(PS) Rhuma v. State of Libya ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TAHER RHUMA, et al., No. 2:20-cv-02366 JAM AC PS 12 Plaintiffs, 13 v. ORDER 14 STATE OF LIBYA, 15 Defendant. 16 17 Plaintiffs are proceeding in this action pro se, and the matter is accordingly before the 18 undersigned for pretrial proceedings pursuant to E.D. Cal. R. 302(c)(21). An Order to Show 19 Cause issued on December 20, 2021, directing plaintiffs to demonstrate that service was properly 20 completed. ECF No. 17.1 Plaintiffs have now responded to the OSC. ECF No. 19. 21 I. PROCEDURAL BACKGROUND 22 This case was filed on December 1, 2020. ECF No. 1. Plaintiffs are attempting to sue the 23 State of Libya under the Foreign Sovereign Immunities Act for events that transpired in Libya 24 decades ago; they seek compensation for the expropriation of a family business by the previous 25 regime, and for the death in custody of a family member. Id. On January 12, 2021, plaintiffs 26 27 1 The court issued a separate order to show cause to defendant. ECF No. 18. That order was served by mail but returned to the court as undeliverable. See Docket Notation dated January 25, 28 2022. 1 filed a certificate of service. ECF No. 4. The return of service document states that personal 2 service was completed upon defendant at “Ministry of Foreign Affairs and International 3 Cooperation – Ash Shatt St, Tripoli, Libya. Received by Ramzi Mohammed Muktar.” Id. at 2. 4 Mr. Muktar’s position at the Ministry is not specified. The document is signed (presumably by 5 server Younes Ahweej, although the signature itself is illegible) and dated December 24, 2020. 6 Id. The Declaration of Server portion of the return form identifies the services provided as 7 “special arrangements.” Id. 8 On January 29, 2021, the court received an unsigned letter, in English, on letterhead 9 reading in English “Government of National Accord, Ministry of Foreign Affairs.” ECF No. 5 at 10 2.2 In addition to being unsigned, the letter failed to identify its creator by name, rank, or office,3 11 and the document gives no indication of having been drafted by counsel. Because the letter 12 responded substantively to the summons and complaint, it was construed and docketed as a pro se 13 answer by the Clerk’s Office. ECF No. 5.4 The letter states, in relevant part, that “Service of 14 Process was served through a special agreement between the State of Libya and the Plaintiffs; 15 Taher Rhuma, Khadija Kanoun, and Mohamad Laham. The service of the documents was 16 delivered to the Foreign Affairs Office located in Ash Shatt ST, Tripoli, Libya.” Id. at 4. The 17 document itself, including the English language portion of the letterhead, did not include any 18 address for the Ministry of Foreign Affairs. The international shipping materials provide a return 19 address of “Ministry of Foreign Affairs and International Corporation [sic], Ash Shatt Street, 20 Misurata, Libya.” Id. at 14. This is a different city than Tripoli, where service was reportedly 21 accomplished. 22 //// 23 24 2 The letterhead also contains Arabic writing, and the document bears several official looking seals. 25 3 A separate administrative form, signed on behalf of defendant by an individual named by 26 Modammed Ammah Al-Shraidi, was also filed. ECF No. 6. No title for this individual was provided. 27 4 Foreign states and other governmental entities may not appear in pro se. As explained in the Order to Show Cause issued to defendant, ECF No. 18, this “answer” is defective in multiple 28 ways and will be stricken by separate order. 1 At the initial status conference on October 27, 2021, there was no appearance on behalf of 2 defendant. Court documents mailed to defendant at the address of record had previously been 3 returned as undeliverable. Accordingly, the court questioned plaintiffs about the efficacy of 4 service and the details of the “special agreement” by which it had been accomplished. Plaintiffs 5 explained that service had been arranged with the Libyan Ministry of Foreign Affairs by a Libyan 6 attorney acting on plaintiffs’ behalf. Plaintiffs stated that they do not know the identity of the 7 individual or individuals within the Libyan government who had been party to the service 8 arrangement, and that they had no direct communication with representatives of the State of 9 Libya regarding the effectuation of service. 10 On December 20, 2021, in light of the numerous irregularities here noted, the undersigned 11 ordered plaintiff to show cause in writing why this case should not be dismissed for lack of proper 12 service. ECF No. 17. 13 II. SERVICE OF A FOREIGN STATE 14 Pursuant to Federal Rule of Civil Procedure 4(j), a foreign state must be served in 15 accordance with 28 U.S.C. § 1608. The reference to Section 1608 of the Judicial Code 16 incorporates the specific modes of service provided for in the Foreign Sovereign Immunities Act, 17 28 U.S.C. § 1330, et seq., which is “the exclusive source of subject matter jurisdiction over all 18 suits involving foreign states or their instrumentalities.” Gupta v. Thai Airways Int’l, Ltd., 487 19 F.3d 759, 763 (9th Cir. 2007) (citation and quotation omitted); 28 U.S.C. § 1608(a). Section 20 1608(a) provides that service upon a foreign state shall be made in one of the four following 21 ways: 22 (1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the 23 plaintiff and the foreign state or political subdivision; or 24 (2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable 25 international convention on service of judicial documents; or 26 (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 27 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 28 1 and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned; or 2 (4) if service cannot be made within 30 days under paragraph (3) by 3 sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the official language of 4 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 5 of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services—and the Secretary shall 6 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 7 of the diplomatic note indicating when the papers were transmitted. 8 28 U.S.C. § 1608(a). 9 III. RESPONSE TO THE ORDER TO SHOW CAUSE 10 Plaintiffs have filed a response to the order to show cause, supported by declarations from 11 each plaintiff as well as a declaration from retired Libyan lawyer Abdul Majeed Al Mayat. ECF 12 No. 19. Mr. Al Mayat explains how he assisted plaintiffs with service of process. As translated 13 by a certified Arabic-English translator, he declares as follows: 14 … I visited the Libyan Foreign Affairs Office to inquire about how to give notice of the case filed against the state of Libya. I was told 15 at the Ministry’s reception desk that the concerned party should send a letter to the Ministry of Foreign Affairs and Cooperation (Libya) at 16 the following address: (Ash Shatt St, Tripoli, Libya). Once the Incoming Correspondence Section receives the letter, it will be 17 forwarded to the competent authorities at the Ministry of Foreign Affairs and International Cooperation (Libya). 18 19 ECF No. 19 at 3. 20 Mr. Mayat denies having had any contact with Ramzy Mohammed Muktar (the individual 21 named on the return of service as having received process) or Mohammed Ammah Al-Shraidi 22 (the individual associated by the Clerk’s Office with submission of the putative response to the 23 summons and complaint), and declares further that he has had no contact with any officials or 24 employees of the Ministry of Foreign Affairs. Id. 25 The plaintiffs all report that Mr. Myat reported to them that the receptionist at the Ministry 26 had sent him to the mail room (or “mailing lobby”), where a clerk told him that any mail should 27 be sent to them for delivery to the proper department. Id. at 6 (Declaration of Mohammed Lahm); 28 9 (Declaration of Khadija Kanoun); 13 (Declaration of Taher Rhuma). Based on this information 1 from Mr. Myat, the plaintiffs themselves sent the summons and complaint to the Ministry by 2 “courier” (id. at 6) or “processor” (id. at 6, 13). All plaintiffs deny any personal knowledge of, or 3 contact with, Ramzy Mohammed Muktar, Mohammed Ammah Al-Shraidi, or any other officials 4 or employees of the Ministry of Foreign Affairs. Id. 5 Taher Rhuma declares that before the plaintiffs contacted Mr. Al Mayat for assistance, he 6 (Mr. Rhuma) had asked the Clerk of Court via email to serve the documents pursuant to 28 7 U.S.C. 1608(a)(3). ECF No. 19 at 12. Mr. Rhuma reports that the Clerk informed him that “[t]he 8 Clerk will prepare and issue a Summons when appropriate; but we are not involved in Service.” 9 Id. Mr. Rhuma cited the statute to the clerk but did not receive a response. Id. He sent a follow 10 up email, and reports the clerk responded that “this will be sent to ‘The proper person for 11 answering.’” When Mr. Rhuma did not receive any confirmation that service had been completed 12 by the Clerk’s Office, plaintiffs reached out to Mr. Mayat for assistance. Id. at 19. 13 IV. ADEQUACY OF SERVICE 14 It is clear to the court that defendant, the State of Libya, has not been properly served. 15 Absent proper service under Federal Rule of Civil Procedure 4, the court does not have 16 jurisdiction over the defendant. Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 17 840 F.2d 685, 688 (9th Cir. 1988). Although Rule 4 is liberally construed, “substantial 18 compliance” is required and neither simply naming the defendant in the complaint or the 19 defendant having actual notice is sufficient. Id. 20 Here, none of the service options under Rule 4(j) and 28 U.S.C. § 1608(a) have been 21 demonstrated. The proof of service that was filed in this case states that service was 22 accomplished by “special arrangements,” ECF No. 4 at 2, suggesting service under § 1608(a)(1). 23 However, the response to the order to show cause does not identify any “special arrangement for 24 service between the plaintiff and the foreign state or political subdivision.” 28 U.S.C. § 25 1608(a)(1). Neither any plaintiff nor their agent Mr. Mayat claim to have made special 26 arrangements for service with someone representing the foreign state; indeed, all deny having had 27 any contact with any Ministry officials. It is perfectly obvious that neither a receptionist nor a 28 mailroom clerk has authority on behalf of the State of Libya to make a special agreement for 1 service of process in a particular lawsuit, and general instructions about the routing of mail does 2 not constitute a “special arrangement” for service of legal process. 3 Because Libya is not a party to the Convention on the Service Abroad of Judicial and 4 Extrajudicial Documents in Civil or Commercial Matters,5 service cannot be accomplished under 5 § 1608(a)(2). 6 The fact that someone in the Libyan government (or purporting to be part of the Libyan 7 government) seems to have become aware of the complaint and responded to it, does not indicate 8 that service was properly accomplished. First, for the reasons stated in both OSCs, the 9 provenance of the letter previously construed as an answer is highly suspicious for several 10 reasons. See ECF Nos. 17, 18. Second, even if the State is Libya has become aware of the 11 lawsuit one way or another, such notice is insufficient to confer jurisdiction. See Direct Mail 12 Specialists, 840 F.2d at 688. 13 The undersigned previously noted that plaintiffs did not appear to have attempted service 14 under § 1608(a)(3). ECF No. 17 at 4. Mr. Rhuma’s declaration indicates that service by the 15 Clerk’s Office was in fact attempted, albeit ineffectively. It appears that plaintiffs were not 16 provided the procedures for seeking such service under the statute. Accordingly, the court will 17 sua sponte extend the deadline for service6 and clarify the steps necessary for service to be 18 accomplished through the Clerk of Court via 28 U.S.C. § 1608(a)(3). 19 V. REQUIREMENTS FOR SERVICE PERSUANT TO 28 U.S.C. § 1608(a)(3) 20 To serve an agency or instrumentality of a foreign state pursuant to the Foreign Sovereign 21 Immunities Act, 28 USC §1608 (a) (3), the Clerk of Court requires you to furnish the following: 22 (1) LETTER OF REQUEST: A letter, addressed to the Clerk of Court Keith Holland, 23 requesting service of the documents pursuant to the Foreign Sovereign Immunities Act, 28 USC 24 §1608 (a)(3). Include in the letter the name(s), title(s) and address(es) of the person(s) to be 25 5 See Hague Conf. on Private Int’l Law, 26 http://www.hcch.net/index_en.php?act=conventions.status&cid=17. 6 Courts may extend the time for service even after the Rule 4(m) deadline has expired, Mann v. 27 Am. Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003), and there is no specific test that a court must apply in deciding whether to exercise its discretion to extend the period for service, In re 28 Sheehan, 253 F.3d 507, 513 (9th Cir. 2001). 1 served, and specify the documents being served. 2 (2) DOCUMENTS: One (1) copy of the summons, complaint, notice of suit (any 3 additional documents filed at the time case was opened), and affidavit of translator along with 4 translations of each document in the country’s official language for each party/defendant to be 5 served; and one (1) copy of each of these documents for the Court’s file. The notice of suit must 6 be prepared pursuant to 22 CFR §93.2. A copy of these documents must also be tendered to the 7 Clerk’s Office along with the other papers mentioned above. NOTE: AFFIDAVIT OF 8 TRANSLATOR: An affidavit from the translator stating his/her qualifications and that the 9 translation is accurate for each party being served and one (1) for the Court’s file. 10 (3) Select a method of service for the documents and provide the following: 11 A. VIA U.S. POSTAL SERVICE 12 1. ENVELOPE(S): One envelope, sufficient to hold an entire set of papers, 13 addressed to each party being served with the law firm's return address. 14 2. RETURN RECEIPTS: 15 a. A pink return receipt card (Postal Service Form #2865) made out to the 16 party being served with the return address of the Clerk of Court. On the upper left hand corner of 17 this card you must include both the case number and judge’s initials. 18 b. A white return receipt (Postal Service Form #3806) made out to the 19 party being served with the return address of the law firm. 20 3. MONEY: A sum of cash sufficient for postage and registration and 21 return receipt fees. If the amount of cash tendered is insufficient, you will be contacted and the 22 documents will be held in the Clerk’s Office until additional funds are received. Cash for each 23 party to be served must be kept separately. All mailings are brought to the Post Office on 24 Monday, Wednesday and Friday mornings after 9:00 am. All documents submitted for mailing 25 must be delivered the previous day no later than 4:00 pm. You may pick up the change two 26 business days later after 11:00 am. As per postal rules, customs form (P.S. Form 2976) must be 27 included when using a letter sized envelope or if the package weighs 1 to 4 pounds. 28 //// 1 B. SERVICE VIA FED-EX OR DHL 2 1. ENVELOPE(S): One envelope, per defendant, sufficient to hold an entire set of 3 papers. 4 2. INTERNATIONAL AIR WAYBILL: Addressed to the party being served, the 5 law firm’s return address and law firm’s account number. 6 3. Use the appropriate shipping company’s website to print a tracking summary 7 indicating that the package was delivered to its ultimate destination. Provide a copy of that 8 tracking summary and a cover letter to the Clerk as your Return of Service. 9 Plaintiffs are cautioned that they are responsible for providing an accurate mailing address 10 for the Ministry of Foreign Affairs in Libya. The repeated return of court mail sent to the 11 Ministry of Foreign Affairs and International Cooperation at Ash Shatt Street, Misurata, Libya, 12 indicates that this address is not correct.7 Plaintiffs are also responsible for identifying the name 13 and title of the person to whom process should be directed, who should be the official who is 14 authorized to receive international service on behalf of the Libyan national government.8 This 15 information must be provided to the Clerk as specified above. All required information, 16 documents, materials and payment should be provided together, in hard copy, to the Clerks’ 17 Office, United States District Court for the Eastern District of California, 501 I Street, 18 Sacramento, California 95814. 19 CONCLUSION 20 In accordance with the foregoing, it is ORDERED that the service deadline is extended by 21 90 days from the date of this order. 22 //// 23 //// 24 //// 25 7 The court is aware that the address for the Ministry provided in plaintiff’s previous filings is in 26 Tripoli, not in Misurata, although the street name is the same; the Misurata address was presumably taken from the return address of the document sent to the court from Libya in 27 response to the summons and complaint. 8 This is often the Minister of Justice and/or the Minister of Foreign Affairs of a foreign state, or 28 their equivalent. ] If plaintiffs wish to complete service through 28 U.S.C. § 1608(a)(3), they must comply 2 || with the steps listed above. Failure to properly complete service will result in a recommendation 3 || that this case be dismissed. 4 IT IS SO ORDERED. 5 | DATED: March 7, 2022 6 Hthren— Lhor—e_ ALLISON CLAIRE 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28