Jouanny v. Embassy of France in the United States ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
Annie J o uanny, )
)
Plaintiff, )
)
v. ) Civil No. 1:16-cv-00135 (APM)
)
Embassy of France in the United States, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff Annie Jouanny works as a receptionist at Defendant Embassy of France in the
United States (“Embassy” or “Defendant”). She filed this action against the Embassy alleging age
discrimination and retaliation under the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621–34. Plaintiff, who was 62 years old when the alleged acts of discrimination began, claims
that the Embassy discriminated against her by (1) planning to terminate her employment while
retaining the services of a younger employee in the same position, and (2) offering Plaintiff a
lesser-paid position while offering the same less experienced, younger employee a more favorable
position. Additionally, Plaintiff alleges that she was retaliated against for filing a charge with the
Equal Employment Opportunity Commission.
Before the court is Defendant’s Motion to Dismiss, which advances three grounds for
dismissal: (1) insufficient service of process under Rule 12(b)(5) of the Federal Rules of Civil
Procedure; 1 (2) failure to timely file a complaint under Rule 12(b)(1); and (3) failure to state a
claim upon which relief can be granted under Rule 12(b)(6). Additionally, Defendant argues that
summary judgment should be granted in its favor—even though Plaintiff has not been afforded
any opportunity to take discovery—because Plaintiff cannot demonstrate that the Embassy’s
employment decisions were the product of a discriminatory motive. Id.
The court need consider only one of the grounds for dismissal put forward by Defendant:
insufficient service of process. On this point, the court agrees with Defendant that Plaintiff has
not accomplished proper service under the Foreign Sovereign Immunities Act. However,
consistent with Circuit precedent, the court will not dismiss Plaintiff’s Complaint and instead will
grant her an additional 30 days from this date to effect proper service.
II. BACKGROUND
Plaintiff Annie Jouanny was born in France and is a U.S. citizen. Compl., ECF No. 1
[hereinafter Compl.], ¶¶ 12–13. Plaintiff has worked as a receptionist at the Embassy of France in
the United States, located in Washington, D.C., since the late 1980s. Id. ¶ 14; Def.’s Mot. to
Dismiss, ECF No. 10 [hereinafter Def.’s Mot.], at 1. At the time the alleged discriminatory and
retaliatory acts began, Plaintiff worked at the main reception desk with two other receptionists—
Rosie Clam, who was older than 40, and Diane Ngandjeu, who was younger than 40. Compl.
¶¶ 14–15.
In March 2014, Plaintiff’s supervisor sent both Plaintiff and Clam, but not Ngandjeu,
identical letters stating that they would be terminated on November 30, 2014. Id. ¶ 17. Plaintiff
1
The court notes that Defendant moved to dismiss based on “insufficient service of process (Rule 12(b)(4)),” but
insufficient service of process is covered under Rule 12(b)(5). Defendant did not discuss either Rule 12(b)(4) or Rule
12(b)(5) in its Motion to Dismiss or its Reply. The court will evaluate Defendant’s Motion to Dismiss under Rule
12(b)(5) because “[a] Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or the lack of
delivery of the summons and complaint.” 5B Charles Alan Wright & Arthur A. Miller, Federal Practical & Procedure
§ 1353 (3d ed. 2004) [hereinafter Wright & Miller]; see also Olson v. Fed. Election Comm’n, 256 F.R.D. 8, 10 (D.D.C.
2009) (citing Wright & Miller).
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later learned that the Embassy planned to retain Ngandjeu, leaving Plaintiff feeling like “an old
mare that was being sent out to pasture.” Id. ¶¶ 19, 22. Plaintiff claims that when she appealed to
her boss not to terminate her, he told her instead to look for a job at Macy’s because, in Plaintiff’s
words, “they have senior women working there.” Id. ¶¶ 18, 26. In April 2014, Defendant offered
Plaintiff a lesser-paid and more physically demanding position as a security guard working outside
the Embassy, which she declined, citing health concerns and the position’s unpredictable hours.
Id. ¶¶ 26–33.
On October 25, 2014, Plaintiff filed a complaint with the Equal Employment Opportunity
Commission, alleging age discrimination. Id. ¶ 25. On November 19, 2014, Defendant rescinded
its notice of termination and offered to keep Plaintiff on for another year in her old position—an
offer that Plaintiff accepted. Id. ¶¶ 35, 37. Meanwhile, Defendant offered Ngandjeu a more
favorable position as an administrative employee in the Secretary General’s office, which involves
a lighter workload. Id. ¶¶ 39–44.
While Plaintiff continues to work at the Embassy, her workload has nearly doubled, her
supervisor has refused her requests for assistance, and she has experienced health issues due to
work-related stress. Id. ¶¶ 44–46, 49–50. Plaintiff filed her Complaint in this court on January
27, 2016, seeking relief under the Age Discrimination in Employment Act. See Compl. Defendant
filed a Motion to Dismiss on July 24, 2016, which is now before the court and ripe for
consideration. See Def.’s Mot.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(5) governs motions to dismiss for insufficient
service of process. The plaintiff bears the burden of proving that she has effected proper service.
See Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003) (citing Light v. Wolf, 816 F.2d 746, 751
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(D.C. Circ. 1987)). “To do so, [s]he must demonstrate that the procedure employed satisfied the
requirements of the relevant portions of Rule 4 [which governs summonses] and any other
applicable provision of law.” Light, 816 F.2d at 751. “[U]nless the procedural requirements for
effective service of process are satisfied, a court lacks authority to exercise personal jurisdiction
over the defendant.” Candido v. District of Columbia, 242 F.R.D. 151, 160 (D.D.C. 2007). Failure
to effect proper service is thus a “fatal” jurisdictional defect, and is grounds for dismissal. See Tom
Sawyer Prods., Inc. v. Progressive Partners Achieving Solutions, Inc., 550 F. Supp. 2d 23, 26
(D.D.C. 2008).
IV. DISCUSSION
A. Whether Plaintiff has Successfully Served the Embassy Pursuant to the
Foreign Sovereign Immunities Act
The Foreign Sovereign Immunities Act (“FSIA”) grants original jurisdiction to federal
district courts in suits “against a foreign state . . . as to any claim for relief . . . with respect to which
the foreign state is not entitled to immunity.” 28 U.S.C. § 1330(a). In deciding whether to exercise
jurisdiction over a foreign state pursuant to the FSIA, courts must conduct a two-pronged inquiry
to determine: “(1) whether service of the foreign state was accomplished properly, and (2) whether
one of the statutory exceptions to sovereign immunity applies.” Abur v. Republic of Sudan, 437
F. Supp. 2d 166, 171–72 (D.D.C. 2006); see also 28 U.S.C. § 1330(a)–(b). Here, the court need
only focus on the first prong—satisfactory service of process.
Service upon “a foreign state or its political subdivision, agency, or instrumentality must
be . . . [accomplished] in accordance with 28 U.S.C. § 1608.” Fed. R. Civ. P. 4(j)(1). The
requirements for service under Section 1608 depend on the type of foreign entity being served. A
“foreign state or [its] political subdivision” must be served according to the steps laid out in Section
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1608(a), and “an agency or instrumentality of a foreign state” must be served according to the
requirements under Section 1608(b). See 28 U.S.C. § 1608.
A foreign entity is considered a “foreign state” for purposes of the FSIA if it is an “integral
part of a foreign state’s political structure.” Transaero Inc. v. La Fuerza Aerea Boliviana, 30 F.3d
148, 151–53 (D.C. Cir. 1994). Applying that test, courts in this District consistently have held that
embassies, such as Defendant, are considered “foreign states” for purposes of the FSIA. See, e.g.,
Howe v. Embassy of Italy, 68 F. Supp. 3d 26, 32–33 (D.D.C. 2014) (collecting cases). Thus,
Defendant in this case qualifies as a foreign state under the FSIA, and this court may exercise
jurisdiction over it only if Plaintiff served process in accordance with Section 1608(a).
Plaintiffs must strictly adhere to the requirements of Section 1608(a)—neither adequate
notice of the suit nor substantial compliance will do. See Transaero, 30 F.3d at 153–54. Section
1608(a) outlines four methods of service, listing them in order of preference. See Opati v. Republic
of Sudan, 978 F. Supp. 2d 65, 67 (D.D.C. 2013). The preferred method of service is for a plaintiff
to deliver 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.” 28 U.S.C.
§ 1608(a)(1); see also Howe, 68 F. Supp. 3d at 31. In the absence of such special arrangement,
the second way to accomplish service is to deliver a copy of the summons and complaint “in
accordance with an applicable international convention on service of judicial documents.”
28 U.S.C. § 1608(a)(2). Failing the first two methods, a plaintiff may arrange for the clerk of the
court to send a copy of the summons and complaint and a notice of suit to the head of the ministry
of foreign affairs of the foreign state. Id. § 1608(a)(3). Lastly, a plaintiff may request the clerk of
the court to send two copies of the summons and complaint and a notice of suit to the Secretary of
State, who then sends the papers via diplomatic channels to the foreign state. Id. § 1608(a)(4).
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Here, Plaintiff contends that she successfully effected service under the second method—
“in accordance with an applicable international convention on service of judicial documents.” Id.
§ 1608(a)(2). See Pl.’s Opp’n, ECF No. 11, at 4–5. In this case, that international convention is
the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil
or Commercial Matters (“Hague Convention”), to which the United States and France are
signatories. 2 The Hague Convention requires signatory states “to designate a Central Authority”
to receive service. See Hague Convention art. 2. The Central Authority for France is its Ministry
of Justice. 3
Plaintiff here did not serve the Ministry of Justice; instead, she served the Ministry of
Foreign Affairs. See Aff. of Mailing, ECF. No. 4 (noting that summons and complaint were sent
via DHL to the “Embassy of France in the United States, Ministry of Foreign Affairs, DCD Press
Service, 1 Rue Robert Esnault Pelterie, Paris 75007 FRANCE” (emphasis added)). Because
Plaintiff did not serve the proper French authority under the Hague Convention, and Plaintiff was
required to strictly adhere to the requirements of Section 1608(a), this court lacks jurisdiction over
Defendant.
Notwithstanding this straightforward analysis, Plaintiff argues that this court can exercise
jurisdiction for two reasons. First, she complains that Defendant’s counsel “played coy and
refused to accept service and also refused to provide a contact name at the Ministry of Foreign
Affairs.” Pl.’s Opp’n at 5. But neither the FSIA nor the Hague Convention compels a foreign
sovereign to accept service through its counsel. Indeed, there may be perfectly legitimate reasons
2
See Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial
Matters, art. 31, Feb. 10, 1969, 20 U.S.T. 361, T.I.A.S. No. 6638 [hereinafter Hague Convention].
3
See HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW , France – Central Authority & practical information,
https://www.hcch.net/en/states/authorities/details3/?aid=256 (last visited Dec. 7, 2016).
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having to do with matters of foreign affairs why a sovereign might refuse the type of informal
service that a private party might accept.
Second, Plaintiff also seems to assert that, because Defendant had notice of her suit, the
court can properly exercise jurisdiction over the Embassy. See Pl.’s Opp’n at 3–4. (“Defendant
was aware of Plaintiff’s complaint after it was filed.”). As previously stated, however, only strict
adherence to the terms of Section 1608(a) will confer jurisdiction over a foreign sovereign. Actual
notice of the suit is no substitute. See Transaero, 30 F.3d at 154.
B. Plaintiff’s Further Opportunity to Effect Proper Service
Having found that Plaintiff failed to properly serve the Embassy under the FSIA, the court
will grant Defendant’s Motion, but only in part. The Court of Appeals has held that “dismissal is
not appropriate when there exists a reasonable prospect that service can be obtained.” Barot v.
Embassy of the Republic of Zambia, 785 F.3d 26, 29 (D.C. Cir. 2015) (internal quotation marks
omitted). Here, if Plaintiff sends the summons and Complaint to the French Ministry of Justice in
accordance with the Hague Convention, she will satisfy the requirements of Section 1608(a)(2).
Alternatively, if unable to effect service under subsection (a)(2), she can attempt service under
subsections (a)(3) or (a)(4).
The Embassy has not articulated any prejudice that it would suffer by the court permitting
Plaintiff another opportunity to effect proper service. See Barot, 785 F.3d at 29. Moreover, unlike
the 90-day time limit on service under Rule 4(m), under the FSIA there is an unlimited time period
in which to complete service. See id. Therefore, Defendant will not be prejudiced if Plaintiff is
allowed more time to serve her Complaint.
***
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Because Plaintiff failed to effect service, the court lacks jurisdiction to do anything more
in this case. See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868) (“Without jurisdiction the
court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of announcing the fact and
dismissing the cause.”). For that reason, the court does not reach Defendant’s other arguments for
dismissal or entry of summary judgment. If Plaintiff effects proper service, then Defendant will
be free to renew those arguments.
V. CONCLUSION AND ORDER
For the foregoing reasons, the court grants Defendant’s Motion to Dismiss in part, but will
not dismiss the Complaint. The court grants leave to Plaintiff to accomplish service pursuant to
28 U.S.C. § 1608(a) within 30 days of the date of this opinion. Failure to effect service within that
time, or to seek additional time for service, may result in dismissal of this matter.
Dated: December 7, 2016 Amit P. Mehta
United States District Judge
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