Supreme Court Rejects Service on Foreign State via Embassy

• Author: Geoff A. Gannaway
• Pages: 21-21

AMERICA N BAR ASSOCIATION WINTER 202 0 • VOL. 45 NO.2 | 21

he U.S. Supreme Cou rt has narrowly construed

the requirements for prop er service of a Foreign

Sovereign Immu nities Act (FS IA) lawsuit, holding

that the statute requ ires a mailing sent direc tly to a

foreign minist er’s ofce in the foreig n state. In

Republic of S udan v. Harrison, the Cou rt reversed a $314

million default judg ment obtained by victims of the bomb -

ing of the U.S. S. Cole because the plaint iffs had served

Sudan through it s embassy in the United States. The C ourt

explained that delicat e diplomatic relations implic ated by

FSIA suits jus tify prioriti zing strict construct ion over equi-

table considerations.

As a general rule , foreign states enjoy immunity from suit

in U.S. cour ts under the FSIA unless a s tatutory exception

applies. When an exce ption applies, a plaint iff may establish

personal juris diction over a defendant forei gn state by serv-

ing the complaint and su mmons pursuant to the FSIA ,28

U.S.C. § 1608. Se ction 1608(a)(3) permits service “by any

form of mail requir ing a signed receipt, to be addressed and

dispatched by the clerk of the cou rt to the head of the minis-

try of foreign aff airs of the foreign st ate concerned.”

Victims of the U. S.S. Cole bombing and t heir family mem-

bers sued the Republic of Sud an under FSIA in 2010, alleg-

ing the countr y contributed to their los ses by providing

support to al Qaeda. T he plaintiffs attempted to comply

with section 1608(a)(3) by requesting that the cl erk of the

court send the ser vice packet to Sudan’s minister of foreign

affairs at the S udanese Embas sy in Washington, D.C. T he

U.S. Distr ict Court for the District of Colu mbia entered a

$314 million default judgment af ter Sudan failed to appe ar.

The plaintif fs then registered their judgme nt in the

U.S. Distr ict Court for the Southern Dist rict of New York

and obtained orders d irecting multiple banks to tu rn over

Sudanese asse ts. Sudan appealed those tur nover orders, argu -

ing that the underly ing default judgment suffered from a

lack of personal juri sdiction. Section 1608(a)(3), Sudan con-

tended, requires t hat the plaintiffs send the ser vice packet

to the foreign min ister at his principal ofce in Suda n, not

to the Sudanese E mbassy in the United States. The S econd

Circuit reject ed Sudan’s argument, concluding that mai l to the

embassy could reasonably b e expected to be delivered to the

foreign minist er and, accordingly, service was proper. Sudan

appealed to the Supreme Cou rt, which granted certiora ri.

The Supreme Cour t emphasized the se nsitive diplomatic

implications in herent in FSIA cases, placing t hem in a cat-

egory in which “the r ule of law demands adherence to strict

requirements even when t he equities of a particular cas e

may seem to point in the oppo site direction.” Accordingly,

the opinion scrut inized FSIA section 1608(a)(3), focusing

on the words “addressed” and “dispatched.” Bec ause the

foreign minist er does not “reside” or keep his usual “place

of business” at an embassy, the Cou rt reasoned that s ervice

there fails to satisf y the dictionary den ition of “address.”

Similarly, according to t he opinion, to have “dispatched” a

letter implies s ending it direc tly to a recipient, and so indi-

rect servic e on the foreign min ister at an embassy fal ls short

of the statutor y requirement.

ABA Sect ion of Litigation leaders a gree with the

Court’s analysis . “The Court looked to the plain lang uage

of the statute and followed t he only reading that makes

sense,” says Rudy R. Perrino, L os Angeles, C A, cochair

of the Section of Lit igation’s Products Liabil ity Litigation

Committee . “You can’t assume that an emis sary in an

embassy will t ake the servic e packet and hand it over

directly to th e foreign minist er,” explains Perrino.

The outcome also avoids jeopard izing the United States’

diplomatic relationships , notes Tracy A. DiFi llippo, Las

Vegas, NV, cochair of the S ection’s Pretrial Practice &

Discovery Comm ittee. She points to an amicus bri ef sub-

mitted by the U. S. State Department that reveal s that U.S.

embassies do not accept ser vice of process when the United

States is sued in ano ther country.

Perrino emphasize s that the plaintiffs could have avoided

their procedura l problems by relying on what he c alls the

FSIA’s “failsafe service mechanism,” which explicitly permits

service with in the United States. Under sec tion 1608(a)(4), if

service can not be accomplished within 30 days under s ec-

tion 1608(a)(3), then a plaintiff may complete servic e “by

any form of mail requi ring a signed receipt, to be addressed

and dispatched by the clerk of t he court to the Secretary of

State in Washington , District of Columbia,” for transmitta l

“through diplomatic ch annels to the foreign state.”

The opinion offers a le sson that applies to service of pro-

cess more broadly, not just to FSIA cl aims. “W hen you are

trying to ser ve any lawsuit, go overboard so that you do

not open yourself to arg uments about technicalities. I n this

case, I would have served b oth ways, in the embas sy and in

Sudan,” explains Di Fillippo.

RESOURCES

Republic of Su dan v. Harrison et al., 139 S. C t. 1048 (2019).

28 U.S.C . §1608.

Debra C. Weis s, “How to sue a foreign gover nment? US sides with

Sudan in Sup reme Court review of U.S .S. Cole judgm ent,” ABA J.

(Nov. 8, 2018).

Supreme Court Rejects Service on

Foreign State via Embassy

By Geo A. Ga nnaway, Litigation News Associ ate Editor

Published in Litigation News Volume 45, Number 2, Winte r 2020. © 2020 by the Ame rican Bar Associati on. Reproduced with p ermission. All rights r eserved. This in formation or any por tion thereof may no t be copied or disseminate d in any

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