Case of the Day: Barot v. Zambia
Posted on May 11, 2015
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.