Case of the Day: Barot v. Zambia

The case of the day is Barot v. Embassy of the Republic of Zambia (D.C. Cir. 2015). I first wrote about the case in April 2014. The question in the case was whether dismissal was proper for failure to comply with the service of process provisions of the FSIA. As I noted in my prior post, Barot failed to comply with the statute but part of the failure was the fault of the district court, not Barot herself. The district court had dismissed the case. I opined that the case was correctly decided in light of the requirement of strict compliance under the FSIA. Was the D.C. Circuit more forgiving?

Here was my description of the efforts at service from my prior post:

Barot was proceeding in forma pauperis, and so pursuant to 28 U.S.C. § 1915, the marshal “aided plaintiff in her attempt to perfect service on defendant, albeit unsuccessfully.” This is an improvement on Beckely v. Raith, the case in which the judge improperly refused to let the marshal aid a plaintiff proceeding in forma pauperis to make service.The decision doesn’t explain what exactly the marshal tried to do. Barot then attempted to effect service on her own. She requested the clerk to effect service under 28 U.S.C. § 1608(a)(3). The clerk did so, but he addressed the documents to “Embassy of Zambia, P.O. Box 50069, Lusaka City, Zambia.” The statute requires the documents to be addressed to the “head of the ministry of foreign affairs of the foreign state concerned.” Because plaintiffs must strictly comply with § 1608(a), the judge dismissed the case.

You can see from these facts that both the marshal, which was supposed to effect service under § 1915, and the clerk, which was supposed to effect service under § 1608(a)(3), made mistakes. Moreover, the clerk’s mistake at least was highly technical: he addressed the documents to the Embassy of Zambia rather than the Ministry of Foreign Affairs, even though he sent it to the right address. In the circumstances, the D.C. Circuit decided it was appropriate to give Barot a mulligan. She had tried in good faith to effect service; she came very close to doing so properly; and the fault lay in part with the court and its staff. Although the dismissal was without prejudice, the effect was to bar her claim, because the statute of limitations by then had run. And Zambia could show no countervailing prejudice. Therefore, the court held, the district court had abused its discretion by dismissing the case rather than quashing the service and giving Barot another chance.

I understand the rationale of the decision, and I am not opposed to it, but I am not convinced it is right, especially given that the standard of review was abuse of discretion. Based on a comment Ms. Barot made here at Letters Blogatory, it seems that she waited to the very last day to file her lawsuit. I think that’s a factor that has to be weighed when deciding whether the prejudice of a dismissal warrants giving the plaintiff another chance. In general, when you know you have a foreign service issue, the early bird gets the worm.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

2 thoughts on “Case of the Day: Barot v. Zambia

  1. It’s only now that I was able to visit your blog because my account has been hacked.

    I would like to clarify that the package was sent thru DHL worldwide and the addressee label on the said DHL package was done on-line. Since the title “head of Ministry of Foreign Affairs, Embassy of Zambia” did not fit on the said label.

    Instead, the addressee label showed on the right corner under the word Contact: Min. Foreign Affairs” and the words: “Embassy of Zambia” went to the left side corner of the label above P.O. Box 50069, Lusaka City, Zambia next to the word “To”. This happened because if you will type under Contact the words: “Min. Foreign Affairs, Embassy of Zambia”, the words Embassy of Zambia would be cut off and will automatically move to the left side corner next to the word “To” of the addressee label and that happened to this case.

    If you would consult a Dictionary, specifically Merriam Webster Dictionary the Full Definition of CONTACT is:
    ” a person serving as a go-between, messenger, connection, or source of special information ”
    THEREFORE, the word “Min”. Foreign Affairs” under Contact refers to MINISTER, Foreign Affairs, who is also the HEAD of the Ministry of Foreign Affairs, Embassy of Zambia.

    There is abuse of discretion in this particular case because on a technical point, the District Court gets it wrong, the Clerk’s Office gets it wrong, and the plaintiff had it right at one point when counsel provided a name and address of the Head of the Ministry of Foreign Affairs except that the District Court made it changed that they made it incorrect.

    The record also showed that the District Court messed it up, the Clerk’s Office failed to do what the statute told the Clerk to do and there was another proposed service document that was lost by Court.

    ERRORS WERE MADE BY VERY KNOWLEDGEABLE PEOPLE along the way.

    I was also a Clerk of Court in one of the Courts in the Philippines from 1969 to 1975 so I knew that something wrong happened in my case. I still have faith in the Judicial process of the United States thus I appealed my case. Now I am satisfied because I believed, Justice has been served.

  2. I would like to add that the Court’s incorrect analysis and interpretation of the material facts on the Shipment/Addressee Label led to the wrong legal conclusion, thus prevent the hearing of the case on its merits.

    Said Shipment/Addressee label was the result of the facts provided by the Plaintiff counsel in the DHL on line form with DHL Express Worldwide.

    The FSIA was enacted in 1976 and its requirements is ought strictly to be followed. Plaintiff used DHL formatted computer generated on-line shipment/addressee label where the whole addressee name “Min. Foreign Affairs, Embassy of Zambia”under the word Contact (a person) did not fit on the said line due to limited space and was cut by the computer into two parts

    I believed that said compliance with FSIA be treated with common-sense approach, considering the fact how modern technology particularly Computers had played important role in our lives, businesses and even Courts; as well as the men’s changing approach on how a thing is perceived and given different meanings.

    The Court committed abuse of discretion by tolerating the clerk of the court’s negligence/inadvertence when he misplaced/lost the package (with postage paid and ready for service) submitted by the Plaintiff on December 2, 2013, pursuant to 28 USC 1608(a)(3); also when the clerk issued a misleading and incomplete Certificate of Mailing on February 3, 2014 stating that the package was addressed to “Embassy of Zambia, P.O. Box 50069, Lusaka City, Zambia.”

    Aforementioned obvious actions offend traditional notions of fair play and substantial justice that would prevent the hearing of the case on the merits which is also tantamount to abuse of discretion.

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