International Raelian Movement v. Hashem

Filing 32

MEMORANDUM and ORDER signed by Judge Frank C. Damrell, Jr on 7/15/09 ORDERING pltf's Motion for Alternative Service pursuant to FRCP 4(f)(3) 26 is DENIED in part and GRANTED in part. (Carlos, K)

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v. ABDULLAH HASHEM, JOSEPH MCGOWEN, DRAGONSLAYER PRODUCTIONS, HASHEM(S) FILMS, MUSLIMS UNITED TV and DOES IXX, Defendants. ----oo0oo---INTERNATIONAL RAELIAN MOVEMENT, a Foreign Corporation, Plaintiff, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo----

NO. CIV. S-08-687 FCD/DAD MEMORANDUM AND ORDER

This matter is before the court on a motion permitting alternative service of process under Federal Rule of Civil Procedure 4(f)(3) ("FRCP 4(f)(3)"), or alternatively seeking a nunc pro tunc order, validating the service of process on defendant Abdullah Hashem ("defendant" or "Hashem") and his alleged business Hashem(s) Films (sometimes collectively, "defendants") pursuant to FRCP 4(f)(3), filed by plaintiff International Raelian Movement ("plaintiff" or "IRM"). By this

motion, plaintiff asks the court to order, nunc pro tunc, that 1

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defendants have been served, or if the court finds any deficiencies with the service, that it permit plaintiff to correct those deficiencies, or issue any other appropriate order permitting plaintiff to serve defendants by alternative means. For the reasons set forth below, plaintiff's motion is DENIED in part and GRANTED in part. According to its plain

language, service under FRCP 4(f)(3) must be (1) directed by the court, and (2) not prohibited by international agreement. Because the court may not retroactively validate alternative means of service, plaintiff's motion for an order allowing alternative service of process under FRCP 4(f)(3) nunc pro tunc must be DENIED. Nevertheless, the court GRANTS plaintiff's

motion for an order allowing alternative service of process under FRCP 4(f)(3) and gives plaintiff a sixty day extension to serve defendant Hashem and his alleged business Hashem(s) Films.1 BACKGROUND2 This action concerns an alleged scheme of racketeering, fraud, blackmail, and extortion perpetrated against IRM and others by defendants Hashem and Joseph McGowen3 using three false

Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 78-230(h). Because no opposition to plaintiff's motion has been submitted, the court draws the facts from the complaint and plaintiff's motion to permit alternative service. Service was made upon Joseph McGowen on or about April 4, 2008, according to the declaration of plaintiff's attorney Thomas Easton, which was subsequently confirmed by Magistrate Judge Drozd. (Sched. Order, filed March 23, 2009 [Docket # 25], 2.) McGowen, representing himself, submitted a declaration to the court in response to the documents sent by Easton. (Decl., filed June 4, 2008 [Docket # 7].) 2
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front media companies, Dragonslayer Productions, Hashem(s) Films, and Muslims United TV, to obtain property through fraud, disparagement, threats, extortion, blackmail, damage, and conversion of property of plaintiff, and to file false allegations of criminality against plaintiff for profit. at 1-2.) Plaintiff contends that defendants posed as a (Compl.

legitimate media partnership, obtained film footage of plaintiff's operations and members, and used this footage to blackmail plaintiff with threats of violence, disparagement, allegations of criminality, and impugn plaintiff's reputation. (Id. at 2.) Plaintiff contends that as a result of defendants'

actions plaintiff suffered direct damages to its operations in excess of $75,000, including adverse publicity and damage to its reputation, legal fees, conversion of its property, and unauthorized use of its officers' and members' likenesses. Plaintiff seeks replevin of film footage in defendants' possession. In a pretrial scheduling order, Magistrate Judge Drozd left the question open as to whether service of process had been effected on defendants Hashem and Hashem(s) Films. for Alt. Serv. ["PMAS"] at 2.)4 (Pl.'s Mot. (Id.)

Plaintiff submits the following

as evidence that proper service has been accomplished upon defendants:

In his Order, Judge Drozd specifically stated: "Counsel for plaintiff reports that defendant Abdullah Hashem has been properly served. The court expresses no opinion on whether such service has been properly completed. If necessary, that issue will be the subject of further proceedings at the appropriate time." (Sched. Order, filed March 23, 2009 [Docket # 25], at 2.) 3

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(1) The November 5, 2008 Affidavit by Laila Saleh of TCM Egypt, which states: "Abdullah Hashem was traced to American University in Cairo (AUC). initially confirmed by AUC. Hashem's status as a student was We learned from AUC on November 3, AUC

2008, that Abdullah Hashem was no longer a student there.

provided a forwarding phone number for Hashem in the United States." (Id.)

(2) The November 6, 2008 Affidavit of Due Diligence by process server Donn Altmann of Hy Tech Response Inc., stating that Altmann checked Hashem's whereabouts with known Hashem associates McGowen and Danielson, Hashem's former landlord in Indiana, at Hashem's parents' former address, made extensive database searches and unsuccessfully attempted to serve Hashem at his last known address in Indiana. (Id.)

(3) The February 2009 Affidavit by Laila Saleh of TCM Egypt, which states: "We learned on January 12, 2009 that Hashem had returned to American University Cairo, and has presented his student identification card #900/08/9603 and retrieved the package containing the summons, complaint, and other documents from the University mailroom. In my professional opinion, Mr.

Hashem now has notice of the US legal proceedings against him in a manner consistent with local custom and procedure." (Id.)

(4) The February 25, 2009 declaration by process server Donn Altmann of Hy Tech Response Inc., which states that email messages with the court documents5 attached were sent to and According to the declaration of process server Donn Altmann, these papers consisted of: the Notice of Commencement of Action, Cover Sheet, Complaint, and Complaint Exhibits attached as PDF Files. (Dec. Of Serv., filed March 2, 2009 [Docket # 26], 4
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received by Hashem's personal email account and Hashem's email account at www.hashemsfilms.com. (Id. at 3.) Additionally, four

identical email messages were successfully sent to all administrative email addresses associated with the domain www.hashemsfilms.com. (Id.) On November 10, 2008, first class

mail copies of the court documents were mailed to Hashem's official mail forwarding address with the U.S. Postal Service. (Id.) On January 16, 2009 the same information was published in

the Court & Commercial Record newspaper of Indianapolis, Indiana. (Id.) Service by certified mail was had upon the domain

www.hashemsfilms.com on January 20, 2009 via its domain server's address and on its web host server on February 19, 2009. (Id.)

Altmann further stated that a full copy of the complaint was visible on the www.hashemsfilms.com website in April-May 2008. (Id.) ANALYSIS Plaintiff moves for a court order establishing (1) defendant Hashem has been served, (2) defendant entity Hashem(s) Films, www.hashemsfilms.com, has been served, (3) that if any further remedy is required to effect service, the court permit plaintiff to correct such deficiencies via a nunc pro tunc order under FRCP 4(f)(3), or (4) the court issue any other appropriate order permitting alternative service on Hashem and Hashem(s) Films.

at 1-2.) 5

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A.

Alternative Service of Process 1. Applicability of FRCP 4(f)(3)6

Because plaintiff's motion for alternative service depends on the applicability of FRCP 4(f)(3), the court addresses this issue first. FRCP 4(f)(3) reads, in pertinent part: (f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual­other than a minor, an incompetent person, or a person whose waiver has been filed­may be served at a place not within any judicial district of the Untied States: .... (3) by other means not prohibited by international agreement, as the court orders. Fed. R. Civ. P. 4(f)(3). According to its plain language, service under FRCP 4(f)(3) must be (1) directed by the court, and (2) not prohibited by international agreement. Rio Props., Inc. v. Rio Int'l "No other

Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). limitations are evident from the text." Id.

Court-directed

service under FRCP 4(f)(3) is as favored as service available under FRCP 4(f)(1)7 or FRCP 4(f)(2).8
6

Id. at 1015.

No language

The court declines to address plaintiff's argument that service has been made upon Hashem and Hashem(s) Films pursuant to FRCP 4(f)(2), which is only applicable if there is "no internationally agreed means of service." Fed. R. Civ. P. 4(f)(2) (emphasis added). The fact that the Hague Convention is inapplicable to the present case because Hashem's address is unknown does not mean there is "no internationally agreed means of service;" rather, plaintiff can instead seek service under FRCP 4(f)(3). See BP Prods. N. Am., Inc. v. Dagra, No. CIV.A. 3:04CV445, 232 F.R.D. 263 (E.D. Va. Nov. 8, 2005) (finding that if the address of the foreign party to be served is unknown, the Hague Convention does not apply and thus a plaintiff may seek service under FRCP 4(f)(3)). FRCP 4(f)(1) states: "(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service 6
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in FRCP 4(f)(1) or 4(f)(2) indicates their primacy, and FRCP 4(f)(3) includes no qualifiers or limitations which indicate its availability only after attempting service of process by other means. Id. Thus, FRCP 4(f)(3) is merely one means among several

which enables service of process on an international defendant. Id. "[T]rial courts have authorized a wide variety of

alternative methods of service including publication, ordinary mail, mail to the defendant's last known address, delivery to the defendant's attorney, telex, and most recently, email." 1016. Id. at

However, in effectuating service of process under FRCP

4(f)(3), a plaintiff is required to obtain prior court approval for the alternative method of service. Brockmeyer v. May, 383

F.3d 798, 806 (9th Cir. 2004); see also Jenkins v. Pooke, No. C 07-03112, 2009 WL 412987, slip op. at 4 (N.D. Cal. Feb. 17, 2009) (stating that under the plain language of FRCP 4(f)(3), a plaintiff must obtain a court order to effectuate service in the desired fashion).9 Abroad of Judicial and Extrajudicial Documents." 4(f)(1).
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Fed. R. Civ. P.

FRCP 4(f)(2) states: "(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: (A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction; (B) as the foreign authority directs in response to a letter rogatory or letter of request; or (C) unless prohibited by the foreign country's law, by: (i) delivering a copy of the summons and of the complaint to the individual personally; or (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt." Fed. R. Civ. P. 4(f)(2). The court notes that other districts have found that the court may issue an order pursuant to FRCP 4(f)(3) nunc pro tunc, thereby retroactively approving alternative means of service. Marks v. Alfa Group, No. 08-5651, 2009 WL 1312599 (E.D. 7
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In Brockmeyer, the Ninth Circuit held that because the plaintiffs did not seek prior approval of the district court for alternative service under FRCP 4(f)(3), their attempted service was therefore ineffective. court held: Brockmeyer, 383 F.3d at 808-09. The

"[c]ourts have authorized a variety of alternative

methods of service abroad under current Rule 4(f)(3) . . . . [h]owever, in Rio (and in all the cases it cites as applying Rule 4(f)(3)), plaintiffs are required to take a step that the plaintiffs in this case failed to take: They must obtain prior court approval for the alternative method of serving process." Id. at 806. Accordingly, the Ninth Circuit found FRCP 4(f)(3)

inapplicable and refused to retroactively approve the plaintiffs' alternative means of service. Id.

In this case, plaintiff attempted to serve Hashem and Hashem(s) Films both by conventional means in the United States and by alternative methods in the United States and abroad. Plaintiff employed TCM Egypt to locate and serve Hashem in Egypt, which found Hashem's previous location to be the American University in Cairo, to which he later returned and presumably received the court papers left with the University. Plaintiff

also employed process server Donn Altmann to locate and serve Hashem in the United States; Altmann checked Hashem's whereabouts with his known associates, former landlord, parents' former address, various databases, and last known address. Altmann

Pa. May 11, 2009); Exp.-Imp. Bank of U.S. v. Asia Pulp & Paper Co., Ltd., No. 03-8554, 2005 WL 1123755 at *4 (S.D.N.Y. May 11, 2005). Nevertheless, this court is bound by Ninth Circuit precedent that explicitly requires prior court approval before utilizing such alternative means. 8

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further sent electronic copies of the court papers to various email addresses associated with Hashem and his business domain name, as well as sent hard copies of the court papers to the physical address associated with Hashem's domain name. Altmann

also states that a full copy of the complaint was visible on the www.hashemsfilms.com website in April-May 2008. However,

plaintiff did not follow proper protocol under FRCP 4(f)(3) by obtaining a prior court order for its alternative methods of service. Under controlling Ninth Circuit authority, this court See

cannot retroactively approve of these methods nunc pro tunc. Brockmeyer, 383 F.3d at 806.

Because plaintiff did not follow the procedure described in FRCP 4(f)(3) by seeking the approval of the court before utilizing alternative means of service, the attempted service on Hashem and Hashem(s) Films was therefore ineffective, and plaintiff's motion for a nunc pro tunc order approving of these methods is DENIED. 2. Reasonableness of Plaintiff's Methods of Service

Although plaintiff may not retroactively seek court approval of its alternative methods to effect service upon defendants, the court nevertheless considers the reasonableness of the methods used by plaintiff in considering plaintiff's alternative motion for a court order allowing alternative service of process under FRCP 4(f)(3).10 The court recognizes that the effect of granting this motion will be to require plaintiff to undertake the redundant act of re-serving defendants in the same manner already undertaken. Nevertheless, such is the consequence of failing to heed the plain language of FRCP 4(f)(3) and controlling Ninth Circuit authority, requiring prior court approval of alternative 9
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Even if facially permitted by FRCP 4(f)(3), "a method of service of process must also comport with constitutional notions of due process." Rio, 284 F.3d at 1016. "To meet this

requirement, the method of service crafted by the district court must be `reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Id.

"[T]he Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond." at 1017. In Rio, the Ninth Circuit approved of the plaintiff's alternative service via email in light of the variety of conventional means by which the plaintiff had previously attempted to serve defendant. Rio, 284 F.3d at 1016. In that Id.

case, the plaintiff had first attempted to serve the defendant in the United States via the address used to register the defendant's domain name and through the defendant's lawyer. Id.

When that failed, the plaintiff made a diligent search for the defendant in the defendant's native country. Id. After these

efforts likewise failed, the Ninth Circuit approved of email service because it appeared that email was the only method of contacting the defendant, and because the court concluded that email was reasonably calculated to apprise the defendant of the pending suit in comport with due process. Id. at 1017.

methods of service. 10

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In this case, plaintiff likewise attempted to serve Hashem and his alleged business Hashem(s) Films through a variety of conventional methods in addition to email service to Hashem's various personal and business email accounts. In conjunction

with the service apparently made on Hashem at the American University in Cairo by TCM Egypt on January 12, 2009, plaintiff utilized the services of Donn Altmann, who inquired as to Hashem's whereabouts with defendant's associates, former landlord, through various database searches, and at his last known address. As none of these methods were successful, Altmann

attempted to serve Hashem and Hashem(s) Films by emails sent to Hashem's personal email address, his business email address, and to four administrative email addresses also associated with www.hashemsfilms.com. Altmann also observed the entire complaint

posted on www.hashemsfilms.com for at least 30 days between April and May 2008. Sometime after November 10, 2008, physical copies

of the court papers were sent via the U.S. Postal Service to Hashem's forwarding address listed with the U.S. Postal Service. Physical copies of the court papers were also mailed to the physical addresses associated with the domain www.hashemsfilms.com and the hosting servers in January and February of 2009, respectively. Furthermore, a copy of the court

papers was published in the Court & Commercial Record located in Indianapolis, Indiana on January 16, 23, and 30 of 2009. As in

Rio, plaintiff utilized a wide variety of means in its attempt to locate and serve Hashem and Hashem(s) Films within the United States and Egypt, of which the attempts to mail the court papers electronically by email and physically through the U.S. Postal 11

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Service were apparently successful.

Thus, in light of

plaintiff's concerted effort to locate and serve defendant, the court finds that the alternative methods of service undertaken by plaintiff were reasonably calculated to apprise defendants with notice of the pendent action. Accordingly, the court approves of plaintiff's alternative methods of service under FRCP 4(f)(3) and finds that any of these means will be sufficient in plaintiff's efforts to re-serve Hashem and Hashem(s) Films. B. Extension of Service of Process

The court grants plaintiff sixty days to effectuate service on Hashem and Hashem(s) Films through any of the aforementioned means. CONCLUSION For the foregoing reasons, plaintiff's motion for alternative service pursuant to FRCP 4(f)(3) is DENIED in part and GRANTED in part. IT IS SO ORDERED. DATED: July 15, 2009 ____________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT COURT

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