Opinion
20cv4769 (JSR)
2020-09-17
Sergey Viktorovich PAUSHOK, Plaintiff, v. Tordai GANBOLD, et al., Defendants.
Kevin F. Murphy, Wuersch & Gering LLP, New York, NY, for Plaintiff. Mitchell J. Geller, Warren Ernest Gluck, Holland & Knight LLP, New York, NY, for Defendant Batzorig Baatar. Erik Bradley Weinick, Otterbourg P.C., New York, NY, for Defendant Ganbold Tordai.
Kevin F. Murphy, Wuersch & Gering LLP, New York, NY, for Plaintiff.
Mitchell J. Geller, Warren Ernest Gluck, Holland & Knight LLP, New York, NY, for Defendant Batzorig Baatar.
Erik Bradley Weinick, Otterbourg P.C., New York, NY, for Defendant Ganbold Tordai.
MEMORANDUM ORDER
JED S. RAKOFF, U.S.D.J. Now before the Court is Plaintiff Sergey Viktorovich Paushok's unopposed motion for "substituted service" pursuant to Fed. R. Civ. P. 4(f)(3), ECF No. 17.
On August 13, this Court held a second initial pretrial conference in this matter. At that conference, Warren E. Gluck and Mitchell J. Geller stated that they were appearing on behalf of Oleg Titarenko, Vladimir Protasov, Alexander Muranov (collectively, the "Individual Russian Defendants"), and Gazprombank JSC ("GPB"; all together, the "Russian Defendants") to contest the Court's jurisdiction over the Russian Defendants. Paushok conceded that he had not served the Russian Defendants and sought leave to file a motion for substituted service. The Court permitted such a filing by August 21, 2020, with a response, if any, to be filed by August 28, 2020. Paushok timely filed a motion for substituted service, along with a declaration. ECF Nos. 17-19. He subsequently corrected the declaration, ECF No. 28, and on September 11, 2020, he supplemented it at the Court's request.
Paushok moves for authorization to serve the Russian Defendants by email, or, in the alternative, by email and by service upon their counsel, Holland & Knight.
BACKGROUND
Paushok asserts the following in his sworn declarations. He resides in Latvia, where he has attempted to locate the residential addresses of the Russian Individual Defendants through public sources, without success. ECF No. 28-1, ¶ 3. Paushok has communicated with the Individual Russian Defendants using their work email addresses over the years, both sending and receiving emails from those addresses. Id. ¶¶ 4-6. Paushok "understand[s] each of the[ ] [I]ndividual [Russian] Defendants continues to work at Gazprombank JSC," id. ¶ 3, and that "[t]he email address of Gazprombank JSC is mailbox@gazprombank.ru," id. ¶ 7.
The addresses are: oleg.titarenko@gazprombank.ru, vladimir.protasov@gazprombank.ru, and alexander.muranov@gazprombank.ru.
Paushok met Muranov in person in 2009, when Muranov handed him a business card with his email address. ECF No. 30, ¶ 2. In January or February 2011, he met all three Individual Russian Defendants in person, and each handed him a business card with his email address. Id. ¶ 4. Throughout his communications with GPB and its employees, all employees had email addresses of the form "first name.last name@gazprombank.ru." Id. ¶ 3.
ANALYSIS
The Federal Rules of Civil Procedure permit service outside the United States through three methods. The first, an "internationally agreed means of service" such as the Hague Convention, does not apply here. Although Russia and the United States have both signed the Hague Convention, "[i]n July 2003, Russia unilaterally suspended all judicial cooperation with the United States in civil and commercial matters," and Russia continues to return all civil Hague Convention requests unexecuted.
U.S. State Department, Russia Judicial Assistance Information, available at https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/RussianFederation.html (last accessed September 15, 2020).
The second method of service is, where permitted by international agreement, to follow the foreign country's law or the directions of a foreign authority; or, if permitted by the country's law, to use in-person service or service by mail. Fed. R. Civ. P. 4(f)(2). The third method of service is "other means not prohibited by international agreement, as the court orders." Fed. R. Civ. P. 4(f)(3).
Although Paushok styles his motion a motion for "substitute service," that is not truly what he seeks. Rule 4(f)(3) does not offer a "substitute" for some other form of service, because Rule 4 does not impose an exhaustion requirement upon plaintiffs before they may request service under Rule 4(f)(3). Compare Fed. R. Civ. P. 4(f)(3) (authorizing service by "other means not prohibited by international agreement, as the court orders") with New York C.P.L.R. § 308(5) (authorizing service "in such manner as the court, upon motion without notice, directs, if service is impracticable under [certain other methods]") (emphasis added). This Court therefore concurs with other courts that have held that "service of process under Rule 4(f)(3) is neither a last resort nor extraordinary relief. It is merely one means among several which enables service of process on an international defendant." Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015 (9th Cir. 2002) (alterations and citation omitted); see Elsevier, Inc. v. Siew Yee Chew, 287 F. Supp. 3d 374, 377–78 (S.D.N.Y. 2018) (collecting cases).
Here, because Paushok avers that he cannot ascertain defendants’ residential addresses, and given Russia's apparent unwillingness to permit service by mail through the Hague Convention, the Court agrees that service of process upon the Individual Russian Defendants under Rule 4(f)(3) is appropriate.
The Court must assess whether Paushok's proposed method of service comports with constitutional due process -- i.e., whether such service would be "reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
Service upon the email addresses alone would not comport with due process. Despite the Court's request for a supplemental declaration, Paushok's testimony lacks pertinent details. He states that he corresponded with Titarenko at his email address as late as approximately April 2015, id. ¶ 5, and with Protasov at his email address as late as approximately May or June 2015, id. ¶ 6. However, he does not state when he last corresponded with Muranov. And, while Paushok reiterates that the Individual Russian Defendants "continue to work at GPB," he neglects to state the basis for this assertion. Id. ¶ 7. Finally, although Paushok does aver that he and his counsel regularly corresponded with GPB, including by email, during the period 2007 to 2009, he does not directly state why he believes GPB's email address to be mailbox@gazprombank.ru. Id. ¶ 3.
Given that the individual email addresses were directly affiliated with the Individual Russian Defendants across a span of several years at least, and absent any indication that the Individual Russian Defendants have left GPB's employ, service by email is a step in the right direction. However, Paushok has offered no evidence that the Individual Russian Defendants have used these addresses in the past five years, except for a vague, unsupported assertion that they still work for GPB. Likewise, his allegation that "[t]he email address of Gazprombank JSC is mailbox@gazprombank.ru," ECF No. 28-1, ¶ 7, is conclusory.
Therefore, the Court turns to Paushok's alternative request that he be permitted to serve the Russian Defendants both by email and through service upon their counsel, Holland & Knight. Because that Firm appeared in this Court on the Russian Defendants’ behalf to contest jurisdiction, it is reasonable to believe that Holland & Knight can and will contact its clients to pass along the Summons and Complaint in this action. Therefore, the Court concludes that service by email and by mail to the Russian Defendants’ counsel is "reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S. at 314, 70 S.Ct. 652.
The Court recognizes defense counsel's somewhat awkward position. By appearing on a defendant's behalf to contest service, counsel thereby facilitates service. But this dilemma is compelled by the Federal Rules. The purpose of the service-of-process requirement is not to invite gamesmanship but rather to ensure that a defendant is notified of the pendency of the action and the consequences of failing to respond. When defense counsel appears, the Court may more easily assure itself of defendants’ awareness of the action by permitting service upon those defendants through counsel. This should not discourage appearance. Defense counsel are generally better able to represent their clients’ interests by appearing in an action than by evading service. Appearing is also consistent with attorneys’ and their clients’ duties to avoid expense and delay. Cf. Fed. R. Civ. P. 4(d)(1) (articulating defendants’ "duty to avoid unnecessary expenses of serving the summons").
For the foregoing reasons, the Court grants Paushok's motion, ECF No. 17. Paushok may serve the Russian Defendants no later than September 18, 2020, by emailing a copy of the summons and complaint to oleg.titarenko@gazprombank.ru, vladimir.protasov@gazprombank.ru, alexander.muranov@gazprombank.ru, and mailbox@gazprombank.ru, and by depositing four copies in the U.S. mail, return receipt requested, one addressed to each of the Russian Defendants, c/o Holland & Knight, at Holland & Knight's business address.
At least one court has found that Rule 4(f) does not apply when the defendant to be served is located abroad but "[p]laintiffs wish to serve process within the United States." Kuklachev v. Gelfman, No. 08-CV-2214 (CPS), 2008 WL 5068860, at *2 (E.D.N.Y. Nov. 24, 2008). In Kuklachev, plaintiffs sought to serve international defendants by service upon an American corporation and American attorneys. Therefore, the court held that Rule 4(e), rather than Rule 4(f), controlled. Id. However, here the Court orders service upon both Russian email addresses and American attorneys. Because this service is not strictly domestic, even if Kuklachev was correctly decided -- an issue the Court need not and so does not reach -- its reasoning is inapposite here.
SO ORDERED.