United States District Court, D. Columbia
November 9, 2005.
MANUEL ELLENBOGEN, Plaintiff,
THE CANADIAN EMBASSY, Defendant.
The opinion of the court was delivered by: JOHN BATES, District Judge
Plaintiff Manuel Ellenbogen brings this employment
discrimination suit against "the Canadian Embassy" pursuant to
the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. §§ 621 et seq. Plaintiff alleges that he was unlawfully
discriminated against when he was terminated from his position as
a business development officer in the Canadian Embassy in
Washington, D.C., because of his age.
Plaintiff has submitted a motion for summary judgment that
seeks a default judgment against defendant for failure to submit
an answer to the complaint. In response, defendant has moved to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(4) and
(5) for failure to properly effect service under the Foreign
Sovereign Immunity Act ("FSIA"), 28 U.S.C. § 1608, and pursuant
to Rule 12(b)(1) for lack of subject matter jurisdiction.
Plaintiff contends that service was proper and that subject
matter jurisdiction exists under the "commercial activity"
exception to the FSIA. The Court concludes that plaintiff failed to properly serve
defendant. Accordingly, the Court will grant defendant's motion
and dismiss this case without prejudice.
Plaintiff, a United States citizen, was an employee of the
Canadian Embassy from 1987 to 2003, first as a commercial officer
and then as a business development officer. Compl. ¶ 5.
Plaintiff's duties included promoting Canadian goods and services
in the American market through trade shows and marketing
campaigns. Id. ¶ 6. Beginning in September, 2002 and continuing
until his termination on August 27, 2003, plaintiff alleges that
his work duties were gradually taken from him and reassigned to
younger officers because of his age. Id. ¶¶ 12, 23. Plaintiff
alleges he was ultimately terminated because he was over the age
of 40. Id. ¶ 23. Following his termination, plaintiff filed a
complaint with the Equal Employment Opportunity Commission but
defendant declined to participate, citing sovereign immunity
under the FSIA. Id. ¶ 25. Plaintiff filed this action on August
2, 2005, and attempted to serve the Canadian Embassy by mailing
directly to the Embassy a copy of the summons and complaint.
Pl.'s Opp'n Ex. A.
Section 1608(a) of the FSIA enumerates four methods through
which a "foreign state or political subdivision of a foreign
state" may be served. 28 U.S.C. § 1608(a). The FSIA separately
addresses service of process upon an "agency or instrumentality
of a foreign state." 28 U.S.C. § 1608(b). The service
requirements under § 1608(b) are somewhat less stringent than
those under § 1608(a), and can be satisfied by "technically
faulty" service as long as the defendant receives adequate notice of the suit and is not
prejudiced. See Transaero, Inc. v. La Fuerza Aerea Boliviana,
30 F.3d 148, 154 (D.C. Cir. 1994); see also Straub v.
Green, 38 F.3d 448, 453 (9th Cir. 1994); B.P. Int'l, Inc. v.
Kingdom of Sweden, 281 F. Supp. 2d 73, 84 (D.D.C. 2003).
Plaintiff incorrectly contends that defendant can be served
under § 1608(b), based on the presumption that the Embassy is an
"agency or instrumentality" under the FSIA. To the contrary, it
is well-settled that an embassy is a "foreign state" covered by §
1608(a), not an "agency or instrumentality" thereof. See Int'l
Road Fed. v. Embassy of Democratic Republic of Congo,
131 F. Supp. 2d 248, 250 (D.D.C. 2001) ("Defendant is a foreign
state."); Underwood v. United Republic of Tanzania, 1995 U.S.
Dist. LEXIS 1333 (D.D.C. Jan. 27, 1995) ("we conclude that as a
matter of law the embassy of a sovereign nation is a foreign
state which must be served pursuant to § 1608(a).").
The Court thus must assess whether plaintiff's service of
process satisfied the FSIA requirements for service on foreign
states. Section 1608(a) sets forth four methods by which service
may be effected upon a sovereign:
(1) 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
(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 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
28 U.S.C. § 1608(a)(1)-(4). These four methods of service are the
exclusive channels through which service may be properly effected
upon a foreign state. See Transaero, 30 F.3d at 154. In this
action, the sufficiency of service under § 1608(a)(3) is at
Plaintiff has failed properly to serve plaintiff pursuant to §
1608(a)(3) because he has served process upon the wrong person,
has failed to include all required documents, and has failed to
have the documents addressed and dispatched by the clerk of the
court. Plaintiff's contention that "actual notice" will suffice
is incorrect because this Circuit has held that strict adherence
to § 1608(a) is required. See Transaero, 30 F.3d at 154.
Service of process upon an embassy of a foreign state rather than
upon the head of the ministry of foreign affairs does not meet
the requirements set forth in § 1608(a)(3). See Lucchino v.
Brazil, 631 F. Supp. 821, 825 (E.D. Pa. 1986) (ruling that
plaintiff failed to effect proper service under § 1608(a) when he
attempted to serve the Mexican Consulate in Philadelphia and the
Mexican Embassy in Washington instead of the head of the Mexican foreign service or
through the U.S. Secretary of State); Alberti v. Empresa
Nicaraguense de la Carne, 705 F.2d 250 (E.D. Ill. 1983) (holding
that service was improper under § 1608(a)(3) when plaintiff
served the Ambassador of Nicaragua to the United States and not
the head of the Nicaraguan foreign service). Furthermore,
plaintiff failed to include the required notice of suit with a
copy of the summons and complaint.*fn2 See Def.'s Opp'n
Ex. A. There is also no evidence that the clerk of the court
addressed and dispatched the papers as directed in § 1608(a)(3).
Therefore, plaintiff has failed to properly serve defendant in
accordance with § 1608(a)(3).
Defendant also moves to dismiss for lack of subject matter
jurisdiction. Under the FSIA, foreign states are immune from suit
unless the action falls within one of the enumerated exceptions,
which defendant contends are not applicable here. See
28 U.S.C. § 1605. Plaintiff argues that subject matter jurisdiction exists
under the "commercial activities" exception of the FSIA. See
28 U.S.C. § 1605(a)(2). In response, defendant inaccurately contends
that the proper test is whether a "significant nexus" exists
between the "commercial activity" in question and plaintiff's
cause of action, citing Filetech v. France Telecom,
212 F. Supp. 2d 183, 191 (S.D.N.Y. 2001). See Def. Reply at 6. Both
parties overlook the controlling case in this circuit addressing
whether the "commercial activity" exception applies to employment
actions against a sovereign government. See El-Hadad v. United
Arab Emirates, 216 F.3d 29 (D.C. Cir. 2000). This Circuit
focuses on whether the employee shall be considered a civil
servant of the foreign state and thus noncommercial and
requires consideration of several factors to make this
determination, e.g., the foreign government's own laws defining civil servant
and the employee's job title and duties in relation to that
definition. Id. at 34. Since the issue of subject matter
jurisdiction requires more development by the parties and is
rendered effectively moot until plaintiff can properly effect
service, the Court will not decide the issue at this time.
For the foregoing reasons, the Court finds that plaintiff
failed to properly effect service pursuant to § 1608(a) of the
FSIA. Accordingly, defendant's motion to dismiss will be granted,
and this case will be dismissed without prejudice. A separate
order will be issued herewith.
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