UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
)
IBIZA BUSINESS LTD., et al., )
Plaintiffs, )
)
v. ) Misc. N0. 10-296 (RCL)
)
UNITED STATES OF AMERICA, )
et al., )  L E D
Defendants. )
) JUL ~ 8 2010
) UR. U.S. Dlstdct & Bankruptcy
@M'B for the D|stdct of Co|umb|a
MEMORANDUM AND ORDER

Before the Court is Plaintiffs’ Amended Motion [5] for Entry of Default. Upon
consideration of the motion, the record, and applicable law, plaintiffs’ motion is DENIED due to
insufficient service of process on defendants, for the reasons set forth below.

Plaintiffs filed this miscellaneous action on May 3, 2010. On May 21, 2010, plaintiffs
delivered to the Brazilian Embassy a copy of the summons, petition, certificate of disclosure
required by LCvR 7.1, and proposed order. Plaintiffs delivered the same materials to the U.S.
Department of Justice, Office of Intemational Affairs, on May 20, 2010.

In the instant motion, plaintiffs move for a default judgment against the Federative
Republic of Brazil ("Brazil") pursuant to Rule 55(a). The Rule provides: "When a party against
whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must enter the party’s default." FED. R. CIV.
P. 55(a). The Court will only enter a default judgment against a defendant when there is proof

that plaintiffs properly served the defendant.

@)

The Federal Rules of Civil Procedure provide: "A foreign state or its political
subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608."

FED. R. CIV. P. 4(j)(l). § 1608 provides:

(a) Service in the courts of the United States and of the States shall be made upon a
foreign state or political subdivision of a foreign state:

(l) 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 (l) 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. The Court is not aware of any special arrangement for service that
would permit service under § l608(a)(l), nor any applicable international convention that
would permit service under § l608(a)(2). Plaintiffs must therefore follow the
requirements of § l608(a)(3) when serving defendant Brazil. Plaintiffs must strictly
adhere to the requirements of § l608(a), as this subsection "sets forth the exclusive
procedures for service on a foreign state." Transaero, Inc. v. La Fuerza Aerea Boliviana,
30 F.3d l48, 154 (D.C. Cir: 1994) (citations omitted). lt is not enough for plaintiffs to
receive "actual notice" of the suit, Id.; see also Ellenbogen v. Canadian Embassy, N0. 09-

CV-l553, 2005 WL 3211428, at *2 (D.D.C. Nov. 9, 2005) (Bates, J.).

Plaintiffs’ service of process on Brazil was insufficient. Plaintiffs cannot comply
with § l608(a)(3) merely by serving the Brazilian embassy, as they did here. Ellenbogen
at *2. Rather, plaintiffs must serve the head of the ministry of foreign affairs of Brazil
with the summons, complaint, and notice of suit, accompanied by a translation of each
into Portuguese, and all addressed and dispatched by the clerk of court. § l608(a)(3).
Plaintiffs did not follow any of these requirements. Once plaintiffs have served Brazil,
Brazil will have 60 days to answer the petition. § l608(d).

Because defendant Brazil has no proper notice of the suit, the Court will not enter
a default judgment against Brazil. Moreover, plaintiffs did not "establish [their] claim or
right to relief by evidence satisfactory to the court" under 28 U.S.C. § l608(e), so the
Court cannot issue a judgment on the default.

Furthermore, the Court notes that plaintiffs have not properly served defendant
United States under the requirements of Federal Rule of Civil Procedure 4(i)(l). Plaintiffs
have 120 days from the filing of the complaint to properly serve defendant United States
under Rule 4(m).

Accordingly, it is hereby

ORDERED that Plaintiffs’ Amended Motion [5] for Entry of Default is DENIED.

SO ORDERED this 8 j day of July 2010.

@<. juan

RoYéE c. LAMBERTH
Chief Judge
United States District Court

