Iskandar v. Embassy of the State of Kuwait ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RANDA ISKANDAR,
Plaintiff,
v. Civil Action No. 14-721 (CKK)
EMBASSY OF THE STATE OF KUWAIT,
Defendant.
MEMORANDUM OPINION
(February 29, 2016)
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. Presently before the Court is Plaintiff’s [18] Amended Motion
for Reconsideration of the Court’s ruling issued on May 28, 2015, dismissing without prejudice
Plaintiff’s Complaint. Upon consideration of the pleadings,1 the relevant legal authorities, and the
record as a whole, the Court, in an exercise of its discretion, shall GRANT Plaintiff’s [18]
Amended Motion for Reconsideration.
I. BACKGROUND
On April 24, 2014, Plaintiff filed a Complaint against Defendant, the Embassy of the State
of Kuwait (“Defendant” or “the Embassy”), 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
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Plaintiff’s Amended Motion for Reconsideration (“Pl.’s Am. Mot.”), ECF No. [18]; Defendant’s
Opposition to Plaintiff’s Amended Motion for Reconsideration (“Def.’s Opp’n”), ECF No. [21];
Plaintiff’s Reply to Defendant’s Opposition (“Pl.’s Reply”), ECF No. [23].
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.
On May 28, 2015, the Court issued a Memorandum Opinion and Order, denying Plaintiff’s
Motion for Entry of Default and granting Defendant’s Motion to Dismiss. See Mem. Opinion and
Order (May 28, 2015), ECF Nos. [10], [11]. In its Memorandum Opinion, the Court found that
(1) Plaintiff failed to properly effect service on Defendant under the Foreign Sovereign Immunities
Act (“FSIA”), and (2) Plaintiff failed to allege in her Complaint a basis for the Court’s subject
matter jurisdiction over this action. See Mem. Opinion (May 28, 2015), ECF No [11], at 5-6.
On June 23, 2015, Plaintiff filed her initial motion for reconsideration, requesting that the
Court vacate its Order issued on May 28, 2015 and allow Plaintiff to file an Amended Complaint
and obtain proper service thereof. See Pl.’s Mot. to Reconsider, ECF No. [12], at 1. In her one-
page Motion, Plaintiff’s counsel simply indicated that she had caused the Complaint to be
transmitted for service on the Government of Kuwait pursuant to the Hague Convention. See id.
Plaintiff’s counsel also indicated that her claims may be time-barred by the applicable statute of
limitations, and that Plaintiff will be unable to seek redress for her claims if her case is dismissed
pursuant to the Court’s Order issued on May 28, 2015. See id.
On June 24, 2015, the Court issued a Memorandum Opinion and Order, denying Plaintiff’s
initial motion for reconsideration. See Mem. Opinion and Order (June 24, 2015), ECF Nos. [14],
[15]. As the Court explained in that Opinion, the exhibits attached to Plaintiff’s initial motion for
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reconsideration suggested that Plaintiff made a renewed attempt to effect service, this time
pursuant to the Hague Convention, in February 2015—several months after Defendant filed its
Motion to Dismiss and several months prior to the Court ruling on Defendant’s Motion to Dismiss.
See Mem. Opinion (June 24, 2015), ECF No. [15], at 1-2. That information was never brought to
the Court’s attention by Plaintiff at any time prior to the Court ruling on Defendant’s Motion to
Dismiss on May 28, 2015. Id. at 2. Most importantly, Plaintiff did not provide any detail in her
initial motion as to how that alleged service complied with the Hague Convention requirements.
Id. Nor did Plaintiff discuss the Court’s primary ground for dismissing Plaintiff’s Complaint—
the Court’s lack of subject matter jurisdiction over the action. Id. Plaintiff’s initial motion also
sought leave to file an Amended Complaint, but Plaintiff’s counsel did not attach any proposed
amended complaint to her motion. Id. In light of the foregoing reasons, the Court denied without
prejudice Plaintiff’s initial motion to reconsider. Id.
In denying the motion, the Court set out requirements for Plaintiff’s amended motion for
reconsideration, if Plaintiff elected to file such a motion:
If Plaintiff does seek to reopen this final judgment, Plaintiff must file a motion
pursuant to Federal Rule of Civil Procedure 59(e) or 60(b) with thorough briefing
of the legal basis for reopening this matter pursuant to either rule. Plaintiff’s motion
should also indicate why Plaintiff’s counsel did not notify the Court that she had
made a renewed attempt to serve Defendant allegedly pursuant to the Hague
Convention several months prior to the Court ruling on Defendant’s Motion to
Dismiss for failure to properly serve Defendant as one of the grounds for dismissal.
Plaintiff’s motion shall further indicate in detail how the service Plaintiff alleges to
have effected on Defendant in February 2015 was in compliance with the specific
service requirements of the Hague Convention. Plaintiff shall also address the
Court’s subject matter jurisdiction over the action. Finally, Plaintiff’s present
Motion simply indicates that “Plaintiff’s claims may be time-barred by the statute
of limitations,” id. ¶ 4. If Plaintiff chooses to file a motion pursuant to Federal Rule
of Civil Procedure 59(e) or 60(b), Plaintiff shall indicate when the statute of
limitations expires and the legal basis for Plaintiff’s calculation.
Id. at 2-3.
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Rather than immediately filing a Rule 60(b) motion, Plaintiff’s counsel on June 27, 2015
filed a Notice of Appeal to the U.S. Court of Appeals for the District of Columbia Circuit. See
Notice of Appeal to DC Circuit, ECF No. [16].
Four days later, on July 1, 2015, Plaintiff’s counsel filed the Amended Motion for
Reconsideration presently before the Court. See Pl.’s Amended Mot., ECF No. [18]. Plaintiff’s
Amended Motion for Reconsideration adheres to the requirements set forth in the Court’s Opinion
issued on June 24, 2015. Namely, the amended motion (1) provides briefing as to why the Court
should reopen this matter pursuant to Rule 60(b); (2) explains why Plaintiff’s counsel did not notify
the Court that she had made a renewed attempt to serve Defendant; (3) indicates how the service
alleged to have effected on Defendant was in compliance with the service requirements of the
Hague Convention;2 (4) requests that the Court grant Plaintiff leave to file an amended complaint,
attached to Plaintiff’s motion, which properly addresses the Court’s subject matter jurisdiction
over this action; and (5) indicates when the applicable statute of limitations in this case expired.
However, because Plaintiff’s counsel had already filed a Notice of Appeal, this Court
lacked jurisdiction to issue a decision on Plaintiff’s Amended Motion for Reconsideration.
Accordingly, this Court issued a Minute Order on July 7, 2015, holding in abeyance Plaintiff’s
Amended Motion for Reconsideration until the Court of Appeals acted on Plaintiff’s appeal. See
Minute Order (July 7, 2015).
On July 28, 2015, Plaintiff retained new counsel to represent her in connection with the
aforesaid appeal, as well as the motion for reconsideration pending in this Court. See Pl.’s Consent
2
Plaintiff concedes in her Reply brief that in February 2015, she did not properly affect service
under the FSIA. Accordingly, Plaintiff’s Amended Motion for Reconsideration requests that she
be provided another opportunity to serve Defendant. See Pl.’s Reply at 7 n.1.
4
Motion for Substitution of Counsel, ECF No. [22], at 1.
On January 4, 2016, the Court of Appeals granted Plaintiff’s motion for a voluntary
dismissal, thereby allowing this Court to consider Plaintiff’s Amended Motion for
Reconsideration. See Order of USCA, ECF No. [20]. On January 21, 2016, Defendant filed its
Memorandum in Opposition to Plaintiff’s Amended Motion for Reconsideration. See Def.’s
Opp’n, ECF No. [21]. On January 28, 2016, Plaintiff, represented by her new counsel, filed her
Reply. See Pl.’s Reply, ECF No. [23]. Accordingly, Plaintiff’s Amended Motion for
Reconsideration is ripe for the Court’s review.
II. LEGAL STANDARD
Plaintiff requests that the Court grant her Amended Motion for Reconsideration under
Federal Rule of Civil Procedure 60(b). See Pl.’s Am. Mot. at 2. Rule 60(b) provides that, on
motion and just terms, the Court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
1) mistake, inadvertence, surprise, or excusable neglect;
2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
4) the judgment is void;
5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
The Rule “was intended to preserve ‘the delicate balance between the sanctity of final
judgments ... and the incessant command of the court's conscience that justice be done in light of
all the facts.’ ” Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)
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(quoting Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970)). As the D.C.
Circuit has emphasized, Rule 60(b) “gives the district judge broad latitude to relieve a party from
a judgment,” Richardson v. Nat'l R.R. Passenger Corp., 49 F.3d 760, 765 (D.C. Cir. 1995), but
“should be only sparingly used,” Good Luck Nursing Home, 636 F.2d at 577. The party seeking
relief under Rule 60(b) bears the burden of showing that he or she is entitled to the relief. Norris
v. Salazar, 277 F.R.D. 22, 25 (D.D.C. 2011). Common to all grounds for relief under Rule 60(b)
are the requirements that the motion be timely, see Fed. R. Civ. P. 60(c)(1), and that the movant
“demonstrate a meritorious claim or defense” to the motion upon which the district court
previously dismissed the complaint, see Lepkowski v. U.S. Dep't of Treasury, 804 F.2d 1310, 1314
(D.C. Cir. 1986).
III. DISCUSSION
Plaintiff, through her Amended Motion for Reconsideration, requests that the Court
reconsider its ruling of May 28, 2015 and grant Plaintiff leave to amend her Complaint and to
attempt service. Pl.’s Am. Mot. at 1. Although Plaintiff’s Amended Motion seeks relief under
Rule 60(b) generally, it specifically cites language from two provisions, Rule 60(b)(1) and Rule
60(b)(6). See id. at 2 (“A court may grant relief from a final order due to among other things,
mistake, inadvertence, surprise, excusable neglect, or any other reason that justifies relief.”).
Because the Court finds that relief is warranted under the “excusable neglect” prong of Rule
60(b)(1), the Court need not examine whether relief is also warranted under Rule 60(b)(6).
A. Relief is Warranted under Rule 60(b)(1).
Rule 60(b)(1) provides, “the court may relieve a party or its legal representative from a
final judgment, order, or proceeding” because of “mistake, inadvertence, surprise, or excusable
neglect.” Fed. R. Civ. P. 60(b)(1). The Supreme Court has set out four factors for determining
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what kind of neglect may constitute “excusable neglect.” Pioneer Inv. Servs. Co. v. Brunswick
Associates Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). These factors
are: “(1) the danger of prejudice to the [opposing party], (2) the length of delay and its potential
impact on judicial proceedings, (3) the reason for the delay, including whether it was within the
reasonable control of the movant, and (4) whether the movant acted in good faith.” In re Vitamins
Antitrust Class Actions, 327 F.3d 1207, 1209 (D.C. Cir. 2003) (citing Pioneer, 507 U.S. at 395,
113 S.Ct. 1489). The inquiry into whether a party’s action constitutes excusable neglect “is at
bottom an equitable one, taking account of all relevant circumstances surrounding the party’s
omission.” Pioneer, 507 U.S. at 395, 113 S.Ct. 1489.
Here, on balance, these factors favor reinstating this case pursuant to Rule 60(b)(1).
1. Danger of Prejudice to Defendant
As to the first factor, Defendant will not be prejudiced if the Court grants Plaintiff’s
Amended Motion. Defendant asserts that permitting another service attempt would prejudice the
Embassy because seven key witnesses, including Dr. Abdullah Alwetaib—the employee who
allegedly committed the misconduct that Plaintiff complains of—are no longer available. See
Def.’s Opp’n at 8. An affidavit attached to Defendant’s Opposition brief indicates that Dr.
Alweitaib’s tour of service in Washington, D.C. has ended. See Exhibit 2 to Def.’s Opp’n.
However, it is not clear why Dr. Alwetaib is otherwise unavailable or unable to participate in this
litigation. Defendant does not suggest that Dr. Alwetaib is unreachable, or otherwise unavailable
to help Defendant investigate and defend this case. Defendant also does not identify who the other
unavailable witnesses are, state why they cannot be compelled to participate in this litigation, or
describe how their absence would prejudice Defendant in its efforts to defend against Plaintiff’s
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claims.3
Moreover, as Plaintiff notes in her Reply brief, Defendant has been aware of this case since
2014, and, to date, has been an active participant. See Pl.’s Reply at 5. Defendant will not be
subjected to any unfair surprise or prejudice if Plaintiff’s Amended Motion is granted, and Plaintiff
is permitted the opportunity to properly effect service on Defendant. See id.Accordingly, the Court finds that Defendant will not be prejudiced if the Court grants
Plaintiff’s Amended Motion.
2. Length of delay and Its Potential Impact on Judicial Proceedings
Turning to the second factor—the length of delay and its potential impact on judicial
proceedings—the Court finds that the delays resulting from former counsel’s errors have had an
“adverse impact on efficient court administration”; however, the delays have not impacted these
proceedings so significantly that they should preclude Plaintiff from having the opportunity to
litigate her case on the merits.
It is clear from the procedural posture that Plaintiff’s former counsel made a plethora of
missteps that have delayed this case: (1) in July 2014, counsel attempted service on Defendant
under the wrong provision of the FSIA; (2) counsel waited until June 2015—after the Court had
3
The case cited by Defendant in support of its assertion of prejudice is entirely inapposite to the
facts of this case. In that case, Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838 (D.C.
Cir. 1982), the plaintiff, an unsuccessful bidder on a government contract, delayed three years
before challenging the award of the contract at issue. See id. at 844. During those three years, the
original contracting officer died. See id. at 845. In determining whether any prejudice existed to
support a laches defense, the district court found that the death of the contract officer seriously
prejudiced the government’s ability to combat the plaintiff’s charge that the award of the disputed
contract was arbitrary and capricious. See id. The D.C. Circuit reversed the district court’s
decision, finding that any prejudice to the government had been cured by the existence of
documentation that had been preserved. See id. Accordingly, Gull Airborne does nothing to
support Defendant’s assertion that it would be prejudiced if Plaintiff were permitted the
opportunity to file an amended complaint and to effect service.
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issued an Order dismissing her client’s case—to inform the Court that counsel had attempted
service on Defendant in February 2015; (3) counsel failed to allege in the initial Complaint a basis
for the Court’s subject matter jurisdiction over this action, which resulted in the Court’s dismissal
of Plaintiff’s case; (4) counsel filed a motion for reconsideration in July 2015 requesting that the
Court reopen the case without setting forth any legal basis for vacating the Court’s judgment; and
(5) when afforded the opportunity to file an amended motion for reconsideration, counsel
immediately filed a Notice of Appeal, which resulted in a stay of the present motion until January
2016. Altogether, the missteps by Plaintiff’s former counsel delayed this case by a number of
months, and the delays have had an “adverse impact on efficient court administration.” Pioneer,
507 U.S. at 385, 113 S.Ct. 1493.
Nevertheless, the delays have not impacted the proceedings in such a significant manner
that they should foreclose Plaintiff from having the opportunity to litigate her case on the merits.
At the heart of Plaintiff’s lawsuit are two Title VII claims—one for gender discrimination / sexual
harassment and another for retaliation. See Compl., ECF No. [8]. Both of these claims would be
barred by the applicable 90-day statute of limitations, should Plaintiff be required to file a new
complaint. See Ciralsky v. C.I.A., 355 F.3d 661, 672 (D. C. Cir. 2004). Therefore, even though
this Court dismissed Plaintiff’s Complaint “without prejudice,” the Court’s decision effectively
dismisses Plaintiff’s claims “with prejudice.” See Am. Mot. at 4. The Court finds that such an
outcome would be an inappropriately harsh sanction, particularly in light of the fact that Plaintiff
has retained new counsel.4 Moreover, Plaintiff’s new counsel has assured the Court that Defendant
4
Defendant argues that dismissal with prejudice would be an appropriate sanction because
“Plaintiff’s conduct amounts to a failure to prosecute.” Def.’s Opp’n at 7-8. Defendant’s
argument is baseless. The D.C. Circuit has made clear that dismissal for failure to prosecute is a
“harsh sanction . . . limited to cases involving egregious conduct by particularly dilatory
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will be properly served under Section 1608(a)(4) of the FSIA, should the Court grant Plaintiff’s
Amended Motion for Reconsideration. See Pl.’s Reply, ECF No. [23], at 7.
In light of the foregoing, the Court finds that the delays resulting from former counsel’s
errors have had an “adverse impact on efficient court administration”; however, the delays have
not impacted these proceedings so significantly that they should preclude Plaintiff from having the
opportunity to litigate her case on the merits.
3. Reason for Delay and Whether the Movant Acted in Good Faith
As to the remaining two factors—the reason for the delay and the absence of bad faith—
the Court finds, and Defendant makes no argument to the contrary, that the mistakes made by
Plaintiff’s former counsel were made in good faith. In addition, throughout briefing, Plaintiff’s
former counsel has provided reasons, albeit misguided, for each of her actions.5 Accordingly,
these two factors favor reinstating this case pursuant to Rule 60(b)(1).
In light of the foregoing, the Court finds that the errors made by Plaintiff’s former counsel
constitute “excusable neglect” and that, on balance, the four equitable factors examined above
favor reinstating this case pursuant to Rule 60(b)(1). See In re Vitamins Antitrust Class Actions,
plaintiffs.” Angellino v. Royal Family Al-Saud, 688 F.3d 771, 775 (D.C. Cir. 2012) (citations
omitted). Furthermore, where, as here, there exists a “reasonable prospect that service can be
obtained,” dismissal is not appropriate. See id. at 776 (citations omitted).
5
With regard to service, Plaintiff’s former counsel submitted that she “made an earnest effort to
comply with the service requirements of the FSIA,” and that when it became evident that her
efforts were ineffective, she attempted to effect service under an applicable international
convention, the Hague Service Convention. See Pl.’s Am. Mot. at 5. Former counsel also
explained that she did not inform the Court of her service attempts under the Hague Service
Convention because the service request was still outstanding and unfulfilled. Id. With regard to
amending the Complaint, former counsel asserted she did not previously seek to amend her
Complaint because she believed that she had pleaded facts sufficient to establish the Court’s
subject-matter jurisdiction over Plaintiff’s claims under the FSIA. Id. at 5-6.
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327 F.3d at 1209. Accordingly, the Court shall vacate its [10] Order issued on May 28, 2015, as
to the part granting Defendant’s Motion to Dismiss and dismissing without prejudice Plaintiff’s
claims.
The Court also finds that it would serve the end of justice under Rule 15(a) to grant leave
to Plaintiff to file the proposed amended complaint attached to her Amended Motion for
Reconsideration. See Fed. R. Civ. P. 15(a); see also Rollins v. Wackenhut Services, Inc., 703 F.3d
122, 130 (D.C. Cir. 2012) (“Federal Rule of Civil Procedure 15(a) provides that a district court
‘should freely give leave [to amend] when justice so requires.’ ”). Upon review of the proposed
amended complaint, it is clear that it sufficiently alleges a basis for the Court’s subject matter
jurisdiction over this action. See ECF No. [18-7]. Therefore, Plaintiff’s proposed amended
complaint cures the pleading defects identified by the Court in its Order issued May 28, 2015. See
Mem. Opinion (May 28, 2015), ECF No [11], at 5-6.6
Plaintiff shall have until April 15, 2016 to properly effect service on Defendant under the
FSIA. If Plaintiff does not properly serve Defendant by April 15, 2016, then Plaintiff’s case shall
be dismissed.
6
Defendant’s opposition contains a brief argument asserting that Plaintiff’s proposed amended
complaint fails to show that the Court has subject matter jurisdiction under the “commercial
activity” exception of the FSIA. See Def.’s Opp’n at 9-11. As noted by Plaintiff, Defendant’s
argument is better suited for a motion to dismiss. See Pl.’s Reply at 7. In any event, it is not
clear from the current record that the proposed amended complaint would be futile on the ground
that the “commercial activity” exception of the FSIA does not apply in this case. See Simpson v.
Socialist People's Libyan Arab Jamahiriya, 470 F.3d 356, 357 (D.C. Cir. 2006) (discussing
evidentiary burdens in resolving exceptions to sovereign immunity under the FSIA). Defendant
shall not be precluded from raising its argument as part of a motion to dismiss.
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IV. CONCLUSION
For the foregoing reasons, the Court, in an exercise of its discretion, shall GRANT
Plaintiff’s [18] Amended Motion for Reconsideration. Accordingly, the Court shall vacate its [10]
Order issued on May 28, 2015, as to the parts granting Defendant’s Motion to Dismiss and
dismissing without prejudice Plaintiff’s claims. The parts of the Court’s [10] Order denying
Plaintiff’s Motion for Entry of Default shall not be affected by this Memorandum Opinion and the
accompanying Order.
The Court shall also GRANT Plaintiff leave to file the proposed amended complaint, ECF
No. [18-7], attached to her Amended Motion for Reconsideration. Plaintiff’s Amended Complaint
shall be deemed filed as of the date of this Memorandum Opinion and the accompanying Order.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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