Securesoft Technologies, Llc v. Embassy of Ghana

MOTION to Dismiss for Lack of Jurisdiction over the Person

D.D.C.November 23, 2016

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SECURESOFT TECHNOLOGIES LLC, Plaintiff, v. EMBASSY OF GHANA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:16-cv-02175 (ABJ) NOTICE OF MOTION TO DISMISS THE COMPLAINT PLEASE TAKE NOTICE that upon the accompanying Memorandum of Law, Defendant Embassy of Ghana will move this Court, before the Hon. Amy Berman Jackson, United States District Judge, for an order dismissing the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of jurisdiction over the person and Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process, and for such other and further relief as the Court deems appropriate. Dated: November 23, 2016 Respectfully submitted, EMBASSY OF GHANA By its attorneys, /s/ Paul S. Reichler Paul S. Reichler (D.C. Bar No. 185116) A. Tafadzwa Pasipanodya (D.C. Bar No. 994949) Nicholas M. Renzler (D.C. Bar No. 983359) FOLEY HOAG LLP 1717 K Street, NW Washington, DC 20006-5350 Tel: 202 223 1200 Fax: 202 785 6687 Case 1:16-cv-02175-ABJ Document 7 Filed 11/23/16 Page 1 of 2 2 Kwaku D. Ofori (D.C. Bar No. 502898) OFORI LAW FIRM, LLC 11215-B Lockwood Drive Silver Spring, MD 20901 Tel: 301 592 8818 Fax: 301 592 8839 CERTIFICATE OF SERVICE I hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as unregistered participants on November 23, 2016. /s/ Paul S. Reichler Paul S. Reichler Case 1:16-cv-02175-ABJ Document 7 Filed 11/23/16 Page 2 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SECURESOFT TECHNOLOGIES LLC, Plaintiff, v. EMBASSY OF GHANA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:16-cv-02175 (ABJ) MEMORANDUM OF LAW IN SUPPORT OF THE EMBASSY OF GHANA’S MOTION TO DISMISS THE COMPLAINT Case 1:16-cv-02175-ABJ Document 7-1 Filed 11/23/16 Page 1 of 12 ii Table of Contents I. BACKGROUND .............................................................................................................1 II. THE COMPLAINT SHOULD BE DISMISSED BECAUSE THE COURT LACKS PERSONAL JURISDICTION OVER GHANA ...............................................................2 1. Plaintiff Has Not Alleged an Exception to Ghana’s Sovereign Immunity ............. 3 2. Plaintiff Has Not Properly Served Ghana ............................................................. 4 a. Section 1608 of the FSIA Governs Service on a Foreign State .................. 4 b. Plaintiff Failed to Comply with the Strict Requirements of Section 1608(a) ..................................................................................................... 5 3. The Court Lacks Personal Jurisdiction over Ghana ............................................... 7 III. CONCLUSION ...............................................................................................................7 Case 1:16-cv-02175-ABJ Document 7-1 Filed 11/23/16 Page 2 of 12 iii Table of Authorities Cases Alberti v. Empresa Nicaraguense de la Carne, 705 F.2d 250 (7th Cir. 1983) ...............................6 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) .................................3 Barot v. Embassy of the Republic of Zambia, 11 F. Supp. 3d 24 (D.D.C. 2014) ...........................4 Barot v. Embassy of the Republic of Zambia, 785 F.3d 26 (D.C. Cir. 2015) .................................5 Ben-Rafael v. Islamic Republic of Iran, 540 F. Supp. 2d 39 (D.D.C. 2008) ..................................2 BPA Int’l, Inc. v. Sweden, 281 F. Supp. 2d 73 (D.D.C. 2003) ......................................................7 Dem. Rep. Congo v. FG Hemisphere Assocs. LLC, 508 F.3d 1062 (D.C. Cir. 2007) ....................5 Doe I v. State of Israel, 400 F. Supp. 2d 86 (D.D.C. 2005) ..........................................................5 Embassy of Fed. Republic of Nigeria v. Ugwuonye, 901 F. Supp. 2d 136 (D.D.C. 2012) .............4 Estate of Botvin v. Islamic Republic of Iran, 684 F. Supp. 2d 34 (D.D.C. 2010) ..........................3 Hellenic Lines, Ltd. v. Moore, 345 F.2d 978 (D.C. Cir. 1965) ......................................................7 *Howe v. Embassy of Italy, 68 F. Supp. 3d 26 (D.D.C. 2014) ......................................................4 *Iskandar v. Embassy of the State of Kuwait, 106 F. Supp. 3d 226 (D.D.C. 2015) ............... 4, 6, 7 Nikbin v. Islamic Republic of Iran, 471 F. Supp. 2d 53 (D.D.C. 2007) .........................................2 Samantar v. Yousuf, 560 U.S. 305 (2010) ................................................................................ 3, 7 *Saudi Arabia v. Nelson, 507 U.S. 349 (1993) ............................................................................2 *Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148 (D.C. Cir. 1994) ........................ 5, 6 Statutes *28 U.S.C. § 1330(a)...................................................................................................................3 *28 U.S.C. § 1330(b) .......................................................................................................... 1, 2, 3 28 U.S.C. § 1441(d) ....................................................................................................................2 Case 1:16-cv-02175-ABJ Document 7-1 Filed 11/23/16 Page 3 of 12 iv 28 U.S.C. § 1605 .........................................................................................................................3 *28 U.S.C. § 1608(a)........................................................................................................... 4, 5, 6 28 U.S.C. § 1608(b) ....................................................................................................................4 D.C. Code § 13-423(a). ...............................................................................................................2 Other Authorities H.R. Rep. No. 94-1487 (1976) ....................................................................................................6 Hague Conference on Private International Law List of Convention signatories, https://www.hcch.net/en/states/hcch-members (last visited Nov. 21, 2016) ..............................6 Rules Fed. R. Civ. P. 12(b)(2) ........................................................................................................... 1, 7 Fed. R. Civ. P. 12(b)(5) ...............................................................................................................1 Fed. R. Civ. P. 4(j)(1) ..................................................................................................................4 Fed. R. Civ. P. 8(a)(1). ................................................................................................................3 Regulations 22 C.F.R. § 93.2 ..........................................................................................................................7 Case 1:16-cv-02175-ABJ Document 7-1 Filed 11/23/16 Page 4 of 12 1 Defendant the Embassy of Ghana (hereinafter “Ghana”) submits this Memorandum of Law in Support of its Motion to Dismiss the Complaint filed by Plaintiff Securesoft Technologies, LLC (hereinafter “Plaintiff,” “Securesoft,” or “SST”). The Court should dismiss Securesoft’s Complaint against Ghana pursuant to Rules 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure because: • Under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602 et seq. (“FSIA” or “Act”), the Embassy of Ghana is equated with the Republic of Ghana itself; • The Court may therefore exercise jurisdiction over Ghana only pursuant to the FSIA; • Section 1330(b) of Title 28 of the United States Code provides that a court has personal jurisdiction over a foreign state when an exception to its sovereign immunity has been established and the foreign state has been properly served; • The Court lacks personal jurisdiction over Ghana because Plaintiff has not properly served Ghana; • nor has it alleged that an exception to Ghana’s sovereign immunity applies. I. BACKGROUND On September 28, 2016, Securesoft commenced an action against Ghana in the Superior Court of the District of Columbia. Securesoft alleges that Ghana “materially breached” the terms of a contract allegedly concluded between the two parties. Compl. ¶ 20, Sept. 28, 2016, ECF No. 1, Ex. A-1 (hereinafter “Compl.”). It also alleges that Ghana “fraudulently misrepresented or concealed from Plaintiff that it would utilize Plaintiff to perform the agreed upon services” and did so “with the intent to induce reliance and to defraud Plaintiff.” Id. at ¶¶ 25, 27. It asserted that jurisdiction was proper in the Superior Court of the District of Columbia “pursuant to § 11- Case 1:16-cv-02175-ABJ Document 7-1 Filed 11/23/16 Page 5 of 12 2 921 and § 13-423 of the Code of the District of Columbia.” Id. at ¶ 3. Plaintiff seeks $430,000 in damages, plus attorneys’ fees and costs. Id. at ¶¶ 22, 35, Prayer for Relief. On October 17, 2016, Plaintiff filed an “Affidavit of Service by Certified Mail” with the Superior Court of the District of Columbia asserting that the Summons and Complaint had been served via “deliver[y] to the Defendant [i.e., its embassy] by certified mail, return-receipt requested” on October 3, 2016. Affidavit of Service by Certified Mail, Oct. 17, 2016, ECF No. 1, Ex. A-3 (hereinafter “Aff. of Service”). On October 31, 2016, Ghana filed to remove the action to this Court pursuant to 28 U.S.C. § 1441(d) and requested that further proceedings be conducted in this Court as provided by law. Notice of Removal, Oct. 31, 2016, ECF No. 1. It now respectfully requests that the Court dismiss Plaintiff’s Complaint. II. THE COMPLAINT SHOULD BE DISMISSED BECAUSE THE COURT LACKS PERSONAL JURISDICTION OVER GHANA Plaintiff alleges that the Court has personal jurisdiction over Ghana because the conduct it complains of allegedly “took place” in the District of Columbia. Compl. ¶ 3; D.C. Code § 13- 423(a). Yet this Court cannot exercise personal jurisdiction over Ghana pursuant to the Code of the District of Columbia; it must base its exercise of personal jurisdiction on the FSIA. Because Plaintiff has not alleged the existence of an exception to Ghana’s sovereign immunity or properly served it with process, this Court lacks personal jurisdiction. The Complaint must therefore be dismissed. The FSIA provides the sole basis for jurisdiction over foreign states in the U.S. federal and state courts. 28 U.S.C. § 1330(b); Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); Nikbin v. Islamic Republic of Iran, 471 F. Supp. 2d 53, 58 (D.D.C. 2007); Ben-Rafael v. Islamic Republic of Iran, 540 F. Supp. 2d 39, 52 (D.D.C. 2008) (citing Argentine Republic v. Amerada Case 1:16-cv-02175-ABJ Document 7-1 Filed 11/23/16 Page 6 of 12 3 Hess Shipping Corp., 488 U.S. 428, 434 (1989)). Personal jurisdiction over a foreign state “exist[s] as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title.” 28 U.S.C. § 1330(b). Jurisdiction under subsection (a) exists if “the foreign state is not entitled to immunity….” 28 U.S.C § 1330(a). Thus, under the FSIA, personal jurisdiction only exists “once the plaintiff[] establish[es] an exception to immunity pursuant to 28 U.S.C. § 1605 and accomplish[es] service of process pursuant to 28 U.S.C. § 1608.” Estate of Botvin v. Islamic Republic of Iran, 684 F. Supp. 2d 34, 39 (D.D.C. 2010). See also Samantar v. Yousuf, 560 U.S. 305, 324 n.20 (2010) (noting that, under the FSIA, “personal jurisdiction over a foreign state [is only] automatic when an exception to immunity applies and service of process has been accomplished in accordance with 28 U.S.C. § 1608.”) (citing 28 U.S.C. § 1330(b). Accordingly, the Court does not have personal jurisdiction over Ghana unless Plaintiff both: (1) plausibly alleges that an exception to immunity applies; and (2) properly serves Ghana in accordance with the FSIA. It has done neither in this case. 1. Plaintiff Has Not Alleged an Exception to Ghana’s Sovereign Immunity Plaintiff alleges that “jurisdiction is proper in this Court pursuant to § 11-921 and § 13- 423 of the Code of the District of Columbia,” Compl. ¶ 3. Yet the FSIA requires that the plaintiff “establish an exception to immunity pursuant to 28 U.S.C. § 1605” for the Court to exercise jurisdiction, see Botvin, 684 F. Supp. 2d at 39. The Complaint does not allege an applicable exception to Ghana’s sovereign immunity as “grounds for the court’s jurisdiction” and therefore lacks a proper “statement” thereof, Fed. R. Civ. P. 8(a)(1).1 1 Defendant observes that dismissal for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) would also be appropriate here. Since the FSIA provides the sole basis for jurisdiction over a foreign state, it would be proper for the court to dismiss a complaint filed by a Case 1:16-cv-02175-ABJ Document 7-1 Filed 11/23/16 Page 7 of 12 4 2. Plaintiff Has Not Properly Served Ghana a. Section 1608 of the FSIA Governs Service on a Foreign State Section 1608 of the FSIA governs service of process. 28 U.S.C. § 1608; 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 proper method of service under Section 1608 of the FSIA depends on the type of entity served. A “foreign state or [its] political subdivision” must be served in accordance with Section 1608(a) of the Act. 28 U.S.C. § 1608(a). An “agency or instrumentality of a foreign state” must be served in accordance with Section 1608(b). 28 U.S.C. § 1608(b). Courts have uniformly held that embassies, which perform functions that are integrally related to the core functions of the state, must be treated as the state itself, not an “agency or instrumentality” thereof. Iskandar, 106 F. Supp. 3d at 229 (“an embassy must be served in the same manner as a foreign state itself, i.e., pursuant to FSIA § 1608(a)”); Howe v. Embassy of Italy, 68 F. Supp. 3d 26, 33 (D.D.C. 2014) (finding that “district court opinions … have found uniformly that embassies are ‘integral part[s] of a foreign state’s political structure,’ … and therefore appropriately considered ‘foreign states’ for FSIA purposes”); Barot v. Embassy of the Republic of Zambia, 11 F. Supp. 3d 24 (D.D.C. 2014) (“Here, defendant the Embassy of the Republic of Zambia is considered a ‘foreign state or [a] political subdivision of a foreign state,’ and therefore, it must be served in compliance with the requirements of section 1608(a)”); Embassy of Fed. Republic of Nigeria v. Ugwuonye, 901 F. Supp. 2d 136, 140 (D.D.C. 2012) plaintiff “represented by counsel” that “does not establish the [c]ourt’s subject matter jurisdiction over th[e] action.” Iskandar v. Embassy of the State of Kuwait, 106 F. Supp. 3d 226, 229-30 (D.D.C. 2015). Case 1:16-cv-02175-ABJ Document 7-1 Filed 11/23/16 Page 8 of 12 5 (accepting parties’ concession that a foreign embassy in Washington, D.C., was a “foreign state” for the purposes of the FSIA). A lawsuit against “the Embassy” must therefore be served in the manner applicable to Ghana itself under 28 U.S.C. § 1608(a). Plaintiff failed to do so. b. Plaintiff Failed to Comply with the Strict Requirements of Section 1608(a) Section 1608(a) permits service of process on Ghana by one of four methods and no others. See 28 U.S.C. §1608(a)(1), (2), (3) & (4); Dem. Rep. Congo v. FG Hemisphere Assocs. LLC, 508 F.3d 1062, 1063 (D.C. Cir. 2007). These methods are not optional; they must be strictly followed. See, e.g., Barot v. Embassy of the Republic of Zambia, 785 F.3d 26, 27 (D.C. Cir. 2015) (“When serving a foreign sovereign, strict adherence to the terms of 1608(a) is required”) (citing Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994)); Howe, 68 F. Supp. 3d at 32 (“If the foreign sovereign is subject to § 1608(a), the service requirements must be adhered to rigorously”). Moreover, “neither substantial compliance, nor actual notice, suffice[s] under section 1608(a)(3) because Congress had mandated ‘service of the Ministry of Foreign Affairs, the department most likely to understand American procedure.’” Transaero, Inc., 30 F.3d at 154; Barot, 785 F.3d at 27-28. The four permissible methods must also be followed in the sequence they are listed in Section 1608(a). “[T]he 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.” Doe I v. State of Israel, 400 F. Supp. 2d 86, 101 (D.D.C. 2005). The four methods of service that Section 1608(a) permits are: (1) delivery of the summons and complaint in accordance with any special arrangement between the plaintiff and the foreign state or political subdivision; (2) if no special arrangement exists, in accordance with any applicable international convention; (3) if service cannot be made using the previous Case 1:16-cv-02175-ABJ Document 7-1 Filed 11/23/16 Page 9 of 12 6 two methods, by sending 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) in the last resort, through the United States Secretary of State. 28 U.S.C. § 1608(a). The first two options listed in Section 1608(a) are not available in this case. There is no “special arrangement” between Plaintiff and Ghana, and Ghana is not a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, or any other relevant treaty.2 Plaintiff was therefore required to attempt service in the first instance in accordance with Section 1608(a)(3). Only if service could not be made in the manner specified there could it have recourse to the alternate method specified in Section 1608(a)(4). Plaintiff made no attempt to comply with Section 1608(a)(3). Rather than ask the Clerk of Court to send the summons, Complaint, and notice of suit by mail requiring a signed receipt to the head of Ghana’s Ministry of Foreign Affairs, Plaintiff merely had a copy of the summons and Complaint delivered to the Embassy via certified mail. See Aff. of Service. But courts have consistently rejected attempts to serve a foreign state by delivering a copy of the summons and complaint to its embassy. See Alberti v. Empresa Nicaraguense de la Carne, 705 F.2d 250, 253 (7th Cir. 1983) (citing H.R. Rep. No. 94-1487, at 26, reprinted in 1976 U.S.C.C.A.N. at 6625); Transaero, Inc., 30 F.3d at 154; Iskandar, 106 F. Supp. 3d at 229; Hellenic Lines, Ltd. v. Moore, 345 F.2d 978 (D.C. Cir. 1965). This is true even when the foreign 2 See Hague Conference on Private International Law List of Convention signatories, https://www.hcch.net/en/states/hcch-members (last visited Nov. 21, 2016). Case 1:16-cv-02175-ABJ Document 7-1 Filed 11/23/16 Page 10 of 12 7 embassy itself is the defendant. Barot, 785 F.3d at 29-30 (quoting 22 C.F.R. § 93.2); Iskandar, 106 F. Supp. 3d at 229. Service must still be made pursuant to the strict requirements of Section 1608(a). 3. The Court Lacks Personal Jurisdiction over Ghana Because Plaintiff has not established (or even alleged) that an exception to Ghana’s sovereign immunity exists and has failed to properly serve it with process, this Court lacks personal jurisdiction, see Samantar, 560 U.S. at 324 n.20 (2010); Botvin, 684 F. Supp. 2d at 39 (D.D.C. 2010). Courts have consistently dismissed actions in such situations. In BPA Int’l, Inc. v. Sweden, the court dismissed an action against Sweden for failure to properly serve the defendant where “Plaintiffs mailed [a] ... copy of the summons and complaint to Sweden’s embassy,” 281 F. Supp. 2d 73, 84 (D.D.C. 2003), a virtually identical situation to the present case. Likewise, an action against the Embassy of Kuwait was dismissed because the plaintiff “personally served” the “First Secretary of the Embassy,” a method not provided for by Section 1608(a). See Iskandar, 106 F. Supp. 3d at 229-30 (quotations omitted). Similarly, in Howe, the court dismissed an action against the Embassy of Italy after finding “that the plaintiff failed to effect service properly on the defendant pursuant to § 1608(a), which deprive[d] th[e] Court of personal jurisdiction over the defendant.” Howe, 68 F. Supp. 3d at 34. Accordingly, pursuant to Rule 12(b)(2), the Court must dismiss the Complaint for want of jurisdiction. III. CONCLUSION For the reasons set forth above, Defendant respectfully requests the Court to dismiss the Complaint pursuant to Rule 12(b)(2) for lack of personal jurisdiction and Rule 12(b)(5) for failure to properly serve the Complaint. Case 1:16-cv-02175-ABJ Document 7-1 Filed 11/23/16 Page 11 of 12 8 Dated: November 23, 2016 Respectfully submitted, EMBASSY OF GHANA By its attorneys, /s/ Paul S. Reichler Paul S. Reichler (D.C. Bar No. 185116) A. Tafadzwa Pasipanodya (D.C. Bar No. 994949) Nicholas M. Renzler (D.C. Bar No. 983359) FOLEY HOAG LLP 1717 K Street, NW Washington, DC 20006-5350 Tel: 202 223 1200 Fax: 202 785 6687 Kwaku D. Ofori (D.C. Bar No. 502898) OFORI LAW FIRM, LLC 11215-B Lockwood Drive Silver Spring, MD 20901 Tel: 301 592 8818 Fax: 301 592 8839 CERTIFICATE OF SERVICE I hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as unregistered participants on November 23, 2016. /s/ Paul S. Reichler Paul S. Reichler Case 1:16-cv-02175-ABJ Document 7-1 Filed 11/23/16 Page 12 of 12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SECURESOFT TECHNOLOGIES LLC, Plaintiff, v. EMBASSY OF GHANA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:16-cv-02175 (ABJ) [PROPOSED] ORDER DISMISSING THE COMPLAINT FOR LACK OF PERSONAL JURISDICTION AND INSUFFICIENT SERVICE OF PROCESS Defendant Embassy of Ghana’s Motion to Dismiss the Complaint filed by Plaintiff Securesoft Technologies, LLC pursuant to Rules 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure came for a hearing before this Court, the Hon. Amy Berman Jackson presiding. Having considered Defendant’s Motion to Dismiss and all papers in support thereof; any opposition filed by Plaintiff, and all papers in support thereof; and with good cause appearing, the Court GRANTS Defendant’s Motion to Dismiss and Plaintiff’s Complaint is dismissed without prejudice. IT IS SO ORDERED. Dated: _______________, 2016 Hon. Amy Berman Jackson United States District Judge Case 1:16-cv-02175-ABJ Document 7-2 Filed 11/23/16 Page 1 of 2 CERTIFICATE OF SERVICE I hereby certify that this document, filed through the ECF system, will be sent electronically to the following individual via ECF on November 23, 2016: Dirk McClanahan McClanahan Powers PLLC 8133 Leesburg Pike Suite 130 Vienna, VA 22186 dmcclanahan@mcplegal.com The same will be sent via U.S. mail on November 23, 2016 to: Zach Miller McClanahan Powers PLLC 8133 Leesburg Pike Suite 130 Vienna, VA 22186 /s/ Paul S. Reichler Paul S. Reichler Case 1:16-cv-02175-ABJ Document 7-2 Filed 11/23/16 Page 2 of 2