                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 RANDA ISKANDAR,

    Plaintiff,
                                                          Civil Action No. 14-721 (CKK)
           v.

 EMBASSY OF THE STATE OF KUWAIT,

    Defendant.


                                 MEMORANDUM OPINION
                                     (May 28, 2015)

       Plaintiff, who is represented by counsel, filed suit against her former employer, the

Embassy of the State of Kuwait, on April 24, 2014, alleging breach of contract as well as gender

discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000e et seq. On September 17, 2014, Plaintiff moved for entry of default. A

day later, Defendant filed a Motion to Dismiss the Complaint. Presently before the Court are

Plaintiff’s and Defendant’s Motions. Upon consideration of the pleadings,1 the relevant legal

authorities, and the record as a whole, the Court shall DENY Plaintiff’s Motion for Entry of Default

and GRANT Defendant’s Motion to Dismiss.

                                        I.      BACKGROUND

       For the purposes of Defendant’s Motion to Dismiss, the Court presumes the following facts

pled in Plaintiff’s Complaint to be true, as required when considering a motion to dismiss. From




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         Plaintiff’s Motion for Entry of Default (“Pl.’s Mot.”), ECF No. [6]; Defendant’s Motion
to Dismiss Complaint (“Def.’s Mot.”), ECF No. [7]; Plaintiff’s Opposition to Defendant’s Motion
to Dismiss (“Pl.’s Opp’n”), ECF No. [8]; Defendant’s Opposition to Motion for an Order of
Default (“Def.’s Opp’n”), ECF No. [9].
2006 until her termination in January 2014, Plaintiff was employed as a claims processor at the

Health Office of the Embassy of the State of Kuwait. Compl. ¶ 10. The Health Office “acts as a

health insurance provider to Kuwaiti nationals,” id. ¶ 8, and “engages in activities similar to any

other health insurance provider, which include evaluating the validity of claims for health care

treatment, negotiating and issuing payment for claims to health care providers, and reimbursing

Kuwaiti citizens for out-of-pocket health care expenses,” id. ¶ 9. Plaintiff alleges that her

supervisor discriminated against her on the basis of her gender by engaging in various actions of

sexual harassment. Id. ¶¶ 13-23. Plaintiff also alleges that her supervisor retaliated against her

when she protested against his actions by creating a hostile work environment and, ultimately,

terminating Plaintiff’s employment. Id. ¶¶ 24-35.

        Plaintiff filed suit against the Embassy of the State of Kuwait on April 24, 2014, alleging

breach of contract as well as gender discrimination, sexual harassment, and retaliation in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. On July 17, 2014, Plaintiff

filed an Affidavit of Proof of Service showing that Plaintiff served the First Secretary of the

Embassy of the State of Kuwait with the Complaint and Summons on July 15, 2014. See Affidavit

of Service, ECF No. [5]. As Defendant did not timely file an Answer, Plaintiff filed a Motion for

Entry of Default on September 17, 2014. The following day, Defendant filed a Motion to Dismiss

arguing that Plaintiff’s Complaint should be dismissed for failure to properly serve process, for

lack of personal jurisdiction, and for failure to state sufficient facts to establish the Court’s subject

matter jurisdiction over Defendant. Plaintiff filed an Opposition to Defendant’s Motion to Dismiss

and Defendant filed an Opposition to Plaintiff’s Motion for Entry of Default. No replies were

filed. Accordingly, Plaintiff’s and Defendant’s Motions are ripe for the Court’s review.



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                                       II.      LEGAL STANDARD

    A. Federal Rule of Civil Procedure 12(b)(1)

        A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Rule

12(b)(1). In so doing, the Court may “consider the complaint supplemented by undisputed facts

evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198

(D.C. Cir. 2003) (citations omitted). “At the motion to dismiss stage, counseled complaints, as

well as pro se complaints, are to be construed with sufficient liberality to afford all possible

inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm’n, 429 F.3d

1098, 1106 (D.C. Cir. 2005). In spite of the favorable inferences that a plaintiff receives on a

motion to dismiss, it remains the plaintiff’s burden to prove subject matter jurisdiction by a

preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F.Supp.2d 84, 90

(D.D.C. 2000). Furthermore, a court need not accept inferences drawn by the plaintiff if those

inferences are not supported by the facts alleged in the complaint. Odhiambo v. Republic of Kenya,

930 F.Supp.2d 17, 22-23 (D.D.C. 2013), aff’d 764 F.3d 31 (D.C. Cir. 2014) (citing Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)).

    B. Federal Rule of Civil Procedure 12(b)(4)

        Federal Rule of Civil Procedure 12(b)(4) provides that a Court may dismiss a case due to

insufficiency of process if the plaintiff fails to establish that he or she has properly effected service

upon the defendant(s) pursuant to Federal Rule of Civil Procedure 4. Light v. Wolf, 816 F.2d 746,

751 (D.C. Cir. 1987). “The party on whose behalf service is made has the burden of establishing

its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied

the requirements of the relevant portions of Rule 4 and any other applicable provision of law.” Id.

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(quoting C. Wright & A. Miller, Federal Practice & Procedure § 1083, at 334 (1969)); see also

Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C. 2003) (holding that “the plaintiff carries the burden of

establishing that he has properly effected service”) (citation omitted).

                                            III.    DISCUSSION

        At the outset, the Court notes that the parties agree that this case is governed by the Foreign

Sovereign Immunities Act (“FSIA”), since Defendant is an embassy of a foreign state and the

FSIA provides the sole basis for obtaining subject matter jurisdiction over a foreign sovereign

nation in the United States. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S.

428, 439 (1989). The parties also agree that an embassy must be served in the same manner as a

foreign state itself, i.e., pursuant to FSIA § 1608(a). See Howe v. Embassy of Italy, --- F.Supp.3d

---, 2014 WL 4449697, *6 (D.D.C. Sept. 11, 2014) (finding that “Embassy of Italy in Washington,

D.C., is an ‘integral part of a foreign state’s political structure,’ making it a ‘foreign state’ for the

purposes of the FSIA, subject to the service requirements of 28 U.S.C. § 1608(a)”); Ellenbogen v.

The Can. Embassy, No. 05–1553, 2005 WL 3211428, *2 (D.D.C. Nov. 9, 2005) (“[I]t is well-

settled that an embassy is a ‘foreign state’ . . . not an ‘agency or instrumentality’ thereof”);

Underwood v. United Republic of Tanzania, 1995 WL 46383, *2 (D.D.C. Jan. 27, 1995) (“[W]e

conclude that as a matter of law the embassy of a sovereign nation is a foreign state which must

be served pursuant to §1608(a)”).

        Section 1608(a) provides that service be made: 1) by delivery of the summons and

complaint in accordance with any special arrangement between the Plaintiff and the foreign state

or political subdivision; or 2) if no special arrangement exists, in accordance with an applicable

international convention; or, if service cannot be made using the previous two methods, by 3)

sending the complaint documents with a translation into the official language of the foreign state,

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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, in last resort,

4) through the United States Secretary of State. 28 U.S.C. § 1608(a). The requirements of

§ 1608(a) must be strictly complied with. Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d

148, 154 (D.C. Cir. 1994). Plaintiff has not shown that any special arrangement exists between

Plaintiff and Defendant or that there is an applicable international convention governing service in

this case. Accordingly, Plaintiff should have attempted to effectuate service of process pursuant

to § 1608(a)(3) by asking the Clerk of Court to send the complaint documents with a translation,

by mail requiring a signed receipt, to the head of the ministry of foreign affairs of the state of

Kuwait. However, instead of serving the head of the ministry of foreign affairs, Plaintiff served

the First Secretary of the Embassy of the State of Kuwait in Washington, DC. See Affidavit of

Service, at 2. Plaintiff also did not request the Clerk of Court send the Complaint and summons

by mail requiring a signed receipt. Instead, the First Secretary of the Embassy was “personally

served with a Summons and Complaint.” Id.; Pl.’s Mot. ¶ 3. Accordingly, the Court finds that

Plaintiff did not properly effect service on Defendant. As Plaintiff did not adhere to the strict

requirements for service of process under the FSIA and Defendant nevertheless filed a Motion to

Dismiss, Plaintiff’s Motion for Entry of Default shall be DENIED.

       Even though Plaintiff concedes that she did not properly effect service on Defendant,

Plaintiff argues that the Court should not grant Defendant’s Motion to Dismiss for failure to

properly serve because she acted diligently in attempting to serve Defendant. Instead, Plaintiff

asks the Court to deny Defendant’s Motion to Dismiss and grant her additional time to serve her

Complaint. Ordinarily, the Court would consider granting Plaintiff additional time to serve

Defendant and deny Defendant’s Motion to Dismiss. However, Plaintiff, who, the Court reiterates,

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is represented by counsel, has filed a Complaint that does not establish the Court’s subject matter

jurisdiction over this action. Plaintiff’s Complaint alleges federal question jurisdiction, 28 U.S.C.

§ 1331, and diversity jurisdiction, id. § 1332, as the grounds for subject matter jurisdiction in this

case. Compl. ¶ 3. However, the FSIA provides the sole basis for obtaining subject matter

jurisdiction over a foreign sovereign nation in the United States. See Argentine Republic, 488 U.S.

at 439. Plaintiff concedes as much, yet nowhere in her Complaint does Plaintiff even mention the

FSIA. Plaintiff’s counsel devotes much of the Opposition to Defendant’s Motion to Dismiss

arguing that the commercial activity exception to the FSIA applies in this case and, therefore, the

Court has subject matter jurisdiction over this case because Defendant is exempt from immunity

provided by the FSIA. See Pl.’s Opp’n at 4-6. But it is well established law that a plaintiff cannot

amend her complaint through her pleadings. See Sloan v. Urban Title Servs., Inc., 689 F.Supp.2d

94, 114 (D.D.C. 2010) (explaining that a plaintiff cannot amend her complaint through her

opposition briefing); Juergens v. Urban Title Servs., 533 F.Supp.2d 64, 75 (D.D.C. 2008) (same).

       Once Defendant filed its Motion to Dismiss alerting Plaintiff to the fact that she had not

properly served Defendant pursuant to the FSIA (which Plaintiff promptly conceded) and

challenging the Court’s subject matter jurisdiction over this action, the appropriate course of action

by Plaintiff’s counsel would have been to file an amended complaint alleging that the FSIA

provides the Court with jurisdiction over this action if that is Plaintiff’s position. As Plaintiff’s

counsel has failed to properly serve Defendant and failed to allege in her Complaint a basis for the

Court’s subject matter jurisdiction over this action, the Court shall GRANT Defendant’s Motion

to Dismiss and DISMISS WITHOUT PREJUDICE Plaintiff’s Complaint.

                                          IV.    CONCLUSION

       For the foregoing reasons, Plaintiff’s Motion for Entry of Default is DENIED and

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Defendant’s Motion to Dismiss is GRANTED. Plaintiff’s Complaint is, therefore, DISMISSED

WITHOUT PREJUDICE. An appropriate Order accompanies this Memorandum Opinion.

                                                   /s/
                                               COLLEEN KOLLAR-KOTELLY
                                               UNITED STATES DISTRICT JUDGE




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