Angellino v. Al–Saud

• Decision Date: 25 July 2012
• Docket Number: No. 11–7043.,11–7043.
• Citation: 688 F.3d 771
• Parties: Elli Bern ANGELLINO, Creative Director of Angellino Arte, Appellant v. ROYAL FAMILY AL–SAUD et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

688 F.3d 771

Elli Bern ANGELLINO, Creative Director of Angellino Arte, Appellant

v.ROYAL FAMILY AL–SAUD et al., Appellees.

No. 11–7043.

United States Court of Appeals,District of Columbia Circuit.

Argued March 8, 2012.

Decided June 5, 2012.

Re–Issued July 25, 2012.

Rehearing En Banc Denied July 25, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–00519).

Christopher J. Deal, appointed by the court, argued the cause as amicus curiae in support of the appellant. David W. DeBruin was on brief.

Elli Bern Angellino, pro se, argued the cause for the appellant.

Before: HENDERSON, ROGERS and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

Dissenting Opinion filed by Circuit Judge KAVANAUGH.

KAREN LeCRAFT HENDERSON, Circuit Judge:

“An artist is not paid for his labor but for his vision.” ¹ Or, in this case, not at all. Elli Bern Angellino (Angellino) filed a breach of contract action seeking over $12 million from the Royal Family Al–Saud (Royal Family) and sixteen of its members (collectively, defendants) for failing to pay him for artwork he alleges they commissioned. The district court dismissed his pro se complaint for failure to prosecute under Local Civil Rule 83.23 because Angellino failed to serve process on the defendants pursuant to 28 U.S.C. § 1608(a) and Federal Rule of Civil Procedure (FRCP) 4(f). For the reasons set forth below, we reverse the district court's order of dismissal.

I.

Angellino is an artist residing in Brooklyn, New York who in late 2005 reached an agreement with the defendants to design, produce and deliver a series of sculptures for them.² If the defendants accepted a sculpture, they were obligated to pay Angellino the amount invoiced for it. If the defendants were unsatisfied with a sculpture, they could return it to Angellino with no obligation to pay for it. Pursuant to the agreement, Angellino designed twenty-nine sculptures in 2006 and 2007 and, on completion, shipped each one addressed to the Saudi Royal Court, Riyadh, Saudi Arabia. The total invoiced amount for the twenty-nine sculptures was $12,580,000. The defendants kept the sculptures but never paid Angellino for any of them.

Angellino ordinarily communicated with the defendants through the Royal Embassy of Saudi Arabia (Embassy) located in Washington, D.C. For instance, when one of the defendant Royal Family members acknowledged delivery of Angellino's sculpture and thanked him for it, the defendant sent a letter to the Saudi Ambassador to the United States (Ambassador) in Washington, D.C., who then forwarded the letter to Angellino in New York. In June 2009, after the defendants had failed to pay Angellino for the sculptures, he mailed the past-due invoices to the Embassy to the attention of the Ambassador. In November 2009, on advice from the Embassy, Angellino again mailed the invoices to the Embassy but this time to the attention of the Embassy Accountant. When the defendants continued to ignore his mailings, Angellino filed a pro se complaint in the district court on March 29, 2010.

The Foreign Sovereign Immunities Act (Act, FSIA), 28 U.S.C. § 1608, governs service of process on a foreign state, including a political subdivision, agency or instrumentality thereof. SeeFed.R.Civ.P. 4(j)(1) ( “A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608.”).³ On April 8, 2010, Angellino attempted to serve process on the defendants by mailing a copy of the summons and complaint to the Embassy via first class mail. At the time, a foreign official sued for “acts done in [his] official capacity” was considered an “agency or instrumentality of a foreign state,” service on whom was governed by section 1608. Belhas v. Ya'alon, 515 F.3d 1279, 1283 (D.C.Cir.2008) (internal quotation marks omitted).⁴Section 1608 prescribes four methods of service—“in descending order of preference”—and a plaintiff “must attempt service by the first method (or determine that it is unavailable) before proceeding to the second method, and so on.” Ben–Rafael v. Islamic Republic of Iran, 540 F.Supp.2d 39, 52 (D.D.C.2008); see also Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1129 n. 4 (9th Cir.2010) (same). The first method of service under section 1608(a) and (b) is “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” or the “agency or instrumentality.” 28 U.S.C. § 1608(a)(1), (b)(1).⁵

Given his practice of communicating with the defendants through the Embassy, Angellino believed he was required to serve process on the defendants using the same means. But when he attempted to serve a copy of the summons and complaint by mailing them via first class mail to the Embassy, it refused to accept the mailing. Angellino also attempted to file proof of service forms with the district court but the court returned the forms because he had sent them directly to the district judge's chambers rather than to the clerk of court's office. See Minute Order, Angellino v. Royal Family Al–Saud, No. 1:10–cv–519 (D.D.C. May 17, 2010). The court directed Angellino to “review the Local Civil Rules, as well as Federal Rule[s] of Civil Procedure 4(j)(1) and ... 55” before submitting the forms to the clerk's office. Id. The minute order made no mention of any substantive deficiency in Angellino's submission. Id. Four days later, Angellino filed the proof of service forms with the clerk's office.

Almost seven months later, on December 2, 2010, the district court entered another minute order:

Based upon plaintiff's failure to prosecute this action, the Court hereby ORDERS plaintiff to show cause by no later than December 22, 2010 why this case should not be dismissed without prejudice. See Local Civil Rule 83.23 (“A dismissal for failure to prosecute may be ordered by the Court ... upon the Court's own motion.”).

Minute Order, Angellino v. Royal Family Al–Saud, No. 1:10–cv–519 (D.D.C. Dec. 2, 2010) (First Show Cause Order) (ellipsis in original). Two weeks later, on December 16, Angellino attempted to comply with the First Show Cause Order. He filed a verified statement explaining that he had “effectuated proper service in full compliance with FRCP 4(j)(1) and 28 U.S.C. § 1608.” Pl.'s Resp. to First Show Cause Order at 2, Angellino v. Royal Family Al–Saud, No. 1:10–cv–519 (D.D.C. Dec. 16, 2010). Angellino stated that service “was effectuated in accordance with the special arrangement for communication and service between the Plaintiff and [the defendants]” by which all “communication between [Angellino] and [the defendants] was established solely via and by means of the Embassy.” Id. As proof of the special arrangement, Angellino included a copy of a cover letter from the Ambassador forwarding a letter from a Royal Family member to him acknowledging receipt of a sculpture. Angellino also declared that in the past Embassy officials had telephoned him on behalf of two defendants and he attached United States Postal Service (USPS) records indicating that an Embassy official had received the summons and complaint on April 8, 2010, but had returned them to the USPS—marked “Returnto sender; not here”—several days later.

On April 11, 2011, after the case was assigned to a different district judge, the court concluded that Angellino's response to the First Show Cause Order had failed to “demonstrate[ ] that the required special arrangement exists between himself and [d]efendants” and therefore Angellino had not “satisf[ied] the service requirements of [FRCP] 4 and 28 U.S.C. § 1608.” Order at 2, Angellino v. Royal Family Al–Saud, No. 1:10–cv–519 (D.D.C. Apr. 11, 2011) (Second Show Cause Order). The court ordered Angellino “either to file proof of service or to show cause why this Court should not dismiss his claim for failure to prosecute.” Id. In his response filed two weeks later, Angellino again attempted to demonstrate a “special arrangement for service” by submitting the same materials he had attached to his response to the First Show Cause Order as well as a translated copy of the letter sent to him (via the Embassy) by one of the defendant Royal Family members. See Pl.'s Amended Resp. to Second Show Cause Order at 2–4, Angellino v. Royal Family Al–Saud, No. 1:10–cv–519 (D.D.C. Apr. 25, 2011).

On April 29, the district court dismissed Angellino's complaint without prejudice for failure to prosecute based on Angellino's failure to establish the existence of a “special arrangement for service” on the Kingdom of Saudi Arabia or a political subdivision thereof, his failure to attempt one of the alternative methods of service prescribed in section 1608(a) and his failure to serve the members of the Royal Family pursuant to FRCP 4(f).⁶See Order, Angellino v. Royal Family Al–Saud, No. 1:10–cv–519 (D.D.C. Apr. 29, 2011) (Dismissal Order). Angellino timely appealed. None of the defendants entered an appearance before the district court nor has any of them done so on appeal.

II.

The law is clear that “[d]istrict courts have inherent power to dismiss a case sua sponte for a plaintiff's failure to prosecute or otherwise comply with a court order.” Peterson v. Archstone Cmties. LLC, 637 F.3d 416, 418 (D.C.Cir.2011); see also D.D.C. Local Rule 83.23 (“A dismissal for failure to prosecute may be ordered by the Court ... upon the Court's own motion.”). “[We] review[ ] such dismissals for abuse of discretion.” Peterson, 637 F.3d at 418. “Because disposition of claims on the merits is favored[,] the harsh sanction of dismissal for failure to prosecute is ordinarily limited to cases involving egregious conduct by particularly dilatory plaintiffs, after less dire alternatives have been tried without success.” Id. (alterations and internal quotation marks omitted). A dismissal for failure to prosecute due to a “delay in service...