Summary
denying plaintiff's request to serve Sri Lankan defendant by publication where plaintiff "vaguely claim[ed] to have made arrangements (or attempted to have made arrangements) to personally serve defendant upon two of his visits to foreign countries, but ... [did] not suggest that he ha[d] actually carried out an attempt to serve defendant"
Summary of this case from Honig v. Cardis Enters. Int'l N.V.Opinion
11 Civ. 6634 (NRB)
01-31-2012
VATHSALA DEVI, Plaintiff, v. MAHINDA RAJAPASKA, Defendant.
Attorney for Plaintiff: Visuvanathan Rudrakumaran, Esq. 875 Avenue of the Americas Suite 1001 New York, NY 10001
MEMORANDUM AND ORDER
In the instant motion, plaintiff Vathsala Devi requests that the Court authorize service by publication notice pursuant to Federal Rule of Civil Procedure 4(f)(3). For the reasons stated below, plaintiff's motion is denied.
BACKGROUND
Plaintiff brings suit under the Alien Tort Statute, 28 U.S.C. § 1350, against defendant Mahinda Rajapaska, the sitting President of the Democratic Socialist Republic of Sri Lanka.
Plaintiff claims to have initiated efforts to personally serve defendant on two occasions. First, plaintiff claims that upon learning that defendant would be attending a meeting at a Buddhist Temple in Queens in September 2011, plaintiff "made arrangements to effect [] service at that time," but "[d]efendant did not show up as planned." (Mot. to Serv. Def. by Alternative Means Not Prohibited by Int'l Agreement ¶ 6.) Second, plaintiff claims that when defendant attended a meeting in Australia in October 2011, plaintiff "contacted lawyers in Australia and explored the possibility of serving [defendant]," but "due to time restraint [plaintiff] was not able to effect the service." (Id. ¶ 7.)
Plaintiff also contends that attempting to serve defendant through the traditional means of service on a foreign defendant - through the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the "Hague Convention") - would be futile in this case. Plaintiff bases this assessment on the events that have transpired in a contemporaneous suit against President Rajapaksa in the District Court for the District of Columbia. See Manoharan v. Rajapaksa, No. 11-235 (CKK) (D.D.C.) (the "D.C. Action"). The plaintiff in that matter attempted to serve President Rajapaksa via the Hague Convention, but the central authority for Sri Lanka officially declined the request, citing Article 13 of the Hague Convention. See id., Dkt. No. 5. Plaintiff notes that the district court in the D.C. Action authorized service by publication notice following the unsuccessful attempt to serve President Rajapaksa through the Hague Convention. See id., Dkt. No. 7.
DISCUSSION
Rule 4(f)(3) permits a court to authorize a means of service on a foreign defendant so long as that means of service is not prohibited by international agreement and comports with constitutional notions of due process. SEC v. Anticevic, No. 05 CV 6991 (KMW), 2009 WL 361739, at *3 (S.D.N.Y. Feb. 13, 2009). Although not explicitly provided for in the Rule, district courts in this Circuit generally impose two additional threshold requirements before authorizing service under Rule 4(f)(3): (1) a showing that the plaintiff has reasonably attempted to effectuate service on the defendant, and (2) a showing that the circumstances are such that the court's intervention is necessary. See, e.g., Madu, Edozie & Madu, P.C., v. Socketworks Ltd. Nigeria, 265 F.R.D. 106, 115 (S.D.N.Y. 2010); Prediction Co. v. Rajgarhia, No. 09 Civ. 7459 (SAS), 2010 WL 1050307, at *1 (S.D.N.Y. Mar. 22, 2010); Anticevic, 2009 WL 361739, at *3; Export-Import Bank v. Asia Pulp & Paper Co., No. 03 Civ. 8554 (LTS)(JCF), 2005 WL 1123755, at *4 (S.D.N.Y. May 11, 2005)
Here, plaintiff has failed to satisfy the first of these threshold requirements. Plaintiff vaguely claims to have made arrangements (or attempted to have made arrangements) to personally serve defendant upon two of his visits to foreign countries, but plaintiff does not suggest that he has actually carried out an attempt to serve defendant. More importantly, unlike the plaintiff in the D.C. Action, plaintiff has not attempted to serve defendant through the Hague Convention, the traditional mechanism for effectuating service abroad.
While we recognize the distinct possibility that service through the Hague Convention will prove unsuccessful, we believe that requiring use of the Convention is nevertheless important in this instance. Namely, a formal effort to serve defendant through the Hague Convention will ensure that defendant has actual notice of the suit - a particularly important consideration given the diplomatic implications of this action. We note that in the D.C. Action, President Rajapaksa requested that the district court solicit the views of the United States with regard to his possible immunity from suit, and the court in turn ordered that the United States express whether it wished to take such a position. See D.C. Action, Dkt. Nos. 9, 10. On January 13, 2012, the United States filed a Suggestion of Immunity in the case. See id., Dkt. No. 12.
Although any such intervention in the instant suit is yet to be determined, we find it prudent to require that a formal effort to serve defendant be made in the first instance, thereby ensuring that all interested parties are provided notice of the suit. Thus, before we will consider alternative forms of service, plaintiff must utilize the provisions of the Hague Convention.
CONCLUSION
For the reasons stated above, plaintiff's motion is denied. Plaintiff is ordered to file a report with the Court by March 31, 2012, indicating the status of its effort to serve defendant through the Hague Convention.
SO ORDERED.
Dated: New York, New York
January 31, 2012
/s/_________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE Copies of the foregoing Memorandum and Order have been mailed on this date to the following: Attorney for Plaintiff:
Visuvanathan Rudrakumaran, Esq.
875 Avenue of the Americas
Suite 1001
New York, NY 10001