if no special arrangement exists, in accordance with an applicable
international convention; or, if service cannot be made using the previous two methods, by 3)
sending the complaint documents with a translation into the official language of the foreign state,
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by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the
court to the head of the ministry of foreign affairs of the foreign state concerned; or, in last resort,
4) through the United States Secretary of State. 28 U.S.C. § 1608(a). The requirements of
§ 1608(a) must be strictly complied with. Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d
148, 154 (D.C. Cir. 1994). Plaintiff has not shown that any special arrangement exists between
Plaintiff and Defendant or that there is an applicable international convention governing service in
this case. Accordingly, Plaintiff should have attempted to effectuate service of process pursuant
to § 1608(a)(3) by asking the Clerk of Court to send the complaint documents with a translation,
by mail requiring a signed receipt, to the head of the ministry of foreign affairs of the state of
Kuwait. However, instead of serving the head of the ministry of foreign affairs, Plaintiff served
the First Secretary of the Embassy of the State of Kuwait in Washington, DC. See Affidavit of
Service, at 2. Plaintiff also did not request the Clerk of Court send the Complaint and summons
by mail requiring a signed receipt. Instead, the First Secretary of the Embassy was “personally
served with a Summons and Complaint.” Id.; Pl.’s Mot. ¶ 3. Accordingly, the Court finds that
Plaintiff did not properly effect service on Defendant. As Plaintiff did not adhere to the strict
requirements for service of process under the FSIA and Defendant nevertheless filed a Motion to
Dismiss, Plaintiff’s Motion for Entry of Default shall be DENIED.
Even though Plaintiff concedes that she did not properly effect service on Defendant,
Plaintiff argues that the Court should not grant Defendant’s Motion to Dismiss for failure to
properly serve because she acted diligently in attempting to serve Defendant. Instead, Plaintiff
asks the Court to deny Defendant’s Motion to Dismiss and grant her additional time to serve her
Complaint. Ordinarily, the Court would consider granting Plaintiff additional time to serve
Defendant and deny Defendant’s Motion to Dismiss. However, Plaintiff, who, the Court reiterates,
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is represented by counsel, has filed a Complaint that does not establish the Court’s subject matter
jurisdiction over this action. Plaintiff’s Complaint alleges federal question jurisdiction, 28 U.S.C.
§ 1331, and diversity jurisdiction, id. § 1332, as the grounds for subject matter jurisdiction in this
case. Compl. ¶ 3. However, the FSIA provides the sole basis for obtaining subject matter
jurisdiction over a foreign sovereign nation in the United States. See Argentine Republic, 488 U.S.
at 439. Plaintiff concedes as much, yet nowhere in her Complaint does Plaintiff even mention the
FSIA. Plaintiff’s counsel devotes much of the Opposition to Defendant’s Motion to Dismiss
arguing that the commercial activity exception to the FSIA applies in this case and, therefore, the
Court has subject matter jurisdiction over this case because Defendant is exempt from immunity
provided by the FSIA. See Pl.’s Opp’n at 4-6. But it is well established law that a plaintiff cannot
amend her complaint through her pleadings. See Sloan v. Urban Title Servs., Inc., 689 F. Supp. 2d
94, 114 (D.D.C. 2010) (explaining that a plaintiff cannot amend her complaint through her
opposition briefing); Juergens v. Urban Title Servs., 533 F. Supp. 2d 64, 75 (D.D.C. 2008) (same).
Once Defendant filed its Motion to Dismiss alerting Plaintiff to the fact that she had not
properly served Defendant pursuant to the FSIA (which Plaintiff promptly conceded) and
challenging the Court’s subject matter jurisdiction over this action, the appropriate course of action
by Plaintiff’s counsel would have been to file an amended complaint alleging that the FSIA
provides the Court with jurisdiction over this action if that is Plaintiff’s position. As Plaintiff’s
counsel has failed to properly serve Defendant and failed to allege in her Complaint a basis for the
Court’s subject matter jurisdiction over this action, the Court shall GRANT Defendant’s Motion
to Dismiss and DISMISS WITHOUT PREJUDICE Plaintiff’s Complaint.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Entry of Default is DENIED and
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Defendant’s Motion to Dismiss is GRANTED. Plaintiff’s Complaint is, therefore, DISMISSED
WITHOUT PREJUDICE. An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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