# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT



## No. 20

- 7086 September Term, 2021

F ILED O N : O CTOBER 22

, 2021

L ISA B ALLANTINE

, E T A L

. , A PPELLANT

v.

D OMINICAN R EPUBLIC

, A PPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:19

- cv

- 03598 )

Before: K ATSAS and R AO

, Circuit Judges , and S ILBERMAN

, Senior Circuit Judge

.

J U D G M E N T

This appeal was considered on the record from the United States District C ourt for the

District of Columbia and on the briefs of the parties. The court has afforded the issues full

consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R.

36( d). For the following reasons, it is

ORDERED AND ADJUDGED that the judgment of the district court be AFFIRMED.

This is a dispute over the proper service of a foreign state in a proceeding governed by the

Federal Arbitration Act. Lisa and Michael Ballantine sought to arbitrate a real estate development

dispute with the Dominican Republic before the Permanent Court of Arbitration in Washington,

D.C. Th at c ourt determined that it had no jurisdiction over the case, since the Ballantines were

predominantly Dominican citizens. The Ballantines then sought to vacate this arbitral award in

federal district court. The district court denie d the Ballantines’ petition to vacate because

although the Ballantines attempted to serve the Dominican Republic in several ways, none of

those methods were consistent with the statute governing service of a foreign state. We affirm.2 I

We start with t he governing law

. The Federal Arbitration Act states that a notice of a

motion to vacate “must be served” upon an adverse party “within three months after the award is

filed or delivered.” 9 U.S.C. § 12. When the adverse party resides outside the distri ct where the

award was made, service shall be made “in like manner as other process of the court.” Where the

party to be served is a foreign state, the Foreign Sovereign Immunities Act, 28 U.S.C. § 1608,

“ sets forth the exclusive procedures for service. ” Transaero, Inc. v. La Fuerza Aerea Boliviana

, 30 F.3d 148, 154 (D.C. Cir. 1994) (citation omitted )

.

The key provision of 28 U.S.C § 1608 reads:



### (a) Service in the courts of the United States and of the States shall be made upon a

foreign state or political subdivision of a foreign state:

. . .

(3)

. . . by sending a copy of 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. 1

The arbitral award that Appellants seek to have vacated was delivered on September 3,

2019 by the Permanent Court of Arbitration in Washington, D.C. Appellants filed a Motion to

Vacate on December 3, 2019

— the last day of the three

- month deadline

— and attempted to serve

the Dominican Republ ic by (1) mailing and hand delivering the Motion to the Dominican

Republic’s arbitration counsel, (2) emailing the Motion to the Minister of Industry and

Commerce, and (3) engaging a Dominican bailiff to serve the Motion on the Ministry of Industry

and Commerce in the Dominican Republic. None of these attempts conformed to 28 U.S.C.

§ 1608(a)(3). It was only on Janu ary 8, 2020 ( more than a month after the three

- month deadline

had passed) that Appellants requested the clerk of the court to mail the papers pursuant to 28

U.S.C. § 1608(a)(3). Proper s ervice was effectuated on January 24, 2020

.

Appellants’ reading of 9 U.S.C. § 12 that “must be served” actually means only “filed” is

1 Since the parties have stipulated that the methods set out in § 1608(a)(1) and (a)(2) are not

available, we do not discuss them here.3 almost frivolous

. There is no indication that “must be served” should be read inconsistently with

its ordinary meaning. Appellants cite no real authority for that pr oposition. Indeed, we have

affirmed a district court’s dismissal of a motion to vacate where the moving party filed the

motion before the three

- month deadline but served it six days late. Argentine Republic v. Nat ’ l

Grid PLC , 637 F.3d 365, 367

– 69 (D.C. Cir. 2011) (per curiam). Other circuits interpreting 9

U.S.C. § 12 agree that “must be served” does not mean “filed.” See, e.g.

, Webster v. A.T.

Kearney, Inc. , 507 F.3d 568, 571

– 72 (7th Cir. 2007); Hakala v. J.P. Morgan Sec.

, Inc.

, 186 F.

App’x 131, 133 (2d Cir. 2006).

Moreover, Appellants’ policy arguments are inappropriate and misplaced. They waste

ink complaining that the three

- month deadline set by 9 U.S.C. § 12 is outdated and too short

. Such complaints are not properly directed at the judicial branch. Nor, in any event, are those

arguments valid; once Appellants initiated the correct procedure, it took only 16 days to serve the

Dominican Republic. Appellants’ hypothetical that foreign states may run out the clock by

refusing to accept service ignores 28 U.S.C. § 1608(a)(4), which allows a party to use diplomatic

channels to effectuate service should 28 U.S.C. § 1608(a)(3) fail. 2 Then, by virtue of 28 U.S.C.

§ 1608(c), service is deemed completed once the United States Secretary of State transmits the

papers

— regardless of whether the foreign state accepts service.

II

Appellants argue in the alternative that they are entitled to equitable tolling. It is unclear

whether equitable tolling is available in the context of 9 U.S.C. § 12’s statutory deadline.

Compare Move, Inc. v. Citigroup Glob. Mkts

. , Inc. , 840 F.3d 1152 (9th Cir. 2016), with

Florasynth, Inc. v. Pickholz , 750 F.2d 171, 175 (2d Cir. 1984); see also National Grid PLC , 637

F.3d at 367

– 69 (holding that the 9 U.S.C. § 12 statutory deadline cannot be extended by virtue of

Federal Rule of Civil Pr ocedure Rule 6(b)).

Still , even if equitable tolling were available, Appellants would not qualify. To be

entitled to equitable tolling, a party must show that it has pursued its rights diligently and that it

was barred by some extraordinary circumstance “beyond [the litigant’s] control.” Young v. Sec.

& Exch. Comm’n , 956 F.3d 650, 655 (D.C. Cir. 2020 ) ( internal citations omitted). Appellants

did not diligently pursue their rights, as they did not initiate the proper service pr ocess until the

2 Section 1608(a)(4) states, in relevant part: “if service cannot be made within 30 days under

paragraph (3), by sending two copies of the summons and complaint and a notice of suit, together with

a translation of each into the official language of the fore ign state . . . to be addressed and dispatched by

the clerk of the court to the Secretary of State

. . . and the Secretary shall transmit one copy of the

papers through diplomatic channels to the foreign state . . . .”4 three

- month deadline had already passed. Nor did Appellants demonstrate how this delay was

caused by circumstances out of their control.

For these reasons, we affirm.

* * *

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is

directed to withhold issuance of the mandate herein until seven days after resolution of any timely

petition for rehearing or petition for rehearing en banc

. See Fed. R. App. P. 41(b); D.C. Cir. R.

41.



### Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Rei dy

Deputy Clerk