[00:00:02] Speaker 03: Case number 14-7081, Dolores Barote, Appellant versus Embassy of the Republic of Zambia. [00:00:09] Speaker 03: Ms. [00:00:09] Speaker 03: Clark for the appellant, Ms. [00:00:10] Speaker 03: Lopez for the appellee. [00:00:29] Speaker 00: Good morning. [00:00:30] Speaker 00: Good morning. [00:00:33] Speaker 00: In Trinsero versus La Frusa Herrera Boliviana, this court said, Section 1608 of the FSIA mandates service on the Ministry of Foreign Affairs, specifically the department most likely to understand American procedure. [00:00:52] Speaker 00: That happened in this case. [00:00:55] Speaker 00: The Ministry of Foreign Affairs for Zambia received the package required under the FSIA, which was presented to the District Court for service of process. [00:01:03] Speaker 03: Does the record identify who it was who signed or the document other than the name? [00:01:10] Speaker 03: I assume it's a female. [00:01:15] Speaker 03: Do we know where she worked in the ministry? [00:01:20] Speaker 00: There is nothing in the record to suggest that she, where she worked in the ministry. [00:01:26] Speaker 00: The documents that plaintiff below relied on [00:01:31] Speaker 00: to demonstrate that she complied with the requirements of service process, primarily as the commercial invoice, which was supplied to the court on a motion for reconsideration. [00:01:44] Speaker 00: I believe that was document number 33-3, up below. [00:01:49] Speaker 00: It clearly demonstrates that the Ministry of Foreign Affairs was the entity to receive that package. [00:01:56] Speaker 00: We've previously stated in our brief that [00:01:59] Speaker 00: There's no case stating that the DHL label is determinative of compliance. [00:02:06] Speaker 00: And the statute itself does not, in quotation, say head of foreign affairs. [00:02:14] Speaker 00: It certainly says the head of foreign affairs should be addressed. [00:02:17] Speaker 00: But the cases below, and I believe even the cases that this court has looked at, well, the focus has been on whether or not it's the Ministry of Foreign Affairs that's received service of process. [00:02:28] Speaker 00: Many of the cases that have been heard are cases where it's an ambassador that's been served, an inappropriate person who's been served. [00:02:36] Speaker 00: So despite the point, as you look at the record below, there were many mistakes along the way in terms of service. [00:02:46] Speaker 00: And so I won't go back over those. [00:02:48] Speaker 00: But the point at which DHL was used, it's our position that there was full compliance with what the requirement is. [00:02:59] Speaker 04: Explain to me how there was full compliance? [00:03:07] Speaker 04: Just the men of foreign affairs? [00:03:09] Speaker 04: I'm sorry? [00:03:09] Speaker 04: Where you put men period of foreign affairs? [00:03:13] Speaker 00: There are two places. [00:03:16] Speaker 00: The first position that, as I pointed out earlier, is exhibit A to our motion for reconsideration. [00:03:23] Speaker 00: It's document, in the docket below, it's document 33-3, which has the commercial invoice in which the consignee name is Ministry of Foreign Affairs. [00:03:34] Speaker 03: So let's see, where is it that we have it in R, just so I'm clear. [00:03:37] Speaker 00: And in the, I'm sorry, in the appendix at the bottom, it's A48. [00:03:41] Speaker 00: Right, okay. [00:03:46] Speaker 00: A48. [00:03:46] Speaker 00: Yes, sir. [00:03:49] Speaker 03: Okay. [00:03:50] Speaker 03: So, [00:03:51] Speaker 03: It's addressed to, it says consignee name. [00:03:58] Speaker 03: Correct. [00:03:59] Speaker 03: And what else are you referencing? [00:04:01] Speaker 00: Well, specifically that, and then from the website from the embassy in Zambia, [00:04:09] Speaker 00: This is the proper address that's given. [00:04:11] Speaker 00: There's been no dispute with regards to... This is an invoice, though. [00:04:16] Speaker 04: This isn't the address. [00:04:17] Speaker 04: This isn't the label. [00:04:18] Speaker 04: This is an invoice, not the label. [00:04:19] Speaker 00: Correct. [00:04:19] Speaker 00: It's not the label. [00:04:20] Speaker 03: So where's the label again? [00:04:21] Speaker 03: So it has the email address. [00:04:24] Speaker 03: It has the country. [00:04:26] Speaker ?: Correct. [00:04:27] Speaker 03: It has the telephone number. [00:04:30] Speaker 03: And this shows us what? [00:04:34] Speaker 00: And then the consigning name is Ministry of Foreign Affairs. [00:04:38] Speaker 03: But this tells me what? [00:04:39] Speaker 03: Just so I know. [00:04:40] Speaker 03: If I received this, what would I know? [00:04:43] Speaker 00: If you received that, the Ministry of Foreign Affairs should have this, has received this, should be receiving this package. [00:04:49] Speaker 03: This is a statement that it was sent to them or that they have received it. [00:04:54] Speaker 03: That's what I'm trying to be clear. [00:04:55] Speaker 00: Sent to them. [00:04:56] Speaker 03: Sent to. [00:04:57] Speaker 03: So where is the receipt? [00:05:02] Speaker 00: The receipt [00:05:06] Speaker 00: is appendix page A56. [00:05:19] Speaker 00: And there it is signed by an individual, Kadimba. [00:05:29] Speaker 00: The signature is very difficult to read. [00:05:33] Speaker 03: All right, but it's tight there. [00:05:37] Speaker 03: And so that shows it was in Lusaka, Zambia. [00:05:40] Speaker 00: Correct. [00:05:42] Speaker 03: And it shows the date and time. [00:05:44] Speaker 00: Correct. [00:05:49] Speaker 04: I'm sorry, can you tell me what the JA year, the address label is? [00:05:52] Speaker 00: That is A52. [00:06:02] Speaker 00: When you go online with DHL, you don't have this particular document as your picture. [00:06:07] Speaker 00: You're filling out a form, and this is the document that is printed out. [00:06:13] Speaker 04: Had you given up on having the clerk do service at this point? [00:06:15] Speaker 00: No, this was delivered to the clerk. [00:06:17] Speaker 00: This is what the district court requires be delivered to the clerk. [00:06:21] Speaker 04: No, the attorney manual says that you give them the blank DHL form and then you have an affidavit that has the accurate address in it. [00:06:29] Speaker 00: We didn't have a blank DHL form and that's why we used the electronic form. [00:06:33] Speaker 04: You couldn't get a blank DHL form? [00:06:35] Speaker 00: Not from where our office was at. [00:06:37] Speaker 00: We would have to actually call them and have them deliver it and they would have charged us for it. [00:06:45] Speaker 01: with or without prejudice, but the court did say this was a final, appealable order. [00:06:52] Speaker 01: Correct. [00:06:53] Speaker 01: Should we take that to mean it was with prejudice? [00:06:56] Speaker 00: I took it to mean that, Your Honor. [00:06:58] Speaker 01: Now, if the dismissal had been without prejudice, would there have been other problems that would have barred you from re-bringing it? [00:07:05] Speaker 00: Yes. [00:07:05] Speaker 00: The plaintiff would have been without a remedy altogether, because of the statute of limitations of her claims. [00:07:10] Speaker 00: Yes, would have brought it. [00:07:13] Speaker 04: Okay. [00:07:13] Speaker 04: Did you ask [00:07:15] Speaker 04: for another chance in the district court? [00:07:20] Speaker 00: Specifically in our papers, we did not. [00:07:22] Speaker 00: I have to admit that. [00:07:23] Speaker 00: We believe that we have complied, especially in light of some of the lower court decisions, which did not focus as critically on the use of the term head of Ministry of Foreign Affairs. [00:07:35] Speaker 00: And when you look at the evidence below, which was supplied in the opposition to the motion for reconsideration, the appellee did [00:07:46] Speaker 00: exhibit from the Eber versus Republic of Sudan. [00:07:50] Speaker 00: I believe that was the case that we were mostly looking to, which showed that they had filled out an actual form. [00:07:57] Speaker 00: So those are the distinctions between the two cases. [00:08:01] Speaker 00: We had an online form. [00:08:03] Speaker 00: The individual in that case had the paper form. [00:08:06] Speaker 00: But I think what I take away from Judge Bates' decision below is really a focus on whether or not the plaintiff has followed the procedures. [00:08:17] Speaker 00: There's no argument that by the court below that the failure to use the paper form was what was a problem here. [00:08:24] Speaker 00: It's simply whether men, period, foreign affairs, and looking to the commercial invoice was sufficient enough to be in compliance. [00:08:34] Speaker 00: Court below determined that it was not. [00:08:36] Speaker 00: And I believe that [00:08:39] Speaker 00: receipt is still a factor here. [00:08:42] Speaker 00: There's no argument below by the appellate that it was never received. [00:08:48] Speaker 00: And it certainly was, there's no argument that it wasn't addressed to the Ministry of Foreign Affairs. [00:08:53] Speaker 00: I think the court really focused on the use of the term head of the ministry or minister. [00:09:00] Speaker 00: And arguably, if you look at the label, A-52-1, at A-52-1 could certainly [00:09:07] Speaker 00: interpret MIN to be minister. [00:09:10] Speaker 00: That's certainly not what I stated in my affidavit. [00:09:13] Speaker 00: I was very clear about what I was attempting to do when I filled it out online. [00:09:17] Speaker 04: One thing I'm trying to figure out is, if maybe you had the space to say minister of foreign affairs, [00:09:26] Speaker 04: if that's what you had the space to do, or if you had said that's what you meant by MIN, is that what do we do when there's this little bit of ambiguity? [00:09:39] Speaker 04: We have actual service plus at least ambiguity about the accuracy of the mailing address, and at least half of this grew up here where the courts fought. [00:09:51] Speaker 00: I'm not sure that the mailing address itself was inaccurate. [00:09:54] Speaker 00: And that was not argued by, it certainly wasn't an issue that the court raised, and I don't believe the Appellee has raised it here. [00:10:02] Speaker 00: And we pointed to, and it's in the appendix, that the address comes directly from the website of the Embassy and the Ministry of Foreign Affairs. [00:10:10] Speaker 00: So I'm comfortable about that. [00:10:12] Speaker 04: Does the Ministry of Foreign Affairs say to put Embassy of Zambia on there? [00:10:17] Speaker 00: No, I don't. [00:10:18] Speaker 04: Well, that's sort of a confusing thing. [00:10:20] Speaker 00: Okay, now I understand the court's question. [00:10:24] Speaker 00: It doesn't say that the embassy, but the embassy of Zambia in Lusaka is where the ministry is located. [00:10:33] Speaker 00: And I believe the way that form got filled out when you completed everything online, [00:10:39] Speaker 00: The focus is, what's the building the person is supposed to, who's delivering it? [00:10:43] Speaker 00: What building are they supposed to go to? [00:10:45] Speaker 00: And there wouldn't be a separate building for Ministry of Foreign Affairs. [00:10:48] Speaker 00: They're going to the Embassy of Osaka. [00:10:51] Speaker 04: That's going to a PO box down a building. [00:10:56] Speaker 04: That's what's kind of confusing. [00:10:57] Speaker 04: Is somebody signing for things in a PO box? [00:10:59] Speaker 00: Apparently so. [00:11:00] Speaker 00: And I checked several times. [00:11:02] Speaker 00: There's no other address on that website. [00:11:04] Speaker 00: It's just the PO box. [00:11:06] Speaker 00: And I think you were asking about if [00:11:09] Speaker 00: I think that, going back to the earlier part of your question, I don't think the FSIA is very clear in saying that there would be noncompliance if, in fact, it was just addressed to minister. [00:11:22] Speaker 00: And the reason I say that is because, again, going back to the quote from this Court's decision in TransArea, the idea is that the people who understand the procedures of this Court [00:11:37] Speaker 00: are deemed to be the minister of foreign affairs. [00:11:40] Speaker 00: And so if, in fact, I had enough room to put minister, that should have been considered compliance. [00:11:47] Speaker 00: And therefore, I think if someone received that document and MIN was understood and the alternative was misunderstood, I don't think they would have signed for it. [00:11:59] Speaker 00: And so I think that's part of the reason why I argue that receipt, I think, is important. [00:12:04] Speaker 00: And when you look at Judge Bates' decision below [00:12:08] Speaker 00: In the Eber case, I think he's very conscious about the fact that there's no second guessing in terms of compliance if there's no question about receipt. [00:12:20] Speaker 00: And I would like the court to at least give that some consideration in light of these facts here. [00:12:26] Speaker 03: What about the proposition that Congress put the words head up [00:12:37] Speaker 03: because otherwise there's immunity and concern about the Vienna Convention, et cetera. [00:12:50] Speaker 03: The fact that somebody in a ministry receives it is different from it being received by the head of the ministry. [00:13:01] Speaker 00: I understand the question. [00:13:02] Speaker 00: And I think, respectfully, I maybe disagree a little bit in terms of the congressional statute and whether head of was a requirement. [00:13:11] Speaker 00: I understand that. [00:13:12] Speaker 03: Well, it's in there, right? [00:13:13] Speaker 00: I understand. [00:13:14] Speaker 00: It definitely is. [00:13:14] Speaker 00: I'm not arguing that point at all. [00:13:16] Speaker 03: Right. [00:13:16] Speaker 00: And that's why I go back to the argument that minister, I think there's a presumption that the minister is the head of. [00:13:25] Speaker 00: I don't think anyone would second guess that particular point. [00:13:29] Speaker 00: All right. [00:13:29] Speaker 00: just as a fact, going to the facts in this case, it's never really clear when the minister changes or who the minister is. [00:13:42] Speaker 00: And the website itself, I think, was [00:13:45] Speaker 00: It's completely silent about the name of the individual. [00:13:49] Speaker 00: The attempt to try to identify that person was clearly there. [00:13:53] Speaker 00: We made that attempt and used what information we could see on the internet. [00:13:57] Speaker 03: Do we know how big the Ministry of Zambia is? [00:14:01] Speaker 00: I don't. [00:14:01] Speaker 03: How many employees? [00:14:03] Speaker 03: I mean, I'm just... The hypothetical is there are 5,000 employees in the Ministry. [00:14:09] Speaker 03: And this is... [00:14:13] Speaker 03: the lady whose name starts with Z, you know, goes to the post office box and picks up a lot of mail and signs for it. [00:14:23] Speaker 03: And, you know, she works [00:14:26] Speaker 03: down in the bowels of the ministry. [00:14:28] Speaker 03: And who knows what happens to it. [00:14:30] Speaker 03: As distinct from Congress saying almost as a respect from one sovereign to another that we understand you have immunity, but when soup is to be allowed, we want to be certain that the head of the ministry is aware of this. [00:14:50] Speaker 03: And you can think of a number of reasons why Congress might be concerned about that. [00:14:55] Speaker 03: We're engaged in negotiations with that country on some very sensitive matters, and all of a sudden it's flooded with litigation, all those sorts of things. [00:15:06] Speaker 03: So it's not as though Congress arguably didn't think about this question of who precisely should receive service. [00:15:21] Speaker 03: as distinct from where, as far as domestic service is concerned, we allow for other forms, actual notice, you know, good enough, even if not perfect, but now we're in a different realm. [00:15:41] Speaker 03: And I thought that's what our court was getting at when it talked about strict compliance. [00:15:49] Speaker 00: the strict compliance in this instance is more than what is absolute, is required. [00:15:57] Speaker 00: Where Ministry of Foreign Affairs and MIN of Foreign Affairs is there, I think the concern the Court is raising is whether or not [00:16:09] Speaker 00: the use of the term head of Ministry of Foreign Affairs would have assured that only that person would have received that document. [00:16:17] Speaker 01: Or the reward minister. [00:16:18] Speaker 00: Or the reward minister. [00:16:20] Speaker 00: And given the fact that, as you point out, there's a PO box, [00:16:25] Speaker 00: I doubt seriously that the Minister of Foreign Affairs goes to that PO box to obtain those documents as a first step. [00:16:33] Speaker 00: So the presumption is that there is certainly someone who is dispatched, who's not the head of the Ministry of Foreign Affairs, but who may be responsible to that individual [00:16:44] Speaker 00: are responsible to the people who are running that ministry. [00:16:49] Speaker 00: And one may certainly argue that there are procedures inside that office that are to be followed when a DHL envelope from the United States arrives. [00:17:00] Speaker 00: And so I don't, while I understand what the Court is asking about the assurances that Congress was seeking, [00:17:07] Speaker 00: Congress can only go so far in terms of what it wrote in the statute to assure that only the Ministry of Foreign Affairs or the minister or the head of the ministry would receive it. [00:17:17] Speaker 00: Because once it's received at that PO box, it's out of our hands as to who does receive it. [00:17:23] Speaker 00: But we accept, if we put head of Ministry of Foreign Affairs, we accept that whoever arrives at that PO box is going to get it there. [00:17:32] Speaker 00: There are some cases where that hasn't occurred. [00:17:35] Speaker 03: Well, all right. [00:17:36] Speaker 03: Let me take you to your second point. [00:17:39] Speaker 03: We have cases that say where there's a reasonable likelihood that this problem could be cleared up very easily. [00:17:48] Speaker 03: It's an abuse of discretion to dismiss. [00:17:53] Speaker 03: What would you say on that? [00:17:56] Speaker 00: I think that what is distinguishable here [00:18:01] Speaker 00: I would probably have thought much longer about appealing this decision if none of the procedures had been complied with. [00:18:11] Speaker 00: And albeit it took us a while to get there, the procedures were complied with. [00:18:17] Speaker 00: And I think that the Court, especially given what had happened early on, [00:18:23] Speaker 00: maybe should have given exercise some discretion to allow us to address the envelope the way that the court thought it should be addressed. [00:18:31] Speaker 00: Especially since, again, there was no argument that it was not received. [00:18:37] Speaker 00: There's no argument that the person that signed for it wasn't someone who gave it to the Minister of Foreign Affairs or the head of the Ministry of Foreign Affairs. [00:18:44] Speaker 01: And I think if those arguments... That point was never addressed, was it, whether it was ever given to the men? [00:18:51] Speaker 00: There's no argument that's ever been addressed or raised... By either side. [00:18:54] Speaker 00: By either side, exactly. [00:18:56] Speaker 01: By either side. [00:18:56] Speaker 00: Yeah, I think all of what we have assumed, because of who signed for it, that it was actually received by the Ministry of Foreign Affairs. [00:19:05] Speaker 04: And they haven't disputed that? [00:19:07] Speaker 00: They have not disputed that. [00:19:10] Speaker 03: All right. [00:19:11] Speaker 03: Thank you. [00:19:11] Speaker 03: Thank you. [00:19:18] Speaker 02: Yes. [00:19:22] Speaker 02: Just a few things. [00:19:24] Speaker 04: Can you answer one question up front? [00:19:25] Speaker 04: If they had spelled out minister instead of M-I-N period, that's the only change. [00:19:34] Speaker 04: What would the answer be? [00:19:34] Speaker 04: Would that count? [00:19:35] Speaker 02: Had they put it in the addressee? [00:19:38] Speaker 02: Had they addressed it to head of the Ministry of Foreign Affairs? [00:19:43] Speaker 04: My question is, if exactly the same thing where it says contact, [00:19:47] Speaker 04: They said Minister of Foreign Affairs. [00:19:51] Speaker 02: If that is in fact the head of the Ministry of Foreign Affairs, sure, but it has to be... What do you mean? [00:19:56] Speaker 04: What is the name of the Foreign Affairs, the head of the Ministry of Foreign Affairs in Zambia? [00:20:01] Speaker 02: I don't know. [00:20:02] Speaker 04: Not the personal name, is it the Foreign Affairs Ministry? [00:20:04] Speaker 02: I don't know. [00:20:05] Speaker 02: Really? [00:20:05] Speaker 02: You represent the Embassy of Zambia and you don't know? [00:20:08] Speaker 02: No, wait a minute. [00:20:09] Speaker 02: The head of the Ministry of Foreign Affairs can have multiple names depending on the country. [00:20:14] Speaker 04: I have, I'm asking you for Zambia. [00:20:15] Speaker 02: And I don't know, right standing here today, I don't know the answer. [00:20:19] Speaker 04: Wow, okay. [00:20:20] Speaker 04: Let's, if it's, and your position is if it said Minister of Foreign Affairs. [00:20:26] Speaker 04: That would not be sufficient. [00:20:27] Speaker 02: No, that's not my position. [00:20:28] Speaker 02: My position is, if that is the head of the Ministry of Foreign Affairs of that particular country, it is proper, if it is addressed and dispatched. [00:20:35] Speaker 04: So the only difference here is that it's M-I-N period instead of M-I-N-I-S-T-E-R. [00:20:39] Speaker 02: That is in the contact portion, not in the addressee portion. [00:20:46] Speaker 04: Why isn't that the same thing as the attention part of a letter? [00:20:50] Speaker 02: Because it's not addressed to. [00:20:52] Speaker 02: And I think that strict compliance is required as established by Transero. [00:20:56] Speaker 04: Well, TransAero, to be fair, said serve the Ministry of Foreign Affairs. [00:21:01] Speaker 04: Well, it was quoting the statute, and the statute says... It said twice, serve the Ministry of Foreign Affairs, so she's to be forgiven. [00:21:08] Speaker 04: If we're confused, I guess she's to be forgiven for being confused as well. [00:21:11] Speaker 02: I think that the statute... [00:21:13] Speaker 02: is plain on its face. [00:21:14] Speaker 04: Well, the statute also says it's the clerk of the court that's supposed to get this stuff right. [00:21:20] Speaker 04: And if it's the clerk of the court, well, that's exactly what you wanted to address and dispatch by the clerk of the court. [00:21:26] Speaker 02: So if the clerk of the court is someone that gets it wrong, then... But the address has to be provided by the attorney. [00:21:35] Speaker 02: And the attorney has ultimate responsibility for ensuring compliance. [00:21:39] Speaker 02: Where does the statute say that? [00:21:41] Speaker 02: Well, it doesn't say that directly in the statute. [00:21:43] Speaker 03: But in this record, counsel provided a name and an address. [00:21:50] Speaker 03: I mean, this is just a comedy of errors almost. [00:21:54] Speaker 03: And the unfortunate part is we're sitting here and the case was dismissed. [00:22:03] Speaker 03: The first service was just wrong by the clerk's office. [00:22:07] Speaker 03: The second proposed service was correct, except the district court made a change that made it incorrect. [00:22:17] Speaker 02: I would add that it actually wasn't completely correct. [00:22:20] Speaker 02: It didn't comply with the implementing regulation 2293.2, the CFR. [00:22:26] Speaker 03: Saying what? [00:22:29] Speaker 03: No, you say it didn't comply. [00:22:30] Speaker 03: It didn't comply how? [00:22:32] Speaker 02: It didn't comply because there was no notice of suit as required by 22 CFR 93.2. [00:22:36] Speaker 02: What do you mean no notice of suit? [00:22:38] Speaker 03: The complaint is attached. [00:22:40] Speaker 02: No, there have been cases that have been dismissed for not following precisely the language set forth in the annex, set forth in 22 CFR 93.2. [00:22:51] Speaker 03: And that particular... So when the appellant suggests that when they contacted your client, [00:23:00] Speaker 03: They were told to send it to the embassy here in DC. [00:23:05] Speaker 03: That's not implausible based on what we heard this morning. [00:23:10] Speaker 02: I was not part of that phone call. [00:23:11] Speaker 02: I was not even aware of that phone call. [00:23:12] Speaker 03: I'm not suggesting you were, but you are telling us today you don't know the answer to Judge Millett's question, and you are here representing the client. [00:23:20] Speaker 03: But my point is that- And my point is if counsel representing the defendant doesn't know the answer, it's interesting to me [00:23:30] Speaker 03: that we've got a situation where 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 except you're saying now didn't comply with these regulations. [00:23:45] Speaker 02: That's in our brief as well. [00:23:50] Speaker 03: How can we make this easier for everybody? [00:23:53] Speaker 02: I'm sorry, how can I make what easier? [00:23:55] Speaker 02: I'm sorry. [00:23:56] Speaker 03: How can this be easier? [00:23:59] Speaker 02: Well, if they had simply addressed it to the head of the Ministry of Foreign Affairs, using that precise terminology. [00:24:04] Speaker 03: As they initially did. [00:24:06] Speaker 02: As they initially did in the original without the compliance of 22 CFR 93.2, I would say. [00:24:14] Speaker 03: And what precisely did they need to do under that? [00:24:18] Speaker 02: Under that regulation, it requires a notice of suit as prescribed in Section 1608A. [00:24:25] Speaker 03: And what would that notice have said? [00:24:27] Speaker 02: It would have contained, quote, relevant, excuse me, title of legal proceeding, full name of court, case or docket number. [00:24:35] Speaker 02: That's the complaint. [00:24:36] Speaker 02: Well, okay, name of foreign state. [00:24:39] Speaker 02: That's the complaint. [00:24:39] Speaker 02: Identity of other parties. [00:24:41] Speaker 02: That's the complaint. [00:24:43] Speaker 02: And then specific language that has to be quoted. [00:24:46] Speaker 02: A response to a summons or complaint is required to be submitted to the court not later than 60 days after these documents are received. [00:24:52] Speaker 02: And I'm cutting out a lot of language. [00:24:54] Speaker 02: And then another provision about questions related to state immunities and to the jurisdiction of United States courts over foreign states. [00:25:00] Speaker 03: So the clerk's office is supposed to receive from counsel all of the documents that the plaintiff provided here, plus check all of this. [00:25:15] Speaker 02: Correct. [00:25:16] Speaker 03: All right. [00:25:17] Speaker 03: Do you know whether the local rules of the district court have those procedures? [00:25:22] Speaker 02: I don't know sitting here today, but I will say that this is all very well laid out in the law, in the case law, and has been successfully done in many other lawsuits. [00:25:33] Speaker 02: So it's, in other words, it's not a mystery. [00:25:36] Speaker 02: Plus, we specifically noticed by it. [00:25:37] Speaker 03: None of this is a mystery, but we have [00:25:40] Speaker 03: just errors being made by very knowledgeable people along the way. [00:25:45] Speaker 02: And we specifically alerted Ms. [00:25:47] Speaker 02: Burrow to the proper provision to be followed, including the implementing regulation, CFR 93.2. [00:25:53] Speaker 03: Well, she says she got some information that was wrong, all right. [00:25:58] Speaker 03: Then she got some information was right. [00:26:01] Speaker 03: Then the clerk's office didn't do what it was supposed to do, so she tried to solve the problem by mailing it. [00:26:06] Speaker 03: I mean, I'm just trying to understand why we're in this situation where Congress writes a statute, and presumably, if you follow the words of the statute, you're home free. [00:26:17] Speaker 02: Well, we were the ones who actually alerted the court to the problem that was made. [00:26:21] Speaker 03: Well, good for you. [00:26:22] Speaker 03: But the point is, why are we here on this case almost? [00:26:27] Speaker 03: I mean, it's clear that this is a minor thing that could be corrected, right? [00:26:31] Speaker 02: Well, so let me also lay out the timeline. [00:26:34] Speaker 02: There was an amended complaint that was filed, which we then moved to dismiss. [00:26:39] Speaker 02: At that time, the service had been made to the embassy here in DC. [00:26:42] Speaker 04: And that was a fault of the court? [00:26:45] Speaker 04: That was a fault of the court? [00:26:46] Speaker 02: No, no, no, no. [00:26:46] Speaker 02: This was the amended complaint. [00:26:49] Speaker 02: The one that she admits was erroneous in December 2013. [00:26:52] Speaker 02: So there was a September 2013 attempt, which was made [00:26:58] Speaker 02: erroneously to the embassy here in DC. [00:27:00] Speaker 02: Then we moved to dismiss the original complaint and we said, no, actually, you need to follow 1608A and you need to follow the implementing regulation. [00:27:09] Speaker 02: And then there was a subsequent complaint filed and a subsequent attempt at service made through Ms. [00:27:14] Speaker 02: Clark, and that one was again sent to the embassy here in DC, despite us saying specifically, follow 1608A and follow the implementing regulation. [00:27:24] Speaker 04: And then there was another one that, another one after that, that again was the court's mistake or the court lost it or something like that. [00:27:29] Speaker 04: That one was never made. [00:27:31] Speaker 02: There was one. [00:27:31] Speaker 04: No, that was the court's fault. [00:27:32] Speaker 04: So we have twice, the court is the one that got it messed up or the clerk's office failed to do what the statute tells the clerk or the court. [00:27:41] Speaker 02: But the court only – the district court – And then we have this. [00:27:43] Speaker 04: So this is the fourth time. [00:27:45] Speaker 04: Right. [00:27:45] Speaker 04: So what happens – And then it's – we've got this minister of foreign affairs. [00:27:48] Speaker 04: At least my understanding is that is actually the title of the foreign affairs minister in Zambia. [00:27:54] Speaker 02: Well, we're focusing specifically on the address E, the two lines. [00:27:58] Speaker 04: Okay. [00:27:58] Speaker 04: I don't see that in the statute or precedent. [00:28:01] Speaker 01: What page are we on? [00:28:03] Speaker 01: I'm sorry. [00:28:03] Speaker 01: Can I interrupt? [00:28:04] Speaker 01: What page are we on? [00:28:05] Speaker ?: 52, I think. [00:28:06] Speaker 02: And also 31. [00:28:08] Speaker 02: So the timing, back to the timing. [00:28:10] Speaker 02: There was an amended complaint. [00:28:12] Speaker 02: We moved to dismiss based on that faulty December 2013 attempt, which she admits was faulty, by the way. [00:28:18] Speaker 02: Then she undertook to have the February 2014 service attempt as our motion to dismiss was pending. [00:28:28] Speaker 02: So we never had a chance to move to dismiss on that one. [00:28:30] Speaker 02: The court itself [00:28:31] Speaker 02: ruled that it was faulty. [00:28:33] Speaker 02: So we didn't come forward and, you know, she talks about what we did and didn't do. [00:28:37] Speaker 02: We didn't come forward on that. [00:28:38] Speaker 02: We had already moved to dismiss on this faulty December. [00:28:41] Speaker 04: If we were to hold that the statute doesn't actually dictate whether you have them all lined up in a single addressee or if you have the right PO box, the right country, the right city, the right zip code, country code, that, and then you have [00:29:01] Speaker 04: Attention, Minister of Foreign Affairs, and that's to the right. [00:29:06] Speaker 04: If we were to hold that that complied with the statute, would you lose? [00:29:11] Speaker 02: If the words Embassy of Zambia were not there? [00:29:15] Speaker 04: No, that's exactly what she has here, and I'm going to change it from contact to Attention, Minister of Foreign Affairs. [00:29:21] Speaker 02: I think she would lose if the address E is Embassy of Zambia. [00:29:24] Speaker 03: Let me say this is not the first case I've sat on where there is confusion in the embassies about proper service under the Foreign Service, the Foreign Sovereign Immunities Act. [00:29:38] Speaker 03: All right. [00:29:38] Speaker 03: So it is not incomprehensible to me in this case that the embassy said mail it here. [00:29:47] Speaker 03: I can give you the citation to another case where the embassy said mail it here, and that was incorrect. [00:29:53] Speaker 03: And that's why I'm trying to [00:29:55] Speaker 03: figure out what is it that the district court's internal rules need to be clarified on this? [00:30:00] Speaker 03: Are there regulations that need to be promulgated because this is taking up a lot of time and energy. [00:30:07] Speaker 03: And we're not moving forward. [00:30:10] Speaker 03: We seem to be just repeating these errors. [00:30:13] Speaker 02: Perhaps clarification would be well taken. [00:30:17] Speaker 02: But I guess what I'd say about the phone call is, and what I was intending to say earlier, which I wasn't doing clearly enough, because I wasn't part of the phone call, I don't know whether they said, I have a lawsuit that I want to send you. [00:30:29] Speaker 02: What do I do? [00:30:30] Speaker 02: Maybe they just said, I have a package. [00:30:34] Speaker 02: Where should I send it? [00:30:35] Speaker 02: You know, because we weren't on that phone call and there's no evidence in the record about what specifically was asked, I think it's unfair to assume that the person was responding, perhaps just a secretarial person, not even a diplomat with authority to say where to serve doctors. [00:30:51] Speaker 04: We don't want many trials on who said what to whom at this stage. [00:30:57] Speaker 04: Given that there's ambiguity, given that the court messed it up twice, [00:31:03] Speaker 04: Given that there's at least an open question whether the statute allows you to have an attention line or a contact line to satisfy, how would your client be prejudiced, really, if just clarified and said, go get it right this time. [00:31:23] Speaker 04: Clerk, here's what it should look like. [00:31:26] Speaker 04: Go do it. [00:31:27] Speaker 04: Is there any real prejudice to you? [00:31:29] Speaker 02: Yes, I think there is, because this is a foreign state. [00:31:32] Speaker 02: And there has been a lot of time expended by the foreign state, a lot of attorney's fees expended, trying to help them get it right originally. [00:31:42] Speaker 02: And then they still didn't follow the procedure. [00:31:44] Speaker 04: Well, no, if they wanted to help them get it right, they could just waive. [00:31:46] Speaker 02: They could just waive this. [00:31:48] Speaker 02: Well, true. [00:31:48] Speaker 02: Very true. [00:31:49] Speaker 02: But it's an immunity and a privilege. [00:31:51] Speaker 02: And so, you know. [00:31:54] Speaker 04: Every case is going to have that exact same answer. [00:31:58] Speaker 04: It's a sovereign with an immunity. [00:31:59] Speaker 04: Is there any distinct prejudice to your client from, let's get it right with one more shot? [00:32:05] Speaker 02: I think there's been a lot of time expended. [00:32:07] Speaker 02: That's the number one prejudice. [00:32:08] Speaker 04: How does that prejudice them? [00:32:09] Speaker 02: Because we've been through this multiple times. [00:32:13] Speaker 02: We've had to move to dismiss multiple times. [00:32:15] Speaker 02: We've told them what statute to follow. [00:32:16] Speaker 03: Attorneys fees. [00:32:17] Speaker 03: That's the prejudice you're saying. [00:32:19] Speaker 02: And the time. [00:32:21] Speaker 03: What time? [00:32:22] Speaker 02: There's been a lot of time, and this is causing a lot of angst in Zambia? [00:32:26] Speaker 03: Angst in Zambia. [00:32:27] Speaker 02: Absolutely. [00:32:28] Speaker 03: Do we have any information in the record? [00:32:30] Speaker 02: There's no information in the record. [00:32:31] Speaker 03: No, of course not. [00:32:32] Speaker 02: But you asked me the question, so I wanted to be forthright. [00:32:34] Speaker 03: No, but only tell me what's in the record. [00:32:36] Speaker 02: I should think we have other things in our angst. [00:32:38] Speaker 03: Yes, but this is not a major thing on the Foreign Minister's agenda. [00:32:43] Speaker 02: My answer would be also that this statute is based on reciprocity. [00:32:48] Speaker 02: And so we should also take into account that what we do here will potentially be replicated abroad. [00:32:54] Speaker 02: And I think that giving a counseled, specifically informed litigant reasonable opportunity, but not unlimited opportunity, is very smart for foreign relations, as well as fits within the contours of the statute. [00:33:08] Speaker 03: Anything further? [00:33:09] Speaker 02: No, thank you. [00:33:09] Speaker 03: Thank you. [00:33:11] Speaker 03: Council for Pelham. [00:33:14] Speaker 03: All right. [00:33:17] Speaker 03: Any questions? [00:33:17] Speaker 03: No. [00:33:18] Speaker 03: All right. [00:33:18] Speaker 03: We'll take the case under advisement. [00:33:20] Speaker 03: Thank you, counsel.