Barot v. Embassy of Republic of Zambia , 785 F.3d 26 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 16, 2015 Decided May 8, 2015
No. 14-7081
DOLORES BAROT,
APPELLANT
v.
EMBASSY OF THE REPUBLIC OF ZAMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00451)
Denise M. Clark argued the cause and filed the briefs for
appellant.
Laina C. Lopez argued the cause and filed the brief for
appellee.
Before: ROGERS and MILLETT, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Dolores Barot appeals the
dismissal of her complaint for failure to effect service of process
as required under the Foreign Sovereign Immunities Act, 28
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U.S.C. § 1608(a)(3). That Act confers upon the district court
responsibilities with regard to the sensitive task of service of
process on a foreign government, yet in this case the district
court itself was responsible for a substantial portion of the
mistakes in service. Because Barot’s attempts at service came
so close to strict compliance with the Act as to demonstrate a
good faith effort at timely compliance amidst the sometimes
confusing directions from the district court, we conclude, in
view of the resulting prejudice to Barot and the absence of any
relevant prejudice to the Embassy of Zambia of allowing a
further effort at service, that dismissal was too extreme a
remedy. Accordingly, we reverse and remand the case for the
district court to permit Barot to effect service in compliance
with section 1608(a)(3).
I.
In order to sue a foreign state or one of its political
subdivisions, a plaintiff must effect service in compliance with
the Foreign Sovereign Immunities Act. See 28 U.S.C. §1608(a);
Fed. R. Civ. P. 4(j)(1). The Act provides four methods of
service in descending order of preference. First, “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.” Id. § 1608(a)(1). Second,
“by delivery of a copy of the summons and complaint in
accordance with an applicable international convention on
service of judicial documents.” Id. § 1608(a)(2). Third,
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
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ministry of foreign affairs of the foreign state
concerned . . . .
Id. § 1608(a)(3). And fourth, if none of the first three methods
works, a plaintiff can serve the appropriate documents through
the Department of State. Id. § 1608(a)(4). Because neither of
the first two methods was available to Barot, both parties agree
that the third method was required.
When serving a foreign sovereign, “strict adherence to the
terms of 1608(a) is required.” Transaero, Inc. v. La Fuerza
Aerea Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994). In
Transaero, a plaintiff attempted to sue the Bolivian Air Force —
a political subdivision of the Bolivian state — by mailing
service to the Bolivian Ambassador and the Air Force itself,
instead of “to the head of the ministry of foreign affairs of the
foreign state.” Id. at 153 (quoting 28 U.S.C. § 1608(a)(3)). This
court held that neither substantial compliance, nor actual notice,
sufficed under section 1608(a)(3) because Congress had
mandated “service of the Ministry of Foreign Affairs, the
department most likely to understand American procedure.”
Transaero, 30 F.3d at 154.
Barot is a former employee of the Embassy of Zambia in
Washington, D.C. After her employment was terminated in
2009, she filed a complaint with the Equal Employment
Opportunity Commission, and, upon receiving a right to sue
letter, filed a complaint on March 18, 2013, in the federal district
court alleging violations of Title VII of the Civil Rights Act, the
Age Discrimination in Employment Act, and Equal Pay Act; she
later added a claim under the D.C. Wage Payment and
Collection Act. The district court granted Barot leave to
proceed in forma pauperis, thus entitling her to have the officers
of the court serve the Embassy, see 28 U.S.C. § 1915(d); D.C.
Dist. Ct. Local Rule 83.11(b)(4)(i). The Marshal, however,
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attempted service at the Embassy in Washington, D.C., rather
than at the Ministry of Foreign Affairs in Lusaka, Zambia, as the
Act required. The district court then directed Barot to serve the
Embassy of Zambia in conformance with section 1608(a)(3) by
providing the Clerk of the Court with the mailing address for the
head of the Ministry of Foreign Affairs. Through her attorney,
Barot complied, providing the name of the Minister of Foreign
Affairs, as well as the address in Lusaka for the Ministry of
Foreign Affairs.
From there, a number of mistakes prevented proper service
under section 1608(a)(3). First, the district court reversed
course and ordered the Clerk of the Court to effect service on the
Embassy in Washington, D.C. under the more lenient
requirements of section 1608(b). When counsel for the Embassy
of Zambia pointed out that such service did not satisfy section
1608(a)(3), the district court acknowledged that “service was
improper through no fault of plaintiff,” and on November 18,
2013, directed Barot again to “file with the clerk’s office the
necessary documents” to effect service pursuant to section
1608(a), Order of Nov. 18, 2013. Instead, however, upon being
notified by the Clerk’s Office that the requested mailing had not
yet been sent, Barot’s attorney mailed the documents to the
Embassy’s Washington, D.C. address. The Embassy filed a
motion to dismiss on the ground, among others, of failure to
effect proper service of process.
Finally, in January 2014, Barot attempted to effect service
through the Clerk of the Court, as required by section
1608(a)(3). The Deputy Clerk filed a certificate of mailing, with
an attached DHL “waybill” showing the address Barot had
provided. The mailing was addressed to “Embassy of Zambia,
P.O. Box 50069, Lusaka City, Zambia.” In the upper-right-hand
corner of the address box, the waybill stated “Contact:
Min.Foreign Affairs, 260 211 252666.” The post office box is
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the Ministry’s, and the telephone number is the Ministry’s
general line. In March 2014, Barot’s counsel filed a notice of
completed service of process of the summons, complaint, and
notice of suit. Attached was a delivery confirmation that
showed, through signature, that the package had arrived at the
Ministry in Lusaka.
The district court granted the Embassy’s motion to dismiss
without prejudice. See Barot v. Embassy of the Republic of
Zambia, 11 F. Supp. 3d 24, 29 (D.D.C. 2014). The court
explained that the latest attempt at service “contain[ed] a fatal,
technical error”: “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.”
Id. at 32. Therefore, the “February 3, 2014 service attempt []
did not comply with the strict terms of section 1608(a)(3).” Id.
The court explained that the “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),” which is that the Ministry is the agency
most likely to understand U.S. judicial procedure. Id. In
denying Barot’s motion for reconsideration, the district court
further explained that the addressee — “Embassy of Zambia” —
“would not be located in Zambia at all.” Barot v. Embassy of
the Republic of Zambia, 11 F. Supp. 3d 33, 35 (D.D.C. 2014).
The main defect, according to the district court, was not Barot’s
“failure to include the words ‘head of;’ it was her failure to
make any reference to the individual — whether by name or by
title — who occupies the office of the head of the ministry of
foreign affairs as the addressee of the package.” Id. at 36 n.1.
Barot appeals, and our review of the dismissal of the complaint
is for abuse of discretion, see Freedom Watch, Inc. v. Org. of the
Petroleum Exp. Countries, 766 F.3d 74, 78 (D.C. Cir. 2014);
Pellegrin & Levine, Chartered v. Antoine, 961 F.2d 277, 283
(D.C. Cir. 1992); Novak v. World Bank, 703 F.2d 1305, 1310
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(D.C. Cir. 1983); Wright & Miller, FEDERAL PRACTICE &
PROCEDURE, Motions to Dismiss—Insufficiency of Process and
Service of Process, § 1353 (3d ed. 2015).
II.
In general, “district courts have broad discretion to dismiss
a complaint for failure to effect service.” Novak, 703 F.2d at
1310. This court has cautioned, however, in cases of sua sponte
dismissals for inadequate service, that “dismissal is not
appropriate when there exists a reasonable prospect that service
can be obtained.” Id. Relatedly, this court has explained that
dismissal “for failure to prosecute due to a delay in service is
appropriate only when there is no reasonable probability that
service can be obtained or there is a lengthy period of
inactivity.” Angellino v. Royal Family al-Saud, 688 F.3d 771,
775 (D.C. Cir. 2012) (alterations and internal quotation marks
omitted); see Peterson v. Archstone Communities, LLC, 637
F.3d 416, 418 (D.C. Cir. 2011). Because of the district court’s
statutory responsibilities and prominent role in the mistakes of
service in Barot’s case, the prejudice to Barot, the lack of
prejudice to the Embassy, and Barot’s good-faith efforts at
service, similar considerations apply here. Furthermore, there
is no statutory deadline for service under the Foreign Sovereign
Immunities Act, unlike the presumptive 120-day time limit in
Rule 4(m) of the Federal Rules of Civil Procedure.
Barot’s latest service attempt came very close to satisfying
the Act’s requirements, as interpreted by the district court,
showing good faith in her efforts to comply with the Act. The
defect, according to the district court, came down to one line of
the address block: it should have said “Head of the Ministry of
Foreign Affairs,” not “Embassy of Zambia,” see id. at 36 n.1.
There clearly “exists a reasonable prospect that service can be
obtained.” Novak, 703 F.2d at 1310. Due to the passage of
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time, Barot states that the statute of limitations has run on her
claims under Title VII and the Age Discrimination in
Employment Act, see 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C.
§ 626(e); she received her right-to-sue letter from the EEOC in
2012. The district court acknowledged as much, noting that it
was “aware that dismissal in this case results in harsh
consequences for plaintiff.” Barot, 11 F. Supp. 3d at 36. The
Embassy has identified no particular prejudice it would suffer if
Barot were permitted another opportunity to make proper
service, pointing only to the legal fees it has incurred, which are
not a prospective harm and fail to distinguish Barot’s case from
any other failure to serve properly.
Under the circumstances, we hold that the district court
abused its discretion in dismissing Barot’s complaint, and we
remand the case for the district court to afford Barot, proceeding
in forma pauperis, the opportunity to effect service pursuant to
28 U.S.C. § 1608(a)(3). This requires serving a summons,
complaint, and notice of suit, see 22 C.F.R. § 93.2, 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” in Lusaka, Zambia, whether identified by name or title,
and not to any other official or agency, 28 U.S.C. § 1608(a)(3).