Prosper v. Attorney General of Antigua and Barbuda

• Court: District Court, District of Columbia
• Decided: June 21, 2021
• Docket: Civil Action No. 2020-2279
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BONNIE PROSPER,

Plaintiff,

v. Civil Action No. 20-2279 (TJK) ATTORNEY GENERAL OF ANTIGUA AND BARBUDA, et al.,

Defendants.

ORDER

Plaintiff Bonnie Prosper, proceeding pro se, sues her former employers, the embassies of

Antigua and Barbuda, St. Lucia, St. Vincent and the Grenadines, and Dominica (“Defendants”).

She alleges that Defendants breached her contract when they terminated her employment. ECF

No. 1 ¶ 20. And she also alleges that she suffered emotional distress because of her termination

and because of other things her employers did. Id. ¶ 23–24, 28. Before the Court are two

motions to dismiss filed by Defendants. ECF No. 9 (the embassy of St. Lucia) and ECF No. 15

(the embassies of Antigua and Barbuda, St. Vincent and the Grenadines, and Dominica).

In their motions, Defendants argue that dismissal is warranted for insufficient service

under Rule 12(b)(5), and for failure to state a claim under Rule 12(b)(6). But “[u]nless the

procedural requirements for effective service of process are satisfied, a court lacks authority to

exercise personal jurisdiction over the defendant.” Jouanny v. Embassy of Fr., 220 F. Supp. 3d

34, 38 (D.D.C 2016) (citing Candido v. District of Columbia, 242 F.R.D. 151, 160 (D.D.C.

2007)). Thus, the Court must turn first to whether service was proper. See Kaplan v. Cent Bank

of the Islamic Republic of Iran, 896 F.3d 501, 510 (D.C. Cir. 2018). A plaintiff seeking to sue under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.

§ 1602 et seq., must strictly adhere to the requirements of 28 U.S.C. § 1608(a). Barot v.

Embassy of the Republic of Zam., 785 F.3d 26, 27 (D.C. Cir. 2015) (“neither substantial

compliance, nor actual notice, sufficed” for § 1608(a) service). Section 1608(a) sets forth four

methods for serving a foreign government. “The methods are presented in order of preference; a

method of service must be unavailable or unsuccessful for a party to attempt service under a later

method.” Roth v. Islamic Republic of Iran, 78 F. Supp. 3d 379, 396 (D.D.C. 2015). Those

methods are: (1) through “special arrangement for service” between the plaintiff and the foreign

state, (2) “in accordance with an applicable international convention on service of judicial

documents,” (3) by sending the summons and complaint and notice of suit, along 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,” or (4) by sending a summons and

complaint and a notice, to be addressed and dispatched by the clerk of the court, to the Secretary

of State, who shall transmit one copy of the papers through diplomatic channels. 18 U.S.C.

§ 1608(a).

Prosper did not successfully serve process on any of Defendants. She tried to serve them

by sending the complaint and summons through regular mail to each countries’ attorney general.

See ECF No. 9-1 at 5–6; ECF No. 12 at 1; ECF No. 15-1 at 7–9; ECF No. 19 at 1–2. But that

does not satisfy any of the four methods.1

1 Defendants suggest that St. Vincent and the Grenadines and Antigua and Barbuda are party to the Hague Convention, so Prosper must serve process on the designated central authority of each country under method (2). See ECF No. 15-1 at 8–9. According to Defendants, that means she must serve St. Vincent and the Grenadines’ Registrar of the High Court of Justice, id. at 8, and

2 “Although district courts have broad discretion to dismiss a complaint for failure to effect

service, dismissal is not appropriate when there exists a reasonable prospect that service can be

obtained.” Novak v. World Bank, 703 F.2d 1305, 1310 (D.C. Cir. 1983). In Barot, “the D.C.

Circuit held that it was an abuse of discretion to dismiss for insufficient service of process when

(1) the service attempt ‘came very close to satisfying the requirements thus showing good faith;’

(2) ‘the statute of limitations had run on the plaintiff’s claims;’ and (3) ‘the defendant had

identified no particular prejudice it would suffer if Plaintiff were permitted another opportunity

to make proper service.’” L. Offs. of Arman Dabiri & Assocs. v. Agric. Bank of Sudan, No. 17-

cv-2497 (RDM), 2019 WL 231753, at *5 (D.D.C. Jan. 16, 2019) (citing Barot, 785 F.3d at 29).

Prosper’s attempts at service, especially as a pro se litigant, appear to have been in good faith,

and it is possible the statute of limitations has run on some of her claims. Moreover, Defendants

have not identified any particular prejudice they would suffer if the Court permitted Prosper

another chance to serve them.

For all these reasons, it is hereby ORDERED that Defendants’ Motions to Dismiss, ECF

Nos. 9 and 15, are DENIED without prejudice. Further, it is ORDERED that Plaintiff shall

properly effect service on Defendants, or otherwise move to extend time for service, by August

17, 2021. Failure to do so may result in the dismissal of the case.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: June 21, 2021

either Antigua and Barbuda’s Governor General or the Registrar of the High Court of Antigua and Barbuda, St. Johns, Antigua, id. at 8–9. As for Dominica and St. Lucia, Defendants claim Prosper must employ method (3). See ECF No. 9-1 at 6; ECF No. 15-1 at 7.