UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT · UNITED STATES COURT OF...

ORAL ARGUMENT WAS HELD MARCH 8, 2012

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT _________________________

No. 11-7043

_________________________

ELLI BERN ANGELLINO,

Appellant,

v.

ROYAL FAMILY AL-SAUD, et al.,

Appellees.

_________________________

Appeal from the United States District Court For the District of Columbia, No. 10-cv-00519-JEB

_________________________

PETITION FOR PANEL REHEARING OF THE KINGDOM OF SAUDI ARABIA

__________________________

MICHAEL K. KELLOGG GREGORY G. RAPAWY KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7947 Counsel for the Kingdom of Saudi Arabia

July 5, 2012

USCA Case #11-7043 Document #1382202 Filed: 07/05/2012 of 29

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............. i TABLE OF AUTHORITIES .................................................................................... iv I. THE “ROYAL FAMILY AL-SAUD” IS NOT A GOVERNMENTAL

ENTITY IN THE KINGDOM OF SAUDI ARABIA ..................................... 2 II. THE COURT SHOULD RECONSIDER OR CLARIFY ITS DECISION .... 4

CONCLUSION .......................................................................................................... 6

ADDENDUM A – June 5, 2012 Opinion

ADDENDUM B – Certificate as to Parties, Rulings, and Related Cases


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TABLE OF AUTHORITIES

Cases

Samantar v. Yousef, 130 S. Ct. 2278 (2011) .............................................................. 4 Statutes and Rules

*Foreign Services Immunity Act, 28 U.S.C. § 1608, et seq. ...................................... 1

28 U.S.C. § 1608(a)(3) .................................................................................... 4 28 U.S.C. § 1608(a)(4) .................................................................................... 4

Fed. R. Civ. P. 4(f) ..................................................................................................... 4 Other Authorities Kingdom of Saudi Arabia Basic Law of Governance, http://www.saudiembassy.net/about/country-information/laws/The_Basic_Law_Of_Governance.aspx ......................................... 3 Kingdom of Saudi Arabia Country Profile, http://lcweb2.loc.gov/frd/cs/profiles/Saudi_Arabia.pdf .............................. 3, 4 U.S. State Department Statement on Kingdom of Saudi Arabia, http://www.state.gov/outofdate/bgn/saudiarabia/192423.htm ........................ 3 *Authorities chiefly relied upon are marked with an asterisk.


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The Kingdom of Saudi Arabia (“Kingdom”) respectfully moves for panel

rehearing. The Kingdom is not a named defendant, and neither are any of its

political subdivisions or instrumentalities. The Court’s opinion, however, reasons

that the Complaint names “the Royal Family Al-Saud,” and that a suit against the

royal family is a suit against the Kingdom, so that the complaint can be served on

the “Royal Family” using the special service provisions of the Foreign Sovereign

Immunities Act (“FSIA”). That reasoning is based on incorrect assumptions. The

royal family is not a governmental entity but a large collection of individuals.

Members of the royal family do not have official positions solely by reason of their

descent, though some do hold office.

The statement in this Court’s opinion is likely to lead to confusion in this

and other cases in which the members of the royal family are named as defendants.

Accordingly, the Kingdom respectfully requests that this Court’s opinion be

revised to clarify that the royal family is not equivalent to the Kingdom for

purposes of service of process. The Kingdom does not intend this request to

prejudice any rights that Appellant Angellino may have and offers to accept

service on the Kingdom (but not on the individual defendants)1 of an amended

complaint, should Angellino believe he has a good faith basis to file one.

1 As the Court’s opinion (attached as Addendum A) makes clear, the individual defendants must be served (if at all) pursuant to Federal Rule of Civil Procedure 4(f). See Add. A, at 9.


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I. THE “ROYAL FAMILY AL-SAUD” IS NOT A GOVERNMENTAL ENTITY IN THE KINGDOM OF SAUDI ARABIA

The Court’s opinion in this case (attached as Addendum A) states in its first

paragraph that “Elli Bern Angellino . . . filed a breach of contract action seeking

over $12 million from the Royal Family Al-Saud . . . and sixteen of its members,”

implying that “the Royal Family” is a defendant in this case that is separate from

the sixteen named individual defendants. Add. A, at 2.2 Later on, the opinion

reinforces this implication when it “agree[s] with the district court that Angellino

was required to serve process on the defendant Royal Family under section 1608(a)

and on the sixteen defendant Royal Family members under FRCP 4(f).” Id. at 9. It

then goes on to refer to “the defendant Royal Family” several times in the

following paragraph. Although it is possible (indeed, likely) that the Court simply

2 The named individual Defendants are H.M. King Abdullah bin Abdulaziz Al-Saud, H.R.H. Crown Prince Sultan bin Abdulaziz Al-Saud, H.R.H. Prince Ahmed bin Abdulaziz Al-Saud, H.R.H. Prince Abdelmajeed bin Abdulaziz Al-Saud, H.R.H. Prince Bandar bin Sultan bin Abdulaziz Al-Saud, H.R.H. Prince Saud Al Faisal bin Abdulaziz Al-Saud, H.R.H. Prince Sattam bin Abdulaziz Al-Saud, H.R.H. Prince Salman bin Abdulaziz Al-Saud, H.R.H. Prince Nayef bin Abdulaziz Al-Saud, H.R.H. Prince Mohammad bin Fahed bin Abdulaziz Al-Saud, H.R.H. Prince Mohammed bin Nayef bin Abdulaziz Al-Saud, H.R.H. Prince Me’teb bin Abdulaziz Al-Saud, H.R.H. Prince Khalid Al Faisal bin Abdulaziz Al-Saud, H.R.H. Prince Fahed bin Sultan bin Abdulaziz Al-Saud, H.R.H. Prince Al Waleed bin Talal bin Abdulaziz Al-Saud, and H.R.H. Prince Sultan bin Fahed bin Abdulaziz Al-Saud. Since the filing of this suit in 2010, two of the defendants have died: Crown Prince Sultan, and Prince Nayef (who was appointed Crown Prince before his death). Prince Salman is the current Crown Prince.


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intended to interpret a pro se complaint generously,3 its opinion nevertheless

appears to treat “the Royal Family” as a governmental entity of Saudi Arabia that

is either the same as the Kingdom or is a political subdivision of the Kingdom.

That assumption is not correct. The government of the Kingdom is

described in its Basic Law of Governance (“Basic Law”). An English translation

of the Basic Law is publicly available on the website of the Kingdom’s Embassy,

and is attached as Exhibit 1. It establishes a number of offices and entities within

the Kingdom, including the offices of the King (who is also the Prime Minister)

and the Crown Prince, see Art. 5, and a number of judicial, executive, and

regulatory authorities. See Arts. 44-71. The Basic Law does not establish the

“Royal Family” as a governmental entity. To be sure, some descendants of the

Kingdom’s founder (including many not named in this suit) do hold governmental

office, but they are not officials of the Kingdom merely because of their descent.4

3 For example, the opinion also states in parentheses (at 9) that the district court “constru[ed] Angellino’s suit against [the] Royal Family as [a] suit against [the] Kingdom of Saudi Arabia or one of its political subdivisions.” Likewise, the brief of Amicus expresses (at 3 n.2) doubt as to whether the “the ‘Royal Family Al-Saud’ is an independent juridical entity” and states that “[a]micus . . . understands the complaint to seek relief from . . . the Kingdom of Saudi Arabia or one of [its] political subdivisions.” 4 Article 5 of the Basic Law provides that “[r]ulers of the country shall be from amongst the sons of the founder King Abdulaziz bin Abdulrahman Al-Faisal Al-Saud, and their descendants,” but it does not convey any official power to the members of this group individually or collectively.


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A profile of the Kingdom published by the Library of Congress and attached

as Exhibit 2,5 as well as a background material published by the State Department

and attached as Exhibit 3,6 provide additional useful context. See Exh. 2, at 19-20

(discussing the institutions of Saudi government); Exh. 3, at 4-5 (same). In

particular, the term “royal family” is often used to refer not only to the direct

descendants of King Abdulaziz bin Abdulrahman Al-Faisal Al-Saud, but also to

his other relatives. As the Library of Congress notes, “once beyond Abd al Aziz’s

sons and grandsons, the number of potential kings” – that is, the male members of

the family – “will expand well into the thousands.” Exh. 2, at 19. Further,

referring to the “royal family” collectively would ordinarily include the female

members of that family, none of whom currently hold office. Accordingly, treating

the royal family as a Saudi governmental entity is incorrect and impractical.

II. THE COURT SHOULD RECONSIDER OR CLARIFY ITS DECISION

Because the royal family of Saudi Arabia is not identical with the Kingdom

itself and is not a political subdivision of the Kingdom, it cannot properly be

served under §§ 1608(a)(3) or 1608(a)(4). As the Court’s opinion correctly notes,

5 http://lcweb2.loc.gov/frd/cs/profiles/Saudi_Arabia.pdf 6 http://www.state.gov/outofdate/bgn/saudiarabia/192423.htm. Although the State Department has just announced that its notes such as Exhibit 3 will no longer be updated, see www.state.gov/r/pa/ei/bgn/3584.htm (announcement dated June 29, 2012), Exhibit 3 itself was updated quite recently in December 2011. See Exh. 3, at 1.


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these provisions apply only to foreign states and their political subdivisions. See

Add. A, at 4 n.4 (quoting Samantar v. Yousef, 130 S. Ct. 2278, 2292 n.20 (2011),

for the proposition that “‘a plaintiff seeking to sue a foreign official will not be

able to rely on the Act’s service of process and jurisdictional provisions’”).

However, the Court’s opinion suggests that such service can properly be made,

which would lead to these sections being used for purposes that they do not

encompass by their language and are not intended to achieve. Further, using

§§ 1608(a)(3) and 1608(a)(4) for this purpose would lead to cases where it is not

clear who the intended recipient of process may be.

The Court should reconsider its decision and clarify that a complaint on

members of the Saudi “royal family” (whether identified individually, or referred

to as a group) cannot properly be served on the Kingdom. Doing so need not cause

prejudice to Angellino. Instead, the Court should remand with instructions that the

district court permit Angellino to amend his complaint to name the Kingdom as a

defendant, assuming that he believes he has a good-faith basis to do so. To be

clear, the Kingdom does not believe he has a good-faith basis to do so. But if he

intends to sue and serve the Kingdom itself, he should be required to name the

Kingdom as a defendant. Counsel have authority to accept service of any such

complaint on behalf of the Kingdom, and will do so.


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To avoid any further confusion, we clarify that (1) undersigned counsel have

not been authorized to accept service on behalf of any of the individual defendants;

(2) the Kingdom reserves its right to move to dismiss any amended complaint

against the Kingdom on any ground other than defective service of process,

including lack of subject matter jurisdiction under the FSIA; and (3) the Kingdom

reserves its right to seek sanctions against Angellino for any allegations in the

current or any amended Complaint which do not meet the requirements of Federal

Rule of Civil Procedure 11.

CONCLUSION

For the reasons set forth above, the Petition for Panel Rehearing should be

granted.

Respectfully submitted, /s/ Michael K. Kellogg

MICHAEL K. KELLOGG GREGORY G. RAPAWY KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7947 Counsel for the Kingdom of Saudi Arabia

July 5, 2012


ADDENDUM A


United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 8, 2012 Decided June 5, 2012

No. 11-7043

ELLI BERN ANGELLINO, CREATIVE DIRECTOR OF ANGELLINO ARTE,

APPELLANT

v.

ROYAL FAMILY AL-SAUD ET AL., APPELLEES

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.

USCA Case #11-7043 Document #1377095 Filed: 06/05/2012 Page 1 of 15USCA Case #11-7043 Document #1382202 Filed: 07/05/2012 of 29

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KAREN LECRAFT HENDERSON, Circuit Judge: “An artist is not paid for his labor but for his vision.”1

I.

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.

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

1 James Abbott McNeill Whistler quoted in Anu Garg, Another Word A Day 163 (2005).

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.

2 The facts are taken from Angellino’s complaint and other documents he filed in response to the district court’s orders. See Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 677 (D.C. Cir. 2009).


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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. See Fed. 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

3 Section 1608(a) governs service of process on “a foreign state or political subdivision of a foreign state,” 28 U.S.C. § 1608(a), and section 1608(b) governs service on “an agency or instrumentality of a foreign state,” id. § 1608(b).

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


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omitted).4 Section 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

4 In 2010, the United States Supreme Court, while noting that some actions against an individual official “should be treated as actions against the foreign state itself, as the state is the real party in interest,” held that a foreign official sued individually for his official acts is not governed by the FSIA and that “a plaintiff seeking to sue a foreign official will not be able to rely on the Act’s service of process and jurisdictional provisions.” Samantar v. Yousuf, 130 S. Ct. 2278, 2282, 2292 & n.20 (2010). As discussed infra note 6, Angellino’s complaint did not make clear whether he intended to sue the sixteen defendant Royal Family members in their official or individual capacities.

5 The other means of obtaining service pursuant to section 1608(a) are:

(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


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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

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)(2)-(4).


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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


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April 8, 2010, but had returned them to the USPS—marked “Return to 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” with the Royal Family, 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).6

6 FRCP 4(f) governs service of process on an individual located outside the United States. See Fed. R. Civ. P. 4(f) (providing for service, “[u]nless federal law provides otherwise, [on] an individual . . . at a place not within any judicial district of the United States”). The district court assumed Angellino had sued the sixteen individual defendants in their individual capacities and therefore

See Order, Angellino


8

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 Cmtys. 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 is appropriate . . . only when there is no reasonable probability that service can be obtained” or there is a “lengthy period of inactivity.” Smith-Bey v. Cripe, 852 F.2d 592, 594 (D.C. Cir. 1988); see also id. (dismissal of pro se defendant’s complaint for failure to prosecute not warranted where “it is probable that service could yet be obtained”); Novak v. World Bank, looked to FRCP 4(f) to resolve the service of process issue. Before us, however, Angellino asserts that he sued the members of the Royal Family “in their official capacities.” Appellant’s Br. 18. Nevertheless, it is clear to us that the sixteen individual defendants were sued in their individual capacities as Angellino’s breach of contract claim does not allege an act of state such that Angellino’s action “should be treated as [an] action[] against the foreign state itself, as the state is the real party in interest.” Samantar, 130 S. Ct. at 2292; see supra note 4.


9

703 F.2d 1305, 1310 (D.C. Cir. 1983) (“Although district courts have broad discretion to dismiss a complaint for failure to effect service, dismissal is not appropriate when there exists a reasonable prospect that service can be obtained.”). A “lengthy period of inactivity” may justify dismissal “ ‘particularly . . . if the plaintiff has been previously warned that he must act with more diligence, or if he has failed to obey the rules or court orders, or if he has no excuse for the delay, or if there are other factors aggravating the inaction.’ ” Smith-Bey, 852 F.2d at 594 (quoting 9 C. Wright & A. Miller, Federal Practice and Procedure § 2370, at 205-07 (1971)).

We agree with the district court that Angellino was required to serve process on the defendant Royal Family under section 1608(a) and on the sixteen defendant Royal Family members under FRCP 4(f). See Dismissal Order at 1-4 (construing Angellino’s suit against Royal Family as suit against Kingdom of Saudi Arabia or one of its political subdivisions); supra note 6. Turning first to service of process under section 1608(a), we believe there exists a “reasonable probability” that Angellino can effect service on the defendant Royal Family given the success of other parties in serving process on the Kingdom of Saudi Arabia under section 1608(a)(3) and (4). See Clerk’s Certificate of Mailing Note, In re Terrorist Attacks on Sept. 11, 2001, No. 1:03-md-1570 (S.D.N.Y. Mar. 18, 2005) (“The [U.S.] Embassy in Khartoum delivered the summons, complaint and notice of suit pursuant to 28 [U.S.C. §] 1608(a)(4) to the Ministry of Foreign Affairs of the Kingdom of Saudi Arabia on June 28, 2005 under cover of a diplomatic note . . . . The diplomatic note constitutes transmittal of these documents to the Kingdom of Saudi Arabia as contemplated in [28 U.S.C. §] 1608(a)(4).”);7

7 See supra note 5, for service of process pursuant to section 1608(a)(4).

Plaintiffs’ Affidavit Requesting Foreign


10

Mailing at 1, Elbasir v. Kingdom of Saudi Arabia, No. 1:04-cv-1706 (D.D.C. Jan. 7, 2005) (plaintiffs’ request that clerk mail service of process to Kingdom of Saudi Arabia pursuant to 28 U.S.C. § 1608(a)(3));8 see also Sealed Summons, UNC Lear Servs., Inc. v. Kingdom of Saudi Arabia, No. 5:04-cv-1008 (W.D. Tex. Mar. 30, 2005) (service of process on Kingdom of Saudi Arabia pursuant to section 1608(a)(3)).9

Turning next to service of process on the defendant Royal Family members under FRCP 4(f), we note that plaintiffs in other federal litigation have successfully effected Rule 4(f) service on at least one of the Royal Family members whom Angellino names in his complaint.

Although Angellino has so far been unable to employ the preferred “special arrangement” option, we believe there nonetheless exists a reasonable probability that he can serve process on the Royal Family using one of section 1608(a)’s other options.

10

8 See supra note 5, for service of process pursuant to section 1608(a)(3).

See Order Authorizing

9 As these cases suggest, section 1608(a)(2), which authorizes service of process “in accordance with an applicable international convention on service of judicial documents,” 28 U.S.C. § 1608(a)(2), appears inapplicable because the Kingdom of Saudi Arabia is not a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. See U.S. Treaties in Force at 394-95 (2011) available at http://www.state.gov/documents/organization/169274.pdf. 10 Under FRCP 4(f), a person “not within any judicial district of the United States” may be served:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;


11

Service of Summons By Mail Pursuant to FRCP 4(f)(3) at 1, Sharif v. Int’l Dev. Group, No. 1:02-cv-5430 (N.D. Ill. Dec. 30, 2002) (authorizing service by mail on Royal Family member pursuant to FRCP 4(f)(3)); see also Consent Motion at 1, Burnett v. Al Baraka Inv. & Dev. Corp., No. 1:02-cv-1616 (D.D.C. Jan. 9, 2003) (Royal Family member “indicated to counsel for plaintiffs . . . that he will accept service by certified mail”).

Nor has Angellino engaged in a “lengthy period of inactivity” warranting dismissal. Although Angellino failed to successfully serve process on any of the defendants in the

(2) if there is no internationally agreed means,

or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign country's law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.

Fed. R. Civ. P. 4(f).


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thirteen months between the filing and the dismissal of his complaint, his failure was not a result of “inactivity.” Angellino attempted to serve process within two weeks of filing his complaint and, when twice ordered to show cause why his complaint should not be dismissed for failure to serve process, he promptly responded by explaining to the court why he believed he had done so. For example, in response to the district court’s Second Show Cause Order reciting that he had failed to “demonstrate[] that a special arrangement for service exists” and that his mailing of the complaint and summons to the Embassy “d[id] not satisfy the requirements of . . . 28 U.S.C. § 1608,” Second Show Cause Order at 2, Angellino submitted a letter one of the defendants sent to him via the Embassy as evidence of a “special arrangement.” Granted, the Second Show Cause Order informed Angellino that he had failed to establish the existence of a “special arrangement for service.” 28 U.S.C. § 1608(a)(1) (emphasis added); see also Int’l Road Fed’n v. Embassy of the Dem. Rep. Congo, 131 F. Supp. 2d 248, 251 (D.D.C. 2001) (contract provision providing “[a]ll notices, demands, or requests between Sublessor and Sublessee shall be delivered in person, by certified mail, return receipt requested, or by registered mail” and providing addresses for notification constituted “special arrangement for service” under section 1608(a)(1) (brackets in original)). Nevertheless, Angellino’s repeated efforts to establish service of process—while inadequate—reflect anything but “inactivity,” cf. Hernandez v. Norinco N. China Indus., Inc., 120 F. App’x 371, 371-72 (D.C. Cir. 2005) (per curiam) (failure of plaintiff’s counsel to serve process two and one-half years after filing complaint warranted dismissal for failure to prosecute), and in no way indicate an “intent to abandon the case,” Sykes v. United States, 290 F.2d 555, 557 (9th Cir. 1961), cited in Smith-Bey, 852 F.2d at 594.


13

Moreover, the district court did not provide Angellino, a pro se plaintiff, “fair notice of the requirements” for serving process under 28 U.S.C. § 1608(a) and FRCP 4(f). Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968); see also Moore v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993) (district court “should supply [pro se party] minimal notice of the consequences of not complying with procedural rules”); Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (pro se prisoner “is entitled to receive notice of the consequences of failing to respond with affidavits to a motion for summary judgment” (internal quotation marks omitted)). The district court’s two show cause orders instructed Angellino only “to file proof of service or to show cause why [the] [c]ourt should not dismiss his claim for failure to prosecute.” Second Show Cause Order at 2; see also First Show Cause Order (“Based upon plaintiff’s failure to prosecute this action, the Court hereby ORDERS plaintiff to show cause . . . why this case should not be dismissed without prejudice.”). Despite the inadequacy of Angellino’s responses, the court never explained to Angellino the alternative means by which he could attempt service. Only in its order dismissing Angellino’s complaint did the court finally inform Angellino that he was required to serve process on the defendant Royal Family pursuant to one of the non-“special arrangement” alternatives of section 1608(a) and on the sixteen defendant Royal Family members pursuant to FRCP 4(f). In addition, the district court should have cautioned Angellino that a dismissal without prejudice for failure to serve process could affect the viability of his claim depending on the applicable statute of limitations. See Moore, 994 F.2d at 876 (“District courts do not need to provide detailed guidance to pro se litigants but should supply minimal notice of the consequences of not complying with procedural rules.”); see also Ciralsky v. CIA, 355 F.3d 661, 672 (D.C. Cir. 2004) (“[W]hen a suit is dismissed without prejudice, the statute of


14

limitations is deemed unaffected by the filing of the suit, so that if the statute of limitations has run the dismissal is effectively with prejudice.” (internal quotation marks omitted)).

As we observed in Moore, “[p]ro se litigants are allowed more latitude than litigants represented by counsel to correct defects in service of process and pleadings.” 994 F.2d at 876. Viewing all of the circumstances here—the reasonable probability that Angellino can obtain service on at least one of the defendants, Angellino’s dogged (albeit inadequate) attempts to effect service of process and the district court’s failure to provide “a form of notice sufficiently understandable to one in [Angellino’s] circumstances fairly to apprise him of what is required” to serve process, Hudson, 412 F.2d at 1094, and to provide notice of the consequences of failing to serve process—we conclude the district court abused its discretion in dismissing Angellino’s complaint.11

So ordered.

Accordingly, we reverse the order of dismissal and remand the case for proceedings consistent with this opinion.

11 Based on the materials Angellino submitted, we do not believe the district court abused its discretion in concluding that Angellino failed to establish a “special arrangement for service” under section 1608(a)(1). See supra pp. 9-10, 12.


KAVANAUGH, Circuit Judge, dissenting:

I respectfully dissent. During the 13 months that this case was pending in the District Court, the two district judges who handled the case gave Angellino ample opportunity to pursue the suit. After Angellino’s initial attempt to effect service failed, the district judges twice warned Angellino that his suit would be dismissed if he did not effect service. Yet Angellino never again even tried to serve the defendants. Because Angellino repeatedly failed to take the necessary steps to effect service and thereby move the suit forward, the District Court finally dismissed the case without prejudice. (Because the dismissal was without prejudice, Angellino could have filed a new suit; he has not done so.)

I find no error in the District Court’s patient handling of

this matter. Moreover, when a district court dismisses a case for failure to prosecute, our review is for abuse of discretion. So even assuming the District Court faced a close call in deciding whether to dismiss this suit, our deferential standard of review surely suggests that we affirm. I respectfully dissent.


ADDENDUM B


CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

(A) Parties and Amici

Appellant in this action is Elli Bern Angellino.

The following individuals were named as parties below and as parties in this

Court but did not appear below and have not entered an appearance in this Court:

H.M. King Abdullah bin Abdulaziz Al-Saud, H.R.H. Crown Prince Sultan bin Abdulaziz Al-Saud, H.R.H. Prince Ahmed bin Abdulaziz Al-Saud, H.R.H. Prince Abdelmajeed bin Abdulaziz Al-Saud, H.R.H. Prince Bandar bin Sultan bin Abdulaziz Al-Saud, H.R.H. Prince Saud Al Faisal bin Abdulaziz Al-Saud, H.R.H. Prince Sattam bin Abdulaziz Al-Saud, H.R.H. Prince Salman bin Abdulaziz Al-Saud, H.R.H. Prince Nayef bin Abdulaziz Al-Saud, H.R.H. Prince Mohammad bin Fahed bin Abdulaziz Al-Saud, H.R.H. Prince Mohammed bin Nayef bin Abdulaziz Al-Saud, H.R.H. Prince Me’teb bin Abdulaziz Al-Saud, H.R.H. Prince Khalid Al Faisal bin Abdulaziz Al-Saud, H.R.H. Prince Fahed bin Sultan bin Abdulaziz Al-Saud, H.R.H. Prince Al Waleed bin Talal bin Abdulaziz Al-Saud, and H.R.H. Prince Sultan bin Fahed bin Abdulaziz Al-Saud.

There is a dispute about whether and in what sense there is a party to this

action named “The Royal Family Al-Saud,” which is discussed in more detail in

the body of the Petition.

Court-appointed Amicus on behalf of Appellant is David W. DeBruin of

Jenner & Block LLP.


(B) Rulings Under Review

Movant seeks to intervene and petitions for rehearing of this Court’s opinion

of June 5, 2012, which reversed the April 29, 2011 order of Judge Boasberg

dismissing the action without prejudice. The Court’s June 5, 2012 opinion is

attached to the Petition as Addendum A. The district court’s April 29, 2011 order

appears in Appellant’s Appendix at pages 91-96.

(C) Related Cases

This case has not previously been before this Court. Movant is not aware of any

related cases.


CERTIFICATE OF SERVICE

I hereby certify that, on July 5, 2012, in accordance with Circuit Rule 25(c),

I electronically filed the foregoing document with the United States Court of

Appeals for the District of Columbia Circuit by using the CM/ECF system.

I have also caused copies of this document to be sent by overnight mail and

by e-mail to Appellant at the following addresses, taken from the court’s docket

and from the certificate of service filed by the court-appointed Amicus.

Elli Bern Angellino 6502 11th Avenue Brooklyn, NY 11219 [email protected] [email protected]

/s/ Michael K. Kellogg

MICHAEL K. KELLOGG KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7947 Counsel for the Kingdom of Saudi Arabia


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