BAROT v. EMBASSY OF THE REPUBLIC OF ZAMBIA

Filing 38

MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 6/2/2014. (lcabj1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiff,
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v.
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EMBASSY OF THE REPUBLIC OF
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THE ZAMBIA,
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Defendant.
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DOLORES BAROT,

Civil Action No. 13-0451 (ABJ)

MEMORANDUM OPINION
Pending before the Court is Plaintiff Delores Barot’s Motion for Reconsideration under
Federal Rule of Civil Procedure 59(e). Plaintiff asks this Court to reconsider its order granting
defendant’s motion to dismiss plaintiff’s Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2(a), 2000e-3(a) (2012), Age Discrimination in Employment Act of 1967, 29 U.S.C.
§ 623(a) (2008), and District of Columbia Wage Payment and Collection Law, D.C. Code § 321303 et seq. (2001), claims for failing to perfect service on defendant in accordance with the
strict compliance requirement of section 1608(a)(3) of the Foreign Sovereign Immunities Act
(“FSIA”), 28 U.S.C. § 1608 (2012), and thus depriving this Court of personal jurisdiction over
defendant. Order Grant Def.’s Mot. to Dismiss at 1 [Dkt. # 31]; Mem. Op. at 1 [Dkt. # 32].
Because the Court is bound to follow the strict service requirements that apply in this context, it
will deny plaintiff’s motion for reconsideration. The Court’s prior decision is consistent with
binding precedent in this jurisdiction, and the new evidence presented by plaintiff does not alter
that conclusion.

“Motions under Fed. R. Civ. P. 59(e) are disfavored and relief from judgment is granted
only when the moving party establishes extraordinary circumstances.” Niedermeier v. Office of
Max S. Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001), citing Anyanwutaku v. Moore, 151 F.3d
1053, 1057 (D.C. Cir. 1998). Specifically, “‘[a] Rule 59(e) motion is discretionary and need not
be granted unless the district court finds that there is an intervening change of controlling law,
the availability of new evidence, or the need to correct a clear error or prevent manifest
injustice.’” Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004), quoting Firestone v. Firestone,
76 F.3d 1205, 1208 (D.C. Cir. 1996).
Plaintiff asks this Court to reconsider its April 11, 2014 order dismissing the amended
complaint for insufficient service of process because in her view, she strictly complied with the
rules governing service of process under section 1608(a) of FSIA. Plaintiff directs this court to
additional evidence that she claims “reflect[s] her strict compliance” with that statute in
executing service of process on February 3, 2014. Pl.’s Mem. in Supp. of Pl.’s Mot. for Recons.
(“Pl.’s Mem.”) at 1–2 [Dkt. # 33-1]. In particular, she asserts that the Court wrongly analyzed
the DHL waybill affixed to the service package, and that its factual error led to the wrong legal
conclusion. Id.; see also Reply in Further Supp. of Pl.’s Mot. for Recons. at 1 [Dkt. # 36].
Finally, plaintiff contends that the failure to use the words “Head of” on a mailing label to the
foreign ministry should not be fatal under section 1608(a)(3) and that service should be deemed
proper because an individual at the Zambian Ministry of Foreign Affairs signed for the package.
Pl.’s Mem. at 5, 8; Reply in Further Supp. of Pl.’s Mot. for Recons. at 4. The Court disagrees.
As an initial point, the Court is skeptical that plaintiff’s new evidence is the type that is
properly reviewed in connection with a Rule 59(e) motion:

New evidence presented in

connection with that motion that was available and could have been introduced prior to judgment

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is barred from consideration. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008).
And plaintiff has not explained why the additional emails and documentary evidence that shows
the “cosignee” of the service package to be the “Ministry of Foreign Affairs” could not have
been presented in connection with her opposition to defendant’s motion to dismiss. This alone
would be a sufficient basis for the Court to deny plaintiff’s motion for reconsideration on the
grounds of new evidence. But giving plaintiff the benefit of the doubt and reviewing her newly
submitted evidence, the Court’s conclusion is the same: plaintiff did not strictly comply with the
requirements of section 1608(a)(3).
The question plaintiff asks this Court to reconsider is whether the DHL waybill satisfies
the plain language of section 1608(a)(3), which requires that the service package must be
addressed “to the head of the ministry of foreign affairs.” 28 U.S.C. § 1608(a)(3). It does not.
Review of the DHL waybill shows that plaintiff addressed the February 3, 2014 shipment:
To: Embassy of Zambia
P.O. Box 50069
LUSAKA CITY
Zambia
DHL waybill [Dkt. # 23-1], not to “the head of the ministry of foreign affairs” as is required by
the statute. The significance of this error is magnified when one considers that, although the
package was sent to a P.O. Box in Lusaka, Zambia, the addressee, “the Embassy of Zambia,”
would not be located in Zambia at all.
Plaintiff attempts to cure this problem by directing the Court to a notation on the upper
right hand corner of the DHL waybill, which reads “Contact: Min. Foreign Affairs 260 211
252666.”
1608(a)(3).

She argues that including this language satisfies the requirements of section
Pl.’s Mem. at 7, citing DHL waybill. But that addition does not put plaintiff in

strict compliance with section 1608(a)(3). Plaintiff’s new evidence – in the form of emails
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between counsel and DHL – shows that “Min. Foreign Affairs” was intended as an abbreviation
for “Ministry of Foreign Affairs,” not “Minister of Foreign Affairs.” Decl. of Denise M. Clark
(“Clark Decl.”) ¶ 5 [Dkt. # 33-3] (“An e-mail dated January 31, 2014 was sent by DHLOnline at
4:26 pm to me confirming that the shipment label was printed for delivery to ‘Min.Foreign
Affairs of Embassy of Zambia.’

The Term ‘Ministry’ was abbreviated due to space

limitations.”); Commercial Invoice, Ex. A to Clark Decl. [Dkt. # 33-3] (listing the cosignee as
“Ministry of Foreign Affairs”). The plain language of the statute requires that the service
package be addressed to the head of the ministry, or the minister of foreign affairs, not to the
ministry in general. See 28 U.S.C. § 1608(a)(3). As a result, plaintiff’s additional evidence does
not cure the technical defect in the February 3, 2014 service attempt.
Plaintiff faults this Court for dismissing the amended complaint on a technicality and for
commanding strict adherence to the plain language of section 1608(a)(3). Pl.’s Mem. at 5. But
as this Court noted in its previous opinion, courts in this Circuit “have rarely excused defective
service” under section 1608(a). Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148,
153–54 (D.C. Cir. 1994). They require “strict adherence to the terms of 1608(a)” and will
dismiss the plaintiff’s case absent exact compliance with the statute. Id. at 154; see also Doe I v.
State of Israel, 400 F. Supp. 2d 86, 102 (D.D.C. 2005) (“The requirements of § 1608(a) are
applied strictly.”); Ellenbogen v. Canadian Embassy, No. 05-01553, 2005 WL 3211428 at *2
(D.D.C. Nov. 9, 2005) (noting that failure to “properly serve [the Canadian Embassy] pursuant to
§ 1608(a)(3) because he . . . served process upon the wrong person”). “Neither substantial
compliance with § 1608(a)’s provisions nor [defendant’s] actual notice of the suit excuses
plaintiffs’ deviation from the section’s mandates.” Sabbithi v. Al Saleh, 623 F. Supp. 2d 93, 98
(D.D.C. 2009), quoting Doe I, 400 F. Supp. 2d at 102. In fact, another court in this district

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previously found service insufficient on the ground that the party – instead of the clerk of the
court as required by section 1608(a)(3) – mailed the service packet to the foreign state. Nikbin v.
Islamic Republic of Iran, 471 F. Supp. 2d 53, 68–69 (D.D.C. 2007). As other courts in this
district have found, this Court is bound to follow the Circuit Court’s directive to require strict
adherence to section 1608(a)’s plain language when evaluating defendant’s challenge to
plaintiff’s service.
Plaintiff also challenges this Court’s holding on the ground that no other court has
required “head of” or the name of the minister before there is proper service under section
1608(a)(3). Pl.’s Mem. at 5–7. But this argument ignores the plain language of that section, and
it overlooks the fact that this issue has not been presented to a court before. For example,
plaintiff relies on Abur v. Republic of Sudan, 437 F. Supp. 2d 166, 173 (D.D.C. 2006), as support
for her position. But – even if that case was binding on this Court as plaintiff suggests – it is
readily distinguishable: the mailing labels in that case were addressed to the head of the ministry
of foreign affairs. 1 See Ex. A. to Def.’s Opp. to Pl.’s Mot. for Recons. [Dkt. # 35-1].
Finally, plaintiff’s reliance on the signed receipt she received from DHL, indicating that
the service package was delivered, is misplaced. Pl.’s Mem. at 8. It is well-settled in this Circuit

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Plaintiff argues that her failure to use the words “head of” on a mailing label should not
be fatal under section 1608(a)(3). Pl.’s Mem. at 5–7. The Court agrees. But as discussed above,
plaintiff’s error was not simply her 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.
This conclusion is consistent with Democratic Republic of Congo v. FG Hemisphere
Associates, LLC, 508 F.3d 1062 (D.C. Cir. 2007). In that case, the court briefly considered
whether the inclusion of the name of a former Minister of Foreign Affairs could defeat service
when a new Minister had taken office. Id. at 1063–64. It ultimately did not reach the issue
because it found that defendant waived its ability to challenge service, but the court did note its
skepticism as to whether “subsection (a)(3) . . . require[d] the name of the head of the ministry of
foreign affairs.” Id. at 1063. It did not address instances where the service package is not even
addressed to the Minister of Foreign Affairs, as in an individual or office, generally, but is
instead addressed to the Embassy, with a note to “contact” the Ministry of Foreign Affairs.
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