Barot v. Embassy the Republic of the Zambia

11 F.Supp.3d 24

Dolores Barot, Plaintiff,

v.Embassy of the Republic of the Zambia, Defendant.

Civil Action No. 13–0451 (ABJ)

United States District Court, District of Columbia.

Signed April 11, 2014

Motion granted. Denise Marie Clark, Clark Law Group, Washington, DC, Leonardo Abueg Canseco, Canseco Law Group, LLC, Rockville, MD, for Plaintiff.

Laina Catherine Lopez, Berliner, Corcoran & Rowe, L.L.P., Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

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).

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 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 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.

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 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 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...