Kaplan v. Hezbollah ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
CHAIM KAPLAN, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 09-646 (RWR)
)
HEZBOLLAH, et al., )
)
Defendants. )
______________________________)
MEMORANDUM ORDER
Plaintiffs attempted to serve defendant Hezbollah by sending
a summons and the complaint by DHL to Mohammed Fneish, a minister
in the Lebanese government and an alleged leader within
Hezbollah. Fneish received the package on March 18, 2010. On
April 12, 2010, plaintiffs filed an affidavit of default as to
Hezbollah, but the Clerk’s Office refused to enter default on the
grounds that under 28 U.S.C § 1608 Hezbollah had sixty days to
answer or otherwise respond to the complaint, and that those
sixty days had not yet elapsed. On April 15, 2010, plaintiffs
filed an ex parte motion to direct the Clerk to enter default as
to defendant Hezbollah, arguing that 28 U.S.C. § 1608 does not
govern Hezbollah’s time to answer, that Hezbollah had been served
under Federal Rules of Civil Procedure 4(f)(2)(C)(ii) and
4(h)(2), and that the 21-day period to answer under Rule
12(a)(1)(A)(i) had expired. Plaintiffs were ordered to
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supplement their motion to explain the basis for asserting that
Fneish is an official of Hezbollah and a proper person upon whom
service may be made on behalf of Hezbollah. On May 17, 2010,
plaintiffs filed a supplemental memorandum and motion stating
that they could not base service of Hezbollah on Rule
4(f)(2)(C)(ii), which does not allow foreign service by mail if
it is prohibited by the foreign country’s law, because they could
not state with certainty that service by DHL did not violate
Lebanese law. Because plaintiffs concede that defendant
Hezbollah has not yet been served under Rule 4(f)(2)(C)(ii),
their motion to direct the Clerk to enter the default of
defendant Hezbollah will be denied.
Plaintiffs instead moved for leave nunc pro tunc to serve
Hezbollah by serving Fneish by DHL under Rule 4(f)(3). Rule
4(f)(3) provides for international service “by other means not
prohibited by international agreement, as the court orders.”
“The rule was ‘adopted in order to provide flexibility and
discretion to the federal courts in dealing with questions of
alternative methods of service of process in foreign
countries[.]’” Smith v. Islamic Emirate of Afg., Nos. 01 CIV
10132 (HB), 01 CIV 10144 (HB), 2001 WL 1658211, at *2 (S.D.N.Y.
Dec. 26, 2001) (quoting In re Int’l Telemedia Assoc., Inc., 245
B.R. 713, 719 (Bankr. N.D. Ga. 2000)). Several courts have
approved of service by publication upon al Qaeda under Rule
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4(f)(3). See Mwani v. bin Laden, 417 F.3d 1, 8 (D.C. Cir. 2005)
(approving service of Osama bin Laden and al Qaeda by publication
under Rule 4(f)(3)); Smith, 2001 WL 1658211, at *3-4 (allowing
service of bin Laden and al Qaeda by publication for six weeks in
four Afghani newspapers, one Pakistani newspaper, and five
broadcast networks). Other service methods, such as service by
email, have also been approved under Rule 4(f)(3) in this
district. See, e.g., Juniper Networks, Inc. v. Bhattab, Civil
Action No. 07-1771 (PLF), 2008 WL 250584, at *1-2 (D.D.C.
Jan. 30, 2008).
Plaintiffs argue that serving Fneish by DHL is “infinitely
more certain to ensure that the defendant actually receives
notice of the action” than service by publication would be.
(Pl.’s Mot. for an Order Pursuant to Fed. R. Civ. P. 4(f)(3) and
Related Relief at 5.) Plaintiffs have submitted with their
motion an affidavit of Yoram Schweitzer, the Director of
Terrorism and Low Intensity Warfare Project at Tel Aviv
University’s Institute for National Security Studies, in which he
opines that “it is simply inconceivable that Fneish would not
convey to the other leaders of Hezbollah an American court
summons addressed to Hezbollah and a civil complaint against
Hezbollah received by him.” (Id., Decl. of Yoram Schweitzer
¶ 22.)
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Courts are divided as to whether service may be authorized
retroactively under Rule 4(f)(3). Compare Export-Import Bank of
U.S. v. Asia Pulp & Paper Co., Ltd., No. 03Civ.8554 (LTS) (JCF),
2005 WL 1123755, at *4-5 (S.D.N.Y. May 11, 2005) (allowing
service under Rule 4(f)(3) nunc pro tunc) with Brockmeyer v. May,
383 F.3d 798, 805-06 (9th Cir. 2004) (refusing to allow service
under Rule 4(f)(3) on the ground that the rule requires
plaintiffs to obtain prior court approval for the alternative
method of service). Marks v. Alfa Group, 615 F. Supp. 2d 375,
380 (E.D. Pa. 2009), authorized service nunc pro tunc by FedEx
under Rule 4(f)(3) after the defendant returned a signed receipt
acknowledging that it had received the summons. Marks
distinguished Brockmeyer on the ground that the plaintiff in
Brockmeyer had placed the complaint and summons in ordinary
international first class mail and had not received a signed
receipt that would have signaled that the defendant had actual
notice of the suit. Marks, 615 F. Supp. 2d at 380.
Here, even though DHL’s tracking service confirmed that
Fneish received the shipment (see Pl.’s Aff. in Supp. of
Default), the plaintiffs have not filed on the docket any proof
that Fneish is authorized to accept service on behalf of
Hezbollah, or any receipt reflecting that Hezbollah as an
organization received the summons and complaint and has actual
notice of the suit. Nor has an attorney representing Hezbollah
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filed a notice of appearance on the docket. Just as in
Brockmeyer, where there was no evidence that the defendants had
received actual notice of the suit, the plaintiffs here will not
be authorized nunc pro tunc to serve Hezbollah by only serving
Fneish by DHL. Instead, plaintiffs will be authorized to serve
Hezbollah by including service by publication. Since Lebanon is
not a party to the Convention on Service Abroad of Judicial and
Extrajudicial Documents in Civil and Commercial Matters, Nov. 15,
1965, 20 U.S.T. 361, T.I.A.S. No. 6638, the Inter-American
Convention on Letters Rogatory, Jan. 30, 1975, 14 I.L.M. 339
(reprinted following 28 U.S.C. § 1781), or Regulation (EC) No.
1393/2007 of October 12, 2003, O.J. (L 331), the combination of
service by DHL on Fneish and service by publication would not
appear to violate any international agreement regarding service
of process and is reasonably calibrated to achieve notice to
Hezbollah. Accordingly, it is hereby
ORDERED that plaintiffs’ ex parte motion [14] to direct the
Clerk to enter the default of defendant Hezbollah be, and hereby
is, DENIED. It is further
ORDERED that plaintiffs’ motion [16] for an Order pursuant
to Fed. R. Civ. P. 4(f)(3) be, and hereby is, GRANTED in part.
Plaintiffs are authorized to complete service upon Hezbollah
within 75 days by publishing full notice of the suit in the three
Lebanese newspapers with the largest national circulation twice
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per week in each newspaper on a staggered schedule to cover six
days each week for a period of four weeks. Plaintiffs shall file
proof of service upon defendant Hezbollah by publication within
75 days.
SIGNED this 7th day of June, 2010.
__________/s/_______________
RICHARD W. ROBERTS
United States District Judge