United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 22, 2007 Decided November 27, 2007
No. 07-7045
DEMOCRATIC REPUBLIC OF CONGO,
APPELLANT
V.
FG HEMISPHERE ASSOCIATES, LLC,
APPELLEE
Consolidated with
07-7046
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01314)
(No. 03cv01315)
Jonathan A. Nockels, pro hac vice, argued the cause for
appellant. With him on the brief were Stephen F. Malouf and
Steven D. Cundra.
Eric A. Shumsky argued the cause for appellee. With him
on the brief was Bradford A. Berenson. Neil H. Koslowe
entered an appearance.
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Before: RANDOLPH and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: FG Hemisphere’s
predecessor-in-interest, which for simplicity’s sake we call
FG Hemisphere, brought two suits in district court under 28
U.S.C. § 1605(a)(6)(B), a provision of the Foreign Sovereign
Immunities Act. In the suits FG Hemisphere sought to
confirm arbitration awards it had secured against the
Democratic Republic of Congo (“DRC”). The DRC did not
appear, and the district court entered default judgments
against it in September 2004 and January 2005. In June 2006,
after some 13 months of conflict over an attempted execution
by FG Hemisphere on the DRC’s diplomatic properties and
over discovery matters, the DRC sought to vacate the
judgment, claiming that service of process had not been in full
compliance with 28 U.S.C. § 1608(a) and that therefore the
district court had no personal jurisdiction over the DRC when
it entered the default judgments. The district court denied the
motions to vacate. Because we find that the DRC waived its
objection to the service of process by proceeding at length
with post-default litigation, some of which had no emergency
character, we affirm.
* * *
28 U.S.C. § 1608(a) provides for service in courts of the
United States upon a foreign state by four alternative means,
each (after that of subsection (a)(1)) available only if the
previously enumerated options are in some way foreclosed.
Here it is undisputed that subsections (a)(1) and (a)(2) were
unavailable. FG Hemisphere therefore initially invoked
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subsection (a)(3), which provides for service “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.” Although
subsection (a)(3) seems not to require the name of the head of
the ministry of foreign affairs, both the mailings were
addressed to “The Democratic Republic of Congo, Leonard
She Okitundu, Ministry of Foreign Affairs,” at the correct
address in Kinshasa. Unfortunately, Okitundu had resigned as
foreign minister six weeks before FG Hemisphere launched
the process and thus, obviously, by the time the two mailings
arrived in Kinshasa. The exact fate of this attempted service
under § 1608(a)(3) is unknown.
There being no response within 30 days, FG Hemisphere
moved to § 1608(a)(4), which provides that if “service cannot
be made within 30 days under paragraph (3),” it may be
obtained by sending the necessary documents to the Secretary
of State in Washington, to the attention of the Director of
Special Consular Services; the Secretary of State is then to
transmit the papers to the foreign state by diplomatic channels
and to send the clerk of the court a certified copy of the
diplomatic note indicating when the papers were transmitted.
This method of service was effected by early 2004.
For some time, however, the DRC did not appear in the
litigation, and FG Hemisphere secured default judgments in
September 2004 and January 2005. In May 2005 the DRC at
last appeared, seeking to vacate writs of execution issued by
the district court against two DRC properties in the District of
Columbia; the DRC argued that the properties were
diplomatic ones exempt from execution under 28 U.S.C.
§§ 1609-1611. The district court rejected the DRC’s claims
without explanation; on appeal, in May 2006, we reversed and
remanded for further proceedings. See FG Hemisphere
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Associates, LLC v. Democratic Republic of Congo, 447 F.3d
835 (D.C. Cir. 2006).
Only then did the DRC raise an issue about service of
process. In June 2006 it filed motions to vacate the default
judgments for want of personal jurisdiction, arguing that,
because of the misidentification of the foreign minister,
service under § 1608(a)(3) had been defective, so that FG
Hemisphere had failed to establish the predicate for service
under subsection (a)(4), namely, that “service cannot be made
within 30 days under paragraph (3).” The district court denied
the motions without explanation, and the DRC filed a timely
appeal.
FG Hemisphere asserts both substantive and procedural
defenses for the district court rulings. It argues that inclusion
of the erroneous name was not inconsistent with § 1608(a)(3),
and that even if it was, the defect was not such as to
undermine the contingency of § 1608(a)(4)—that service
“cannot be made under paragraph (3).” It also asserts
that the DRC’s long silence on the matter, from its first
appearance and participation in this litigation in May 2005
until its June 2006 motion to vacate, waived any objection to
the district court’s personal jurisdiction over the DRC.
Agreeing with the waiver argument, we do not reach the
substantive one.
Rule 12(g) and Rule 12(h)(1) of the Federal Rules of
Civil Procedure provide that the defense of lack of personal
jurisdiction, among others, is waived by its omission from
motions asserting defenses under Rule 12 or a responsive
pleading. In a case such as this, where the defendant’s default
has removed any occasion for these conventional opening
defensive moves, the rule obviously cannot be applied
literally. But courts have applied its rationale—that
defendants should raise such preliminary matters before the
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court’s and parties’ time is consumed in struggle over the
substance of the suit—where a defendant has engaged in
extensive post-default litigation without suggesting an
infirmity in personal jurisdiction. Thus, in Trustees of Central
Laborers’ Welfare Fund v. Lowery, 924 F.2d 731 (7th Cir.
1991), the court held that the defendant’s participation in six
years of post-default judgment litigation over asset discovery
was sufficient to waive its right to challenge the service of
process underlying the original judgment, id. at 733-34. See
also Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 404
(7th Cir. 1986). And the First Circuit has found waiver of a
personal jurisdiction defense where the defendant, though
filing neither a Rule 12 motion nor a responsive pleading,
filed an appearance and participated in multiple depositions.
Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994, 996-97 (1st
Cir. 1983).
Here the litigation proceeded for 13 months between the
DRC’s initial appearance and its claim that service of process
had been inadequate. Most of the litigation, to be sure,
revolved around the DRC’s efforts to hold off execution
against two properties the DRC claimed were immune under
28 U.S.C. §§ 1609-1611, the subject of our earlier opinion.
The DRC’s efforts to protect those properties of course had a
certain emergency character, and we note that after our prior
decision FG Hemisphere abandoned its request to execute
against them. But of course an emergency loses some of its
edge when it lasts for 13 months. Cf. Manchester Knitted
Fashions, Inc. v. Amalgamated Cotton Garment & Allied
Industries Fund, 967 F.2d 688, 691-93 (1st Cir. 1992) (finding
waiver through nine weeks’ delay, mostly spent resisting a
temporary restraining order, despite the litigation’s emergency
character and although defendant had not filed a Rule 12
motion or an answer).
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Here, however, we need not rest a waiver finding solely
on the DRC’s omission of the service-of-process claim in the
midst of these emergency efforts. The struggle to protect its
diplomatic properties was not the only litigation of the DRC
between its appearance in this action and its June 2006
assertion of its personal jurisdiction defense. FG Hemisphere
sought discovery against the DRC in July of 2005, apparently
for the first time. In September 2005, the DRC having failed
to produce a single one of the requested documents, FG
Hemisphere moved for an order directing compliance with its
requests; next month the DRC filed an opposition to that
motion to compel. Even in opposing FG Hemisphere’s
request for documents, the DRC made no mention of the now-
alleged lack of personal jurisdiction; rather, it waited another
eight months before flagging the problem. We find that the
cumulative delay, encompassing disputes over both the
properties and discovery, effected a waiver.
One final note: Litigation over the production of
documents took place in only one of the two suits yielding the
default judgments at issue here. But the documents sought
were lists of all the DRC’s assets and would have been
equally useful to FG Hemisphere in seeking enforcement of
either default judgment. Further, shortly after filing motions
to vacate in both actions, the DRC joined FG Hemisphere in
moving to consolidate the two cases in district court, the joint
motion noting that “discovery issues will be common in both
actions.” Indeed, since consolidation, discovery has
proceeded in both actions. Finally, in this appeal the DRC
has made no argument that litigation activity in one suit
should not be counted with respect to waiver in the other.
Under these circumstances, we find that the pursuit of a
discovery dispute in one action served to waive defendant’s
service-of-process objection in both actions.
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Accordingly, the judgment of the district court is
Affirmed.