TRAPOTE v. BOLIVARIAN REPUBLIC OF VENEZUELA (2024)

ORDER

Plaintiffs Fernando Fraiz Trapote and Maria Clara Vallejo Tascon brought this civil action against Defendant Bolivarian Republic of Venezuela (“Venezuela”) in July 2023. ECF No. 1. Pending before the court is Plaintiffs’ Motion for Authorization to Serve Defendant via Diplomatic Channels Pursuant to 28 U.S.C. § 1608(a)(4). ECF No. 12. For the reasons stated below, the court hereby GRANTS the motion.

The Foreign Sovereign Immunities Act (“FSIA”) governs service of process of foreign states like Venezuela. 28 U.S.C. § 1608(a). FSIA establishes four acceptable methods of service, listed in “descending order of preference.” Barot v. Embassy of the Republic of Zambia, 785 F.3d 26, 27 (D.C. Cir. 2015). They are:

(1) 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

(2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents; or

(3) if service cannot be made under paragraphs (1) or (2), 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 ministry of foreign affairs of the foreign state concerned, or

(4) if service cannot be made within 30 days under paragraph (3), by sending two copies 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 Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services—and the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted.

28 U.S.C. § 1608(a). A party cannot progress from one method to another until it has either attempted the preceding method or determined that it is plainly inapplicable. Przewozman v. Islamic Republic of Iran, 628 F. Supp. 3d 307, 313-14 (D.D.C. 2022); ConocoPhillips Petrozuata B.V. v. Bolivarian Republic of Venezuela, 628 F. Supp. 3d 1, 8-9 (D.D.C. 2022).

Plaintiffs seek an order authorizing them to move to the fourth method. ECF No. 12. They argue that they have either attempted the earlier methods or that they are inapplicable. The court agrees.

The first method, service “in accordance with any special arrangement ․ between the plaintiff and the foreign state,” does not apply, because there is no such arrangement between Plaintiffs and Venezuela. 28 U.S.C. § 1608(a)(1); ECF No. 12, at 2.

The second method calls for service “in accordance with an applicable international convention on service of judicial documents”—in this case the Hague Service Convention,¹ to which Venezuela is a signatory.² 28 U.S.C. § 1608(a)(2). The Hague Service Convention requires foreign states to designate a Central Authority to receive and process service requests. Hague Service Convention, art. 2. Typically, “the authority or judicial officer competent under the law of the State in which the documents originate” transmits the relevant documents to the Central Authority; the Central Authority is then required to serve the documents on the defendant. Id. art. 3, 5; Micula v. Gov't of Romania, No. 17-CV-2332, 2018 WL 10196624, at *4 (D.D.C. May 22, 2018) (explaining that a party's attorney is an acceptable forwarding authority). Plaintiffs attempted this method with no success. ECF No. 12, at 2-3. They hired an expert in foreign service, and she sent the appropriate documents, with Spanish translations, to the Central Authority for Venezuela via DHL.³ Id. at 2. Venezuela has not accepted service of the documents. Id. The expert further notes that, in her experience, “Venezuela does not comply with its obligations” under the Hague Service Convention, particularly for cases from the United States. ECF No. 12-1 ¶ 11. Plaintiffs have fulfilled their obligation to attempt the second method under FSIA.

The third method calls for Plaintiffs to mail a copy of the summons and complaint, along with an official translation, to the head of the ministry of foreign affairs of the foreign state. 28 U.S.C. § 1608(a)(3). Plaintiffs argue that this method is inapplicable because Venezuela has formally objected to service by mail. ECF No. 12, at 3. The court agrees. When Venezuela signed the Hague Convention, it explicitly objected to service by mail.⁴ Several courts have found mail service inapplicable to Venezuela. See, e.g., ConocoPhillips Petrozuata B.V., 628 F. Supp. 3d 1 at 8-9; Tidewater Inv. SRL v. Bolivarian Republic of Venez., No. 17-CV-1457, 2018 WL 6605633, at *5 (D.D.C. Dec. 17, 2018); Neuhauser v. Bolivarian Republic of Venezuela, No. 20-CV-10342, 2023 WL 4350614, at *2 (S.D.N.Y. July 3, 2023). This court concludes the same.

Plaintiffs have thus properly moved through the first three methods of service available under FSIA. Only the fourth method remains. It is now appropriate for Plaintiffs to move on to diplomatic service.

For the foregoing reasons, it is hereby ORDERED that Plaintiffs’ Motion for Authorization to Serve Defendant via Diplomatic Channels Pursuant to 28 U.S.C. § 1608(a)(4), ECF No. 12, is GRANTED and Plaintiffs are authorized to serve Defendant via diplomatic channels pursuant to 28 U.S.C. § 1608(a)(4);

It is further ORDERED that the Clerk of Court shall mail two copies of the Complaint and Summons to the U.S. Department of State to effect service of process on Venezuela on or after April 19, 2024; and

It is further ORDERED that Plaintiffs shall file a status report updating the court on their efforts to effect service on or before October 10, 2024.

SO ORDERED.

FOOTNOTES

1.   Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965 (Hague Service Convention), 20 U.S.T. 361, T.I.A.S. No. 6638.

2.   Hague Conference on Private International Law, Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, https://perma.cc/3A78-QQF2 (last visited Apr. 9, 2024).

3.   Venezuela has designated its Ministry of Foreign Affairs as its Central Authority. Hague Conference on Private International Law, Venezuela—Central Authority & Practical Information, https://perma.cc/B6VD-3X5A (last visited Apr. 9, 2024) (hereinafter Venezuela Central Authority & Practical Information). Plaintiffs sent the forms to this entity. ECF No. 12, at 3.

4.   When Venezuela signed the Hague Service Convention, it clarified that “[t]he Bolivarian Republic of Venezuela does not agree to the transmission of documents through postal channels.” Venezuela Central Authority & Practical Information.

LOREN L. ALIKHAN, United States District Judge