Democratic National Committee v. The Russian Federation et al

Filing 137

MOTION to Serve Defendant Paul J. Manafort, Jr. by First Class Mail and Email to His Criminal Attorneys. Document filed by Democratic National Committee. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D)(Eisenkraft, Michael)

Case 1:18-cv-03501-JGK Document 137 Filed 07/16/18 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------- X
DEMOCRATIC NATIONAL COMMITTEE,
Plaintiff,

Civil Action No. 1:18-cv-03501 (JGK)

v.
THE RUSSIAN FEDERATION et al.,
Defendants.
------------------------------------- X
MOTION TO SERVE DEFENDANT PAUL J. MANAFORT, JR. BY FIRST CLASS
MAIL AND EMAIL TO HIS CRIMINAL ATTORNEYS
Plaintiff DNC (“Plaintiff”) respectfully requests permission to serve the Complaint on
Defendant Paul J. Manafort, Jr. (“Manafort”) by: (a) sending it via first class mail it to the
Alexandria Detention Center where Manafort is in currently located; and (b) sending it via first
class mail and email to his criminal defense counsel. This procedure is the best available method
for serving Manafort while he is in federal custody.
I. Procedural History
Plaintiff filed this case on April 20, 2018 and has since been working diligently to serve
the Defendants. On May 2, 2018, Plaintiffs mailed service waivers to the Defendants with
addresses in the United States, including Manafort, but Manafort did not return the waiver by the
June 2, 2018 deadline. Plaintiff therefore retained Capitol Process Services, Inc. (“CPS”) to
serve Manafort at his home in Palm Beach Gardens, Florida. On June 14, 2018, CPS reported
that it had attempted to serve Manafort several times by knocking at the door and/or ringing the
doorbell, looking for signs of Manafort’s car in the driveway, and speaking with the security
personnel who guard Manafort’s residence, but they were unsuccessful. (Ex. A).

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Plaintiff knew that Manafort had a scheduled court appearance at the E. Barrett
Prettyman Courthouse in Washington, D.C. on June 15, 2018 (because the hearing was widely
reported by the media). Plaintiff therefore asked CPS whether it would be feasible to serve
Manafort on his way into the courthouse, but CPS concluded that it would not be. (Ex. B).
At the June 15 hearing, the U.S. District Court for the District of Columbia ordered that
Manafort be held in federal custody while he awaits his criminal trial. When Plaintiff learned
that Manafort had been detained in the Northern Neck Regional Jail in Warsaw, Virginia, it
asked CPS if Manafort could be served there. (Ex. B). On June 19, 2018, CPS contacted the
U.S. Marshal’s Office in Richmond, Virginia, and was informed that inmates being held under
federal statute cannot be made available to accept process in a civil case. (Ex. B).
Between June 19, 2018 and July 9, 2018, CPS tried to serve the Complaint at Manafort’s
Florida residence two more times. (Ex. C). While CPS servers saw a car in Manafort’s
driveway, they were not able to serve the complaint on anyone inside the house. (Ex. C). CPS
also tried to serve the complaint at Manafort’s residences in New York and Virginia. (Exs. B, D).
However, CPS was informed by security personnel at the New York residence that Manafort has
not lived there for over a year. (Ex. D). CPS also attempted service on Manafort’s Virginia
home three times, but the security guard refused to let the process server up to Manafort’s
apartment. (Ex. B). The guard called the apartment and the listed assistants for Mr. Manafort,
but no one was able to accept service on his behalf. (Ex. B).
On July 10, 2018, Manafort was transferred to a jail in Alexandria, Virginia so that he
could be closer to his trial counsel.1

1

Order, United States v. Manafort, 18-cr-00083 (July 10, 2018), ECF No. 120.
2

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II. Analysis
Federal Rule of Civil Procedure 4(e) outlines four acceptable procedures for serving a
summons and complaint: (1) “delivering a copy of the summons and of the complaint to [a
defendant] personally”; (2) “leaving a copy of each at the [defendant’s] dwelling or usual place
of abode with someone of suitable age and discretion who resides there”; (3) “delivering a copy
of each to an agent authorized by appointment or by law to receive service of process”; and (4)
“following state law for serving a summons in an action brought in courts of general jurisdiction
in the state where the district court is located or where service is made.” The first three
procedures are currently unavailable to serve Manafort. The Marshals will not produce Manafort
to be served personally. (Ex. B). At the same time, CPS has repeatedly tried and failed to serve
the Complaint at Manafort’s dwellings. (Exs. A, B, C, D). Finally, Plaintiff does not know of
any agent authorized to accept service on Manafort’s behalf.
Thus, the only realistic option for serving Manafort is by “following state law for serving
a summons in an action brought in courts of general jurisdiction in the state where the district
court is located [i.e., New York].”2 New York law provides five procedures for serving a
summons on a defendant. The first four procedures can only be carried out if the defendant, his
“dwelling place or usual place of abode,” his “actual place of business,” or his designated agent

2

Plaintiff does not believe it is reasonably possible to serve Manafort by following any other
state law. See Fed. R. Civ. P. 4(e)(1) (allowing a summons to be served by “following state
law for serving a summons in an action brought in courts of general jurisdiction in the state
where . . . service is made.”). For example, it is not reasonably possible to serve Manafort
under the laws of Virginia (where Manafort is being held) because the Marshal will not allow
him to accept service personally, security guards will not permit service at his home in
Virginia, and service by publication is unlikely to be effective in light of his confinement.
See Va. Code Ann. § 8.01-296. Nor is it reasonably possible to serve Manafort under the
laws of Florida (where his home is located) because no one will answer the door at his
residence. See Fla. Stat. Ann. § 48.031.
3

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is located “within the state” of New York. N.Y. C.P.L.R. § 308(1)-(4); see also Ahn v. Inkwell
Pub. Sols., Inc., No. 10 CIV. 8726 KNF, 2013 WL 3055793, at *4 (S.D.N.Y. June 19, 2013). If
service by those four procedures would be “impracticable,” then the summons may be served “in
such manner as the court, upon motion without notice, directs.” N.Y. C.P.L.R. § 308(5).
In this case, it would be “impracticable” to serve Manafort using any of first four
procedures identified in N.Y. C.P.L.R. § 308 because Manafort does not travel, live, work, or
have a designated agent “within the state” of New York: Manafort is confined to his jail cell in
Virginia; Plaintiff’s process servers were informed that Manafort has not lived at his New York
apartment for over a year (Ex. D); Manafort has no “actual place of business” while he is in jail;
and he has no known “agent” who will accept service on his behalf, either in New York or
otherwise. Plaintiff therefore moves for an order allowing service on Manafort “in such a
manner as the court . . . directs.” N.Y. C.P.L.R. § 308(5). See Jackson v. Lowe’s Companies,
Inc., No. 15–CV–4167(ADS)(ARL), 2016 WL 6155937, at *2 (E.D.N.Y. Oct. 21, 2016)
(“Section 308(5) requires a showing of impracticability of other means of service, but does not
require proof of due diligence or of actual prior attempts to serve a party under the other
provisions of the statute.” (quoting S.E.C. v. HGI, Inc., No. 99–CV–3866, 1999 WL 1021087, at
*1 (S.D.N.Y. Nov. 8, 1999))).
In fashioning an alternative means of service, the Court may choose any method that 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.” Philip Morris USA Inc. v.
Veles Ltd., No. 06 Civ. 2988, 2007 WL 725412, at *2 (S.D.N.Y. Mar. 12, 2007) (quoting
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)); see also Dobkin v.
Chapman, 21 N.Y.2d 490, 499 (1968) (noting that courts have “broad” discretion to design an

4

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alternative means of serving a defendant). Plaintiff believes that, in light of Manafort’s
incarceration, the method of service most likely to appraise him of this litigation is to send a
copy of the summons, Complaint, the Court’s Electronic Case Filing Rules and Instructions, and
the Individual Practices of Judge John G. Koeltl (a) via first class mail it to the Alexandria
Detention Center; and (b) via first class mail and email to his criminal defense counsel.
Manafort can likely receive mail while he is incarcerated, and his criminal defense attorneys will
certainly be able to speak with Manafort and give him a copy of the Complaint while they are
preparing for Manafort’s criminal trial. 3 Thus, this double mailing is reasonably likely to put
Manafort on notice of the impending litigation. Cf. Dobkin, 21 N.Y.2d at 505–06 (holding that,
under N.Y. C.P.L.R. § 308(5), a defendant could be served by mailing a copy of the complaint
both to his last known address and to his automobile insurance company, which would likely be
in contact with him).
III. Conclusion
For the foregoing reasons, Plaintiff respectfully requests leave to serve the summons and
the Complaint on Manafort (a) sending it via first class mail it to the Alexandria Detention
Center; and (b) sending it via first class mail and email to his criminal defense counsel.

3

The judge presiding over Manafort’s criminal trial ordered that he be permitted to meet and
confer with his attorneys at least eight hours per day. Order, United States v. Manafort, 18cr-00083, ECF No. 120.
5

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Dated: June 13, 2018

Respectfully submitted,

/s/ Joseph M. Sellers
Joseph M. Sellers (admitted Pro Hac Vice)
Geoffrey A. Graber (admitted Pro Hac Vice)
Julia A. Horwitz (admitted Pro Hac Vice)
Alison S. Deich (Pro Hac Vice pending)
Cohen Milstein Sellers & Toll PLLC
1100 New York Ave. NW ● Fifth Floor
Washington, DC 20005
[phone]

Michael Eisenkraft (#6974)
Cohen Milstein Sellers & Toll PLLC
88 Pine St. ● 14th Floor
New York, NY 10005
[phone]

Attorneys for Plaintiff

6

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CERTIFICATE OF SERVICE
I hereby certify that on July 13, 2018, I electronically filed the Motion to Serve
Defendant Paul J. Manafort Jr. by First Class Mail and Email to His Criminal Attorneys with the
Clerk of the Court using ECF, which in turn sent notice to all counsel of record.

Dated:

July 16, 2018

/s/ Julia A. Horwitz
Julia A. Horwitz

7

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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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