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Barot v. Embassy of Republic of Zambia

United States District Court, D. Columbia

April 11, 2014

DOLORES BAROT, Plaintiff,
v.
EMBASSY OF THE REPUBLIC OF THE ZAMBIA, Defendant

Page 25

For DOLORES BAROT, Plaintiff: Denise Marie Clark, LEAD ATTORNEY, CLARK LAW GROUP, Washington, DC; Leonardo Abueg Canseco, LEAD ATTORNEY, CANSECO LAW GROUP, LLC, Rockville, MD.

For EMBASSY OF THE REPUBLIC OF ZAMBIA, Defendant: Laina Catherine Lopez, LEAD ATTORNEY, BERLINER, CORCORAN & ROWE, L.L.P., Washington, DC.

Page 26

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge.

Plaintiff Dolores Barot filed this case against defendant Embassy of the Republic of Zambia, alleging that defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e-2(a), 2000e-3(a) (2012), the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § 623(a) (2008), and the District of Columbia Wage Payment and Collection Law, D.C. Code § 32-1303 et seq. (2001), when it denied her a raise, terminated her employment, and withheld funds plaintiff alleges were owed to her under her employment agreement. Am. Compl. ¶ ¶ 48-65 [Dkt. # 17]. Defendant filed a motion to dismiss plaintiff's amended complaint, arguing, among other things, that the case should be dismissed for insufficient service of process and for lack of personal jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(2). Def.'s Mot. to Dismiss & Mot. to Strike (" Def.'s Mot." ) [Dkt. # 21]; Def.'s Mem. of Law in Supp. of Def.'s Mot. (" Def.'s Mem." ) [Dkt. # 21-1]. Plaintiff opposed the motion. Pl.'s Opp. to Def.'s Mot. (" Pl.'s Opp." ) [Dkt. # 24]. Because the Court finds that plaintiff failed to perfect service on defendant in accordance with the strict requirements of section 1608(a)(3) of the Foreign Sovereign Immunities Act (" FSIA" ), and because insufficient service of process also deprives this Court of personal jurisdiction over defendant, the Court will grant defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(2).

BACKGROUND

Plaintiff Dolores Barot began working as a secretary for the Embassy of the Republic of Zambia on January 5, 1995. Am. Compl. ¶ 9. She alleges that in 2002, she was assigned to perform additional duties that were not within her job description. Id. ¶ 16. Seven years later, on September 8, 2009, plaintiff requested that defendant increase her salary to reflect an increase in her in job duties, but on September 9, 2009, defendant denied the request and instead decreased plaintiff's responsibilities.[1] Id. ¶ ¶ 23-24. The following day, defendant asked plaintiff about the disappearance of a USB flash

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drive, and plaintiff denied knowing anything about it. Id. ¶ 25. Defendant then placed plaintiff on indefinite administrative leave -- which had the effect of reducing her salary -- and it had her escorted out of the Embassy. Id. ¶ ¶ 26, 33-34. In a letter dated November 5, 2009, but postmarked November 25, 2009, defendant informed plaintiff that her employment at the Embassy was terminated, effective October 31, 2009. Id. ¶ 28. Plaintiff also alleges that prior to her termination, defendant improperly withheld wages that were due, and that she was not made whole upon her departure. Id. ¶ ¶ 29-31, 33-34, 37-39.

Plaintiff believed her termination was the result of gender and age discrimination and that she was the victim of unlawful retaliation, so she filed a charge of discrimination with the Equal Employment Opportunities Commission (" EEOC" ) on July 20, 2010. See id. ¶ 40. The EEOC investigated plaintiff's charge and issued a determination letter in her favor. Id. ¶ 41. The agency informed plaintiff on December 21, 2012 that the Embassy would not participate in conciliation, and that she therefore had ninety days to file suit in a federal district court. Id. ¶ 43. Plaintiff filed the original complaint giving rise to this case in the spring of 2013. See id. ¶ 44; see also Compl. [Dkt. # 1].

The Court granted plaintiff's motion to proceed in forma pauperis, and as a result, the U.S. Marshal's Service aided plaintiff in her attempt to perfect service on defendant, albeit unsuccessfully. See 28 U.S.C. § 1915(d); Fed.R.Civ.P. 4(c)(3). After the summons was returned unexecuted, plaintiff made three more attempts at effectuating service in this case.

I. The First Attempt

On August 16, 2013, the Court ordered plaintiff to provide it with the necessary information so that service could be effected pursuant to FSIA, 28 U.S.C. § 1608(a)(3) by having the Clerk of the Court mail the required documents to the head of the ministry of foreign affairs in Zambia. Order, Aug. 16, 2013 [Dkt. # 4]. Plaintiff properly complied with that request. Resp. to Order of the Court [Dkt. # 5]. But on September 4, 2013, the Court incorrectly instructed the Clerk of the Court to mail the summons and complaint to the Embassy of Zambia pursuant to FSIA, 28 U.S.C. § 1608(b), Order, Sept. 4, 2013 [Dkt. # 6], and service was mailed by the Clerk of the Court to the Embassy's Washington, D.C. address on September 6, 2013. Certificate of Clerk [Dkt. # 8].

Two months later, defendant filed a motion for reconsideration of the order permitting plaintiff to serve it pursuant to section 1608(b)(3). See Def.'s Mot. for Recons. [Dkt. # 15]. It also filed a motion to dismiss and to strike based on, among other things, its argument that plaintiff had failed to properly effectuate service. See generally Def.'s Mot to Dismiss & to Strike [Dkt. #16]. The Court granted the motion for reconsideration, noting that an embassy is considered a " foreign state or political subdivision of a foreign state" under FSIA and therefore must be served in accordance with 28 U.S.C. ยง 1608(a), not ...


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