OWEN v. SPORTS GYMNASTICS FEDERATION OF RUSSIA

Filing 6

ORDER denying 4 Motion for Service. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CHARLES ALAN OWEN,
Plaintiff
v.
SPORTS GYMNASTICS FEDERATION
OF RUSSIA,
Defendant

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) 1:12-cv-00034-NT
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ORDER RE: ALTERNATIVE SERVICE
Claiming that the Sports Gymnastics Federation of Russia consented to the jurisdiction of
the courts of the United States when it registered its internet domain name, russiangymnasts.net,
through a Houston, Texas, company, Charles Alan Owen has brought suit against the association
in this court, alleging common law fraud, violation of the Lanham Act, and also alleging
violations of the Russian Civil Code and perhaps the Russian constitution. Owen seeks
declaratory and injunctive relief relating to the defendant’s use of websites as the “official”
website of certain Russian gymnasts, as well as monetary damages. Perhaps frustrated by his
attempt to proceed through other channels in order to obtain a judicial ruling1, Owen has filed a
motion in this court seeking authorization to make alternative service by serving the defendant
through its e-mail address and by faxing a copy of the complaint to its headquarters in Russia. I
now deny the motion without prejudice to Owen’s right to resubmit a similar motion in the event
certain conditions discussed herein have been met.
Rule 4(h) governs service upon a corporation, partnership, or association such as the
defendant, which is identified as a public organization registered in the Russian Federation. Rule
1

Owen describes an aborted attempt to file suit in an American court about one year ago and he also
describes an unsuccessful attempt to bring suit in the Russian courts. He provides scant information about what
attempts he has made to have the Federation served in Russia by means other than e-mail and fax.

4(h)(2) provides that when service is to be accomplished upon such an organization at a place not
within any judicial district of the United States, the plaintiff must use one of the means of service
authorized for service upon an individual in a foreign country, except that the rule specifically
disallows service by delivering a copy of the summons and complaint to the individual
personally under Rule 4(f)(2)(C)(i). The means of service authorized under Rule 4(f) include the
following: (1) “any internationally agreed means of service that is reasonably calculated to give
notice,” such as the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents; (2) in the absence of an internationally agreed means, any method “that is
reasonably calculated to give notice” that is prescribed by the foreign country’s law, that is
pursuant to the foreign authority’s direction, or that is not prohibited by the foreign country and
involves personal service or uses a form of mail that the clerk addresses and sends to the
individual and that requires a signed receipt; or (3) “by other means not prohibited by
international agreement, as the court orders.” Fed. R. Civ. P. 4(f).
Owen explains that there is an apparently longstanding dispute between the Russian
Federation and the United States Department of State over the Russian government’s suspension
of American requests for assistance with service under the Hague Convention. He has attached
to his motion a State Department letter dated May 19, 2005, that explains the dispute has existed
since 2003. (Doc. No. 4-1.) By attaching this letter, I assume Owen is representing to this court
that the use of the Russian central authority under the Hague Convention remains unavailable to
him and he is unable to complete service under any internationally agreed means of service. I
note that the State Department advised Owen in 2005 that if a private litigant wanted to make
service on a Russian organization, the litigant would be well advised to confer with Russian
counsel as to the legal means available for service.

2

Owen has failed to provide me with any information about the method of service that is
prescribed by Russian law by the courts of general jurisdiction within Russia. Nor has he
indicated whether Russia has directed that service be made in a particular manner. Nor has he
indicated a method of service, not prohibited in Russia, that would result in a signed receipt. Of
course, it would be beyond the scope of my order to attempt to ascertain the parameters of
Russian law regarding service. The validity of any service this Court ultimately authorized
would presumably be tested under Russian law if Owen ever sought to enforce any judgment he
might obtain against the defendant. It is apparent, however, that Owen does not invoke the
provisions of Rule 4(f)(1) or (2) by this motion, nor would Owen necessarily be required to
invoke those provisions in order to effectuate service—if his motion supported his contention
that alternative service was required.
Instead, Owen is relying upon the provisions of Rule 4(f)(3) and asking this court to order
alternative service in the form he has suggested, representing that fax and e-mail service of
English language documents in Russia is not prohibited by international agreement. Obviously,
this Court would normally expect that service would be accomplished in accordance with the
Hague Convention. Owen has not satisfied me that the Russian/American dispute over the
Hague Convention’s provision regarding service costs still exists, since the most recent
information he provides is the 2005 letter from the United States Department of State to one
Dennis Moran in Seattle, Washington. Judging from the documentation enclosed, it does not
appear that the matter involving Moran is related in any way to the present litigation. Indeed,
one of the cases Owen cites notes that ordering service under Rule 4(f)(3) would be prohibited in
contravention of an international agreement if the Hague Convention protocols were in play. Rio
Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1015 n. 4 (9th Cir. 2002).

3

In this case, Owen has represented to the Court that both the Russian Federation and the
United States of America are now signatories to the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents, presenting a different factual background than the one
presented in Forum Financial Group, LLC v. President, Fellows of Harvard College, 199 F.R.D.
22, 23 n. 1 (D. Me. 2001) (noting that Russia was not a signatory in 2001). Furthermore, Owen’s
motion does not articulate what attempts, if any, he has made through Russian counsel to make
more traditional service on the association at its usual place of business in Russia. There is no
suggestion that the Federation is attempting to evade service. Finally, it is not clear to me that
Owen’s suggestion that he can serve process in Russia without translating the complaint and
summons documents into Russian is indeed service that is “not prohibited by international
agreement” as required under Rule 4(f)(3). If Owen can provide me with satisfactory
documentation, including affidavits and/or declarations, that the Hague Convention dispute
between the United States and the Russian Federation continues and the Hague Convention
protocols are not a viable means of service, that he has attempted more traditional service in
Russia by consultation with Russian individuals knowledgeable in Russian law, and that
international agreements do not require the service documents to be translated into the official
language of the foreign country, he may resubmit his motion for alternative service for
reconsideration. Until such time as I am satisfied on these issues, the motion is denied.

CERTIFICATE
Any objections to this Order shall be filed in accordance with Federal Rule of Civil
Procedure 72.
So Ordered.
January 31, 2012

/s/ Margaret J. Kravchuk
U.S. Magistrate Judge

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