Law Offices of Arman Dabiri & Associates P.L.L.C. v. Agricultural Bank of Sudan ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LAW OFFICES OF ARMAN DABIRI &
ASSOCIATES P.L.L.C.,
Plaintiff,
v. Civil Action No. 17-2497 (RDM)
AGRICULTURAL BANK OF SUDAN, et
al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff, the Law Offices of Arman Dabiri & Associates, P.L.L.C., is suing the
Agricultural Bank of Sudan (“ABS”), the Central Bank of Sudan, the Ministry of Agriculture and
Forests, and Salah Edin Hassan Ahmed, the General Manager of ABS, for breach of a retainer
agreement. The matter is before the Court on the institutional defendants’ motion to dismiss,
Dkt. 12, and defendant Ahmed’s motion to dismiss, Dkt. 14. For the reasons set forth below, the
Court will GRANT the institutional defendants’ motion to dismiss with respect to the Central
Bank of Sudan and the Ministry of Agriculture and Forests and will DENY the motion with
respect to ABS. The Court will also DENY defendant Ahmed’s motion to dismiss.
I. BACKGROUND
For purposes of the pending motion, the Court accepts as true the facts alleged in the
complaint, Dkt. 1. See Wood v. Moss, 572 U.S. 744, 755 n.5 (2014); see also Williams v.
Ellerbe, 317 F. Supp. 3d 144, 146 (D.D.C. 2018).
A. Factual Background
Plaintiff, the Law Offices of Arman Dabiri & Associates, is “a professional limited
liability company existing under the laws of, and doing business in, the District of Columbia.”
Dkt. 1 at 2 (Compl. ¶ 2) (capitalization omitted). “On or about March 2017, [Plaintiff] was
contacted by [ABS] through a designated agent, seeking legal representation and legal counsel
for [ABS] in the United States.” Id. at 6 (Compl. ¶ 17). At the time, the United States was
“loosening . . . sanctions against Sudan,” which had long been designated as “a State Sponsor of
Terrorism,” “on a probationary basis.” Id. at 4, 6 (Compl. ¶¶ 10, 16). On April 27, 2017, ABS
followed up this inquiry by sending Plaintiff a “Letter of Interest,” seeking legal assistance for
“establishing relationships with the USA and US financial institutes” and “completing the
removal of [US] sanctions.” Id. at 6 (Compl. ¶ 18) (alteration in original).
On May 5, 2017, ABS and Plaintiff “executed a Retainer Agreement.” Id. at 7 (Compl.
¶ 19). Although Plaintiff did not attach the retainer agreement to the complaint, the institutional
defendants submitted the agreement as an attachment to their motion to dismiss, see Dkt. 12-2
(Attachment A). 1 The retainer agreement sets forth the following terms:
1. Counsel will provide the following services to ABS:
a. Serve as the attorney of record and provide legal services in
connection with achieving the above state[d] goals for ABS.
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“A district court may consider documents attached to a motion to dismiss, without converting
the motion into a motion for summary judgment, if those documents’ authenticity is not disputed,
they were referenced in the complaint, and they are ‘integral’ to one or more of the plaintiff’s
claims.” Scott v. J.P. Morgan Chase & Co., 296 F. Supp. 3d 98, 105 (D.D.C. 2017) (citing
Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015); Kaempe v. Myers,
367 F.3d 958, 965 (D.C. Cir. 2004)). Here, the retainer agreement is referenced in the complaint
and central to Plaintiff’s breach of contract claim. Because Plaintiff does not dispute the
authenticity of the document—and, in fact, references the attachment in its own briefing—the
Court will consider the terms of the retainer agreement for purposes of resolving this motion.
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b. Serve as legal Counsel in any meeting or negotiations between
ABS and the United States Government or any of its
departments and/or agencies.
c. Serve as legal Counsel in drafting any necessary agreements,
accords, treaties or understandings between ABS and the
United States Government or any of its departments and/or
agencies.
d. Serve as legal counsel in any meeting or negotiations with US
financial institutions.
d. Serve as legal Counsel in negotiating, reviewing,
drafting/editing of necessary contracts or agreements with US
financial institutions.
e. Serve as legal Counsel in any disputes between ABS and the
United States Government or any of its departments and/or
agencies.
f. Serve as legal Counsel in in any disputes between ABS and US
financial institutions and entities.
Id. at 3 (Attachment A). The agreement also includes the following provision regarding the
“computation of fees” and their payment:
3. In consideration for the services rendered and to be rendered on ABS’s
behalf by Counsel, the ABS hereby agrees to pay a lump sum agreed
upon fee. . . .
4. Counsel will require a retainer of $200,000 USD. The retainer fee will
be due immediately to Counsel upon the execution of the “Retainer
Agreement” in the manner provided for in attached Appendix A to this
Agreement.
Id. at 5 (Attachment A). Each page of the retainer agreement bears the stamp of the General
Manager of ABS, and the final page is signed by Mr. Ahmed. See generally id. (Attachment A).
Plaintiff alleges that, after signing the agreement, it “immediately” began to work on
“establishing . . . a banking relationship between ABS and US financial institutions” and
“continu[ing] the easing of sanctions against Sudan.” Dkt. 1 at 7. (Compl. ¶ 20). To that end,
Plaintiff alleges that it performed the following legal services: (1) it “undertook an extensive
review of all sanctions as well as all litigation against Sudan including cases by U.S. plaintiffs
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against Sudan under the terrorism exception to the Foreign Sovereign Immunities Act;” (2) it
prepar[ed] for an anticipated trip by various Sudanese officials to Washington, D.C.;” and (3) it
“establish[ed] a banking relationship with an identified US Bank for purposes of several
anticipated contracts with US companies specializing in irrigation and agricultural equipment.”
Id. at 7, 8, 9 (Compl. ¶¶ 21, 22, 24).
Although ABS “cooperated” with Plaintiff from May to July 2017 by “providing the
necessary documents for establishing [a] financial and banking relationship with an identified US
Bank,” id. at 8 (Compl. ¶ 22), the relationship quickly soured. ABS informed Plaintiff that its
payment of the $200,000 retainer would be temporarily delayed “due to alleged problems with
obtaining hard currency from the Central Bank of Sudan.” Id. (Compl. ¶ 23). Nevertheless,
ABS allegedly “requested” that Plaintiff continue its work “based on promises and assurances
that payment pursuant to the retainer agreement would be forthcoming.” Id. No payments,
however, were provided to Plaintiff even after “a full banking relationship was established
between ABS and a US Banking institution” on July 7, 2017. Id. at 9 (Compl. ¶¶ 24, 25).
Instead, “ABS (and its designated agent) . . . provid[ed] contradictory information regarding the
timing of payment,” id. (Compl. ¶ 25), and, eventually, “stopped responding to [P]laintiff”
despite “several reports and demand letters” that Plaintiff sent between July and September 2017,
id. (Compl. ¶ 26).
On September 15, 2017, Plaintiff sent a final demand letter “for the outstanding fees
pursuant to the retainer agreement to the General [M]anager of the ABS as well as the newly
appointed Minister of Agriculture and Forests in Sudan.” Id. (Compl. ¶ 28). Receiving no
response, Plaintiff filed this lawsuit on November 1, 2017, for breach of contract, seeking a total
of $200,000 plus interest. Id. at 10 (Compl. ¶ 29). Both sets of defendants now move to dismiss
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the case for lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1), lack of personal
jurisdiction, Fed. R. Civ. P. 12(b)(2), insufficient service of process, Fed. R. Civ. P. 12(b)(5), and
failure to state a claim, Fed. R. Civ. P. 12(b)(6). Dkt. 12 at 1; Dkt. 14 at 1.
B. Statutory Background
Under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq., a
foreign state, including its instrumentalities, is immune from suit in state or federal court unless
the plaintiff’s claims fall within an express statutory exception. See Kilburn v. Socialist People’s
Libyan Arab Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir. 2004). For present purposes, the sole
relevant exception is found in the “commercial activity exception,” 28 U.S.C. § 1605(a)(2),
which confers subject-matter jurisdiction on federal courts to hear, inter alia, an action “based
upon a commercial activity carried on in the United States by a foreign State,” id.; see also 28
U.S.C. § 1330(a). The parties dispute whether entering into, and allegedly breaching, a retainer
agreement with a D.C. law office is a commercial activity that falls under the exception.
Compare Dkt. 12-1 at 19 (“The commercial activity exception does not apply, as the basis for the
Retainer Agreement was to assist with what appear to be governmental functions.”), with Dkt 13
at 12 (“The hiring of legal counsel is clearly a commercial activity . . . .”).
The FSIA also addresses personal jurisdiction and specifies precise procedures that a
plaintiff must follow—at times with the assistance of the clerk of the court and the U.S.
Department of State—to effect service on a foreign state and its instrumentalities. See 28 U.S.C.
§ 1608. Here, the parties agree that service should have been effectuated pursuant to
§ 1608(a)(3), which states:
Service in the courts of the United States and of the States shall be made upon
a foreign state or political subdivision of a foreign state . . . by sending a copy
of the summons and complaint and a notice of suit, together with a translation
of each into the official language of the foreign state, by any form of mail
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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 . . . .
Id. District courts have personal jurisdiction over a foreign state if, and only if, the foreign state
is served in conformity with § 1608, and the court has subject-matter jurisdiction pursuant to §§
1605–1607. Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 89 (D.C. Cir. 2002);
28 U.S.C. § 1330(b).
II. LEGAL STANDARD
A motion to dismiss brought under Rule 12(b)(1) of the Federal Rules of Civil procedure
challenges the Court’s subject-matter jurisdiction. Plaintiff bears the burden of establishing by a
preponderance of the evidence that the court has subject-matter jurisdiction. See Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561 (1992).
Rule 12(b)(5) governs motions to dismiss for insufficient service of process. Plaintiff
bears the burden of proving that it effectuated proper service. Hilska v. Jones, 217 F.R.D. 16, 20
(D.D.C. 2003). “[U]nless the procedural requirements for effective service of process are
satisfied, a court lacks authority to exercise personal jurisdiction over the defendant.” Candido
v. District of Columbia, 242 F.R.D. 151, 160 (D.D.C. 2007) (citing Gorman v. Ameritrade
Holding Corp., 293 F.3d 506, 514 (D.C. Cir. 2002)). Failure to effect proper service is grounds
for dismissal. See id. at 164. However, the Court can, “in its sound discretion,” also “direct that
service be effected within a particular period of time.” Wilson v. Prudential Fin., 332 F. Supp.
2d 83, 89 (D.D.C. 2004) (citing Fed. R. Civ. P. 4(m)).
Finally, a motion to dismiss brought under Rule 12(b)(6) is designed to “test[] the legal
sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In
evaluating such a motion, the Court “must first ‘tak[e] note of the elements a plaintiff must plead
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to state [the] claim’ to relief, and then determine whether the plaintiff has pleaded those elements
with adequate factual support to ‘state a claim to relief that is plausible on its face.’” Blue v.
District of Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015) (alterations in original) (internal citation
omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 678 (2009)). Although “detailed factual
allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as
true, to ‘state a claim to relief that is plausible on its face,’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570).
III. ANALYSIS
A. Institutional Defendants’ Motion to Dismiss
ABS advances three grounds for dismissal on behalf of the institutional defendants: (1)
Plaintiff failed to comply with the service requirements set forth in § 1608(a)(3); (2) defendants
are entitled to sovereign immunity from suit under the FSIA; and (3) Plaintiff has failed to state a
claim for breach of contract. Although the Court agrees that Plaintiff has not yet perfected
service of process on any of the defendants, the Court will provide Plaintiff with a further
opportunity to correct the technical defects in its efforts to serve ABS and Ahmed. Because the
Central Bank of Sudan and the Ministry of Agriculture and Forests are not parties to the retainer
agreement, however, the Court concludes that it lacks subject-matter jurisdiction over those
defendants, and thus, any further efforts to effect service would be futile.
1. Service
ABS contends that, because “Plaintiff did not strictly comply with § 1608(a)(3) and serve
the head of ministry of foreign affairs of Sudan,” and, instead, addressed the mailings to each
defendant using the address for the ministry of foreign affairs, “Plaintiff’s complaint should be
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dismissed.” Dkt. 12-1 at 17; see also Dkt. 4 (Aff. Requesting Foreign Mailing to ABS); Dkt. 6
(Aff. Requesting Foreign Mailing to Ministry of Agric. and Forests); Dkt. 7 (Aff. Requesting
Foreign Mailing to Central Bank of Sudan); Dkt. 9 (Certificate of Clerk). Plaintiff responds that
the case law in the D.C. Circuit establishes that “mailing to the Ministry of Foreign Affairs
constitutes strict compliance with the requirements” of § 1608(a)(3), regardless of the addressee.
Dkt. 13 at 10 (citing Barot v. Embassy of the Republic of Zambia, 785 F.3d 26, 28 (D.C. Cir.
2015); Transaero, Inc.v. Furez Area Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994)). The Court
agrees with ABS that Plaintiff failed strictly to comply with service requirements under
§ 1608(a)(3). Nevertheless, the Court will, in its discretion, allow Plaintiff the opportunity to
perfect service.
The D.C. Circuit has long held that “strict adherence to the terms of 1608(a) is required.”
Transaero, Inc., 30 F.3d at 154. Although Plaintiff argues that it is “common practice” to
include “the name of each defendant in the address,” Dkt. 13 at 10, nothing in the language of
§ 1608(a)(3) or case law allows substituting the name of the defendant for the name or title of the
minister of foreign affairs. To the contrary, the D.C. Circuit held in Barot—a case Plaintiff itself
relies on—that § 1608(a)(3) requires the following:
[S]erving a summons, complaint, and notice of suit . . . along with any
necessary translations, that are “dispatched by the clerk of the court,” and sent
to the “head of the ministry of foreign affairs” . . . whether identified by name
or title, and not to any other official or agency.
785 F.3d at 30 (emphasis added) (internal citations omitted); see also id. at 29 (“The defect . . .
came down to one line of the address block: it should have said “Head of the Ministry of Foreign
Affairs . . . .”). In Barot, service was ineffective under § 1608(a)(3) because the required
materials, although sent to the correct Post Office Box, were addressed to the “Embassy of
Zambia,” and not to the “Head of the Ministry of Foreign Affairs.” Id. at 29.
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The defects in the present case are on all fours with those in Barot. Plaintiff correctly
mailed the documents to the Post Office Box of the Ministry of Foreign Affairs in Sudan. But,
he neither identified the name nor the title of the Minister of Foreign Affairs of Sudan on the
mailings. See Dkt. 4 (Aff. Requesting Foreign Mailing to ABS); Dkt. 6 (Aff. Requesting Foreign
Mailing to Ministry of Agric. and Forests); Dkt. 7 (Aff. Requesting Foreign Mailing to Central
Bank of Sudan). Under the requirements set forth in Barot, this does not strictly comply with
§ 1608(a)(3).
The Court, nevertheless, concludes that dismissal is not warranted. Even “[i]f a party has
not complied with the service of process requirements . . . , the Court . . . has the power to . . .
‘direct that service be effected within a specified time.’” Candido, 242 F.R.D. at 164 (emphasis
added) (quoting Fed. R. Civ. P. 4(m)). Indeed, the D.C. Circuit has cautioned that “dismissal is
not appropriate where there exists a reasonable prospect that service can be obtained.” Barot,
785 F.3d at 29 (emphasis added) (quoting Novak v. World Bank, 703 F.2d 1305, 1310 (D.C. Cir.
1983)). Barot is again instructive. In that case, the D.C. Circuit held that it was an abuse of
discretion to dismiss for insufficient service of process when (1) the service attempt “came very
close to satisfying the Act’s requirements . . . [thus] showing good faith;” (2) “the statute of
limitations [had] run on [the plaintiff’s] claims;” and (3) “[the defendant] [had] identified no
particular prejudice it would suffer if [Plaintiff] were permitted another opportunity to make
proper service.” Id. at 29. At least two of the same considerations weigh against dismissal in
this case. Plaintiff’s attempt at service came “very close” to satisfying § 1608(a)(3)—as in
Barot, “[t]he defect . . . came down to one line of the address block: it should have said “Head of
the Ministry of Foreign Affairs” instead of the name of each defendant. Id. Moreover,
defendants fail to identify any prejudice that would result from allowing Plaintiff to perfect
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service. 2 As such, it would neither further the interests of fairness nor judicial economy to force
Plaintiff to refile its case.
The Court will, accordingly, direct that Plaintiff promptly effect service on ABS in strict
compliance with § 1608(a)(3) by addressing its mailing to the “Head of the Ministry of Foreign
Affairs” in Khartoum, Sudan, “whether identified by name or title, and not to any other official
or government agency.” Barot, 785 F.3d at 29, 30. Because the Court lacks personal
jurisdiction over ABS at this point, see Candido, 242 F.R.D. at 160, the Court will refrain from
addressing whether Plaintiff has stated a claim for breach of contract.
2. Commercial Activity Exception
ABS further contends that the Court lacks subject-matter jurisdiction because the
institutional defendants are entitled to sovereign immunity. Dkt. 12-1 at 18–19. The Court is
unconvinced with respect to ABS but agrees that it lacks subject-matter jurisdiction over
Plaintiff’s breach-of-contract claim against the Central Bank of Sudan and the Ministry of
Agriculture and Forests.
The FSIA does not protect foreign states and their instrumentalities with blanket
immunity. Rather, as defendants correctly observe, entering into, and allegedly breaching, a
retainer agreement is “a commercial activity [that] vests the court with subject-matter jurisdiction
pursuant to the commercial activity exception of the FSIA.” Dkt. 13 at 12; see also 28 U.S.C.
§ 1605(a)(2). As the Supreme Court held in Saudia Arabia v. Nelson, 507 U.S. 349 (1993), a
“foreign state engages in commercial activity . . . where it exercises only ‘those powers that can
also be exercised by private citizens,’ as distinct from those ‘powers peculiar to sovereigns.’” Id.
2
Although neither party addresses whether Plaintiff would face any time-bar if required to refile
its complaint, the Court can discern no utility that would be achieved by requiring Plaintiff to do
so.
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at 360 (citation omitted). In determining whether the commercial activity exception to the FSIA
applies, the Court must ascertain “whether the particular actions that the foreign state performs
(whatever the motive behind them) are the type of actions by which a private party engages in
‘trade and traffic or commerce.’” Id. at 360–61 (emphasis added) (quoting Republic of
Argentina v. Weltover, 504 U.S. 607, 614 (1992)). The Supreme Court held in Republic of
Argentina v. Weltover, for example, that Argentina was not immune from suit for deferring
payment on government-issued bonds—even though the bonds were created “to address a
domestic credit crisis”—because “[t]here is . . . nothing distinctive” about issuing debt
instruments. 504 U.S. at 615, 616.
In light of this precedent, the Court has no difficulty concluding that entering into a
retainer agreement with legal counsel falls under the commercial activity exception to the FSIA.
Hiring a lawyer is something that private parties can, and often do, do. Moreover, even
assuming that the ultimate purpose of obtaining legal counsel, in this case, was to “assist with . . .
governmental functions,” Dkt. 12-1 at 19, that premise does not change the character of the
relevant activity, see 28 U.S.C. § 1603(d) (“The commercial character of an activity shall be
determined by reference to the nature of the course of conduct . . . rather than . . . its purpose.”).
This Court has repeatedly held that a “contract for the provision of legal services constitutes
‘commercial activity’ under section 1605(a)(2).” Lanny J. Davis & Assocs. LLC v. Republic of
Equatorial Guinea, 962 F. Supp. 2d 152, 159 (D.D.C. 2013); Dentons US LLP v. Republic of
Guinea, 134 F. Supp. 3d 5, 9 (D.D.C. 2015) (quoting same); see also Nnaka v. Fed. Republic of
Nigeria, 238 F. Supp. 3d 17, 28 (D.D.C. 2017); Embassy of Fed. Republic of Nigeria v.
Ugwuonye, 901 F. Supp. 2d 136, 141 (D.D.C. 2012); Reichler, Milton & Medel v. Republic of
Liberia, 484 F. Supp. 2d 1, 2 (D.D.C. 2007). And, there is nothing about this case that counsels
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in favor of a different result. The Court, accordingly, concludes that it has subject-matter
jurisdiction over Plaintiff’s breach-of-contract claim against ABS.
The same reasoning, however, does not extend to Plaintiff’s claims against the Central
Bank of Sudan and the Ministry of Agriculture and Forests. ABS argues that those defendants
were not party to the retainer agreement. Dkt. 12-1 at 18. Plaintiff does not contest this
assertion; instead, it merely contends that “the Ministry of Agriculture and the Central Bank of
Sudan both played roles in the lack of payment of plaintiff’s fees.” Dkt. 13 at 14. Absent a
contract between the parties, however, Plaintiff has failed to allege that the Central Bank of
Sudan or the Ministry of Agriculture and Forests engaged in any “commercial activity” that falls
under the commercial activity exception to the FSIA. 28 U.S.C. § 1605(a)(2). The Court will,
accordingly, dismiss those two defendants from this case for lack of subject-matter jurisdiction.
B. Ahmed’s Motion to Dismiss
Defendant Ahmed has filed a separate motion to dismiss on three grounds: (1) Plaintiff
failed to serve him as an individual pursuant to Rule 4(f) of the Federal Rules of Civil Procedure;
(2) Plaintiff failed to serve him in his official capacity pursuant to § 1608(a)(3); and (3) he is not
a “part[y] to the Agreement, and . . . should [therefore] be dismissed from the case immediately.”
Dkt. 14-1 at 7. As with ABS, the Court agrees that Plaintiff has yet to perfect service, but it will
provide Plaintiff with a further opportunity to do so.
First, contrary to Ahmed’s assertion, Plaintiff was not required, pursuant to the Federal
Rules of Civil Procedure, to “deliver[] a copy of the summons and complaint to [him],
personally” or to “use[] a form of mail that the clerk addressed” to him personally. Id. at 6
(citing Fed. R. Civ. P. 4(f)(2)(C)). Rule 4(f) is inapposite because, as Plaintiff repeatedly
emphasizes, “the Complaint does not assert any claims against [Ahmed] in his personal
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capacity.” 3 Dkt. 32 at 5. Rather, Plaintiff alleges that Ahmed was an agent of ABS who
“contacted [Plaintiff] . . . for the retention of legal services,” “signed the Retainer Agreement in
his capacity as the General Manager of the [ABS],” and “subsequently failed . . . to authorize or
make payment as the General Manager of the [ABS].” Id.; see also Dkt. 1 at 1, 3, 6, 9 (Compl.
¶¶ 6, 17, 28). Accordingly, Plaintiff properly attempted service on Ahmed in his official
capacity pursuant to § 1608 of the FSIA.
Ahmed contends that the service requirements under the FSIA cannot apply here because
he “does not meet the definition of [an] agency of a foreign state.” Dkt. 14-1 at 5. That
argument flies in the face of D.C. Circuit precedent. In Junquist v. Sheikh Sultan Bin Khalida Al
Ahyan, 115 F.3d 1020 (D.C. Cir. 1997), the Court of Appeals expressly held that “[i]ndividuals
acting in their official capacities are considered ‘agenc[ies] or instrumentalit[ies] of a foreign
state.’” Id. at 1027.
Second, for reasons explained above, the Court declines to dismiss the claim against
Ahmed even though Plaintiff served the required documents on “Salah Eldin Hassan Ahmed,”
Dkt. 5 (Aff. Requesting Foreign Mailing to Ahmed), instead of on “the head of the ministry of
foreign affairs,” as required by 28 U.S.C. § 1608(a)(3). The Court, will, however, direct that
Plaintiff promptly serve Ahmed in strict compliance with § 1608(a)(3) by “sending a copy of the
summons and complaint and a notice of suit, together with a translation of each into the official
language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and
3
Plaintiff argues that Ahmed waived his objections to service by failing to raise them in the
defendants’ initial motion to dismiss, Dkt. 12. See Dkt. 32 at 3–4 (citing Fed. R. Civ. P.
12(h)(1)(A)). The Court notes, however, that ABS did argue improper service on behalf of
Ahmed in his official capacity. To the extent Ahmed intends to direct this argument at Plaintiff’s
failure to serve him in his personal capacity, that contention is disposed of by Plaintiffs
disavowal of any intent to bring such a claim. See Dkt. 32 at 5.
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dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign
state concerned.” Id. (emphasis added).
Third, and finally, the Court declines to reach the merits of whether Plaintiff has stated a
claim against Ahmed because, absent proper service, the Court lacks personal jurisdiction over
Ahmed at this time. The Court, notes however, that Plaintiff has made clear that it is suing
Ahmed, who signed the retainer agreement as General Manager of ABS, in his official capacity.
See Dkt. 32 at 5. Although the Court questions whether Plaintiff can state a claim for breach of
contract against an employee or officer of ABS—even one acting in his official capacity—the
Court will wait to address that merits issue until after Plaintiff properly serves Ahmed, should
Plaintiff do so. 4
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the institutional defendants’
motion to dismiss, Dkt. 12, is GRANTED with respect to the Central Bank of Sudan and the
Ministry of Agriculture and Forests and DENIED with respect to ABS; it is further
ORDERED that the Clerk’s entry of default against the Central Bank of Sudan, Dkt. 23,
and the Ministry of Agriculture and Forests, Dkt. 22, is VACATED; it is further
ORDERED that the Central Bank of Sudan and the Ministry of Agriculture and Forests
are DISMISSED from this case; it is further
ORDERED that Defendant Ahmed’s motion to dismiss, Dkt. 14, is DENIED; it is
further
4
Ahmed also argues for the first time in his reply brief—in one sentence—that he is entitled to
sovereign immunity because “[t]here is no claim that any exception to sovereign immunity
applies in his case.” Dkt. 33 at 2. Assuming that Plaintiff’s claim posits that Ahmed was
somehow party to the contract, the Court concludes that the commercial activity exception
applies to Plaintiff’s claim against him.
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ORDERED that Plaintiff shall serve ABS and Ahmed, as soon as practicable, in strict
compliance with the requirements set forth in 28 U.S.C. § 1608(a)(3) and with this Court’s
opinion. Unless service is effected within forty-five (45) days, Plaintiff shall file a report with
the Court on or before March 8, 2019, explaining why service has not been effected.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: January 16, 2019
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