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Barot v. Embassy of Republic of Zambia

United States District Court, D. Columbia

June 2, 2014

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

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

For Embassy of The Republic of Zambia, Defendant: Laina Catherine Lopez, LEAD ATTORNEY, BERLINER, CORCORAN & ROWE, L.L.P., Washington, DC USA.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge.

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),

Page 34

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 § 32-1303 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, 331 U.S.App.D.C. 379 (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, 359 U.S.App.D.C. 366 (D.C. Cir. 2004), quoting Firestone v. Firestone, 76 F.3d 1205, 1208, 316 U.S.App.D.C. 152 (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 is barred from consideration. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (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).

Page 35

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 ...

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