Howe v. Embassy Italy

• Decision Date: 11 September 2014
• Docket Number: Civil Action No. 13–1273 BAH
• Citation: 68 F.Supp.3d 26
• Parties: Simona Howe, Plaintiff, v. The Embassy of Italy, Defendant.
• Court: U.S. District Court — District of Columbia

68 F.Supp.3d 26

Simona Howe, Plaintiff

v.The Embassy of Italy, Defendant.

Civil Action No. 13–1273 BAH

United States District Court, District of Columbia.

Signed September 11, 2014

Mariam Wagih Tadros, Rees Broome, PC, Tysons Corner, VA, for Plaintiff.

Jonathan G. Rose, Richard S. Siegel, Alston & Bird LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

The plaintiff, Simona Howe (the “plaintiff”), brings this action against her employer, the Embassy of Italy (the “defendant”), seeking $141,134.00 in damages under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a), for the defendant's alleged underfunding of the plaintiff's retirement benefits.See Compl. ¶¶ 5, 9–10, 25, ECF No. 1. Pending before the Court is the defendant's Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction; 12(b)(2) for lack of personal jurisdiction; 12(b)(5) for insufficient service of process; and 12(b)(6) for failure to state a claim upon which relief can be granted. See Def.'s Mot. Dismiss (“Def.'s Mot.”) at 1, ECF No. 10. For the following reasons, the defendant's motion is granted and this case is dismissed under Federal Rules of Civil Procedure 12(b)(2) and (5).

I. BACKGROUND

The defendant is located in Washington, D.C., Compl. ¶ 2, and the plaintiff is a Virginia resident, who has worked for the defendant since 1988 “as a press secretary and translator,” id. ¶¶ 1, 6. When the plaintiff was first hired, she was a Canadian citizen “working in the United States as a Green Card holder.” Id. ¶ 7.¹ For employees like the plaintiff, “who were neither citizens of the United States nor Italy,” the defendant, in 1988, established a pension plan [the “Plan”] with Aetna Life Insurance and Annuity Company that was designed to approximate Social Security benefits. Id. ¶¶ 9–12. The defendant and the plaintiff were to contribute equally to the Plan. See id. ¶¶ 11–12.

When the plaintiff first began participating in the Plan, she signed a “Participation Agreement in the Deferred Compensation Plan” (the “Participation Agreement”) that set out the “amount of contribution to the Plan by both [the plaintiff] and [the defendant].” Id. ¶¶ 13–14. The plaintiff avers that the “calculations used to arrive at the contribution amount in the Participation Agreement were calculated, incorrectly, by the Head of Administration at the Embassy of Italy,” id. ¶ 15, and that this miscalculation resulted in the plaintiff and defendant each contributing only “50% of the[ ] required amounts,” id. ¶ 16. The plaintiff alleges that she became “aware of the miscalculation and resulting shortfall” in “August 2010,” id. ¶ 18, but that the defendant “knew or should have known of the shortfall immediately by looking at the differences in contribution between what was contributed to [the plaintiff's] account and the accounts of other employees,” id. ¶ 19.

On August 24, 2010, the plaintiff “requested that the [defendant] remedy the shortfall,” id. ¶ 21, but the defendant “did not comply with her request and failed to provide her with relevant documents, claiming that they had been lost,” id. ¶ 22. The plaintiff arranged for the administrator of the plaintiff's retirement benefits plan to “perform calculations necessary to determine the shortfall amount,” id. ¶ 23, and, based on those calculations, the plaintiff alleges she “has been damaged in the amount of $141,134.00, which represents the $117,134.00 shortfall and the 20% penalty as authorized by [ERISA],” id. ¶ 25.

The plaintiff filed this action on August 20, 2013, making two claims: Count I for violation of ERISA, 29 U.S.C. § 1132, based on the defendant's alleged “fail[ure] to fund the Plan in accordance with its agreement with [the plaintiff],” id. ¶¶ 26–35; and Count II, styled a “Request for Clarification of Future Benefits Pursuant to [29] U.S.C. § 1132,” pursuant to which the plaintiff “seeks to have her future benefits under the Plan clarified, including the specific contribution amounts the Embassy of Italy is required to contribute to the Plan,” id. ¶¶ 36–39.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(2)

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of “establishing a factual basis for the [Court's] exercise of personal jurisdiction over the defendant.” Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C.Cir.1990) (citing Reuber v. United States, 750 F.2d 1039, 1052 (D.C.Cir.1984), overruled on other grounds by Kauffman v. Anglo–Am. Sch. of Sofia, 28 F.3d 1223, 1226 (D.C.Cir.1994) ); Williams v. Romarm, S.A., 756 F.3d 777, 785 (D.C.Cir.2014). The plaintiff need only make a prima facie showing that the court has personal jurisdiction. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1351 (3d ed. 2014) ; see Mwani v. bin Laden, 417 F.3d 1, 6 (D.C.Cir.2005) (“a court ordinarily demands only a prima facie showing of jurisdiction by the plaintiffs”). Similarly to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, “the uncontroverted allegations of the complaint must be taken as true, and the court will draw all reasonable inferences in plaintiff's favor.” William W. Schwarzer et al.,Federal Civil Procedure Before Trial § 3:412 (2013); see Walden v. Fiore, ––– U.S. ––––, 134 S.Ct. 1115, 1119 n. 2, 188 L.Ed.2d 12 (2014) (accepting jurisdictional allegations in complaint as true at motion to dismiss stage). At the same time, however, a plaintiff must provide sufficient factual allegations, apart from mere conclusory assertions, to support the exercise of personal jurisdiction over the defendant. See Second Amendment Found. v. U.S. Conf. of Mayors, 274 F.3d 521, 524 (D.C.Cir.2001) (noting the “general rule that a plaintiff must make a prima facie showing of the pertinent jurisdictional facts”) (internal quotation marks and alterations omitted); First Chi. Int'l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C.Cir.1988) (“Conclusory statements ... do not constitute the prima facie showing necessary to carry the burden of establishing personal jurisdiction.”) (internal quotation marks and citation omitted); Naartex Consulting Corp. v. Watt, 722 F.2d 779, 787 (D.C.Cir.1983) (same); Atlantigas Corp. v. Nisource, Inc., 290 F.Supp.2d 34, 42 (D.D.C.2003) (stating plaintiff “cannot rely on conclusory allegations” to establish personal jurisdiction).

Unlike a motion to dismiss under Rule 12(b)(6), the court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005). The court “may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts.” United States v. Philip Morris Inc., 116 F.Supp.2d 116, 120 n. 4 (D.D.C.2000) (internal quotation marks and citation omitted); see also Mwani, 417 F.3d at 7 (holding that plaintiffs “may rest their [jurisdictional] argument on their pleadings, bolstered by such affidavits and other written materials as they can otherwise obtain”). Any “factual discrepancies appearing in the record must be resolved in favor of the plaintiff,” however. Crane, 894 F.2d at 456 (citing Reuber, 750 F.2d at 1052 ); see also Barot v. Embassy of Republic of Zam., No. 13–451, 11 F.Supp.3d 24, 28–30, 2014 WL 1400849, at *3 (D.D.C. Apr. 11, 2014).

B. Federal Rule of Civil Procedure 12(b)(5)

It is well settled that “[b]efore a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). This is because service is necessary, but not sufficient, to allow a court to exercise personal jurisdiction over a defendant. See Mwani, 417 F.3d at 8 (noting that “service of process does not alone establish personal jurisdiction”). Indeed, “[b]efore a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant ... there also must be authorization for service of summons on the defendant and a constitutionally sufficient relationship between the defendant and the forum.” Id. (internal quotation marks and citations omitted; alteration in original).

When sufficiency of service is challenged, the burden is on the plaintiff to demonstrate that she has effected service properly. See Mann v. Castiel, 681 F.3d 368, 372 (D.C.Cir.2012) (noting under Federal Rule of Civil Procedure 4 that “the plaintiff has the burden to demonstrate that the procedure employed to deliver the papers satisfies the requirements” of proper service) (internal quotation marks omitted); see also 4A Wright & Miller § 1083 (“[T]he party on whose behalf service of process is made has the burden of establishing its validity ... to do so, she must demonstrate that the procedure employed to deliver the papers satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law.”). Insufficient service of process on a defendant “warrant[s] the court's dismissing [the plaintiff's claims] without prejudice” under Federal Rule of Civil Procedure 12(b)(5). Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369 (D.C.Cir.1997).

III. DISCUSSION

The defendant makes three jurisdictional arguments predicated on the Foreign Sovereign Immunities Act (the “FSIA”), 28 U.S.C. § 1602, et seq., in support of its motion to dismiss. First, the defendant argues that this Court lacks subject matter jurisdiction over this lawsuit...