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Sabbithi v. Waleed

June 11, 2009

MANI KUMARI SABBITHI, ET AL., PLAINTIFFS,
v.
MAJOR WALEED KH N.S. AL SALEH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiffs Mani Kumari Sabbithi, Joaquina Quadros, and Gila Sixtina Fernandes, domestic workers from India, bring this action against their former employers Major Waleed KH N.S. Al Saleh ("Al Saleh"), his wife, Maysaa KH A.O.A. Al Omar ("Al Omar"), (collectively "Individual Defendants"), and the State of Kuwait.*fn1

Plaintiffs bring suit under the Trafficking Victims Protection Act of 2000 ("TVPA"), 18 U.S.C. §§ 1581, et seq., the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., and assert various contract and tort claims.*fn2 Plaintiffs, who worked in the Individual Defendants' home for many years, claim that Kuwait is liable for materially and practically assisting the Individual Defendants in the alleged offenses. Plaintiffs also seek to hold Kuwait liable under an agency theory for the actions of its employee, Defendant Al Saleh, and his wife, Defendant Al Omar. Compl. ¶ 3. The Court granted Individual Defendants' motion to dismiss in Sabbithi v. Al Saleh, 605 F. Supp. 2d 122 (D.D.C. 2009), and they are no longer parties in this action. Pending before the Court is Kuwait's motion to dismiss. Upon consideration of the motion, the responses and replies thereto, the amici curiae brief and response thereto, the Statement of the United States and responses thereto, and the applicable law, the Court GRANTS Kuwait's motion to dismiss.

I. BACKGROUND

Individual Defendant Al Saleh is a Kuwaiti diplomat. Al Saleh and his wife, Individual Defendant Al Omar, lived in the United States from 2005 to 2007, while Al Saleh served as Attaché to the Embassy of Kuwait. See Compl. ¶ 9; see also Pls.' Surreply 2. Prior to moving to the United States, the Individual Defendants employed plaintiffs as domestic workers in their home in Kuwait. Plaintiffs worked for the Individual Defendants in Kuwait for a period ranging from eight and a half months to five and a half years. See Compl. ¶¶ 16-46. In Kuwait, plaintiffs allegedly worked seven days a week for long hours each day, and were paid between 35 Kuwaiti Dinar (KD) (approximately 121 U.S. dollars) and 40 KD (approximately 138 U.S. dollars) per month. Id. According to plaintiffs, however, before coming to the United States the Individual Defendants signed an employment contract promising to pay plaintiffs $1,314 per month and agreeing to comply with U.S. labor laws in exchange for plaintiffs' domestic work in the Individual Defendants' home in the United States. Id. Plaintiffs assert that these employment contracts were presented to the U.S. Embassy in Kuwait for the purpose of obtaining plaintiffs' A-3 visas, which authorized plaintiffs to work as live-in domestic servants in the Individual Defendants' home in McLean, Virginia. Id. The A-3 visa applications were authorized by Kuwait. Id. ¶ 107.

Plaintiffs claim that once in the United States, the Individual Defendants did not comply with the terms of the employment contracts. Allegedly, plaintiffs worked sixteen to nineteen hours per day, seven days a week, and were not paid directly, but instead the Individual Defendants sent wages of 70 KD (approximately 242 U.S. dollars) to 100 KD (approximately 346 U.S. dollars) per month to plaintiffs' families overseas. See id. ¶¶ 47-93. Plaintiffs allege that the Individual Defendants deprived them of their passports, threatened plaintiffs with physical harm, and physically abused Plaintiff Sabbithi. Id. Plaintiffs also allege that Kuwait had knowledge that its diplomats were abusing their domestic staff, and that the U.S. Department of State ("State Department") specifically warned Kuwait that the Kuwaiti government would be held responsible for the conduct of its diplomats. See id. ¶¶ 113-116. Plaintiffs claim that Kuwait failed to take affirmative steps to monitor its diplomats' conduct in the United States as requested by the State Department. See id. ¶ 117.

Plaintiffs eventually escaped the Individual Defendants' home and, on January 18, 2007, plaintiffs filed a complaint against the Individual Defendants and Kuwait. In addition to this civil action, plaintiffs pursued criminal charges against the defendants through the U.S. Department of Justice ("DOJ"). Pursuant to the DOJ's request, the State Department asked Kuwait to waive the Individual Defendants' diplomatic immunity. Pls.' Surreply Ex. A. According to the State Department, Kuwait declined to waive the Individual Defendants' immunity. Id. As a result, the DOJ closed its investigation into the Individual Defendants' alleged illegal conduct. Id.

On March 30, 2007, the Individual Defendants filed a motion to dismiss and to quash service. On July 18, 2007, the Court granted Break the Chain Campaign, Casa of Maryland, Inc., Asian American Legal Defense and Education Fund, Global Rights, and Boat People SOS, Inc. leave to file as amici curiae. On March 20, 2008, this Court invited the State Department to submit its views regarding this case. The State Department responded on July 22, 2008.*fn3 On July 31, 2008, the Individual Defendants filed a renewed motion to dismiss and to quash service of process. In a Memorandum Opinion and Order dated March 20, 2009, this Court granted the Individual Defendants' motion to dismiss. In granting the Individual Defendants' motion, this Court found that (1) the Individual Defendants were entitled to diplomatic immunity and could not be sued in the United States; (2) hiring domestic employees is an activity incidental to the daily life of a diplomat and his or her family, and does not constitute commercial activity outside a diplomat's official function; (3) plaintiffs' constitutional claims must also give way to the Individual Defendants' diplomatic immunity; (4) the Individual Defendants' conduct did not constitute human trafficking, and thus no jus cogen norm was at issue; (5) the TVPA does not override diplomatic immunity; and (6) the Individual Defendants' departure from the United States does not affect their immunity from civil jurisdiction. See Sabbithi, 605 F. Supp. 2d at 125-30. On November 11, 2008, Kuwait filed this motion to dismiss.

II. DISCUSSION

Kuwait argues that this Court lacks personal jurisdiction over Kuwait because plaintiffs did not properly serve Kuwait in accordance with the Foreign Sovereign Immunity Act of 1976 ("FSIA"), 28 U.S.C. §§ 1602, et seq. Additionally, Kuwait argues that this Court lacks both subject matter and personal jurisdiction because Kuwait is immune from suit under the FSIA. Plaintiffs contend that service was effected pursuant to FSIA and that this Court has jurisdiction under both the commercial activity and tort exceptions to the FSIA. Because this Court finds that plaintiffs failed to properly effect service under the FSIA, the motion to dismiss is GRANTED.

The FSIA "provides the sole basis for obtaining jurisdiction over a foreign state in a United States court." Nikbin v. Islamic Republic of Iran, 471 F. Supp. 2d 53, 58 (D.D.C. 2007) (citing 28 U.S.C. § 1330, and Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989)); see also Fed. R. Civ. P. 4(j)(1) ("A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608."). The Court may proceed to consider the merits of a claim against a foreign state only if the foreign state is properly served under the statute. See Nikbin, 471 F. Supp. 2d at 59. "28 U.S.C. § 1608(a) provides for service in courts of the United States upon a foreign state by four alternative means, each . . . available only if the previously enumerated options are in some way foreclosed." Dem. Rep. Congo v. FG Hemisphere Assoc., 508 F.3d 1062, 1063 (D.C. Cir. 2007). Strict adherence to the statute is required. See Transaero v. La Fuerza Aerea Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994).

Section 1608(a) provides as follows:

(a) Service in the courts of the United States and of the States shall be made upon a foreign state or political subdivision of a foreign state:

(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the ...


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