Elli Angellino v. Royal Family Al-Saud , 681 F.3d 463 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 8, 2012 Decided June 5, 2012
No. 11-7043
ELLI BERN ANGELLINO,
CREATIVE DIRECTOR OF ANGELLINO ARTE,
APPELLANT
v.
ROYAL FAMILY AL-SAUD ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00519)
Christopher J. Deal, appointed by the court, argued the
cause as amicus curiae in support of the appellant. David W.
DeBruin was on brief.
Elli Bern Angellino, pro se, argued the cause for the
appellant.
Before: HENDERSON, ROGERS and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
Dissenting Opinion filed by Circuit Judge KAVANAUGH.
2
KAREN LECRAFT HENDERSON, Circuit Judge: “An artist
is not paid for his labor but for his vision.” 1 Or, in this case,
not at all. Elli Bern Angellino (Angellino) filed a breach of
contract action seeking over $12 million from the Royal
Family Al-Saud (Royal Family) and sixteen of its members
(collectively, defendants) for failing to pay him for artwork he
alleges they commissioned. The district court dismissed his
pro se complaint for failure to prosecute under Local Civil
Rule 83.23 because Angellino failed to serve process on the
defendants pursuant to 28 U.S.C. § 1608(a) and Federal Rule
of Civil Procedure (FRCP) 4(f). For the reasons set forth
below, we reverse the district court’s order of dismissal.
I.
Angellino is an artist residing in Brooklyn, New York
who in late 2005 reached an agreement with the defendants to
design, produce and deliver a series of sculptures for them.2
If the defendants accepted a sculpture, they were obligated to
pay Angellino the amount invoiced for it. If the defendants
were unsatisfied with a sculpture, they could return it to
Angellino with no obligation to pay for it. Pursuant to the
agreement, Angellino designed twenty-nine sculptures in
2006 and 2007 and, on completion, shipped each one
addressed to the Saudi Royal Court, Riyadh, Saudi Arabia.
The total invoiced amount for the twenty-nine sculptures was
$12,580,000. The defendants kept the sculptures but never
paid Angellino for any of them.
1
James Abbott McNeill Whistler quoted in Anu Garg, Another
Word A Day 163 (2005).
2
The facts are taken from Angellino’s complaint and other
documents he filed in response to the district court’s orders. See
Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 677 (D.C. Cir.
2009).
3
Angellino ordinarily communicated with the defendants
through the Royal Embassy of Saudi Arabia (Embassy)
located in Washington, D.C. For instance, when one of the
defendant Royal Family members acknowledged delivery of
Angellino’s sculpture and thanked him for it, the defendant
sent a letter to the Saudi Ambassador to the United States
(Ambassador) in Washington, D.C., who then forwarded the
letter to Angellino in New York. In June 2009, after the
defendants had failed to pay Angellino for the sculptures, he
mailed the past-due invoices to the Embassy to the attention
of the Ambassador. In November 2009, on advice from the
Embassy, Angellino again mailed the invoices to the Embassy
but this time to the attention of the Embassy Accountant.
When the defendants continued to ignore his mailings,
Angellino filed a pro se complaint in the district court on
March 29, 2010.
The Foreign Sovereign Immunities Act (Act, FSIA), 28
U.S.C. § 1608, governs service of process on a foreign state,
including a political subdivision, agency or instrumentality
thereof. See Fed. R. Civ. P. 4(j)(1) (“A foreign state or its
political subdivision, agency, or instrumentality must be
served in accordance with 28 U.S.C. § 1608.”). 3 On April 8,
2010, Angellino attempted to serve process on the defendants
by mailing a copy of the summons and complaint to the
Embassy via first class mail. At the time, a foreign official
sued for “acts done in [his] official capacity” was considered
an “agency or instrumentality of a foreign state,” service on
whom was governed by section 1608. Belhas v. Ya’alon, 515
F.3d 1279, 1283 (D.C. Cir. 2008) (internal quotation marks
3
Section 1608(a) governs service of process on “a foreign state
or political subdivision of a foreign state,” 28 U.S.C. § 1608(a), and
section 1608(b) governs service on “an agency or instrumentality of
a foreign state,” id. § 1608(b).
4
omitted). 4 Section 1608 prescribes four methods of service—
“in descending order of preference”—and a plaintiff “must
attempt service by the first method (or determine that it is
unavailable) before proceeding to the second method, and so
on.” Ben-Rafael v. Islamic Republic of Iran, 540 F. Supp. 2d
39, 52 (D.D.C. 2008); see also Peterson v. Islamic Republic
of Iran, 627 F.3d 1117, 1129 n.4 (9th Cir. 2010) (same). The
first method of service under section 1608(a) and (b) is “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
the “agency or instrumentality.” 28 U.S.C. § 1608(a)(1),
(b)(1). 5
4
In 2010, the United States Supreme Court, while noting that
some actions against an individual official “should be treated as
actions against the foreign state itself, as the state is the real party in
interest,” held that a foreign official sued individually for his
official acts is not governed by the FSIA and that “a plaintiff
seeking to sue a foreign official will not be able to rely on the Act’s
service of process and jurisdictional provisions.” Samantar v.
Yousuf, 130 S. Ct. 2278, 2282, 2292 & n.20 (2010). As discussed
infra note 6, Angellino’s complaint did not make clear whether he
intended to sue the sixteen defendant Royal Family members in
their official or individual capacities.
5
The other means of obtaining service pursuant to section
1608(a) are:
(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
5
Given his practice of communicating with the defendants
through the Embassy, Angellino believed he was required to
serve process on the defendants using the same means. But
when he attempted to serve a copy of the summons and
complaint by mailing them via first class mail to the Embassy,
it refused to accept the mailing. Angellino also attempted to
file proof of service forms with the district court but the court
returned the forms because he had sent them directly to the
district judge’s chambers rather than to the clerk of court’s
office. See Minute Order, Angellino v. Royal Family Al-Saud,
No. 1:10-cv-519 (D.D.C. May 17, 2010). The court directed
Angellino to “review the Local Civil Rules, as well as Federal
Rule[s] of Civil Procedure 4(j)(1) and . . . 55” before
submitting the forms to the clerk’s office. Id. The minute
order made no mention of any substantive deficiency in
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 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.
28 U.S.C. § 1608(a)(2)-(4).
6
Angellino’s submission. Id. Four days later, Angellino filed
the proof of service forms with the clerk’s office.
Almost seven months later, on December 2, 2010, the
district court entered another minute order:
Based upon plaintiff’s failure to prosecute this
action, the Court hereby ORDERS plaintiff to
show cause by no later than December 22,
2010 why this case should not be dismissed
without prejudice. See Local Civil Rule 83.23
(“A dismissal for failure to prosecute may be
ordered by the Court . . . upon the Court’s own
motion.”).
Minute Order, Angellino v. Royal Family Al-Saud, No. 1:10-
cv-519 (D.D.C. Dec. 2, 2010) (First Show Cause Order)
(ellipsis in original). Two weeks later, on December 16,
Angellino attempted to comply with the First Show Cause
Order. He filed a verified statement explaining that he had
“effectuated proper service in full compliance with FRCP
4(j)(1) and 28 U.S.C. § 1608.” Pl.’s Resp. to First Show
Cause Order at 2, Angellino v. Royal Family Al-Saud, No.
1:10-cv-519 (D.D.C. Dec. 16, 2010). Angellino stated that
service “was effectuated in accordance with the special
arrangement for communication and service between the
Plaintiff and [the defendants]” by which all “communication
between [Angellino] and [the defendants] was established
solely via and by means of the Embassy.” Id. As proof of the
special arrangement, Angellino included a copy of a cover
letter from the Ambassador forwarding a letter from a Royal
Family member to him acknowledging receipt of a sculpture.
Angellino also declared that in the past Embassy officials had
telephoned him on behalf of two defendants and he attached
United States Postal Service (USPS) records indicating that an
Embassy official had received the summons and complaint on
7
April 8, 2010, but had returned them to the USPS—marked
“Return to sender; not here”—several days later.
On April 11, 2011, after the case was assigned to a
different district judge, the court concluded that Angellino’s
response to the First Show Cause Order had failed to
“demonstrate[] that the required special arrangement exists
between himself and [d]efendants” and therefore Angellino
had not “satisf[ied] the service requirements of [FRCP] 4 and
28 U.S.C. § 1608.” Order at 2, Angellino v. Royal Family Al-
Saud, No. 1:10-cv-519 (D.D.C. Apr. 11, 2011) (Second Show
Cause Order). The court ordered Angellino “either to file
proof of service or to show cause why this Court should not
dismiss his claim for failure to prosecute.” Id. In his
response filed two weeks later, Angellino again attempted to
demonstrate a “special arrangement for service” by
submitting the same materials he had attached to his response
to the First Show Cause Order as well as a translated copy of
the letter sent to him (via the Embassy) by one of the
defendant Royal Family members. See Pl.’s Amended Resp.
to Second Show Cause Order at 2-4, Angellino v. Royal
Family Al-Saud, No. 1:10-cv-519 (D.D.C. Apr. 25, 2011).
On April 29, the district court dismissed Angellino’s
complaint without prejudice for failure to prosecute based on
Angellino’s failure to establish the existence of a “special
arrangement for service” with the Royal Family, his failure to
attempt one of the alternative methods of service prescribed in
section 1608(a) and his failure to serve the members of the
Royal Family pursuant to FRCP 4(f). 6 See Order, Angellino
6
FRCP 4(f) governs service of process on an individual located
outside the United States. See Fed. R. Civ. P. 4(f) (providing for
service, “[u]nless federal law provides otherwise, [on] an individual
. . . at a place not within any judicial district of the United States”).
The district court assumed Angellino had sued the sixteen
individual defendants in their individual capacities and therefore
8
v. Royal Family Al-Saud, No. 1:10-cv-519 (D.D.C. Apr. 29,
2011) (Dismissal Order). Angellino timely appealed. None
of the defendants entered an appearance before the district
court nor has any of them done so on appeal.
II.
The law is clear that “[d]istrict courts have inherent
power to dismiss a case sua sponte for a plaintiff’s failure to
prosecute or otherwise comply with a court order.” Peterson
v. Archstone Cmtys. LLC, 637 F.3d 416, 418 (D.C. Cir. 2011);
see also D.D.C. Local Rule 83.23 (“A dismissal for failure to
prosecute may be ordered by the Court . . . upon the Court’s
own motion.”). “[We] review[] such dismissals for abuse of
discretion.” Peterson, 637 F.3d at 418. “Because disposition
of claims on the merits is favored[,] the harsh sanction of
dismissal for failure to prosecute is ordinarily limited to cases
involving egregious conduct by particularly dilatory plaintiffs,
after less dire alternatives have been tried without success.”
Id. (alterations and internal quotation marks omitted). A
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.” Smith-Bey v. Cripe, 852 F.2d 592, 594 (D.C. Cir.
1988); see also id. (dismissal of pro se defendant’s complaint
for failure to prosecute not warranted where “it is probable
that service could yet be obtained”); Novak v. World Bank,
looked to FRCP 4(f) to resolve the service of process issue. Before
us, however, Angellino asserts that he sued the members of the
Royal Family “in their official capacities.” Appellant’s Br. 18.
Nevertheless, it is clear to us that the sixteen individual defendants
were sued in their individual capacities as Angellino’s breach of
contract claim does not allege an act of state such that Angellino’s
action “should be treated as [an] action[] against the foreign state
itself, as the state is the real party in interest.” Samantar, 130 S. Ct.
at 2292; see supra note 4.
9
703 F.2d 1305, 1310 (D.C. Cir. 1983) (“Although district
courts have broad discretion to dismiss a complaint for failure
to effect service, dismissal is not appropriate when there
exists a reasonable prospect that service can be obtained.”). A
“lengthy period of inactivity” may justify dismissal
“ ‘particularly . . . if the plaintiff has been previously warned
that he must act with more diligence, or if he has failed to
obey the rules or court orders, or if he has no excuse for the
delay, or if there are other factors aggravating the inaction.’ ”
Smith-Bey, 852 F.2d at 594 (quoting 9 C. Wright & A. Miller,
Federal Practice and Procedure § 2370, at 205-07 (1971)).
We agree with the district court that Angellino was
required to serve process on the defendant Royal Family
under section 1608(a) and on the sixteen defendant Royal
Family members under FRCP 4(f). See Dismissal Order at 1-
4 (construing Angellino’s suit against Royal Family as suit
against Kingdom of Saudi Arabia or one of its political
subdivisions); supra note 6. Turning first to service of
process under section 1608(a), we believe there exists a
“reasonable probability” that Angellino can effect service on
the defendant Royal Family given the success of other parties
in serving process on the Kingdom of Saudi Arabia under
section 1608(a)(3) and (4). See Clerk’s Certificate of Mailing
Note, In re Terrorist Attacks on Sept. 11, 2001, No. 1:03-md-
1570 (S.D.N.Y. Mar. 18, 2005) (“The [U.S.] Embassy in
Khartoum delivered the summons, complaint and notice of
suit pursuant to 28 [U.S.C. §] 1608(a)(4) to the Ministry of
Foreign Affairs of the Kingdom of Saudi Arabia on June 28,
2005 under cover of a diplomatic note . . . . The diplomatic
note constitutes transmittal of these documents to the
Kingdom of Saudi Arabia as contemplated in [28 U.S.C. §]
1608(a)(4).”); 7 Plaintiffs’ Affidavit Requesting Foreign
7
See supra note 5, for service of process pursuant to section
1608(a)(4).
10
Mailing at 1, Elbasir v. Kingdom of Saudi Arabia, No. 1:04-
cv-1706 (D.D.C. Jan. 7, 2005) (plaintiffs’ request that clerk
mail service of process to Kingdom of Saudi Arabia pursuant
to 28 U.S.C. § 1608(a)(3)); 8 see also Sealed Summons, UNC
Lear Servs., Inc. v. Kingdom of Saudi Arabia, No. 5:04-cv-
1008 (W.D. Tex. Mar. 30, 2005) (service of process on
Kingdom of Saudi Arabia pursuant to section 1608(a)(3)). 9
Although Angellino has so far been unable to employ the
preferred “special arrangement” option, we believe there
nonetheless exists a reasonable probability that he can serve
process on the Royal Family using one of section 1608(a)’s
other options.
Turning next to service of process on the defendant Royal
Family members under FRCP 4(f), we note that plaintiffs in
other federal litigation have successfully effected Rule 4(f)
service on at least one of the Royal Family members whom
Angellino names in his complaint. 10 See Order Authorizing
8
See supra note 5, for service of process pursuant to section
1608(a)(3).
9
As these cases suggest, section 1608(a)(2), which authorizes
service of process “in accordance with an applicable international
convention on service of judicial documents,” 28
U.S.C. § 1608(a)(2), appears inapplicable because the Kingdom of
Saudi Arabia is not a signatory to the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents.
See U.S. Treaties in Force at 394-95 (2011) available at
http://www.state.gov/documents/organization/169274.pdf.
10
Under FRCP 4(f), a person “not within any judicial district of
the United States” may be served:
(1) by any internationally agreed means of
service that is reasonably calculated to give notice,
such as those authorized by the Hague Convention
on the Service Abroad of Judicial and Extrajudicial
Documents;
11
Service of Summons By Mail Pursuant to FRCP 4(f)(3) at 1,
Sharif v. Int’l Dev. Group, No. 1:02-cv-5430 (N.D. Ill. Dec.
30, 2002) (authorizing service by mail on Royal Family
member pursuant to FRCP 4(f)(3)); see also Consent Motion
at 1, Burnett v. Al Baraka Inv. & Dev. Corp., No. 1:02-cv-
1616 (D.D.C. Jan. 9, 2003) (Royal Family member “indicated
to counsel for plaintiffs . . . that he will accept service by
certified mail”).
Nor has Angellino engaged in a “lengthy period of
inactivity” warranting dismissal. Although Angellino failed
to successfully serve process on any of the defendants in the
(2) if there is no internationally agreed means,
or if an international agreement allows but does not
specify other means, by a method that is reasonably
calculated to give notice:
(A) as prescribed by the foreign country's
law for service in that country in an action in its
courts of general jurisdiction;
(B) as the foreign authority directs in
response to a letter rogatory or letter of request;
or
(C) unless prohibited by the foreign
country's law, by:
(i) delivering a copy of the summons
and of the complaint to the individual
personally; or
(ii) using any form of mail that the
clerk addresses and sends to the individual
and that requires a signed receipt; or
(3) by other means not prohibited by
international agreement, as the court orders.
Fed. R. Civ. P. 4(f).
12
thirteen months between the filing and the dismissal of his
complaint, his failure was not a result of “inactivity.”
Angellino attempted to serve process within two weeks of
filing his complaint and, when twice ordered to show cause
why his complaint should not be dismissed for failure to serve
process, he promptly responded by explaining to the court
why he believed he had done so. For example, in response to
the district court’s Second Show Cause Order reciting that he
had failed to “demonstrate[] that a special arrangement for
service exists” and that his mailing of the complaint and
summons to the Embassy “d[id] not satisfy the requirements
of . . . 28 U.S.C. § 1608,” Second Show Cause Order at 2,
Angellino submitted a letter one of the defendants sent to him
via the Embassy as evidence of a “special arrangement.”
Granted, the Second Show Cause Order informed Angellino
that he had failed to establish the existence of a “special
arrangement for service.” 28 U.S.C. § 1608(a)(1) (emphasis
added); see also Int’l Road Fed’n v. Embassy of the Dem.
Rep. Congo, 131 F. Supp. 2d 248, 251 (D.D.C. 2001)
(contract provision providing “[a]ll notices, demands, or
requests between Sublessor and Sublessee shall be delivered
in person, by certified mail, return receipt requested, or by
registered mail” and providing addresses for notification
constituted “special arrangement for service” under section
1608(a)(1) (brackets in original)). Nevertheless, Angellino’s
repeated efforts to establish service of process—while
inadequate—reflect anything but “inactivity,” cf. Hernandez
v. Norinco N. China Indus., Inc., 120 F. App’x 371, 371-72
(D.C. Cir. 2005) (per curiam) (failure of plaintiff’s counsel to
serve process two and one-half years after filing complaint
warranted dismissal for failure to prosecute), and in no way
indicate an “intent to abandon the case,” Sykes v. United
States, 290 F.2d 555, 557 (9th Cir. 1961), cited in Smith-Bey,
852 F.2d at 594.
13
Moreover, the district court did not provide Angellino, a
pro se plaintiff, “fair notice of the requirements” for serving
process under 28 U.S.C. § 1608(a) and FRCP 4(f). Hudson v.
Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968); see also Moore
v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993)
(district court “should supply [pro se party] minimal notice of
the consequences of not complying with procedural rules”);
Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (pro se
prisoner “is entitled to receive notice of the consequences of
failing to respond with affidavits to a motion for summary
judgment” (internal quotation marks omitted)). The district
court’s two show cause orders instructed Angellino only “to
file proof of service or to show cause why [the] [c]ourt should
not dismiss his claim for failure to prosecute.” Second Show
Cause Order at 2; see also First Show Cause Order (“Based
upon plaintiff’s failure to prosecute this action, the Court
hereby ORDERS plaintiff to show cause . . . why this case
should not be dismissed without prejudice.”). Despite the
inadequacy of Angellino’s responses, the court never
explained to Angellino the alternative means by which he
could attempt service. Only in its order dismissing
Angellino’s complaint did the court finally inform Angellino
that he was required to serve process on the defendant Royal
Family pursuant to one of the non-“special arrangement”
alternatives of section 1608(a) and on the sixteen defendant
Royal Family members pursuant to FRCP 4(f). In addition,
the district court should have cautioned Angellino that a
dismissal without prejudice for failure to serve process could
affect the viability of his claim depending on the applicable
statute of limitations. See Moore, 994 F.2d at 876 (“District
courts do not need to provide detailed guidance to pro se
litigants but should supply minimal notice of the
consequences of not complying with procedural rules.”); see
also Ciralsky v. CIA, 355 F.3d 661, 672 (D.C. Cir. 2004)
(“[W]hen a suit is dismissed without prejudice, the statute of
14
limitations is deemed unaffected by the filing of the suit, so
that if the statute of limitations has run the dismissal is
effectively with prejudice.” (internal quotation marks
omitted)).
As we observed in Moore, “[p]ro se litigants are allowed
more latitude than litigants represented by counsel to correct
defects in service of process and pleadings.” 994 F.2d at 876.
Viewing all of the circumstances here—the reasonable
probability that Angellino can obtain service on at least one of
the defendants, Angellino’s dogged (albeit inadequate)
attempts to effect service of process and the district court’s
failure to provide “a form of notice sufficiently
understandable to one in [Angellino’s] circumstances fairly to
apprise him of what is required” to serve process, Hudson,
412 F.2d at 1094, and to provide notice of the consequences
of failing to serve process—we conclude the district court
abused its discretion in dismissing Angellino’s complaint.11
Accordingly, we reverse the order of dismissal and remand
the case for proceedings consistent with this opinion.
So ordered.
11
Based on the materials Angellino submitted, we do not believe
the district court abused its discretion in concluding that Angellino
failed to establish a “special arrangement for service” under section
1608(a)(1). See supra pp. 9-10, 12.
KAVANAUGH, Circuit Judge, dissenting:
I respectfully dissent. During the 13 months that this
case was pending in the District Court, the two district judges
who handled the case gave Angellino ample opportunity to
pursue the suit. After Angellino’s initial attempt to effect
service failed, the district judges twice warned Angellino that
his suit would be dismissed if he did not effect service. Yet
Angellino never again even tried to serve the defendants.
Because Angellino repeatedly failed to take the necessary
steps to effect service and thereby move the suit forward, the
District Court finally dismissed the case without prejudice.
(Because the dismissal was without prejudice, Angellino
could have filed a new suit; he has not done so.)
I find no error in the District Court’s patient handling of
this matter. Moreover, when a district court dismisses a case
for failure to prosecute, our review is for abuse of discretion.
So even assuming the District Court faced a close call in
deciding whether to dismiss this suit, our deferential standard
of review surely suggests that we affirm. I respectfully
dissent.