(PS) Rhuma v. State of Libya ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 TAHER RHUMA, et al., No. 2:20-cv-02366-DJC-AC-PS 11 Plaintiffs, 12 v. ORDER 13 STATE OF LIBYA, 14 Defendant. 15 16 17 Plaintiffs proceed in this action in pro per. The matter was referred to a United 18 States Magistrate Judge pursuant to Local Rule 302(c)(21). 19 On March 29, 2023, the Magistrate Judge filed findings and recommendations 20 herein which were served on the parties and which contained notice that any 21 objections to the findings and recommendations were to be filed within twenty one 22 days. (ECF No. 35 .) The Magistrate Judge recommends that this action be dismissed 23 as to Plaintiff Mohamad Laham without prejudice for failure to prosecute and follow 24 court orders, and as to Plaintiffs Taher Rhuma and Khadija Kanoun with prejudice for 25 lack of jurisdiction based on res judicata. ( at 17.) Plaintiffs have filed objections to 26 the findings and recommendations. (ECF No. 37.) 27 //// 28 //// 1 LEGAL STANDARD 2 Under the Federal Magistrates Act, the court may “accept, reject, or modify, in 3 whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. 4 § 636(b)(1). If a party objects to a magistrate judge's findings and recommendations, 5 “the court shall make a de novo determination of those portions of the report or 6 specified proposed findings or recommendations to which objection is made.” ; 7 Fed. R. Civ. P. 72(b)(3). If no party objects, there is no prescribed standard of review. 8 , 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 9 (holding that the court must review de novo magistrate judge's findings and 10 recommendations if objection is made, “but not otherwise”). 11 As Plaintiffs have filed objections, the Court will apply a de novo standard of 12 review. For the reasons set forth below, the Court declines to adopt the Magistrate 13 Judge’s findings and recommendations. 14 I. Failure to Prosecute and Follow Court Orders 15 First, the Magistrate Judge’s finding that Plaintiffs failed to follow court orders is 16 not entirely supported by the record. 17 Section 1608(a) governs service of process on “a foreign state or political 18 subdivision of a foreign state.” 28 U.S.C. § 1608(a); Fed. R. Civ. P. 4(j)(1). In particular, 19 it sets out in hierarchical order four methods by which “[s]ervice . . . shall be made.” 20 28 U.S.C. § 1608(a). The Magistrate Judge previously found that service could not be 21 made under section 1608(a)(1) or 1608(a)(2). (ECF 21 at 5–6.). Thus, Plaintiffs were 22 ordered to provide service documents along with a letter of request for service to the 23 Clerk of Court that included the “name(s), title(s) and address(es) of the person(s) to 24 be served” so that service could occur under section 1608(a)(3). ( at 6–7.) Section 25 1608(a)(3) requires that service be sent “by any form of mail requiring a signed 26 receipt, to be addressed and dispatched by the clerk of the court to the head of the 27 ministry of foreign affairs of the foreign state concerned.” 28 U.S.C. § 1608(a)(3). 28 Plaintiffs provided the required documents, (ECF No. 25,) and the Clerk’s Office 1 mailed them to Libya via DHL on June 8, 2022, (ECF No. 26.) On July 25, 2022, 2 Plaintiffs filed proof of service indicating that the summons and complaint had been 3 delivered to the Libyan Ministry of Foreign Affairs (the “Ministry”), Ash Shatt St., Tripoli, 4 Libya on June 19, 2022. (ECF No. 27.) Despite delivery of the service packet, 5 Defendant has not appeared in this action to-date. (ECF No. 35 at 4.) 6 The Magistrate Judge found that Plaintiffs failed to follow the court’s orders 7 because “[t]he letter that plaintiff provided did not specify by name and title any 8 person to be served, but simply identified the Ministry of Foreign Affairs in Tripoli as 9 the intended recipient.” (ECF No. 35 at 13.) However, in Plaintiffs’ letter to the Clerk 10 of Court, they specified that “[t]he following documents . . . must be addressed to the 11 Head of the Libyan Ministry of Foreign affairs and international cooperations, Najla 12 Mohammed El Mangoush.” (ECF No. 25 at 1.) Minister El Mangoush was the Minister 13 of Foreign Affairs (the “Minister”) when Plaintiffs provided the service packet to the 14 Clerk of Court. Further, the waybill on the DHL envelope the service documents were 15 sent in states “ATTN: MINISTER NAJ.” (ECF No. 25-11.) “A letter or package is 16 ‘addressed’ to an intended recipient when his or her name and ‘address’ is placed on 17 the outside of the item to be sent.” , 139 S. Ct. 1408, 18 1506 (2019). Here, the package included at least a portion of the Minister’s name, 19 along with the address for the Ministry; while it would have been preferrable to 20 include the Minister’s full name, this shows that Plaintiffs were attempting to comply 21 with the court’s directions. Indeed, it appears the address used by Plaintiffs was 22 correct as the DHL proof of delivery shows the service packet was delivered to the 23 Ministry, (ECF No. 27,) although the Court agrees with the Magistrate Judge that this 24 does not clarify if the service packet was given to the Minister herself as the package 25 was signed for by an unknown individual named “Hamza,” (ECF No. 35 at 15.) Finally, 26 while the Magistrate Judge is correct that the summonses were directed generally to 27 the State of Libya, without reference by name or title to any specific Libyan official 28 authorized to receive service, (ECF No. 35 at 13,) the Magistrate Judge did not specify 1 this requirement previously, ( ECF No. 21.) Thus, Plaintiffs largely complied with 2 the Magistrate Judge’s directions. 3 While the Court finds that Plaintiffs substantially complied with the Magistrate 4 Judge’s directions regarding service, it also concerned that Plaintiffs have failed to 5 diligently advance this matter despite many admonitions to do so. The Magistrate 6 Judge has correctly observed that this case cannot be allowed to languish on this 7 Court’s docket. Thus, this Court will grant Plaintiffs one final opportunity to properly 8 serve Defendant and take appropriate steps contemplated under the Federal Rules of 9 Civil Procedure to prosecute this matter once service has been completed, or this 10 matter will be dismissed. 11 Because Plaintiffs have attempted service under section 1608(a)(3) and service 12 failed, Plaintiffs may attempt service under section 1608(a)(4).1 28 U.S.C. 13 § 1608(a)(4). Service is accomplished 14 by sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the 15 official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched 16 by the clerk of the court to the Secretary of State in Washington, District of Columbia, to the attention of the 17 Director of Special Consular Services—and the Secretary shall transmit one copy of the papers through diplomatic 18 channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating 19 when the papers were transmitted. 20 When service is undertaken in this way, service is regarded as having occurred on 21 the transmittal date shown on the certified copy of the diplomatic note. 28 U.S.C. 22 § 1608(c)(1); , 139 S. Ct. at 1059. 23 This Court now orders that the service deadline is extended by 90 days from 24 the date of this order2 to permit Plaintiffs to attempt service under section 1608(a)(4). 25 26 1 U.S. Dept. of State, (last updated June 1, 2023), https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-asst/Service- 27 of-Process/FSIA-Checklist.html for guidance on service under section 1608(a)(4). 2 Courts may extend the time for service even after the Rule 4(m) deadline has expired, 28 , 324 F.3d 1088, 1090 (9th Cir. 2003). 1 II. Res Judicata 2 Second, the Court finds there is no prudential reason to apply res judicata here. 3 Res judicata protects “litigants from the burden of relitigating an identical issue” and 4 promotes “judicial economy by preventing needless litigation.” 5 , 439 U.S. 322, 326 (1979). The Supreme Court has explained that tribunals 6 normally should not base their decisions on res judicata if the parties have not raised 7 that issue, although the Court has also noted that a sua sponte finding of res judicata 8 “might be appropriate in special circumstances,” particularly to avoid “unnecessary 9 judicial waste.” , 530 U.S. 392, 412 (2000). The Court further 10 stated, however, that “where no judicial resources have been spent on the resolution 11 of a question, trial courts must be cautious about raising a preclusion bar sua sponte, 12 thereby eroding the principle of party presentation so basic to our system of 13 adjudication.” at 412–13. 14 The Magistrate Judge has found that res judicata should apply here as to 15 Plaintiffs Rhuma and Kanoun because a previous pro se lawsuit brought by members 16 of their family, which also sought recompense for the seizure of the family’s business, 17 was dismissed for lack of subject matter jurisdiction. , 18 No. 2:13-cv-02286 MCE AC at ECF Nos. 36, 38, 39. The Court agrees with the 19 Magistrate Judge’s reasoning that res judicata could potentially bar this action. 20 However, because the Court will not dismiss this action as to Plaintiff Laham, but will 21 instead grant one further opportunity to effect service on Defendant, the Court finds 22 that no judicial resources will be conserved by dismissing Plaintiffs Rhuma and 23 Kanoun at this time. 24 Thus, the Court declines to adopt the Magistrate Judge’s finding concerning 25 res judicata. 26 //// 27 //// 28 //// 1 CONCLUSION 2 || Accordingly, IT IS HEREBY ORDERED that: 3 1. The Court declines to adopt the findings and recommendations (ECF No. 4 35) of the Magistrate Judge; 5 2. The service deadline is extended by 90 days from the date of this order; 6 3. Plaintiffs are directed to serve Defendant under U.S.C. § 1608(a)(4) and take 7 action to advance this case once service has been completed; 8 4. Failure to comply with this order may result in dismissal of this case; and 9 5. This matter is referred back to the Magistrate Judge for further proceedings. 10 11 IT IS SO ORDERED. 12 | Dated: _ September 7, 2023 Bek | Cbabeatin.. Hon. Daniel labretta 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4B