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Adetoro v. King Abdullah Academy

United States District Court, District of Columbia

July 30, 2019

TOSIN ADETORO, et al., Plaintiffs,
v.
KING ABDULLAH ACADEMY, et al., Defendants.

          MEMORANDUM AND ORDER

          TREVOR N. MCFADDEN UNITED STATES DISTRICT JUDGE

         Plaintiffs are eight former employees of a K-12 school, King Abdullah Academy, in Herndon, Virginia, who have sued the school and the Embassy of the Kingdom of Saudi Arabia (collectively, the “Defendants”) for employment discrimination on the basis of race, religion or national origin under the D.C. Human Rights Act, D.C. Code § 2-1401.01 et seq.; Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Before the Court now is the Embassy's Motion to Quash for Insufficient Service of Process. For the reasons below, the Court will grant the motion and allow the former employees another attempt to effect proper service.

         I.

         The eight former employees filed this suit against the Defendants in the Superior Court for the District of Columbia in December 2018. See Compl., ECF No. 1-1 at 2-9.[1] Despite “significant time and resources dedicated to ensuring compliance with the proper procedures required to correctly serve process” on the Embassy of the Kingdom of Saudi Arabia, the former employees experienced some difficulty “navigating service of process on an entity that is an extension of a sovereign nation.” Pl.'s Mot. for Extension of Time ¶ 5, ECF No. 1-1 at 15-16. In February 2019, the Plaintiffs sought and obtained from the Superior Court an extension of time to serve process. Order Granting Mot., ECF No. 1-1 at 21-22. Using DHL's certified mail services, the Plaintiffs ultimately succeeded in delivering copies of the Summons, Complaint, and Notice of Suit to the Head of the Foreign Ministry for the Kingdom of Saudi Arabia in Riyadh in April. See Proof of Delivery, ECF No. 1-1 at 31.

         The Embassy removed this action here under 28 U.S.C. §§ 1330, 1441 and 1446, because the Embassy is a foreign state and subject to the District Court's original jurisdiction under 28 U.S.C. § 1330(a). Def. Notice of Removal, ECF No. 1.

         The Embassy also moved under Fed.R.Civ.P. 12(b)(5) to quash the Complaint for failure to meet the service requirements of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602, et seq. Def. Mot. to Quash (“Def. Mot.”), ECF No. 5.

         II.

         Section 1608(a) of the FSIA governs service of process “on a foreign state or political subdivision of a foreign state.” 28 U.S.C. § 1608(a); Fed.R.Civ.P. 4(j)(1). The Act provides a list of four methods for effecting service, to be followed in seriatim. 28 U.S.C. § 1608(a); Rep. of Sudan v. Harrison, 139 S.Ct. 1048, 1054 (2019). The first is “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.” 28 U.S.C. § 1608(a)(1). The second, “by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents.” Id. § 1608(a)(2). Third, relevant here:

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. . . .

Id. § 1608(a)(3). And fourth, if the first three methods fail, through the Department of State's diplomatic channels. Id. § 1608(a)(4). Both parties agree that neither § 1608(a)(1) nor (2) were available, and thus the requirements of § 1608(a)(3) control.

         Service of process on a foreign state must strictly comply with the statutory requirements of § 1608(a). Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994). And while the former employees are responsible for such service, the FSIA “confers upon the district court responsibilities with regard to the sensitive task of service of process on a foreign government.” Barot v. Embassy of the Rep. of Zambia, 785 F.3d 26 (D.C. Cir. 2015). Specifically, the clerk of the court must be the one to “address[] and dispatch[]” the documents “to the head of the ministry of foreign affairs of the foreign state concerned.” 28 U.S.C. § 1608(a)(3) (emphasis added); see Abur v. Rep. of Sudan, 437 F.Supp.2d 166, 173 (D.D.C. 2006) (finding requirements § 1608(a)(3) satisfied when the clerk dispatched the documents using DHL); de Sousa v. Embassy of Rep. of Angola, 229 F.Supp.3d 23, 28 (D.D.C. 2017) (requirement satisfied when the clerk of the court sent the documents by FedEx).

         Additionally, because of the sensitive nature of directly serving a foreign state, courts require strict compliance “even when the equities of a particular case may seem to point in [favor of the plaintiff].” Harrison, 139 S.Ct. at 1062.

         III.

         The former employees argue that they gave the Embassy notice of the lawsuit by “substantially complying” with the statutory requirements. Pl.'s Opp'n. to Def.'s Mot. to Quash (“Pl.'s Opp'n”) ¶ 10, ECF No. 14. And, indeed, they have produced a receipt showing delivery to the Head of the Foreign Ministry for the Kingdom of Saudi Arabia in Riyadh. See Proof of Delivery. The courts have made clear, however, ...


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