Sabbithi v. Al Saleh

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) MANI KUMARI SABBITHI, et al., ) ) Plaintiffs, ) ) Civil Action No. 07-115 (EGS) v. ) ) MAJOR WALEED KH N.S. AL SALEH, ) et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiffs Mani Kumari Sabbithi, Joaquina Quadros, and Gila

Sixtina Fernandes, domestic workers from India, bring this action

against their former employers Major Waleed KH N.S. Al Saleh (“Al

Saleh”), his wife, Maysaa KH A.O.A. Al Omar (“Al Omar”),

(collectively “Individual Defendants”), and the State of Kuwait.1

Plaintiffs bring suit under the Trafficking Victims Protection

Act of 2000 (“TVPA”), 18 U.S.C. §§ 1581, et seq., the Fair Labor

Standards Act, 29 U.S.C. §§ 201, et seq., and assert various

contract and tort claims.2 Plaintiffs, who worked in the

1 Kuwait is a foreign state as defined in the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602, et seq. See Compl. ¶ 11. 2 Plaintiffs allege breach of contract, quantum merit, unjust enrichment, fraud and constructive fraud, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, assault, battery, and civil conspiracy.

1 Individual Defendants’ home for many years, claim that Kuwait is

liable for materially and practically assisting the Individual

Defendants in the alleged offenses. Plaintiffs also seek to hold

Kuwait liable under an agency theory for the actions of its

employee, Defendant Al Saleh, and his wife, Defendant Al Omar.

Compl. ¶ 3. The Court granted Individual Defendants’ motion to

dismiss in Sabbithi v. Al Saleh, 605 F. Supp. 2d 122 (D.D.C.

2009), and they are no longer parties in this action. Pending

before the Court is Kuwait’s motion to dismiss. Upon

consideration of the motion, the responses and replies thereto,

the amici curiae brief and response thereto, the Statement of the

United States and responses thereto, and the applicable law, the

Court GRANTS Kuwait’s motion to dismiss.

I. BACKGROUND

Individual Defendant Al Saleh is a Kuwaiti diplomat. Al

Saleh and his wife, Individual Defendant Al Omar, lived in the

United States from 2005 to 2007, while Al Saleh served as Attaché

to the Embassy of Kuwait. See Compl. ¶ 9; see also Pls.’

Surreply 2. Prior to moving to the United States, the Individual

Defendants employed plaintiffs as domestic workers in their home

in Kuwait. Plaintiffs worked for the Individual Defendants in

Kuwait for a period ranging from eight and a half months to five

and a half years. See Compl. ¶¶ 16-46. In Kuwait, plaintiffs

allegedly worked seven days a week for long hours each day, and

2 were paid between 35 Kuwaiti Dinar (KD) (approximately 121 U.S.

dollars) and 40 KD (approximately 138 U.S. dollars) per month.

Id. According to plaintiffs, however, before coming to the

United States the Individual Defendants signed an employment

contract promising to pay plaintiffs $1,314 per month and

agreeing to comply with U.S. labor laws in exchange for

plaintiffs’ domestic work in the Individual Defendants’ home in

the United States. Id. Plaintiffs assert that these employment

contracts were presented to the U.S. Embassy in Kuwait for the

purpose of obtaining plaintiffs’ A-3 visas, which authorized

plaintiffs to work as live-in domestic servants in the Individual

Defendants’ home in McLean, Virginia. Id. The A-3 visa

applications were authorized by Kuwait. Id. ¶ 107.

Plaintiffs claim that once in the United States, the

Individual Defendants did not comply with the terms of the

employment contracts. Allegedly, plaintiffs worked sixteen to

nineteen hours per day, seven days a week, and were not paid

directly, but instead the Individual Defendants sent wages of 70

KD (approximately 242 U.S. dollars) to 100 KD (approximately 346

U.S. dollars) per month to plaintiffs’ families overseas. See

id. ¶¶ 47-93. Plaintiffs allege that the Individual Defendants

deprived them of their passports, threatened plaintiffs with

physical harm, and physically abused Plaintiff Sabbithi. Id.

Plaintiffs also allege that Kuwait had knowledge that its

3 diplomats were abusing their domestic staff, and that the U.S.

Department of State (“State Department”) specifically warned

Kuwait that the Kuwaiti government would be held responsible for

the conduct of its diplomats. See id. ¶¶ 113-116. Plaintiffs

claim that Kuwait failed to take affirmative steps to monitor its

diplomats’ conduct in the United States as requested by the State

Department. See id. ¶ 117.

Plaintiffs eventually escaped the Individual Defendants’

home and, on January 18, 2007, plaintiffs filed a complaint

against the Individual Defendants and Kuwait. In addition to

this civil action, plaintiffs pursued criminal charges against

the defendants through the U.S. Department of Justice (“DOJ”).

Pursuant to the DOJ’s request, the State Department asked Kuwait

to waive the Individual Defendants’ diplomatic immunity. Pls.’

Surreply Ex. A. According to the State Department, Kuwait

declined to waive the Individual Defendants’ immunity. Id. As a

result, the DOJ closed its investigation into the Individual

Defendants’ alleged illegal conduct. Id.

On March 30, 2007, the Individual Defendants filed a motion

to dismiss and to quash service. On July 18, 2007, the Court

granted Break the Chain Campaign, Casa of Maryland, Inc., Asian

American Legal Defense and Education Fund, Global Rights, and

Boat People SOS, Inc. leave to file as amici curiae. On March

20, 2008, this Court invited the State Department to submit its

4 views regarding this case. The State Department responded on

July 22, 2008.3 On July 31, 2008, the Individual Defendants

filed a renewed motion to dismiss and to quash service of

process. In a Memorandum Opinion and Order dated March 20, 2009,

this Court granted the Individual Defendants’ motion to dismiss.

In granting the Individual Defendants’ motion, this Court found

that (1) the Individual Defendants were entitled to diplomatic

immunity and could not be sued in the United States; (2) hiring

domestic employees is an activity incidental to the daily life of

a diplomat and his or her family, and does not constitute

commercial activity outside a diplomat’s official function; (3)

plaintiffs’ constitutional claims must also give way to the

Individual Defendants’ diplomatic immunity; (4) the Individual

Defendants’ conduct did not constitute human trafficking, and

thus no jus cogen norm was at issue; (5) the TVPA does not

override diplomatic immunity; and (6) the Individual Defendants’

departure from the United States does not affect their immunity

from civil jurisdiction. See Sabbithi, 605 F. Supp. 2d at 125-

30. On November 11, 2008, Kuwait filed this motion to dismiss.

II. DISCUSSION

3 In its Statement of Interest, the State Department opined that employment of a domestic worker does not constitute “commercial activity” under Article 31(1) of the Vienna Convention on Consular Relations and that the TVPA does not override diplomatic immunity. Accordingly, in Sabbithi, this Court granted the Individual Defendants’ motion to dismiss on the basis of diplomatic immunity. See 605 F. Supp. 2d at 125-30.

5 Kuwait argues that this Court lacks personal jurisdiction

over Kuwait because plaintiffs did not properly serve Kuwait in

accordance with the Foreign Sovereign Immunity Act of 1976

(“FSIA”), 28 U.S.C. §§ 1602, et seq. Additionally, Kuwait argues

that this Court lacks both subject matter and personal

jurisdiction because Kuwait is immune from suit under the FSIA.

Plaintiffs contend that service was effected pursuant to FSIA and

that this Court has jurisdiction under both the commercial

activity and tort exceptions to the FSIA. Because this Court

finds that plaintiffs failed to properly effect service under the

FSIA, the motion to dismiss is GRANTED.

The FSIA “provides the sole basis for obtaining jurisdiction

over a foreign state in a United States court.” Nikbin v.

Islamic Republic of Iran, 471 F. Supp. 2d 53, 58 (D.D.C. 2007)

(citing 28 U.S.C. § 1330, and Argentine Republic v. Amerada Hess

Shipping Corp., 488 U.S. 428, 434 (1989)); see also Fed. R. Civ.

P. 4(j)(1) (“A foreign state or its political subdivision,

agency, or instrumentality must be served in accordance with 28

U.S.C. § 1608.”). The Court may proceed to consider the merits

of a claim against a foreign state only if the foreign state is

properly served under the statute. See Nikbin, 471 F. Supp. 2d

at 59. “28 U.S.C. § 1608(a) provides for service in courts of

the United States upon a foreign state by four alternative means,

each . . . available only if the previously enumerated options

6 are in some way foreclosed.” Dem. Rep. Congo v. FG Hemisphere

Assoc., 508 F.3d 1062, 1063 (D.C. Cir. 2007). Strict adherence

to the statute is required. See Transaero v. La Fuerza Aerea

Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994).

Section 1608(a) provides as follows:

(a) Service in the courts of the United States and of the States shall be made upon a foreign state or political subdivision of a foreign state:

(1) 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; or

(2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents; or

(3) if service cannot be made under paragraphs (1) or (2), 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, or

(4) if service cannot be made within 30 days under paragraph (3), by sending two copies 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 Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services – and the Secretary shall

7 transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted.

As used in this subsection, a “notice of suit” shall mean a notice addressed to a foreign state and in a form prescribed by the Secretary of State by regulation.

28 U.S.C. § 1608(a). Plaintiff may not choose among these

methods. See Doe I v. State of Israel, 400 F. Supp. 2d 86, 101

(D.D.C. 2005). “The plain language of § 1608(a) makes clear that

the FSIA lists the methods in descending order of preference; a

plaintiff may only attempt service through the second method, for

example, if service through the first method is unavailable or

has proven unsuccessful.” Id. “Leniency in this case would

disorder the statutory scheme.” Transaero, 30 F.3d at 154.

Plaintiffs filed this lawsuit on January 18, 2007.

Plaintiffs contend that they attempted to effect service on

Kuwait under the first method but that Kuwait refused service.

Plaintiffs then argue that they effected service under

§ 1608(a)(2), the second method, on March 13, 2007, but they

acknowledge that they did not receive a certificate from the

Kuwaiti Ministry of Justice acknowledging service in accordance

with the Hague Convention.4 See Doe I, 400 F. Supp. 2d at 101-02

4 The Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters, Nov. 15, 1965, art. 3, 20 U.S.T. 361, 658 U.N.T.S., is the applicable international convention referred to in § 1608(a)(2).

8 (describing service in accordance with § 1608(a)(2) in accordance

with the Hague Convention). Plaintiffs admit, moreover, that a

properly executed summons was not served on Kuwait until August

2008 through diplomatic channels, the fourth method. See Pls’

Opp’n at 10 n.6. This concession is fatal to plaintiffs’ claims.

“Neither substantial compliance with § 1608(a)’s requirements

nor actual notice of the suit excuses plaintiffs’ deviation from

the section's mandates.” Doe I, 400 F. Supp. 2d at 102 (citing

Transaero, 30 F.3d at 153-54). “Because plaintiffs have not

effectuated service pursuant to § 1608(a)(2), the methods in §§

1608(a)(3) and (a)(4) are not available to them, and the suit

against [Kuwait] fails for want of proper service.” Id.; see

also Transaero, 30 F.3d at 154.

Kuwait also argues that this Court lacks subject matter and

personal jurisdiction because Kuwait is immune from suit under

the FSIA. The Court need not address these arguments given the

Court’s finding that plaintiffs did not properly effect service.

III. CONCLUSION

Accordingly, for the reasons set forth above, the Court

GRANTS Kuwait’s motion to dismiss. An appropriate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge June 11, 2009