The opinion of the court was delivered by: HURLEY
Presently before the Court is a motion by Respondent Saudi Arabian Airlines ("Respondent") to dismiss the above-captioned matter. For the reasons indicated below, Respondent's motion is granted.
In or about June, 1991, a state court in Florida granted a "Final Judgment of Dissolution of Marriage" with respect to the union of Samiah Seramur ("Petitioner") and Mubarak Alrehaili. (Pet. P 3 (attached as Ex. B to Resp't Oct. 26, 1994 Not. Mot.).) Such final judgment, which purportedly awarded Petitioner $ 2,000 per month for child support and $ 2,000 per month as alimony, (id.), was docketed in New York State court in or about August, 1993. (Id. P 4.)
During August, 1993, "an Income Execution for support enforcement" was served "by regular mail" upon Respondent as employer of Mr. Alrehaili. (Id. P 5.) Such income execution directed Respondent to deduct $ 4,000 per month, apparently from Mr. Alrehaili's wages, and remit the same to Petitioner "within ten (10) days of the date that same is paid." (Id. P 6.) It is further alleged that Respondent "refused and continues to refuse to deduct and remit to the petitioner the amounts specified in the income execution although at the time of refusal and at present time . . . [Mr.] Alrehaili receives and has received for his services with . . . [Respondent] sums sufficient to pay same." (Id. P 7.)
In or about August, 1994, Petitioner filed a Notice of Petition and accompanying Petition (hereinafter "the Petition") in New York State court requesting a judgment directing Respondent to pay to Petitioner the sum of $ 24,000 "representing accrued deductions under the income execution which have not been remitted to the [Petitioner] . . . ." (Aug. 18, 1994 Not. Pet. at 1.) On September 1, 1994, Respondent filed a Notice of Removal alleging that because it "is a 'foreign state' under 28 U.S.C. § 1603, this proceeding is removable to this Court and this Court has jurisdiction pursuant to 28 U.S.C. § 1441(d)." (Aug. 31, 1994 Not. Removal P 4.)
Presently before this Court is a motion by Respondent to dismiss the Petition for insufficiency of service of process, Fed. R. Civ. P. 12(b)(5), and for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
I. Petitioner's Remand Request is Denied
As an initial matter, the Court notes that 28 U.S.C. § 1330(a) provides as follows:
28 U.S.C. § 1330(a). In removing this action to federal court, Respondent relied on 28 U.S.C. § 1441(d) ("Section 1441(d)"), which states that
any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States . . . .
In her papers in opposition to Respondent's motion to dismiss, Petitioner requests that the instant matter be remanded to state court. (See Pet'r Jan. 13, 1995 Mem. Opp. at 6-7.) First, the Court notes that Petitioner has not filed a formal remand motion. In any event, Petitioner argues that Respondent is not entitled to immunity under the Foreign Service Immunities Act ("FSIA"), 28 U.S.C. §§ 1602-1611, and that, therefore, this case should be returned to state court. (See Pet'r Jan. 13, 1995 Mem. Opp. at 6.) As explained below, however, this Court holds that 28 U.S.C. § 1608(b) ("Section 1608(b)") provides the exclusive means for service of process upon Respondent in state or federal court, see supra at 8-9, and it further finds that valid service was not effected upon Respondent pursuant to that section. See ...