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De Sousa v. Embassy of Republic of Angola

United States District Court, District of Columbia

January 9, 2017

LUIS DE SOUSA, Plaintiff
v.
EMBASSY OF THE REPUBLIC OF ANGOLA, Defendant.

          MEMORANDUM OPINION

          Beryl A. Howell Chief Judge

         The plaintiff, Luis de Sousa, who is proceeding pro se, filed this action against the defendant, the Embassy of the Republic of Angola, alleging in the operative Amended Complaint that the Embassy, through its diplomatic staff and some of its local employees, engaged in “theft, ” Amended Compl. ¶¶ 38, ECF No. 40-1; “defamation, ” id. ¶¶ 39, 65, and caused “emotional distress, ” id. ¶¶ 36, 40, 41, 44, 62; stemming from the plaintiff's alleged provision of “party services, ” id. ¶ 29, and construction and air conditioning work on the Embassy building, id. ¶¶ 11, 19, ECF No. 1, for which two invoices, totaling $160, 726.61, remain unpaid by the defendant, id. ¶¶ 59-60, as part of the overall $360, 000, 000 in relief he seeks, id. ¶ 68. The plaintiff further alleges that, as a result of his filing of this lawsuit in February 2016, his family in Angola has been threatened with “serious consequences” if he did not “drop the case.” Id. ¶ 34.[1]

         After his first effort to serve the Embassy was quashed, Order, dated May 27, 2016 (“May 2016 Order”), ECF No. 14, the plaintiff again attempted service on the Embassy, which has responded by raising further challenges to the effectiveness of service. See Def.'s Mot. Quash (“Def.'s 2nd Mot. Quash”), ECF No. 39. Meanwhile, the plaintiff has busily persisted in seeking recompense for his claimed injuries by seeking entry of default judgment against the Embassy, see Pl.'s Mot. Default J., ECF No. 38, [2] and by filing multiple, nearly identical motions to attach various property belonging to the Embassy, including a bank account and real property, see Pl.'s Mot. Attach Bank Account, ECF No. 20; Pl.'s Mot. Attach 2100 16th St NW, Washington, DC, 20009, ECF No. 23; Pl.'s Mot. Attach 2108 16th St NW. Washington, DC, 20009, ECF No. 24.[3] For the reasons set forth below, the pending motions by the Embassy to quash service and by the plaintiff for default judgment and attachment of the Embassy's purported assets are denied.[4]

         I. BACKGROUND

         The plaintiff's first effort to effect service on the Embassy consisted of a person hand-delivering a copy of the original Complaint to “Marline” at the Embassy at 2108 16th Street, NW, Washington, D.C. See Proof of Service, ECF No. 2. The Embassy moved to quash service, citing the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602 et seq. and claiming that hand delivery did not constitute a form of “valid service under Section 1608(a) of [the FISA].” Def.'s Mot. Quash (“Def.'s 1st Mot. Quash”), ECF No. 8. The plaintiff conceded that he had not complied with the requirements of the FSIA, Pl.'s Resp. Def.'s 1st Mot. Quash at 2, ECF No. 12, and the Embassy's motion to quash was granted, while the Court directed the plaintiff to “effect service in accordance with the requirements of 28 U.S.C. § 1608.” May 2016 Order.

         In compliance with the Court's direction on proper service, the plaintiff submitted to the Clerk of Court an affidavit requesting the mailing of relevant documents to the head of ministry of foreign affairs for Angola, Pl.'s Aff. Req. Foreign Mailing, dated May 31 2016 (“Pl.'s May 2016 Aff.”), ECF No. 15, and, the same day, the Clerk of Court certified that “one copy of the summons, complaint, and notice of suit, together with a translation of each into the official language of the foreign state” had been sent to the “head of the ministry of foreign affairs [of Angola], . . . pursuant to the provisions of 28 U.S.C. § 1608(a)(3), ” see Cert. of Mailing ¶ 2, ECF No. 16. After delivery, the plaintiff submitted a Notice of Completed Service to which he attached a “proof-of-delivery” from FedEx, which noted that the package had been successfully received at the destination and had been signed for and accepted by “S.RRUBRICA.” Notice of Completed Service at 3, ECF No. 25.

         The Embassy again seeks to quash service of the complaint, claiming that the plaintiff's “attempted service has not satisfied the strict requirements of Section 1608(a)” and that the Embassy “never received Plaintiff's FedEx package.” See Def.'s Mem. Supp. 2nd Mot. Quash at 3-5, ECF No. 39-1. In support of this assertion, the Embassy provided the affidavit of an employee at the Embassy, who stated that he “personally travelled to Luanda, Angola, . . . made diligent inquiries at the Ministry of Foreign Affairs . . . [and] that the Ministry has no record of having received any” package from De Sousa. Id. Ex. 1, Aff. of Frederico Da Silva (“Da Silva Aff.”), at ¶ 5, ECF No 39-3. In response, the plaintiff submitted his own affidavit in support of the contention that he sent the proper documents and that they were received, citing to the signed confirmation of delivery from FedEx, as well as the Clerk of Court's certification that the package had been sent. Pl.'s Opp'n Def.'s 2nd Motion Quash Ex. 1, Aff. of Louis De Sousa, dated August 21, 2016 (“Pl.'s Aug. 2016 Aff.”) at 3-5, ECF No 41-1.

         The Embassy's motion to quash service and the plaintiff's motions to attach Embassy property are ripe for resolution.

         II. LEGAL STANDARDS

         This section reviews the legal standards relevant to the Embassy's challenge to the sufficiency of service and the plaintiff's motions to attach Embassy property.

         A. Serving A Foreign State

         Federal Rule of Civil Procedure 12(b)(5) requires that a motion asserting the defense of “insufficient service of process, ” be made before filing a responsive pleading, Fed.R.Civ.P. 12(b)(5), (h), and incorporates the procedural requirements for proper service that are set out in Rule 4. As a procedural matter, the manner of serving “[a] foreign state or its political subdivision, agency, or instrumentality” is governed by the FSIA, 28 U.S.C. § 1608. Fed.R.Civ.P. 4(j); see also Barot v. Embassy of the Republic of Zam., 785 F.3d 26, 27 (D.C. Cir. 2015).

         The FSIA provides two avenues to serve a foreign sovereign, depending on the type of entity to be served. A “foreign state or [its] political subdivision” must be served pursuant to 28 U.S.C. § 1608(a), while “an agency or instrumentality of a foreign state” must be served pursuant to 28 U.S.C. § 1608(b). Courts have uniformly found that embassies are “integral part[s] of a foreign state's political structure, ” Transaero, 30 F.3d at 151, and therefore appropriately considered “foreign states” for FSIA purposes. See Barot, 785 F.3d at 27 (directing, without discussing issue, district court to “permit [plaintiff] . . . to effect service” on defendant Embassy of Zambia in Washington, D.C. “in compliance with section 1608(a)(3)”); Howe v. Embassy of It., 68 F.Supp.3d 26, 33 (D.D.C. 2014) (“[T]he Embassy of Italy in Washington, D.C., is an ‘integral part of a foreign state's political structure, ' making it a ‘foreign state' for the purposes of the FSIA, subject to the service requirements of 28 U.S.C. § 1608(a).” (quoting Transaero, 30 F.3d at 151)); Embassy of Fed. Republic of Nigeria v. Ugwuonye, 901 F.Supp.2d 136, 140 (D.D.C. 2012) (accepting parties' concession that foreign embassy in Washington, D.C., was “foreign state” for the purposes of the FSIA); Int'l Rd. Fed'n v. Embassy of Dem. Rep. Congo, 131 F.Supp.2d 248, 250 (D.D.C. 2001) (holding embassy of foreign state in Washington, D.C., a “foreign state” for the purposes of the FSIA and collecting cases).

         Section 1608(a) contains four hierarchical methods of service, which are to be followed in descending order of preference, that is to say, a plaintiff “must attempt service by the first method (or determine that it is unavailable) before proceeding to the second method, and so on.” Angellino v. Royal Family Al-Saud, 688 F.3d 771, 773 (D.C. Cir. 2012); see also Barot, 785 F.3d at 27 (outlining § 1608(a)'s “methods of service in descending order of preference”); Opati v. Republic of Sudan, 978 F.Supp.2d 65, 67 (D.D.C. 2013). The preferred method is “delivery of the summons and complaint ‘in accordance with any special arrangement for service between the plaintiff and the foreign state.'” Opati, 978 F.Supp.2d at 67 (quoting 28 U.S.C. § 1608(a)(1)). Absent such an arrangement, plaintiffs may follow the methods delineated in “an applicable international convention on the service of judicial documents, ” 28 U.S.C. § 1608(a)(2), or, failing that, by arranging for the Clerk of the Court to “address[] and dispatch[]” the “summons[, ] . . . complaint[, ] and a notice of suit” along with versions of the documents translated into the “official language of the foreign state, by any form of mail requiring a signed receipt, . . . to the head of the ministry of foreign affairs of the foreign ...


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