Barot v. Embassy of the Republic of Zambia , 11 F. Supp. 3d 24 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DOLORES BAROT, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-0451 (ABJ)
)
EMBASSY OF THE REPUBLIC OF )
THE ZAMBIA, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Plaintiff Dolores Barot filed this case against defendant Embassy of the Republic of
Zambia, alleging that defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2(a), 2000e-3(a) (2012), the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 623(a) (2008), and the District of Columbia Wage Payment and
Collection Law, D.C. Code § 32-1303 et seq. (2001), when it denied her a raise, terminated her
employment, and withheld funds plaintiff alleges were owed to her under her employment
agreement. Am. Compl. ¶¶ 48–65 [Dkt. # 17]. Defendant filed a motion to dismiss plaintiff’s
amended complaint, arguing, among other things, that the case should be dismissed for
insufficient service of process and for lack of personal jurisdiction pursuant to Federal Rules of
Civil Procedure 12(b)(5) and 12(b)(2). Def.’s Mot. to Dismiss & Mot. to Strike (“Def.’s Mot.”)
[Dkt. # 21]; Def.’s Mem. of Law in Supp. of Def.’s Mot. (“Def.’s Mem.”) [Dkt. # 21-1].
Plaintiff opposed the motion. Pl.’s Opp. to Def.’s Mot. (“Pl.’s Opp.”) [Dkt. # 24]. Because the
Court finds that plaintiff failed to perfect service on defendant in accordance with the strict
requirements of section 1608(a)(3) of the Foreign Sovereign Immunities Act (“FSIA”), and
because insufficient service of process also deprives this Court of personal jurisdiction over
defendant, the Court will grant defendant’s motion to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(5) and 12(b)(2).
BACKGROUND
Plaintiff Dolores Barot began working as a secretary for the Embassy of the Republic of
Zambia on January 5, 1995. Am. Compl. ¶ 9. She alleges that in 2002, she was assigned to
perform additional duties that were not within her job description. Id. ¶ 16. Seven years later, on
September 8, 2009, plaintiff requested that defendant increase her salary to reflect an increase in
her in job duties, but on September 9, 2009, defendant denied the request and instead decreased
plaintiff’s responsibilities. 1 Id. ¶¶ 23–24. The following day, defendant asked plaintiff about the
disappearance of a USB flash drive, and plaintiff denied knowing anything about it. Id. ¶ 25.
Defendant then placed plaintiff on indefinite administrative leave – which had the effect of
reducing her salary – and it had her escorted out of the Embassy. Id. ¶¶ 26, 33–34. In a letter
dated November 5, 2009, but postmarked November 25, 2009, defendant informed plaintiff that
her employment at the Embassy was terminated, effective October 31, 2009. Id. ¶ 28. Plaintiff
also alleges that prior to her termination, defendant improperly withheld wages that were due,
and that she was not made whole upon her departure. Id. ¶¶ 29–31, 33–34, 37–39.
Plaintiff believed her termination was the result of gender and age discrimination and that
she was the victim of unlawful retaliation, so she filed a charge of discrimination with the Equal
Employment Opportunities Commission (“EEOC”) on July 20, 2010. See id. ¶ 40. The EEOC
investigated plaintiff’s charge and issued a determination letter in her favor. Id. ¶ 41. The
1 The complaint does not specify whether plaintiff’s request was in response to the increase
her in job duties that occurred seven years prior, or if defendant had again increased plaintiff’s
job duties between 2002 and 2009.
2
agency informed plaintiff on December 21, 2012 that the Embassy would not participate in
conciliation, and that she therefore had ninety days to file suit in a federal district court. Id. ¶ 43.
Plaintiff filed the original complaint giving rise to this case in the spring of 2013. See id. ¶ 44;
see also Compl. [Dkt. # 1].
The Court granted plaintiff’s motion to proceed in forma pauperis, and as a result, the
U.S. Marshal’s Service aided plaintiff in her attempt to perfect service on defendant, albeit
unsuccessfully. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). After the summons was
returned unexecuted, plaintiff made three more attempts at effectuating service in this case.
I. The First Attempt
On August 16, 2013, the Court ordered plaintiff to provide it with the necessary
information so that service could be effected pursuant to FSIA, 28 U.S.C. § 1608(a)(3) by having
the Clerk of the Court mail the required documents to the head of the ministry of foreign affairs
in Zambia. Order, Aug. 16, 2013 [Dkt. # 4]. Plaintiff properly complied with that request.
Resp. to Order of the Court [Dkt. # 5]. But on September 4, 2013, the Court incorrectly
instructed the Clerk of the Court to mail the summons and complaint to the Embassy of Zambia
pursuant to FSIA, 28 U.S.C. § 1608(b), Order, Sept. 4, 2013 [Dkt. # 6], and service was mailed
by the Clerk of the Court to the Embassy’s Washington, D.C. address on September 6, 2013.
Certificate of Clerk [Dkt. # 8].
Two months later, defendant filed a motion for reconsideration of the order permitting
plaintiff to serve it pursuant to section 1608(b)(3). See Def.’s Mot. for Recons. [Dkt. # 15]. It
also filed a motion to dismiss and to strike based on, among other things, its argument that
plaintiff had failed to properly effectuate service. See generally Def.’s Mot to Dismiss & to
Strike [Dkt. #16]. The Court granted the motion for reconsideration, noting that an embassy is
3
considered a “foreign state or political subdivision of a foreign state” under FSIA and therefore
must be served in accordance with 28 U.S.C. § 1608(a), not subsection 1608(b). See Nov. 18,
2013 Minute Order, citing Ellenbogen v. The Canadian Embassy, No. 05-1553, 2005 WL
3211428, at *2 (D.D.C. Nov. 9, 2005).
II. The Second Attempt
After the Court granted the motion for reconsideration, it ordered plaintiff to “file with
the clerk’s office the necessary documents for service to be effected pursuant to 28 U.S.C.
§ 1608(a), including a notice of suit that complie[d] with all the requirements contained in
22 C.F.R. § 93.2, by December 9, 2013.” Id. On December 5, 2013, plaintiff filed an affidavit
requesting foreign mailing by the Clerk’s Office pursuant to 28 U.S.C. § 1608(a)(3). Pl.’s Aff.
Requesting Foreign Mailing [Dkt. # 19]. But eight days later, plaintiff filed a notice of
correction, informing the Court that:
Plaintiff’s counsel was notified by the Office of the Clerk that the mailing
[requested on December 5, 2013,] had not been sent from the Clerk’s
office for service. To correct this error Plaintiff mailed the required
documents to Defendant to execute service pursuant to 28 U.S.C.
§ 1608(a) on December 12, 2013.
Pl.’s Notice of Correction at 1 [Dkt. # 20]. Plaintiff attached the documents it mailed to
defendant on December 12, 2013, including a copy of the certified mail receipt, which showed
that plaintiff mailed the materials to “Embassy of the Republic of Zambia, 2419 Massachusetts
Avenue, NW, Washington, DC 20008.” Ex. 1 to Pl.’s Notice of Correction at 1 [Dkt. # 20-1].
Plaintiff also filed an amended complaint, which led the Court to deny defendant’s pending
motions to dismiss and to strike as moot. See Jan. 6, 2014 Minute Order.
4
III. The Third Attempt
On January 15, 2014, defendant filed its motion to dismiss the amended complaint and a
motion to strike plaintiff’s jury demand and request for punitive damages, 2 arguing – among
other things – that plaintiff’s December 12, 2013 attempt at service did not satisfy the strict
requirements of section 1608(a). Def.’s Mem. at 13–16. Plaintiff responded by filing another
request for the Clerk of the Court to effectuate service in compliance with section 1608(a)(3) on
January 31, 2014, see Pl.’s Request [Dkt. # 22], as well as filing an opposition to defendant’s
motion on February 3, 2014. See generally Pl.’s Opp. The Clerk of the Court filed a certificate
of mailing of the summons and amended complaint on behalf of plaintiff on February 3, 2014,
see Certificate of Clerk [Dkt. # 23], and it attached a copy of the DHL Waybill, which showed
that plaintiff had addressed the package to: “Embassy of Zambia, P.O. Box 50069, Lusaka City,
Zambia.” Ex. 1 to Certificate of Clerk (“DHL Waybill”) [Dkt. # 23-1]. Plaintiff subsequently
filed a notice of completed service of process, and she attached a delivery confirmation received
from DHL that showed that an individual identified as “Kadimba” had accepted and signed for
delivery of the process papers. See Return of Service Aff. [Dkt. # 27].
STANDARD OF REVIEW
I. Federal Rule of Civil Procedure 12(b)(2)
Under Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of
establishing personal jurisdiction over each defendant. Crane v. N.Y. Zoological Soc’y, 894 F.2d
454, 456 (D.C. Cir. 1990). In order to survive a motion to dismiss for lack of personal
jurisdiction, the “plaintiff must make a prima facie showing of the pertinent jurisdictional facts.”
First Chi. Int’l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988). Plaintiff “cannot rely
2 Plaintiff concedes that she is not entitled to a jury or punitive damages under FSIA and
withdraws those requests. Pl.’s Opp. at 20.
5
on conclusory allegations” to establish personal jurisdiction. Atlantigas Corp. v. Nisource, Inc.,
290 F. Supp. 2d 34, 42 (D.D.C. 2003).
The “court may consider material outside of the pleadings in ruling on a motion to
dismiss for lack of . . . personal jurisdiction.” Artis v. Greenspan, 223 F. Supp. 2d 149, 152
(D.D.C. 2002). However, “the plaintiff is not required to adduce evidence that meets the
standards of admissibility reserved for summary judgment and trial; rather, [plaintiff] may rest
[its] arguments on the pleadings, ‘bolstered by such affidavits and other written materials as [it]
can otherwise obtain.’” Urban Inst. v. FINCON Servs., 681 F. Supp. 2d 41, 44 (D.D.C. 2010),
quoting Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005). Any factual discrepancies should
be resolved in favor of the plaintiff. Crane, 894 F.2d at 456. But, the Court need not treat all of
the plaintiff’s jurisdictional allegations as true. United States v. Philip Morris Inc., 116 F. Supp.
2d 116, 120 n.4 (D.D.C. 2000). “Instead, the court may receive and weigh affidavits and any
other relevant matter to assist it in determining the jurisdictional facts.” In re Papst Licensing f.
GMBH Co. KG Litig., 590 F. Supp. 2d 94, 98 (D.D.C. 2008) (internal quotation marks and
citation omitted).
II. Federal Rule of Civil Procedure 12(b)(5)
The plaintiff also bears the burden to establish that she has properly effectuated service.
Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987). When the defendant challenges the
sufficiency of service, the plaintiff “must demonstrate that the procedure employed satisfied the
requirements of the relevant portions of Rule 4 and any other applicable provision of law.” Id.,quoting C. Wright & A. Miller, Federal Practice and Procedure § 1083, at 334 (1969). If
plaintiff does not meet that burden, the Court may dismiss the complaint without prejudice for
6
ineffective service of process. See Fed. R. Civ. P. 12(b)(5); Simpkins v. Dist. of Columbia Gov’t,
108 F.3d 366, 368–69 (D.C. Cir. 1997).
ANALYSIS
Defendant premises its motion to dismiss plaintiff’s amended complaint on four grounds.
First, defendant argues that the amended complaint should be dismissed for improper service of
process and lack of personal jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(5)
and 12(b)(2). See Def.’s Mot. at 1. Second, defendant argues that even if service was proper,
Count IV of the amended complaint – which asserts a claim for violation of the D.C. Wage
Payment and Collection Law – must be dismissed because it is time-barred under the applicable
statute of limitations. Id. Third, defendant claims that plaintiff’s discrimination claims that are
based on alleged violations of Title VII and the ADEA (Counts I, II, and III) must be dismissed
because defendant is immune against those claims under FSIA, thereby depriving this Court of
subject matter jurisdiction over those claims. Id. at 1–2. And fourth, defendant asserts that the
amended complaint lacks sufficient facts to support a plausible claim to relief under each of
plaintiff’s four counts, and that they therefore should be dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(6). Id. at 2. Because the Court finds that plaintiff has failed to properly
7
effectuate service and that it therefore does not have personal jurisdiction over defendant, 3 it will
dismiss plaintiff’s amended complaint without reaching defendant’s additional arguments.
Section 1608 of FSIA provides the exclusive means for effectuating service on a “foreign
state or its political subdivision, agency, or instrumentality.” Fed. R. Civ. P. 4(j)(1); see also
Sabbithi v. Al Saleh, 623 F. Supp. 2d 93, 97 (D.D.C. 2009), quoting Nikbin v. Islamic Republic of
Iran, 471 F. Supp. 2d 53, 58 (D.D.C. 2007). It is divided into two subsections: subsection
1608(a) lists the methods for serving a foreign state or its political subdivision, and subsection
1608(b) lists the methods for serving an agency or instrumentality of a foreign state. 28 U.S.C. §
1608(a)–(b). Whether a defendant must be served under subsection 1608(a) or subsection
1608(b) becomes significant when the defendant challenges the sufficiency of that service: “The
authorities generally hold that section 1608(b) may be satisfied by technically faulty service that
gives adequate notice to the foreign state,” but courts “have rarely excused defective service”
under section 1608(a). Transaero, Inc., 30 F.3d at 153–54. Instead, they demand “strict
adherence to the terms of 1608(a),” and failure to comply exactly with those terms will result in
dismissal of the plaintiff’s case. Id. at 154; see also Sabbithi, 623 F. Supp. 2d at 98 (noting that
plaintiffs’ failure to adhere strictly to the terms of section 1608(a) was “fatal to plaintiffs’
claims”); Nikbin, 471 F. Supp. 2d at 68 (finding that “[b]ecause service has not been effected as
3 In addition to being a separate, essential requirement for the court to “exercise power
over” a party, see BPA Int’l, Inc. v. Kingdom of Sweden, 281 F. Supp. 2d 73, 83–84 (D.D.C.
2003), quoting Murphy Bros., Inc. v. Mitchetti Pipe Stringing, 526 U.S. 344, 350 (1999), proper
service of process is an essential element to establish personal jurisdiction over the foreign state.
28 U.S.C. § 1330(b) (“Personal jurisdiction over a foreign state shall exist as to every claim for
relief over which the district courts have jurisdiction under subsection (a) where service has been
made under section 1608 of this title.”); Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d
148, 151 (D.C. Cir. 1994) (“Under [FSIA], ‘subject matter jurisdiction plus service of process
equals personal jurisdiction.’”), quoting Tx. Trading & Milling Corp. v. Fed. Republic of
Nigeria, 647 F.2d 300, 308 (2d Cir. 1981).
8
required under the FSIA, this Court is compelled to hold that it lacks personal jurisdiction over
the official-capacity claims”); Ellenbogen, 2005 WL 3211428, at *2 (dismissing the plaintiff’s
case for failure “to properly serve [the Canadian Embassy] pursuant to § 1608(a)(3) because he .
. . served process upon the wrong person, . . . failed to include all required documents, and . . .
failed to have the documents addressed and dispatched by the clerk of the court”).
Here, defendant the Embassy of the Republic of Zambia is considered a “foreign state or
[a] political subdivision of a foreign state,” and therefore, it must be served in compliance with
the requirements of section 1608(a). Ellenbogen, 2005 WL 3211428, at *2 (“[I]t is well-settled
that an embassy is a ‘foreign state’ covered by § 1608(a), not an ‘agency or instrumentality’
thereof.”); see also Int’l Road Fed’n v. Embassy of Democratic Republic of Congo, 131 F. Supp.
2d 248, 250 (D.D.C. 2001) (“Defendant is a foreign state.”). That subsection provides four
“exclusive channels through which service may be properly effected upon a foreign state:”
(1) by delivery of a copy of the summons and complaint in accordance
with any special arrangement for service between the plaintiff and the
foreign state or political subdivision; or
(2) if no special arrangement exists, by delivery of a copy of the summons
and complaint in accordance with an applicable international convention
on service of judicial documents; or
(3) if service cannot be made under paragraphs (1) or (2), 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 dispatched by
the clerk of the court to the head of the ministry of foreign affairs of the
foreign state concerned; or
(4) if service cannot be made within 30 days under paragraph (3), by
sending two copies 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
dispatched by the clerk of the court to the Secretary of State in
Washington, District of Columbia, to the attention of the Director of
Special Consular Services – and the Secretary shall transmit one copy of
9
the papers through diplomatic channels to the foreign state and shall send
to the clerk of the court a certified copy of the diplomatic note indicating
when the papers were transmitted.
Ellenbogen, 2005 WL 3211428, at *2, quoting 28 U.S.C. § 1608(a)(1)–(4). A plaintiff may not
elect to utilize these methods in any order, though. “‘The plain language of § 1608(a) makes
clear that the FSIA lists the methods in descending order of preference; a plaintiff may only
attempt service through the second method, for example, if service through the first method is
unavailable or has proven unsuccessful.’” Sabbithi, 623 F. Supp. 2d at 98, quoting Doe I v. State
of Israel, 400 F. Supp. 2d 86, 101 (D.D.C. 2005).
In this case, neither party argues that there is a special arrangement for service between
plaintiff and defendant, and there is no applicable international convention regarding service to
which Zambia subscribes. As a result, the preferred method of service here is set forth in
subsection 1608(a)(3), and plaintiff must have strictly complied with the terms of that subsection
in order to avoid dismissal of her case for insufficient service of process. The Court finds that
she did not.
As an initial point, plaintiff does not contest defendant’s assertion that her December 12,
2013 service attempt was deficient on several grounds. Pl.’s Opp. at 5. Instead, she directs the
Court to her February 3, 2014 attempt to complete service of process and argues that the Court
should not dismiss her complaint because she effectuated service in compliance with section
1608(a)(3) before the Court ruled on defendant’s motion to dismiss. Id. at 5–8. Although courts
have permitted a plaintiff to correct insufficient service of process while a motion to dismiss is
10
pending, see Phx. Consulting, Inc. v. Republic of Angola, 35 F. Supp. 2d 14, 16 (D.D.C. 1999),
the February 3, 2014 attempt in this case did not solve the problem. 4
As noted above, this Circuit requires strict adherence to the terms of section 1608(a), and
a technical fault in service cannot be overcome by actual notice. See, e.g., Sabbithi, 623 F. Supp.
2d at 98 (“‘Neither substantial compliance with § 1608(a)’s requirements nor actual notice of the
suit excuses plaintiffs’ deviation from the section’s mandates.’”), quoting Doe I, 400 F. Supp. 2d
at 102; Ellenbogen, 2005 WL 3211428, at *2, quoting Transaero, 30 F.3d at 154 (“Plaintiff’s
contention that ‘actual notice’ will suffice is incorrect because this Circuit has held that strict
adherence to § 1608(a) is required.”).
Here, plaintiff’s February 3, 2014 service attempt contains a fatal, technical error.
Section 1608(a)(3) explicitly states that service of process must “be addressed and dispatched by
the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned,”
28 U.S.C. § 1608(a)(3), but the February 3, 2014 DHL waybill shows that even though plaintiff
may have sent the packet of materials to the post office box used by the ministry of foreign
affairs, plaintiff did not address it to the head minister. Instead, the mailing label reads:
“Embassy of Zambia, P.O. Box 50069, Lusaka City, Zambia.” See DHL Waybill. The February
4 The parties focus their service arguments on whether the Court should recognize
plaintiff’s February 3, 2014 service attempt or if it should dismiss her complaint for failing to
comply with the Court’s order that service be completed by December 9, 2013. Specifically,
plaintiff provides several examples to demonstrate that she acted in good faith while defendant
attempts to counteract that showing. Pl.’s Opp. at 5–6; Def.’s Reply in Supp. of Def.’s Mot. at
2–3 [Dkt. # 25]. But the Court need not consider whether plaintiff has a good faith reason for
not properly serving defendant in December. First, the good faith standard set by Federal Rule
of Civil Procedure 4(m) that requires a Court to excuse failure to serve a defendant within the
time period set by the federal rules does not apply here: “This subdivision (m) does not apply to
service in a foreign country under Rule 4(f) or 4(j)(1).” Fed. R. Civ. P. 4(m). And second,
regardless of whether plaintiff acted in good faith back in December 2013, the Court finds that
the February 3, 2014 service attempt does not meet the strict requirements of section 1608(a)(3)
and that plaintiff has still not properly served defendant as of the date of this order.
11
3, 2014 service attempt therefore did not comply with the strict terms of section 1608(a)(3). Cf.
Democratic Republic of Congo v. FB Hemisphere Assocs., LLC, 508 F.3d 1062, 1063–64 (D.C.
Cir. 2007) (recognizing, but ultimately not reaching, the question of whether putting the name of
the wrong head minister of foreign affairs would defeat service under section 1608(a)(3)).
In any other context, the Court would be inclined to overlook such a technical error and
to find sufficient service based on defendant’s apparent actual notice of this lawsuit. But the
Court cannot do that here. Like other courts in this district, it is bound to follow the D.C.
Circuit’s strict interpretation of section 1608(a)(3)’s requirements, which does not permit a
section 1608(a) case to proceed based on substantial compliance. See, e.g., Nikbin, 471 F. Supp.
2d at 68–69 (finding insufficient service on the sole ground that the plaintiff, instead of the clerk
of the court, mailed the service documents); BPA Int’l, Inc., 281 F. Supp. 2d at 84 (finding
insufficient service where the plaintiffs “mailed an English language copy of the summons and
complaint to Sweden’s embassy in Washington, D.C.,” and not to the head of the ministry of
foreign affairs). Moreover, plaintiff’s decision to address the waybill to the “Embassy of
Zambia” directly undermines the sole justification for why the D.C. Circuit requires strict
compliance with section 1608(a): “[S]ection 1608(a) mandates service of the Ministry of
Foreign Affairs [because it is] the department most likely to understand American [legal]
procedure.” Transaero, 30 F.3d at 154; see also Nikbin, 471 F. Supp. 2d at 67–68. As a result,
the Court finds that plaintiff has failed to properly serve defendant in this case pursuant to
section 1608(a)(3), and that the Court therefore does not have personal jurisdiction over the
Embassy of the Republic of Zambia.
12