United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 16, 2015 Decided May 8, 2015

No. 14-7081

DOLORES BAROT,

APPELLANT

v.

EMBASSY OF THE REPUBLIC OF ZAMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-00451)

Denise M. Clark argued the cause and filed the briefs for

appellant.

Laina C. Lopez argued the cause and filed the brief for

appellee.

Before: ROGERS and MILLETT, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Dolores Barot appeals the

dismissal of her complaint for failure to effect service of process

as required under the Foreign Sovereign Immunities Act, 28
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U.S.C. § 1608(a)(3). That Act confers upon the district court

responsibilities with regard to the sensitive task of service of

process on a foreign government, yet in this case the district

court itself was responsible for a substantial portion of the

mistakes in service. Because Barot’s attempts at service came

so close to strict compliance with the Act as to demonstrate a

good faith effort at timely compliance amidst the sometimes

confusing directions from the district court, we conclude, in

view of the resulting prejudice to Barot and the absence of any

relevant prejudice to the Embassy of Zambia of allowing a

further effort at service, that dismissal was too extreme a

remedy. Accordingly, we reverse and remand the case for the

district court to permit Barot to effect service in compliance

with section 1608(a)(3).

I.

In order to sue a foreign state or one of its political

subdivisions, a plaintiff must effect service in compliance with

the Foreign Sovereign Immunities Act. See 28 U.S.C. §1608(a);

Fed. R. Civ. P. 4(j)(1). The Act provides four methods of

service in descending order of preference. First, “by delivery of

a copy of the summons and complaint in accordance with any

special arrangement for service between the plaintiff and the

foreign state or political subdivision.” Id. § 1608(a)(1). Second,

“by delivery of a copy of the summons and complaint in

accordance with an applicable international convention on

service of judicial documents.” Id. § 1608(a)(2). Third, 

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
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ministry of foreign affairs of the foreign state

concerned . . . .

Id. § 1608(a)(3). And fourth, if none of the first three methods

works, a plaintiff can serve the appropriate documents through

the Department of State. Id. § 1608(a)(4). Because neither of

the first two methods was available to Barot, both parties agree

that the third method was required.

When serving a foreign sovereign, “strict adherence to the

terms of 1608(a) is required.” Transaero, Inc. v. La Fuerza

Aerea Boliviana, 30 F.3d 148, 154 (D.C. Cir. 1994). In

Transaero, a plaintiff attempted to sue the Bolivian Air Force —

a political subdivision of the Bolivian state — by mailing

service to the Bolivian Ambassador and the Air Force itself,

instead of “to the head of the ministry of foreign affairs of the

foreign state.” Id. at 153 (quoting 28 U.S.C. § 1608(a)(3)). This

court held that neither substantial compliance, nor actual notice,

sufficed 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, 30 F.3d at 154.

Barot is a former employee of the Embassy of Zambia in

Washington, D.C. After her employment was terminated in

2009, she filed a complaint with the Equal Employment

Opportunity Commission, and, upon receiving a right to sue

letter, filed a complaint on March 18, 2013, in the federal district

court alleging violations of Title VII of the Civil Rights Act, the

Age Discrimination in Employment Act, and Equal Pay Act; she

later added a claim under the D.C. Wage Payment and

Collection Act. The district court granted Barot leave to

proceed in forma pauperis, thus entitling her to have the officers

of the court serve the Embassy, see 28 U.S.C. § 1915(d); D.C.

Dist. Ct. Local Rule 83.11(b)(4)(i). The Marshal, however,
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attempted service at the Embassy in Washington, D.C., rather

than at the Ministry of Foreign Affairs in Lusaka, Zambia, as the

Act required. The district court then directed Barot to serve the

Embassy of Zambia in conformance with section 1608(a)(3) by

providing the Clerk of the Court with the mailing address for the

head of the Ministry of Foreign Affairs. Through her attorney,

Barot complied, providing the name of the Minister of Foreign

Affairs, as well as the address in Lusaka for the Ministry of

Foreign Affairs.

From there, a number of mistakes prevented proper service

under section 1608(a)(3). First, the district court reversed

course and ordered the Clerk of the Court to effect service on the

Embassy in Washington, D.C. under the more lenient

requirements of section 1608(b). When counsel for the Embassy

of Zambia pointed out that such service did not satisfy section

1608(a)(3), the district court acknowledged that “service was

improper through no fault of plaintiff,” and on November 18,

2013, directed Barot again to “file with the clerk’s office the

necessary documents” to effect service pursuant to section

1608(a), Order of Nov. 18, 2013. Instead, however, upon being

notified by the Clerk’s Office that the requested mailing had not

yet been sent, Barot’s attorney mailed the documents to the

Embassy’s Washington, D.C. address. The Embassy filed a

motion to dismiss on the ground, among others, of failure to

effect proper service of process.

Finally, in January 2014, Barot attempted to effect service

through the Clerk of the Court, as required by section

1608(a)(3). The Deputy Clerk filed a certificate of mailing, with

an attached DHL “waybill” showing the address Barot had

provided. The mailing was addressed to “Embassy of Zambia,

P.O. Box 50069, Lusaka City, Zambia.” In the upper-right-hand

corner of the address box, the waybill stated “Contact:

Min.Foreign Affairs, 260 211 252666.” The post office box is
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the Ministry’s, and the telephone number is the Ministry’s

general line. In March 2014, Barot’s counsel filed a notice of

completed service of process of the summons, complaint, and

notice of suit. Attached was a delivery confirmation that

showed, through signature, that the package had arrived at the

Ministry in Lusaka.

The district court granted the Embassy’s motion to dismiss

without prejudice. See Barot v. Embassy of the Republic of

Zambia, 11 F. Supp. 3d 24, 29 (D.D.C. 2014). The court

explained that the latest attempt at service “contain[ed] a fatal,

technical error”: “even though plaintiff may have sent the packet

of materials to the post office box used by the ministry of

foreign affairs, plaintiff did not address it to the head minister.” 

Id. at 32. Therefore, the “February 3, 2014 service attempt []

did not comply with the strict terms of section 1608(a)(3).” Id. 

The court explained that the “plaintiff’s decision to address the

waybill to the ‘Embassy of Zambia’ directly undermines the sole

justification for why the D.C. Circuit requires strict compliance

with section 1608(a),” which is that the Ministry is the agency

most likely to understand U.S. judicial procedure. Id. In

denying Barot’s motion for reconsideration, the district court

further explained that the addressee — “Embassy of Zambia” —

“would not be located in Zambia at all.” Barot v. Embassy of

the Republic of Zambia, 11 F. Supp. 3d 33, 35 (D.D.C. 2014). 

The main defect, according to the district court, was not Barot’s

“failure to include the words ‘head of;’ it was her failure to

make any reference to the individual — whether by name or by

title — who occupies the office of the head of the ministry of

foreign affairs as the addressee of the package.” Id. at 36 n.1. 

Barot appeals, and our review of the dismissal of the complaint

is for abuse of discretion, see Freedom Watch, Inc. v. Org. of the

Petroleum Exp. Countries, 766 F.3d 74, 78 (D.C. Cir. 2014);

Pellegrin & Levine, Chartered v. Antoine, 961 F.2d 277, 283

(D.C. Cir. 1992); Novak v. World Bank, 703 F.2d 1305, 1310
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(D.C. Cir. 1983); Wright & Miller, FEDERAL PRACTICE &

PROCEDURE, Motions to Dismiss—Insufficiency of Process and

Service of Process, § 1353 (3d ed. 2015). 

II.

In general, “district courts have broad discretion to dismiss

a complaint for failure to effect service.” Novak, 703 F.2d at

1310. This court has cautioned, however, in cases of sua sponte

dismissals for inadequate service, that “dismissal is not

appropriate when there exists a reasonable prospect that service

can be obtained.” Id. Relatedly, this court has explained that

dismissal “for failure to prosecute due to a delay in service is

appropriate only when there is no reasonable probability that

service can be obtained or there is a lengthy period of

inactivity.” Angellino v. Royal Family al-Saud, 688 F.3d 771,

775 (D.C. Cir. 2012) (alterations and internal quotation marks

omitted); see Peterson v. Archstone Communities, LLC, 637

F.3d 416, 418 (D.C. Cir. 2011). Because of the district court’s 

statutory responsibilities and prominent role in the mistakes of

service in Barot’s case, the prejudice to Barot, the lack of

prejudice to the Embassy, and Barot’s good-faith efforts at

service, similar considerations apply here. Furthermore, there

is no statutory deadline for service under the Foreign Sovereign

Immunities Act, unlike the presumptive 120-day time limit in

Rule 4(m) of the Federal Rules of Civil Procedure.

Barot’s latest service attempt came very close to satisfying

the Act’s requirements, as interpreted by the district court, 

showing good faith in her efforts to comply with the Act. The

defect, according to the district court, came down to one line of

the address block: it should have said “Head of the Ministry of

Foreign Affairs,” not “Embassy of Zambia,” see id. at 36 n.1. 

There clearly “exists a reasonable prospect that service can be

obtained.” Novak, 703 F.2d at 1310. Due to the passage of
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time, Barot states that the statute of limitations has run on her

claims under Title VII and the Age Discrimination in

Employment Act, see 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C.

§ 626(e); she received her right-to-sue letter from the EEOC in

2012. The district court acknowledged as much, noting that it

was “aware that dismissal in this case results in harsh

consequences for plaintiff.” Barot, 11 F. Supp. 3d at 36. The

Embassy has identified no particular prejudice it would suffer if

Barot were permitted another opportunity to make proper

service, pointing only to the legal fees it has incurred, which are

not a prospective harm and fail to distinguish Barot’s case from

any other failure to serve properly.

Under the circumstances, we hold that the district court

abused its discretion in dismissing Barot’s complaint, and we

remand the case for the district court to afford Barot, proceeding

in forma pauperis, the opportunity to effect service pursuant to

28 U.S.C. § 1608(a)(3). This requires serving a summons,

complaint, and notice of suit, see 22 C.F.R. § 93.2, along with

any necessary translations, that are “dispatched by the clerk of

the court,” and sent to the “head of the ministry of foreign

affairs” in Lusaka, Zambia, whether identified by name or title,

and not to any other official or agency, 28 U.S.C. § 1608(a)(3).