United States District Court, S.D. New York
OPINION & ORDER
Abrams United States District Judge
case has been removed from state court, where it had been
pending for over five years. Before the Court is Plaintiffs
motion to remand, arguing that Defendant's removal is
untimely, and Defendant's opposition to that motion,
contending that it was never properly served pursuant to the
Foreign Sovereign Immunities Act (the "FSIA") and
that the time for removal was thus never triggered. The Court
agrees with Defendant and the motion to remand is denied.
"[a] foreign state's permanent mission to the United
Nations is indisputably the embodiment of that state, "
Defendant is a foreign state. USAA Cas. Ins. Co. v.
Permanent Mission of Republic of Namibia, 681
F.3d 103, 107 (2d Cir. 2012) (quotation marks omitted).
Removal is thus governed by 28 U.S.C. § 1441(d), which
Actions against foreign States.-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 for the district and
division embracing the place where such action is pending. .
. . Where removal is based upon this subsection, the time
limitations of section 1446(b) of this chapter may be
enlarged at any time for cause shown.
time limitation for removal under section 1446(b) is "30
days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action or proceeding is
based." The Supreme Court has interpreted this provision
to mean that "the removal period could only be triggered
by formal service of process, regardless of whether the
statutory phrase 'or otherwise' hints at some other
proper means of receipt of the initial pleading" because
the words "or otherwise" are "simply so
indefinite as to be meaningless." Whitaker v. Am.
Telecasting, Inc., 261 F.3d 196, 202 (2d Cir. 2001)
(citing Murphy Bros. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344, 349-356 (1999)). Therefore, the
removal period in this case would only have been triggered if
formal service of process was effectuated in compliance with
argues that it served Defendant "pursuant to 28 U.S.C.
§ 1608(b)(2), by delivering a copy of the Summons and
Complaint to the managing agent of Defendant." Jaslow
Aff. at 5, Dkt. 19. Section 1608(b), however, applies only to
an "agency or instrumentality of a foreign state."
28 U.S.C. § 1608(b). Defendant is not an agency or
instrumentality of a foreign state but is itself a foreign
state. Lewis & Kennedy, Inc. v. Permanent Mission of
Republic of Botswana to United Nations, No. 05-CV-2591
(HB), 2005 WL 1621342, at *3 (S.D.N.Y. July 12, 2005)
("It is well settled that a country's permanent
mission to the United Nations is a foreign state for the
purposes of § 1608."); Gray v. Permanent
Mission of People's Republic of Congo to United
Nations, 443 F.Supp. 816, 820 (S.D.N.Y.),
aff'd, 580 F.2d 1044 (2d Cir. 1978) ("[I]t
is hard to imagine a purer embodiment of a foreign state than
that state's permanent mission to the United
sole means for effecting service of process on a foreign
state" is the FSIA, and its requirements are set forth
in section 1608(a). Harrison v. Republic of Sudan,
802 F.3d 399, 403 (2d Cir. 2015), adhered to on denial
ofreh'g, 838 F.3d 86 (2d Cir. 2016). Section 1608(a)
prescribes four methods of service of a foreign state, in
descending order of preference. Id. These 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;
(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.
28U.S.C. § 1608(a)(1)-(4).
method of service utilized by the Plaintiff in this
case-service on the managing agent of Defendant-does not
constitute one of the four methods of service articulated in
§ 1608(a). "Courts have been unequivocal that
§ 1608(a) mandates strict adherence to its
terms, not merely substantial compliance." Hilt
Constr. &Mgmt. Corp. v. Permanent Mission of Chad to the
United Nations in N.Y., No. 15-CV-8693 (VB),
2016 WL 3351180, at *5 (S.D.N.Y. June 15, 2016) (quoting
Lewis & Kennedy, Inc., 2005 WL 1621342, at *3).
Moreover, "[w]hether or not [defendants] received actual
notice of the suit is irrelevant when strict compliance is
required." Id. (alteration in original)
(quoting Finamar Inv 'rs, Inc. v. Republic of
Tadjikistan, 889 F.Supp. 114, 118 (S.D.N.Y. 1995)).
Therefore, service of process has not been effectuated in
this case, and the time period for removal has not been
triggered. Defendant's removal of this case is thus
timely pursuant to 28 U.S.C. § 1441(d). See Avelar
v. J. Cotoia Const., Inc., No. ll-CV-2172 (RRM), 2011 WL
5245206, at *2 (E.D.N.Y. Nov. 2, 2011).
argues that Avelar is distinguishable because in
that case the time between the service of the complaint and
the notice of removal was only ten months, and therefore the
Avelar court "did not have to consider extreme
prejudice to the plaintiff. . ., or a statute of limitations
issue." See Jaslow Reply Aff at 4, Dkt. 21.
Plaintiff misses the point. In light of the fact that service
pursuant to the FSIA was never effectuated in this case, the
time that Defendant has to remove did not begin to run.
Defendant thus does not have to show good cause for