Democratic Republic Congo v. Fg Hemisphere Assoc.

• Decision Date: 27 November 2007
• Docket Number: No. 07-7045. Consolidated with 07-7046.,07-7045. Consolidated with 07-7046.
• Citation: 508 F.3d 1062
• Parties: DEMOCRATIC REPUBLIC OF CONGO, Appellant v. FG HEMISPHERE ASSOCIATES, LLC, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

508 F.3d 1062

DEMOCRATIC REPUBLIC OF CONGO, Appellant v. FG HEMISPHERE ASSOCIATES, LLC, Appellee.

No. 07-7045. Consolidated with 07-7046.

United States Court of Appeals, District of Columbia Circuit.

Argued October 22, 2007.

Decided November 27, 2007.

Appeal from the United States District Court for the District of Columbia, (Nos.03cv01314, 03cv01315).

Jonathan A. Nockels, pro hac vice, argued the cause for appellant. With him on the brief were Stephen F. Malouf and Steven D. Cundra.

Eric A. Shumsky argued the cause for appellee. With him on the brief was Bradford A. Berenson. Neil H. Koslowe entered an appearance.

Before: RANDOLPH and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge.

FG Hemisphere's predecessor-in-interest, which for simplicity's sake we call FG Hemisphere, brought two suits in district court under 28 U.S.C. § 1605(a)(6)(B), a provision of the Foreign Sovereign Immunities Act. In the suits FG Hemisphere sought to confirm arbitration awards it had secured against the Democratic Republic of Congo ("DRC"). The DRC did not appear, and the district court entered default judgments against it in September 2004 and January 2005. In June 2006, after some 13 months of conflict over an attempted execution by FG Hemisphere on the DRC's diplomatic properties and over discovery matters, the DRC sought to vacate the judgment, claiming that service of process had not been in full compliance with 28 U.S.C. § 1608(a) and that therefore the district court had no personal jurisdiction over the DRC when it entered the default judgments. The district court denied the motions to vacate. Because we find that the DRC waived its objection to the service of process by proceeding at length with post-default litigation, some of which had no emergency character, we affirm.

* * *

28 U.S.C. § 1608(a) provides for service in courts of the United States upon a foreign state by four alternative means, each (after that of subsection (a)(1)) available only if the previously enumerated options are in some way foreclosed. Here it is undisputed that subsections (a)(1) and (a)(2) were unavailable. FG Hemisphere therefore initially invoked subsection (a)(3), which provides for service "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." Although subsection (a)(3) seems not to require the name of the head of the ministry of foreign affairs, both the mailings were addressed to "The Democratic Republic of Congo, Leonard She Okitundu, Ministry of Foreign Affairs," at the correct address in Kinshasa. Unfortunately, Okitundu had resigned as foreign minister six weeks before FG Hemisphere launched the process and thus, obviously, by the time the two mailings arrived in Kinshasa. The exact fate of this attempted service under § 1608(a)(3) is unknown.

There being no response within 30 days, FG Hemisphere moved to § 1608(a)(4), which provides that if "service cannot be made within 30 days under paragraph (3)," it may be obtained by sending the necessary documents to the Secretary of State in Washington, to the attention of the Director of Special Consular Services; the Secretary of State is then to transmit the papers to the foreign state by diplomatic channels and to send the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted. This method of service was effected by early 2004.

For some time, however, the DRC did not appear in the litigation, and FG Hemisphere secured default judgments in September 2004 and January 2005. In May 2005 the DRC at last appeared, seeking to vacate writs of execution issued by the district court against two DRC properties in the District of Columbia; the DRC argued that the properties were diplomatic ones exempt from execution under 28 U.S.C. §§ 1609-1611. The district court rejected the DRC's claims without explanation; on appeal, in May 2006, we reversed and remanded for further proceedings. See FG Hemisphere Associates, LLC v. Democratic Republic of Congo, 447 F.3d 835 (D.C.Cir.2006).

Only then did the DRC raise an issue about service of process. In June 2006 it filed motions to vacate the default judgments for want of personal jurisdiction, arguing that, because of the misidentification of the foreign minister, service under § 1608(a)(3) had been defective, so that FG Hemisphere had failed to establish the predicate for service under subsection (a)(4), namely, that "service cannot be made within 30 days under paragraph (3)." The district court denied the motions without explanation, and the DRC filed a timely appeal.

FG Hemisphere asserts both substantive and procedural defenses for the district court rulings. It argues that inclusion of the erroneous name was not inconsistent with § 1608(a)(3), and that even if it was, the defect was not such as to undermine the contingency of § 1608(a)(4)—that service "cannot be made under paragraph (3)." It also asserts that the DRC's long silence on the matter, from its first appearance and participation in this litigation in May 2005 until its June 2006 motion to vacate, waived any objection to the district court's personal jurisdiction over the DRC. Agreeing with the waiver argument, we do not reach the substantive one.

Rule 12(g) and Rule 12(h)(1) of the Federal Rules of Civil Procedure provide that the defense of lack of personal jurisdiction, among others, is waived by its omission from motions asserting defenses under Rule 12 or a responsive pleading. In a case such as this, where the defendant's default has...