HASHEM v. AL SHABI et al

Memorandum in opposition to re MOTION to Dismiss for Insufficient Service of Process

D.D.C.January 26, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PAULA HASHEM, Plaintiff, v. ETIHAD AIRWAYS, COMPANY, et al., Defendants. ) ) ) ) ) CIV. A. NO. 1:17-cv-01645 (ABJ) ) ) ) ) ) ) PLAINTIFF’S OPPOSITION TO DEFENDANT RASHED AL SHABI’S MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS AND IN THE ALTERNATIVE, PLAINTIFF’S REQUEST FOR SERVICE ON DEFENDANT AL SHABI THROUGH HIS COUNSEL Plaintiff Paula Hashem, by and through undersigned counsel, hereby opposes Defendant Rashed Al Shabi’s Motion to Dismiss for Insufficient Service of Process. Defendant Al Shabi is confused. The issue before this Court is not whether Plaintiff could have served him by certified mail with process for a lawsuit filed in the Emirates but rather the issue is whether Al Shabi may be served by certified mail under the laws of the United States for a lawsuit filed in the United States. As we show below, Rule 4(f)(2)(C)(ii)- and the case the case law interpreting Rule 4(f)(2)(C)(ii)- allows such service in countries like the Emirates that have no express prohibition on their citizens being served with process from foreign courts by certified mail. The cases on which Defendant relies are clearly distinguishable. Alternatively and pursuant to Rule 4(f)(3), Plaintiff asks that the Court order service of Defendant Al Shabi through his counsel of record in this matter. Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 1 of 13 2 I. BACKGROUND FACTS The underlying lawsuit was filed on August 14, 2017 against Defendant Etihad Airways, Company1 (hereinafter “Etihad’) and Defendant Rashed Al Shabi (hereinafter “Al Shabi”). Defendant Etihad was served through its counsel and filed an Answer to the Complaint on September 8. 2017. (See ECF No. 3.). Defendant Al Shabi required more time to serve. He lived in the United States and worked in the District of Columbia for all times relevant to the Complaint. However, since the events that transpired in the Complaint, Defendant Al Shabi returned to his home country of the United Arab Emirates, where he continues to work for Defendant Etihad. Service on defendants abroad is governed by Federal Rule of Civil Procedure 4(f). As a preliminary matter, Plaintiff and Defendant Al Shabi are in agreement that service on Defendant Al Shabi under Federal Rule of Civil Procedure 4(f)(1) is not possible because there is no “internationally agreed means of service” between the United States and the United Arab Emirates. (See Def’.s Mem. at 1) (stating “the UAE is not a party to the Hague Convention or any other applicable treaty.”). This leaves service under one of the methods outlined in Federal Rule of Procedure 4(f)(2) or (f)(3) as the only options for effecting service on Defendant Al Shabi. On October 27, 2017, Plaintiff filed a Motion for Service Pursuant to Rule 4(f)(2)(C)(ii), asking the Court to serve Defendant Al Shabi via international registered mail. (See ECF No. 5). The Court granted the Motion in part and denied the Motion in part, instructing Plaintiff to 1 In its Answer to the Complaint, Defendant Etihad asserted the following: “Plaintiff sued ‘Etihad Airways Company.’ There is no such entity. Plaintiff’s employer was Etihad Airways Public Joint Stock Company, which sometimes does business in the United States as ‘Etihad Airways’ or ‘Etihad Airways USA.’” To clarify this dispute, Plaintiff is attaching the District of Columbia corporate registration information for Defendant Etihad, which lists the company name as of the time this lawsuit was filed as “Etihad Airways, Company.” In the District of Columbia the proper name for the entity, as registered, is Etihad Airways, Company. Ex. 1 Etihad Corporate Registration. This is the entity against which Plaintiff brought suit. Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 2 of 13 3 follow the steps outline in the United States District Court for the District of Columbia’s Attorney Manual for Service of Process on A Foreign Defendant to effect service under Rule 4(f)(2)(C)(ii). See Minute Order November 3, 2017. Plaintiff followed the requisite steps laid out in the Court’s Manual, including, inter alia, filing an Affidavit Requesting Foreign Mailing (See ECF No. 9), having the Clerk approve the mailing, and returning the proof of mailing to the Court. (See ECF No. 10). Defendant Al Shabi was served on or about December 10, 2017, when he received the Complaint packet at his place of work (Ethihad Airways, P.O. Box 35566, New Airport Road, Khalifa City A, Abu Dhabi, United Arab Emirates). (Def.’s Mem. at 2) (stating “The summons and complaint ultimately made their way to Al Shabi’s desk on or about December 10, 2017. . . .”). Plaintiff received the signed Returned Receipt for International Mail back from the UAE on approximately January 12, 2018. The receipt is attached as Exhibit 2. II. ARGUMENT A. Legal Standards Rule 12(b)(5) Defendant has filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(5). Rule 12(b)(5) permits a Defendant to file a motion to dismiss for insufficient service of process in lieu of filing an answer. When a 12(b)(5) motion is filed “[t]he plaintiff bears the burden of proving that she has effected proper service.” Jouanny v. Embassy of France in the United States, 220 F. Supp. 3d 34, 37 (D.D.C. 2016) (citing Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003)). “A motion under Rule 12(b)(5) to dismiss for failure to effect service of process may be granted when a plaintiff fails to ‘demonstrate that the procedure employed satisfied the Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 3 of 13 4 requirements of Rule 4 and any other applicable provision of law.’” Cruz-Packer v. D.C., 539 F. Supp. 2d 181, 186 (D.D.C. 2008) (quoting Light v. Wolf, 816 F.2d 746, 751 (D.C.Cir.1987). Plaintiff served Defendant Al Shabi through Rule 4(f)(2)(C)(ii), which allows service on foreign Defendants by “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt . . . .” Plaintiff met her burden to serve Defendant Al Shabi via certified mail by docketing the Affidavit Requesting Foreign Mailing and having the clerk approve and send off the Summons and Complaint to Defendant Al Shabi and filing herewith the certified mail card confirming Defendant’s receipt of Summons and Complaint. Rule 4(f)(2)(C)(ii) may only be utilized if there is “no internationally agreed means [of service], or if an international agreement allows but does not specify other means” and service via registered mail is not “prohibited by the foreign country’s law.” FRCP 4(f)(2).2 Significantly, “unless prohibited by” should not be read to mean “as being the same as explicitly provided for.’” In Re LLS Am., LLC, No. 2:12-CV-422-RMP, 2017 WL 3013260, at *2 (E.D. Wash. July 14, 2017). While there is some authority to the contrary “[t]he vast majority of cases to consider the issue have held that a method of service is not prohibited under Rule 4(f)(2)(C)(ii) unless it is expressly prohibited by a foreign country's laws.” SignalQuest, Inc. v. Tien-Ming Chou, 284 F.R.D. 45, at 48 (D.N.H. 2012) (citing Fujitsu Ltd. v. Belkin Int'l, Inc., No. 10-cv-3972, 2011 WL 3903232, *3 (N.D.Cal. Sept. 6, 2011); and SEC v. Alexander, 248 F.R.D. 108, 111-12 (E.D.N.Y.2007)). “As many of the cases following the majority approach have noted, interpreting Rule of Civil 4(f)(2)(C) in a manner that only allows for service of process 2 Defendant would add an additional requirement, that Rule 4(f)(2)(C)(ii) only be employed if it is not “offensive to UAE law.” (Def’s Mem. at 6.) The only case Defendant cites for this proposition is Graval v. P.T. Bakrie & Bros., a California case which was overturned. 986 F. Supp. 1326, 1334 n.4 (C.D. Cal. 1996) rev’d on other grounds by Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002). Even if Graval were still good law, the Court in that case made an error by attributing language about minimizing offense to foreign law from the 1993 Rules Advisory Committee to Rule 4(f)(2)(C)(ii), when the Committee was speaking of Rule 4(f)(3). Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 4 of 13 5 under that provision when the foreign country's laws expressly proscribe for service of process by that method, renders the provision superfluous.” Taser Int'l, Inc. v. Phazzer Elecs., Inc., No. 616-CV-366 ORL-40KRS, 2016 WL 7137560, at *2 (M.D. Fla. July 14, 2016) (citing Dee-K Enters., Inc. v. Heveafil SDN Bhd., 174 F.R.D. 376, at 380 (E.D. Va. 1997). This is because if “restricting the application of Rule 4(f)(2)(C)(ii) to those situations in which the recipient country expressly permits service via mail would render the rule redundant of Rule 4(f)(2)(A), which provides for any means of service authorized by the foreign country in which the defendant resides.” In re Coudert Bros. LLP, No. 16-CV-8237 (KMK), 2017 WL 1944162, at *10 (citing Res. Ventures, Inc. v. Res. Mgmt. Int'l, Inc., 42 F. Supp. 2d 423, 430 (D. Del. 1999)). Rule 4(f)(3) Federal Rule of Civil Procedure 4(f)(3) permits service on foreign Defendants “by any other means not prohibited by an international agreement, as the court orders.” Whether or not service is permitted under this Rule is “committed to the sound discretion of the trial court.” Freedom Watch, Inc. v. Organization of the Petroleum Exporting Countries (OPEC), 766 F.3d 74, 81 (D.C. Cir. 2014) Notably, “[s]ervice of process under Rule 4(f)(3) is neither a last resort nor extraordinary relief. It is merely one means among several which enables service of process on an international defendant” and “as long as court-directed and not prohibited by an international agreement, service of process ordered under Rule 4(f)(3) may be accomplished in contravention of the laws of the foreign country.” Securities and Exchange Commission v. Jammin Java Corp., 2016 WL 6650849 (D.D.C. 2016) (citing Rio Properties Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1014-1015 (9th Cir. 2002). In selecting a method of service the Court should “devise a method of communication that is consistent with due process and minimizes Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 5 of 13 6 offense to foreign law. Freedom Watch, Inc., 766 F.3d at 84 (citing Fed.R.Civ.P. 4 Notes of Advisory Comm. On Rules - 1993 Amendments). One such acceptable method of service is to serve the foreign defendant’s American lawyer and “[a] number of courts thus have sanctioned service on United States counsel as an alternative means of service under Rule 4(f)(3) without requiring any specific authorization by the defendant for the recipient to accept service on its behalf.” Freedom Watch, Inc.,766 F.3d at 83 (collecting cases). B. Defendant’s Contentions In Defendant’s Motion to Dismiss he argues “[e]ven 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 county’” and that (1) “Plaintiff has not met her threshold burden under Rule 4 to show service by mail is not prohibited by UAE law” and even if Plaintiff had presented evidence that (2) “as a matter of law, UAE law does not permit service by mail” thus “plaintiff’s attempted service by mail was improper and ineffective under Rule 4(f)(2)(C)(ii).” (See Def’s Mem at 3, 6). Plaintiff’s Service of Process on Defendant Al Shabi is Sufficient Because There is No Threshold Requirement to Show that Service Through Registered Mail is Permitted in the UAE Rule 4(f)(2)(C)(ii) contains no threshold requirement that the Plaintiff must demonstrate service is permissible under the foreign country’s law before attempting service via registered mail. Rather, as with all 12(b)(5) motions, when a Defendant challenges the sufficiency of service, the Plaintiff bears the burden of showing its legitimacy. See Jouanny, 220 F. Supp. 3d at Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 6 of 13 7 37. The case that Defendant cites for that proposition from this jurisdiction, Freedom Watch, Inc. v. Organization of the Petroleum Exporting Countries (OPEC), states that “[i]f a defendant challenges 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.’” 766 F.3d at 78 (emphasis added). Prior to Defendant’s filing a Motion to Dismiss for Insufficient Service of Process, which this Opposition is responsive to, Defendant had not challenged Plaintiff’s chosen method of service. It is also significant that Defendants’ counsel acknowledged that no such threshold requirement exists when he filed Defendant Etihad’s Response to Plaintiff’s Motion for Service of Defendant Rashed Al Shabi Pursuant to Rule 4(f)(2)(C)(ii), which asserted “[i]n not consenting to Plaintiff’s motion, Etihad sought only to avoid representing, even by inference, that a motion is required . . . .” (See ECF No. 6 at 1). If no motion is required to serve a Defendant under Rule 4(f)(2)(C)(ii) then there can be no “threshold burden under Rule 4 to show service by mail is not prohibited by UAE law” before any challenge to the sufficiency of service is brought by the defendant. Plaintiff’s Service of Process on Defendant Al Shabi is Sufficient Because the UAE Does Not Explicitly Prohibit Service Via Registered Mail Plaintiff agrees that service through registered mail is only permitted under Rule 4(f)(2)(C)(ii) if not “prohibited by the foreign country's law.” However, to read Rule 4(f)(2)(C)(ii) in the manner Defendant Al Shabi is suggesting is to render it superfluous and to go against the plain meaning of the word “prohibited.” Rule 4(f)(2)(A) already permits service “as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction.” If Rule 4(f)(2)(A) is interpreted to mean that any form of service not Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 7 of 13 8 explicitly authorized in the foreign country is prohibited then there is no need to include the provision, because that type of service is already authorized under 4(f)(2)(A). See In re Coudert Bros. LLP, 2017 WL 1944162, at *10; Res. Ventures, Inc., 42 F. Supp. 2d at 430. In the past this Court has declined to interpret the Federal Rules of Civil Procedure in a manner that renders a section superfluous. See In re Fitzgerald, 16 Fed. R. Serv. 2d 1052, 1972 WL 123064 at, *1 (D.D.C. 1972) (determining that “Since Rules 27(a) (depositions before an action), 29 [sic] (depositions during an action), and 27(b) (depositions pending appeal) cover all situations which relate to a civil action, Rule 27(c) must have been intended for some other situation, since it must be assumed that this section is not superfluous.” Furthermore, prohibit means to “forbid by authority.” Webster’s II New College Dictionary, 884 (Houghton Mifflin Company 1999). Defendant is suggesting that the UAE does not have to actively forbid service by registered mail, which goes against the plain meaning of the word prohibit. This is why the phrase “unless prohibited by” should not be read to mean “as being the same as ‘explicitly provided for.’” In Re LLS Am., LLC, 2017 WL 3013260, at *2. Instead the correct interpretation of Rule 4(f)(2)(C)(ii), and the one held by the majority of federal courts, is that service via registered mail “is not prohibited under Rule 4(f)(2)(C)(ii) unless it is expressly prohibited by a foreign country's laws.” SignalQuest, Inc., 284 F.R.D. at 48. See Emery v. Wood Indus., Inc., 2001 WL 951579 at, *2 (D.N.H. May 22, 2012); Fujitsu Ltd., 2011 WL 3903232 at *3; Alexander, 248 F.R.D. at 111-12. Defendant’s Motion must fail because Defendant Al Shabi has not and cannot demonstrate that service via registered mail is explicitly prohibited in the UAE. Defendant Al Shabi has detailed the process for serving a Defendant in an Emirati lawsuit at great length. (See Al Hashimi Aff., Def.’s Mem at Ex. A). Arguendo, Plaintiff assumes the Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 8 of 13 9 assertions made in the Al Hashimi Affidavit are accurate. What the Al Hashimi Affidavit does not address and therefore does not demonstrate, is that service via registered mail in foreign lawsuits is explicitly forbidden in the UAE. Rather, Mr. Al Hashimi details the ordinary process for serving a defendant in the UAE and the process for serving defendants in UAE lawsuits abroad. (Id. at ¶¶ 9, 11, 14) (declaring “service by registered mail is an ineffective method of service in the UAE in domestic court proceedings unless specific measures are taken sequentially . . . . there are exclusive and consecutive steps for service of process in domestic court proceedings in the UAE, and they begin with in person service by a process server. If service cannot be effected by one step, the party (notifier) must obtain the court’s prior approval to move to the next step. . . . The UAE Civil Procedures Code . . . has specific provisions dealing with service of local proceedings abroad. Such service is done through diplomatic channel . . . .” (emphasis added). What Mr. Al Hashimi does say is that “[t]he UAE Civil Procedures Code does not explicitly address service of foreign proceedings in the UAE.” (Id. at ¶ 14) (emphasis added). Thus, by Defendant Al Shabi’s own admission, service via registered mail is not explicitly prohibited and Defendant Al Shabi was properly served through registered mail. Defendant has cited 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), to support his narrow reading of Rule 4(f)(2)(C)(ii). (Def.’s Mem. at 5-6). This case is distinguishable. In Prewitt the Defendant tried to serve OPEC at its headquarters in Vienna, which was explicitly prohibited by an international agreement between Austria and OPEC that was incorporated into Austrian law and under the Austrian law governing service of process on international organizations within Austria’s borders. Id. at 502 (See also Fujitsu Ltd., 2011 WL 3903232, at *3 (stating that the Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 9 of 13 10 Court in Prewitt “found the foreign country to have ‘statutory language expressly prohibiting the method of service employed’ by the plaintiff there, and thus found service under the method in Rule 4(f)(2)(C)(ii) expressly prohibited.”). According to Defendant Al Shabi’s expert, there is no such provision in Emirati Law. Therefore, Defendant Al Shabi may be served through registered mail. If Service on Defendant Al Shabi is Deemed Insufficient, Plaintiff Asks the Court to Order Alternative Service on Defendant Al Shabi Through His Counsel of Record If the Court deems Plaintiff’s service on Defendant Al Shabi via certified mail to be insufficient, Plaintiff should be permitted to serve Defendant Al Shabi through alternative service pursuant to Rule 4(f)(3). While the chosen method of service is ultimately up to the Court’s discretion, Plaintiff respectfully suggests that Mr. Al Shabi should be served through his lawyers in this matter. Service on Defendant Al Shabi’s counsel would comply with the requirements of Rule 4(f)(3), as there is no international agreement prohibiting service through foreign counsel. Further, this circuit has previously approved service under Rule 4(f)(3) on foreign defendants in this manner. See Bazarian International Financial Associates, L.L.C., 168 F. Supp.3d 1, 16 (D.D.C. 2016) (in which the Court allowed the Plaintiff to serve the Venezuelan defendant company through its U.S. based counsel); Securities and Exchange Commission v. Jammin Java Corp., 2016 WL 6650849 at, *2 (D.D.C. 2016) (in which the Court ordered that the SEC could serve a Defendant in Switzerland through his U.S. counsel); The situation in this case is closely akin to Bazarian and Jammin Java Corp. In Bazarian the Court allowed service on counsel after determining that it was “reasonably calculated to notify a defendant of the commencement of an action against him” given “plaintiff's previous Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 10 of 13 11 failed attempt to serve Aerohotelco in accordance with the Hague Convention, its failed efforts to identify or confirm addresses for several of the Defendants, and its representation that the defendants have retained U.S. counsel to represent them in a separate case in Connecticut, and thus are presumably in regular contact with Defendants.” 168 F. Supp. 3d at 13, 15 (internal quotations omitted). In Jammin Java Corp. the Court determined that the plaintiff “provided sufficient evidence that the alternative means of service requested comport with due process and FRCP 4(f)(3)” because the plaintiff showed that the defendant “was in contact with his U.S.-based counsel and is aware of the instant case.” Jammin Java 2016 WL 6650849 at, *2. Just as in Bazarian and Jammin Java Corp., Defendant Al Shabi is in regular contact with his counsel and is aware of the instant case. Defendant Al Shabi informed his U.S. counsel that he received the Complaint packet and instructed his counsel to file a Motion to Dismiss in this matter. (Def.’s Mem. at 2) (stating “The summons and complaint ultimately made their way to Al Shabi’s desk on or about December 10, 2017.”). Due process has already been satisfied and to allow Defendant Al Shabi to hide behind his U.S. counsel would not serve the interests of justice. Additionally, much like in Bazarian, Plaintiff has already successfully delivered the Complaint and Summons to Defendant Al Shabi and the time it is taking to serve him is delaying a trial on the merits. The Court in Bazarian found it significant that “courts around the country have found that service on a foreign defendant through counsel is appropriate to prevent further delays in litigation.” Id. at 15. To further quote Bazarian, Defendant Al Shabi is “not being hailed, unexpectedly, into a foreign court.” Id. Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 11 of 13 12 III. CONCLUSION Wherefore, Defendant Al Shabi’s Motion to Dismiss for Insufficient Service of Process must be denied because Defendant Al Shabi was properly served pursuant to Federal Rule of Civil Procedure Rule 4(f)(2)(C)(ii) on or around December 10, 2017. In the alternative, if the Court deems service on Defendant Al Shabi to be insufficient, Plaintiff respectfully requests that the Court permit her to serve Defendant Al Shabi through his counsel in this matter. A draft Order is attached. Date: January 26, 2018 Respectfully submitted, /s/ Savanna L. Shuntich Savanna L. Shuntich (D.C. Bar No. 1034411) John F. Karl, Jr. (D.C. Bar No. 292458) ALDERMAN, DEVORSETZ & HORA PLLC 1025 Connecticut Ave., NW Suite 615 Washington, D.C. 20036 Tel. 202.969.8220 Fax 202.969.8224 E-mail: jfk@adhlawfirm.com E-mail: sshuntich@adhlawfirm.com Attorneys for Paula Hashem Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 12 of 13 13 NOTICE OF ELECTRONIC FILING The undersigned hereby certifies that a copy of this Opposition to Defendant Rashed Al Shabi’s Motion to Dismiss for Insufficient Service of Process was served upon the following via the Court’s Electronic Filing System: Charles B. Wayne Brian J. Young DLA Piper LLP (US) 500 Eighth Street, N.W. Washington, DC 20004 (202) 799-4253 (202) 799-5253 charles.wayne@dlapiper.com brian.young@dlapiper.com Attorneys for Defendant Etihad Airways Public Joint Stock Company ______/s/ Savanna L. Shuntich_________________ Savanna L. Shuntich Case 1:17-cv-01645-ABJ Document 16 Filed 01/26/18 Page 13 of 13