Opinion
Civil Action No. 02-1340 (JDB).
December 10, 2002.
MEMORANDUM OPINION
Plaintiff Balsam Sabbagh ("Sabbagh" or "plaintiff") brings this lawsuit against the Embassy of the United Arab Emirates ("Embassy"), Mohammed Al-Qubaisi ("Al Qubaisi"), Adel Al-Shamsi ("Al-Shamsi"), and Mohcin Alami ("Alami"), alleging various wrongful actions in connection with her employment at the Embassy. Presently before the Court are the Embassy's motion to dismiss on the ground that plaintiff failed to effectuate proper service of process, and Al-Qubaisi's and Al-Shamsi's motion to dismiss on the ground that they are entitled to diplomatic immunity. Notwithstanding the very serious nature of the claims plaintiff has raised, for the reasons stated below, the Court will dismiss the action against the Embassy, Al-Qubaisi, and Al-Shamsi.
FACTUAL BACKGROUND
Beginning in October 1999, Sabbagh worked as a public relations officer at the Embassy, which is located in Washington, D.C. Amended Complaint ¶¶ 2, 6. At the time of the alleged conduct, Al-Qubaisi, Al-Shamsi, and Alami were also employed by the Embassy. See id. ¶¶ 3-5.
The gravamen of plaintiff's complaint is that the employees of the Embassy, including the named defendants, discriminated against plaintiff on the basis of her gender and religion. Among other things, plaintiff alleges that Embassy personnel taunted her for not being a Muslim (she is Christian, and specifically a Catholic), made lascivious remarks towards her, spread rumors about her sexual involvement with other employees, and sent sexually explicit e-mails, including child pornography, to both her and her minor daughter. See Am. Compl. ¶¶ 15-18, 20, 25-27. On December 15, 2002, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") charging the Embassy and its employees with sexual harassment and discrimination against her on the basis of religion. See id. ¶ 7. Thereafter, defendants allegedly sent copies of her EEOC complaint and other documents to the Arab Times, which then printed a four-page article purportedly filled with defamatory material about plaintiff. See id. ¶¶ 36-37, 42.
Based on her allegations, on July 1, 2002, plaintiff filed the instant complaint for discrimination on the basis of gender and religion, assault and battery, violations of the Fair Labor Standards Act, violations of the Privacy Act, defamation, libel, and slander. On August 8, 2002, the Embassy, Al Qubaisi, and Al-Shamsi moved to dismiss. Defendant Alami has not filed any response to plaintiff's complaint.
ANALYSIS
I. The Embassy
The Embassy contends that plaintiff's complaint against it should be dismissed because plaintiff has failed to effectuate proper service of process in compliance with the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq. The FSIA is the "sole basis for obtaining subject matter jurisdiction over a foreign sovereign" in the United States courts. Argentine Rep. v. Amerada Hess, 488 U.S. 428, 434 (1989). Service of process against a foreign state is governed by § 1608(a) of the FSIA, which sets forth the "exclusive procedures" for effecting such service. See Phoenix Consulting., Inc. v. Republic of Angola, 35 F. Supp.2d 14, 17 (D.C. 1999). Strict adherence to the terms of § 1608(a) is required in this Circuit. See Transero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994).
Under the FSIA, the embassy of a sovereign nation is treated as a foreign state. See Int'l Rd. Fed'n v. Embassy of the Democratic Rep. of the Congo, 131 F. Supp.2d 248, 250 (D.C. 2001); see also Underwood v. United Republic of Tanzania, 1995 WL 46383 at *2 (D.C. Jan. 27, 1995).
Plaintiff contends that she accomplished service under § 1608(a)(1), which permits service "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." Specifically, plaintiff explains that her private process server presented a copy of the summons and complaint to an individual at the Embassy named "Wesam Raqaqi."See Affidavit of Tom Chedester. Reqaqi, in turn, represented to the process server that he was authorized to accept service of the summons and complaint on behalf of the United Arab Emirates. See id. This event, plaintiff contends, established a "special arrangement" between the parties within the meaning of § 1608(a)(1) and thus properly effected service of plaintiff's complaint.
The Court does not agree. The term "special arrangement" in § 1608(a)(1) contemplates something more than a verbal agreement between the process server and the recipient of service entered into at the time of service. See, e.g. Int'l Rd. Fed'n, 131 F. Supp.2d at 250-51 (where complaint alleged breach of sublease agreement, provision specifying that "all notices, demands, or requests between Sublessor and Sublessee shall be delivered in person, by certified mail, return receipt requested, or by registered mail" constituted a "special arrangement" for service under § 1608(a)(1)); Marlowe v. Argentine Naval Comm'n, 604 F. Supp. 703, 707 (D.C. 1985) (where complaint alleged breach of purchase agreement, provision specifying that "all notices, requests, demands or other communication to or upon the respective parties hereto shall be deemed to have been given or made when deposited in the mail" constituted a "special arrangement" for service under § 1608(a)(1)). Here, in contrast to International Road Federation and Marlowe, there is no standing written agreement of any sort between the parties that contemplates service of notices or other documents. Moreover, according to defendants, the individual who purportedly entered into the special arrangement on behalf of the Embassy, Reqaqi, is a security guard who is not authorized by the Embassy to accept service of process. See Declaration of Fathalla Al-Meswari ¶¶ 3-4 (unsigned).
The Court is not persuaded that plaintiff can satisfy the strict requirements for service on a foreign sovereign under § 1608 merely by having its process server procure the consent of a low-level official at the time of service. The Court therefore finds that the Embassy was not properly served with the complaint under § 1608 of the FSIA. The Embassy's motion to dismiss for insufficient service of process shall accordingly be granted.
II. Al-Qubaisi and Al-Shamsi
Defendants Al-Qubaisi and Al-Shamsi move to dismiss plaintiff's claims against them on the ground that they are entitled to diplomatic immunity. Plaintiff has not opposed Al-Qubaisi's and Al-Shamsi's motion. See Pl.'s Opp. at 1 (noting that plaintiff opposes defendants' motion to dismiss "as it pertains to Defendant Embassy of the United Arab Emirates"). Indeed, plaintiff has filed a proposed order indicating that Al-Qubaisi and Al-Shamsi should be dismissed from the lawsuit.See Order appended to Pl.'s Opp (proposing to dismiss the complaint against Al-Qubaisi and Al-Shamsi with prejudice). In light of plaintiff's indication that she does not intend to pursue claims against Al-Qubaisi and Al-Shamsi at this time, the action against those defendants shall be dismissed.
The Court takes this course notwithstanding the fact that Al-Qubaisi and Al-Shamsi have failed to make a factual showing that the U.S. State Department recognizes them as diplomatically immune from suit. Such a showing is required in order to establish diplomatic immunity. See Carrera v. Carrera, 174 F.2d 496, 497 (D.C. Cir. 1949) (indicating that diplomatic immunity will be recognized where the sending state "has [1] requested immunity, [2] the State Department has recognized that the person for whom it was requested is entitled to it, and [3] the State Department's recognition has been communicated to the court.").
III. Alami
Defendant Alami has not filed an answer or motion to dismiss in response to plaintiff's complaint. The Court's review of the docket, however, indicates that plaintiff has filed no proof of service with respect to Alami. Under Rule 4(m) of the Federal Rules of Civil Procedure, if service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the Court shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time. Accordingly, the Court will order that the action against Alami will be dismissed unless, by December 24, 2002, plaintiff either 1) files with the Court proof that defendant Alami has been served with the summons and complaint, or 2) provides the Court with a satisfactory written explanation as to why service of process has not been completed.
CONCLUSION
Plaintiff has failed to demonstrate that she served the Embassy through a "special arrangement" or other method of service in accordance with the requirements of the FSIA Accordingly, plaintiff's complaint against the Embassy shall be dismissed without prejudice.
Plaintiff does not oppose Al-Qubaisi's and Al-Shamsi's motion to dismiss. Accordingly, the action against Al-Qubaisi and Al-Shamsi shall be dismissed.
Alami shall be dismissed from this lawsuit unless plaintiff, by December 24, 2002, files proof of service with respect to him or provides a satisfactory explanation for the failure to serve him.
A separate order has been issued on this date.