Ofisi v. Bnp Paribas S.A., Civil Action No. 2015-2010

Background

Plaintiffs filed suit on November 17, 2015 against BNPP and Al Shamal alleging conspiracy to evade U.S. Sudan sanctions and that the 1998 embassy bombings were related; claims included ATA, ATS, and common-law torts.
BNPP was served and moved to dismiss; on September 29, 2017 the court dismissed all claims against BNPP for failure to state a claim and sua sponte dismissed without prejudice claims against Al Shamal for lack of any affidavit of service after nearly two years.
Plaintiffs moved to vacate the portion of the September 29 Order dismissing Al Shamal and sought 90 days to complete service, arguing some common-law claims would become time-barred if dismissal stood.
The court treated the motion as one for reconsideration under Rule 54(b) (interlocutory order), not Rule 60(b), because the dismissal without prejudice did not resolve all claims against Al Shamal and was thus non-final.
Plaintiffs disclosed new facts: they had attempted service via U.S. counsel (Martin McMahon) shortly after filing and sent a waiver-of-service letter; communications indicated McMahon might accept service if retained, but plaintiffs then had a lengthy period of inactivity.
The court found (1) plaintiffs’ initial approach was reasonable, (2) there remained a reasonable prospect of obtaining service, and (3) plaintiffs would be harmed because some common-law claims’ statutes of limitations had or would run; the court vacated the dismissal as to Al Shamal and gave plaintiffs until April 12, 2018 to serve Al Shamal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 60(b) relief is available to vacate interlocutory dismissal without prejudice	Rule 60(b) should apply because dismissal would effectively be final as statute of limitations bars refiling of common-law claims	The September 29 Order was interlocutory and Rule 60(b) is inapplicable	Court declined Rule 60(b); treated motion as Rule 54(b) reconsideration
Whether reconsideration under Rule 54(b) is warranted to vacate dismissal for failure to serve	Plaintiffs showed new facts (attempted service via U.S. counsel) and prejudice if barred by statutes of limitations	Implicit: dismissal for failure to prosecute was proper given almost two years without proof of service	Court granted reconsideration under Rule 54(b) because new facts and prejudice justified relief
Whether dismissal without prejudice for failure to serve was appropriate under dismissal-for-prosecution standards	Plaintiffs argued initial service efforts were reasonable and service remains reasonably attainable	Court initially dismissed sua sponte for lack of any affidavit of service after lengthy delay	Court concluded dismissal without prejudice was understandable on prior record but reinstated claims because reasonable prospect of service remained and plaintiffs would suffer prejudice
Whether additional time to effect service would prejudice Al Shamal	Plaintiffs argued Al Shamal was likely aware of the action via McMahon and would not be prejudiced	Defendant argued (implicitly) that delay justified dismissal	Court found no apparent unfair prejudice to Al Shamal and granted limited additional time to serve

Key Cases Cited

Peterson v. Archstone Cmtys. LLC, 637 F.3d 416 (D.C. Cir.) (district courts may dismiss for failure to prosecute but dismissal is a harsh sanction reserved for egregious delay)
Angellino v. Royal Family Al-Saud, 688 F.3d 771 (D.C. Cir.) (dismissal for failure to serve appropriate only when no reasonable probability service can be obtained or prolonged inactivity exists)
Novak v. World Bank, 703 F.2d 1305 (D.C. Cir.) (dismissal not warranted where reasonable prospect service could yet be obtained)
Barot v. Embassy of the Republic of Zambia, 785 F.3d 26 (D.C. Cir.) (district court abused discretion in dismissing for failure to effect service when plaintiff would be barred by statute of limitations and defendant showed no prejudice)
Cobell v. Jewell, 802 F.3d 12 (D.C. Cir.) (Rule 54(b) is the vehicle to reconsider interlocutory orders while case is ongoing)
Smith-Bey v. Cripe, 852 F.2d 592 (D.C. Cir.) (dismissal for failure to prosecute not warranted where service still probable)
Lucas v. District of Columbia, 214 F. Supp. 3d 1 (D.D.C.) (analyzing reconsideration of non-final dismissal under Rule 54(b))