Lisa Ballantine v. Dominican Republic
20-7086
| D.C. Cir. | Oct 22, 2021Background
- Lisa and Michael Ballantine sought arbitration against the Dominican Republic over a real-estate development dispute before the Permanent Court of Arbitration (PCA) in Washington, D.C.
- The PCA concluded it lacked jurisdiction because the Ballantines were predominantly Dominican citizens; the arbitral award was delivered on September 3, 2019.
- Under the Federal Arbitration Act (FAA) § 12, a motion to vacate an award must be "served" on the adverse party within three months of the award; service on a foreign state must comply with the Foreign Sovereign Immunities Act (FSIA) procedures, 28 U.S.C. § 1608.
- The Ballantines filed a motion to vacate on December 3, 2019 (the three‑month filing deadline) but attempted service by (1) mailing/hand-delivering to the Dominican Republic’s arbitration counsel, (2) emailing the Minister of Industry and Commerce, and (3) using a Dominican bailiff to serve the Ministry — none complied with § 1608(a)(3).
- Proper FSIA service via the court clerk under § 1608(a)(3) was requested only on January 8, 2020 and effectuated January 24, 2020—after the three‑month period; the district court denied the petition to vacate for failure to effect timely service, and the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filing the motion satisfies FAA § 12's requirement that the motion "must be served" within three months | Ballantine: "must be served" should be read to mean only "filed," so filing on Dec 3 met the deadline | Dominican Republic: § 12 requires actual service; where adverse party is abroad, FSIA service rules apply | Held: "must be served" requires actual service; filing alone is not enough (filing does not satisfy § 12) |
| Whether the Ballantines' attempted service methods complied with FSIA § 1608(a)(3) | Ballantine: service on counsel, email, and local bailiff were sufficient or reasonable attempts | Dominican Republic: those methods do not follow the exclusive FSIA procedure (§ 1608(a)(3)) | Held: Attempts did not conform to § 1608(a)(3); proper service occurred after the deadline |
| Whether equitable tolling excuses late service under FAA § 12 | Ballantine: equitable tolling should apply due to practical difficulties and delay | Dominican Republic: equitable tolling unavailable or not warranted; Ballantines were not diligent | Held: Court uncertain whether tolling is available; even if available, Ballantines are not entitled to it because they were not diligent and faced no extraordinary, uncontrollable obstacle |
| Whether policy concerns about the short three‑month deadline or foreign-state refusal to accept service justify relief | Ballantine: three months is outdated and risks unfairness if a foreign state avoids service | Dominican Republic: statutory scheme already addresses refusal (diplomatic channels and Secretary of State transmission) | Held: Policy objections rejected; FSIA provides fallbacks (§ 1608(a)(4) and (c)) and court cannot rewrite statutory deadlines |
Key Cases Cited
- Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148 (D.C. Cir. 1994) (FSIA sets exclusive procedures for serving a foreign state)
- Argentine Republic v. Nat'l Grid PLC, 637 F.3d 365 (D.C. Cir. 2011) (holding timely service, not merely filing, is required under FAA § 12)
- Webster v. A.T. Kearney, Inc., 507 F.3d 568 (7th Cir. 2007) (interpreting "must be served" to require actual service)
- Young v. Sec. & Exch. Comm'n, 956 F.3d 650 (D.C. Cir. 2020) (elements for equitable tolling: diligence and extraordinary circumstances)
- Move, Inc. v. Citigroup Glob. Mkts., Inc., 840 F.3d 1152 (9th Cir. 2016) (discussing availability of tolling in the FAA § 12 context)
- Florasynth, Inc. v. Pickholz, 750 F.2d 171 (2d Cir. 1984) (contrasting precedents on extending FAA § 12 deadlines)