HASHEM v. AL SHABI et al

MEMORANDUM re MOTION to Dismiss

D.D.C.January 12, 2018

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) PAULA HASHEM, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-1645 (ABJ) ) ETIHAD AIRWAYS, COMPANY, et al., ) ) Defendants. ) ) DEFENDANT RASHED AL SHABI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS Defendant Rashed Al Shabi (“Al Shabi”) submits this memorandum of points and authorities in support of his motion to dismiss for insufficient service of process. Because plaintiff did not validly serve Al Shabi under Fed. R. Civ. P. 4(f)(2)(C)(ii), the claims against him should be dismissed under Fed. R. Civ. P. 12(b)(5). Al Shabi currently resides and works in Abu Dhabi, United Arab Emirates (“UAE”). On October 27, 2017, because the UAE is not a party to the Hague Convention or any other applicable treaty, 1 plaintiff moved to serve Al Shabi under Fed. R. Civ. P. 4(f)(2)(C)(ii) by requesting that the Clerk send the summons and complaint to Al Shabi via international certified mail to his place of employment at Etihad Airways, P.O. Box 35566, New Airport Road, Khalifa City A, Abu Dhabi, United Arab Emirates. On November 28, 2017, the Clerk sent the summons 1 See Ex. A, Declaration of Ali Al Hashimi, ¶ 13. See also Orsi v. Falah, 2012 WL 4469120, at *2 (D. Mass. 2012) (“[T]he United Arab Emirates (‘UAE’) is not a party to [the Hague Convention], and I am not aware of any other agreement on service of process between the United States and the UAE.”). Case 1:17-cv-01645-ABJ Document 14 Filed 01/12/18 Page 1 of 8 2 and complaint via registered mail, return receipt requested. Doc. Nos. 10 and 10-1. The summons and complaint arrived in the mail room at Etihad on an unknown date, where an employee in the mail room signed the return receipt. The summons and complaint ultimately made their way to Al Shabi’s desk on or about December 10, 2017 through Etihad’s internal mail distribution system. “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant,” and an “individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347, 350 (1999). Because “[s]ervice of process notifies a defendant of the commencement of an action against him,” Freedom Watch, Inc. v. Org. of the Petroleum Exporting Countries, 766 F.3d 74, 78 (D.C. Cir. 2014) (internal quotation marks and citation omitted), “federal courts lack the power to assert personal jurisdiction over a defendant ‘unless the procedural requirements of effective service of process are satisfied.’” Mann v. Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (quoting Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 514 (D.C. Cir. 2002)). Federal Rule of Civil Procedure 4 generally governs the form, issuance, and service of a summons in a federal lawsuit. See Fed. R. Civ. P. 4; Freedom Watch, 766 F.3d at 78. Under Rule 4(f)(2)(C)(ii), “an individual . . . may be served at a place not within any judicial district of the United States: . . . if there is no internationally agreed means . . . by a method that is reasonably calculated to give notice,” including “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt,” “unless prohibited by the foreign country’s law.” Fed. R. Civ. P. 4(f)(2)(C)(ii) (emphasis added). Case 1:17-cv-01645-ABJ Document 14 Filed 01/12/18 Page 2 of 8 3 As a result, even if a defendant receives the summons and complaint from the Clerk by mail, and a plaintiff otherwise complies with the technical requirements of Rule 4, the service is invalid under the Federal Rules of Civil Procedure if the foreign country’s law prohibits service by mail. See id. Should “a defendant challenge[] the validity of service of process, the plaintiff bears the burden to ‘demonstrate that the procedure employed to deliver the papers satisfies the requirements of the relevant portions of Rule 4.’” Freedom Watch, 766 F.3d at 78 (quoting Mann, 681 F.3d at 372). ARGUMENT Plaintiff has not properly served Al Shabi under Rule 4(f)(2)(C)(ii). Even if plaintiff otherwise complied with the requirements of Rule 4(f)(2)(C)(ii), “the method set forth under that provision applies only if it is not prohibited by the law of the foreign country.” Prewitt Enterprises, Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 923-24 (11th Cir. 2003). See also Procter & Gamble Cellulose Co. v. Viskoza-Loznica, 33 F. Supp. 2d 644, 665 (W.D. Tenn. 1998). This provision reflects that “rules regarding overseas service of process are meant to minimize offense to foreign law.” Graval v. P.T. Bakrie & Bros., 986 F. Supp. 1326, 1329 n.4 (C.D. Cal. 1996), reversed in part on other grounds by Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (citing Fed. R. Civ. P. 4(f), Advisory Committee’s Notes, 1993 Amendment). First, plaintiff has not met her threshold burden under Rule 4 to show service by mail is not prohibited by UAE law. In the motion for service, plaintiff does not offer argument or evidence on the legality of serving legal documents by U.S. mail in the UAE. See Doc. No. 5. In a similar case involving defendants in the UAE, where the plaintiffs failed to address the propriety of service under UAE law, the court found that plaintiffs had not made “any showing Case 1:17-cv-01645-ABJ Document 14 Filed 01/12/18 Page 3 of 8 4 that would allow the court to conclude that service by registered mail on the defendants named in this action is not prohibited by U.A.E. law,” and therefore, the plaintiffs’ motion to serve the defendants via mail sent to addresses in U.A.E. pursuant to Rule 4(f)(2)(C)(ii)” was denied. Nabulsi v. Nahyan, 2008 WL 1924235, at *4 (S.D. Tex. 2008). See also Freedom Watch, 766 F.3d at 78 (stating that is “plaintiff bears the burden to demonstrate” service of process was proper under Rule 4); Smallwood v. Allied Pickfords, LLC, 2009 WL 3247180, at *11 (S.D. Cal. 2009) (“If a defendant challenges the method of service of process, the plaintiff bears the burden of proving its sufficiency under Federal Rule of Civil Procedure 4.”). Because plaintiff has not addressed whether service by registered mail, return receipt requested is prohibited under UAE law, plaintiff’s claims against Al Shabi should be dismissed under Rule 12(b)(5). Second, even if plaintiff had asserted that UAE law permits service by mail (and plaintiff has not asserted, much less adduced any supporting evidence to this effect), courts considering the validity of service of process under Rule 4(f)(2)(C)(ii) may rely on expert evidence addressing the propriety of the mode of service under the foreign country’s law. See Fed. R. Civ. P. 44.1 (“In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.”); see also, e.g., Procter & Gamble, 33 F. Supp. 2d at 665 (holding service by mail was prohibited by Yugoslavian law based on unrebutted affidavit from Professor of Private International Law at the University of Novi Sad School of Law in Yugoslavia); Jung v. Neschis, 2003 WL 1807202, at *2 (S.D.N.Y. 2003) (holding service of process was ineffective based on declaration from an administrative law judge and attorney licensed to practice in Liechtenstein who concluded mode of service was prohibited by law of Liechtenstein). Case 1:17-cv-01645-ABJ Document 14 Filed 01/12/18 Page 4 of 8 5 The attached declaration by Ali Al Hashimi, a longtime practitioner and founding partner of a law firm in Abu Dhabi and Dubai, concludes that plaintiff’s attempted service was invalid because it was ineffective under UAE law. First, Mr. Hashimi explains that UAE law provides four exclusive and sequential modes of service. Ex. A, ¶¶ 10-11. The steps begin with in-person service by a process server and, before proceeding to the next mode of service, a party must obtain the approval of the local court or Case Management Office. Id. ¶ 11. Critically, none of these modes of service allow a party, without prior approval, to skip in-person service and serve a defendant by mail. As a result, Mr. Hashimi concludes that service by mail “would be deemed null and void.” Id. ¶ 12. Mr. Hashimi further explains that it is improper for a party to a foreign court proceeding to attempt service by mail in the UAE because the UAE uses diplomatic channels to effect service on parties located abroad. Id. ¶ 14. Thus, Mr. Hashimi concludes that “service of foreign court documents in the UAE, as [in this case], should [also] proceed through diplomatic channels.” Id. ¶ 15. Mr. Hashimi’s expert opinion stands unrebutted by plaintiff. In a case that addressed a similar attempt at service by registered mail under Rule 4(f), Prewitt Enterprises, Inc. v. Org. of Petroleum Exporting Countries, 224 F.R.D. 497, 501 (N.D. Ala. 2002), aff’d, 353 F.3d 916 (11th Cir. 2003), the plaintiffs attempted to serve OPEC at its headquarters in Vienna, Austria. But the establishment of OPEC’s headquarters in Vienna was based on a “Headquarters Agreement” between Austria and OPEC - incorporated into Austrian law - which provided “that service of legal process upon OPEC ‘shall not take place within the headquarters seat except with the express consent of and under conditions approved by the Secretary General.’” Id. Further, “the Austrian law on the Service of Legal Documents” required that the service of process on foreign citizens or international organizations entitled to privileges and immunities be carried out with the assistance of the Federal Ministry for Foreign Case 1:17-cv-01645-ABJ Document 14 Filed 01/12/18 Page 5 of 8 6 Affairs of Austria. Id. On this basis, the court concluded that OPEC was not effectively served under Rule 4(f)(2)(C)(ii) “even though it actually received the summons and complaint” because “unconsented to service by registered mail on OPEC is prohibited by Austrian law.” Id. at 501- 02. The Eleventh Circuit affirmed, holding that the district court’s analysis of Austrian law was correct. Prewitt Enterprises, 353 F.3d at 924. Like OPEC in Prewitt, which had to be served through the Austrian Ministry of Foreign Affairs in order to comply with Austrian law, Al Shabi can similarly only be served in the UAE through diplomatic channels. To do otherwise, would be contrary to UAE judicial norms and offensive to UAE law, which requires in-person service by a process server, prior court approval before the process server attempts any form of substituted service, and the use of diplomatic channels. See id. at 501 n.6 (“Validity of a given method of service depends on whether or not the method complies with the judicial norms established by the foreign national itself.”); Graval, 986 F. Supp. at 1329 n.4 (explaining that purpose of “prohibited” provision of Rule 4(f)(2)(C)(ii) is to “minimize offense to foreign law”). Because (1) plaintiff has not met her burden to show UAE law does not prohibit service by mail; and (2) as a matter of law, UAE law does not permit service by mail, plaintiff’s attempted service by mail was improper and ineffective under Rule 4(f)(2)(C)(ii). The Court should dismiss the claims against Al Shabi for insufficient service of process. Case 1:17-cv-01645-ABJ Document 14 Filed 01/12/18 Page 6 of 8 7 Respectfully submitted, /s/ Charles B. Wayne Charles B. Wayne (# 935858) Brian J. Young (#1035177) DLA Piper LLP (US) 500 Eighth Street, N.W. Washington, D.C. 20004 (202) 799-4253 (202) 799-5253 (fax) charles.wayne@dlapiper.com brian.young@dlapiper.com Counsel for Defendants Case 1:17-cv-01645-ABJ Document 14 Filed 01/12/18 Page 7 of 8 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of January, 2018, a copy of the foregoing was served by electronic mail using the CM/ECF system, which will then send notification of such filing to all counsel of record. /s/ Charles B. Wayne Charles B. Wayne Case 1:17-cv-01645-ABJ Document 14 Filed 01/12/18 Page 8 of 8