The U.S. Supreme Court has narrowly construed requirements for proper service of a Foreign Sovereign Immunities Act (FSIA) lawsuit, holding that the statute requires a mailing sent directly to a foreign minister’s office in a foreign state.
In Republic of Sudan v. Harrison, the Court reversed a $314 million default judgment obtained by the victims of the bombing of the U.S.S Cole because the plaintiffs had served Sudan through its embassy in the United States. The Court explained that the delicate diplomatic relations implicated by FSIA suits justify prioritizing strict construction over equitable considerations.
Plaintiffs Serve Sudanese Embassy and Try to Collect on Default Judgment
As a general rule, foreign states enjoy immunity from suit in U.S. courts under FSIA unless a statutory exception applies. When an exception applies, a plaintiff may establish personal jurisdiction over a defendant foreign state by serving the complaint and summons pursuant to FSIA, 28 U.S.C. §1608. Section 1608(a)(3) permits service “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.”
The victims of the U.S.S Cole bombing and their family members sued the Republic of Sudan under FSIA in 2010, alleging that the country contributed to their losses by providing support to al Qaeda. The plaintiffs attempted to comply with section 1608(a)(3) by requesting that the clerk of the court send the service packet to Sudan’s minister of foreign affairs at the Sudanese embassy in Washington, D.C. The U.S. District Court for the District of Columbia entered a $314 million default judgment after Sudan failed to appear.
The plaintiffs then registered their judgment in the U.S. District Court for the Southern District of New York and obtained orders directing multiple banks to turn over Sudanese assets. Sudan appealed those turnover orders, arguing that the underlying default judgment suffered from a lack of personal jurisdiction. Section 1608(a)(3), Sudan contended, requires that the plaintiffs send the service packet to the foreign minister at his principal office in Sudan, and not to the Sudanese Embassy in the United States. The Second Circuit rejected Sudan’s argument, concluding that mail to the embassy could reasonably be expected to be delivered to the foreign minister and, accordingly, service on the embassy was proper. Sudan appealed to the Supreme Court, which granted certiorari.
Delicate Diplomatic Context Calls for Strict Compliance with Statute
The Supreme Court emphasized the sensitive diplomatic implications inherent in FSIA cases, placing them in a category in which “the rule of law demands adherence to strict requirements even when the equities of a particular case may seem to point in the opposite direction.” Accordingly, the opinion scrutinized FSIA section 1608(a)(3), focusing on the words “addressed” and “dispatched.” Because the foreign minister does not “reside” or keep his usual “place of business” at an embassy, the Court reasoned that service there fails to satisfy the dictionary definition of “address.” Similarly, according to the opinion, to have “dispatched” a letter implies sending it directly to a recipient, and so indirect service on the foreign minister at an embassy falls short of the statutory requirement.
ABA Section of Litigation leaders agree with the Court’s analysis. “The Court looked to the plain language of the statute and followed the only reading that makes sense,” says Rudy R. Perrino, Los Angeles, CA, cochair of the Section of Litigation’s Products Liability Committee. “You can’t assume that an emissary in an embassy will take the service packet and hand it over directly to the foreign minister,” explains Perrino.
The outcome also avoids jeopardizing the United States diplomatic relationships, notes Tracy A. DiFillippo, Las Vegas, NV, cochair of the Section’s Pretrial Practice & Discovery Committee. She points to an amicus brief submitted by the U.S. State Department that reveals that U.S. embassies do not accept service of process when the United States is sued in another country. “If the Court allowed service at foreign embassies in the United States, that would conflict with U.S. policy and might harm relationships with other countries,” says DiFillippo.
Lessons Learned: Use All Available Options
Perrino emphasizes that the plaintiffs could have avoided their procedural problems by relying on what he calls FSIA’s “failsafe service mechanism,” which explicitly permits service within the United States. Under section 1608(4), if service cannot be accomplished within 30 days under section 1608(3), then a plaintiff may complete service “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,” for transmittal “through diplomatic channels to the foreign state.”
The opinion offers a lesson that applies to service of process more broadly, not just for FSIA claims. “When you are trying to serve any lawsuit, go overboard so that you do not open yourself to arguments about technicalities. In this case, I would have served both ways, in both the embassy and in Sudan,” explains DiFillippo.
Geoff A. Gannaway is a contributing editor for Litigation News.
Hashtags: #ForeignSovereignImmunitiesAct, #FSIA
- Debra C. Weiss, “How to sue a foreign government? US sides with Sudan in Supreme Court review of U.S.S Cole judgment,” ABA Journal (Nov. 8, 2018).
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