Democratic National Committee v. The Russian Federation et al

Filing 140

MEMO ENDORSED ORDER granting #137 Motion to Serve Defendant Paul J. Manafort, Jr. by First Class Mail and Email to His Criminal Attorneys. ENDORSEMENT: Application Granted. So Ordered. (Signed by Judge John G. Koeltl on 7/17/18) (yv)

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: I 8-cv-0350 I (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).

APPLICATION GRANTED

1
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~ n G. Koeltl, U.S.D.J.

Case 1:18-cv-03501-JGK Document 137 Filed 07/16/18 Page 2 of 7

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 \n 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 I 0, 20 I 8, Manafort was transferred to a jail in Alexandria, Virginia so that he
could be closer to hi's trial counsel. 1

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

Case 1:18-cv-03501-JGK Document 137 Filed 07/16/18 Page 3 of 7

II. Analysis
Federal Rµle of Civil Procedure 4( e) outlines four acceptable procedures for serving a
summons and complaint: (I) "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)(l) (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 seh'ice 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

Case 1:18-cv-03501-JGK Document 137 Filed 07/16/18 Page 4 of 7

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. IO 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; Plaintiffs 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 1s 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' sCorrpanies,

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 SEC. v HG!, Inc., No. 99-CV-3866, 1999 WL 1021087, at
* I (S.D.N. Y. Nov. 8, I 999))).
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

Case 1:18-cv-03501-JGK Document 137 Filed 07/16/18 Page 5 of 7

alternative means of serving a defendant). Plaintiff believes that, in hght 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

Case 1:18-cv-03501-JGK Document 137 Filed 07/16/18 Page 6 of 7

Dated: June 13, 2018

Respectfully submitted,

Isl Joseph M Sellers
Joseph M. Sellers (admitted Pro Hae Vice)
Geoffrey A. Graber (admitted Pro Hae Vice)
Julia A. Horwitz (admitted Pro Hae Vice)
Alison S. Deich (Pro Hae Vice pending)
Cohen Milstein Sellers & Toll PLLC
1100 New York Ave. NW o 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

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

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 tum sent notice to all counsel of record.

Dated:

Isl Julia A Horwitz
Julia A. Horwitz

July 16, 2018

7

Case 1:18-cv-03501-JGK Document 137-1 Filed 07/16/18 Page 1 of 2

EXHIBIT A

Case 1.18-cv-03501-JG K Document 137-1 Filed 07/16/18 Page 2 of 2
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Democratic National Committee
flom11/f

vs

Case No.: l:18-cv-03501-JGK

The Russian Federation, et al.
Oefeudu,u

AFFIDAVIT OF DUE DILIGENCE

DISTRICT OF COLl.Jl\,fBIA, SS :
Tom K Williams, being duly sworn deposes and says·

Deponent 1s not a party herem, 1s over I 8 years of age and does busmess in Washington DC
Deponent attempted to serve the, within Summons, Complaint, Electronic Case Filing Rules & Instructions, Ind1v1dual Practices of Judge
John G. Koeltl on Paul .J. Manafort, Jr., therein named, and that after due search, careful inquiry and diligent attempts at 10 St. James
Drive, Palm Beach Gardens, Florida 33418 deponent was unable to effect process upon the person being served because of the
followmg reason(s)

D
D

•
•
•

Unknown at address
Moved, lefi no forwarding

•
•

Evading

!Kl

Service refused

House/building vacant
Address does not exist
Service canceled
No answer at door / buzzer/ call box

IZ] Other: On each occasion I received no answer at the door, and on each occasion there was a 2011 Land Rove with tag
J4 I9PA m the driveway. There was a notice on the door on each occasion from Nozzle Nolen, a pest control agency,
indicating that the lawn had been treated. Add1t10nally, I spoke with security on one occasion who stated that Paul W.
Manafort, Jr had arrived at the residence recently, but could not remember an exact date

ATTEMPTS WERE MADE AS FOLLOWS:
Date
Time
Place
5 55 PM

IO St. James Drive. Palm Beach Gardens, Florida 334 I 8

06113118

1:35 PM

10 St. James Drive, Palm Beach Gardens, Florida 33418

06/15/18

10:40AM

IO St James Drive, Palm Beach Gardens, Florida 33418

06/12/18

j

MT~,
Ji. {~0

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\

JESSICA OAKLEY
MY COMMISSION #FF916860
EXPIRES SEP 09. 2019
Bonded throuon 1st Stale Insurance

C1r1To1. PRoCE\'.I' SERVICES,

Tom K. Williams

Job#

1546291

Ref#

NIA

/,vc 11827 I Sm STREET, NW, W,1sm,varo,v, DC 200091 [phone]

Case 1: 18-cv-03501-JGK Document 137-2 Filed 07/16/18 Page 1 of 2

EXHIBIT B

Case 1:18-cv-03501-JGK Document 137-2 Filed 07/16/18 Page 2 of 2
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Democratic National Co~mittee

Plaintiff

vs.

CaseNo.: 1:18-cv-03501-JGK

The Russian Federation, et al.

Defendant

AFFIDAVIT OF DUE DILIGENCE
I, David S Felter, a Private Process Server, having been duly authorized to make service of the Summons, Complaint, Electronic
Case Filmg Rules & Instructions, Individual Practices of Judge John G. Koeltl in the above entitled case, hereby depose and say:
That f am over the age of eighteen years and not a party to or otherwise interested m this matter.
That I am the Custodian of Records of Capitol Process Services, Inc.
That after due search, careful ipquiry and diligent attempt(s), we have been unable to serve Paul J. Manafort, Jr with the above
named process.
That on June 14,2018, I spoke to Kimberly Carlson of the law finn of Cohen Milstein regarding the logistics of serving the
defendant, Paul Manafort, at a hearing he was to attend the next day at the US District Court for the District of Columbia. On this
occasion, r stated to Ms. Carlson that service could be made within the courthouse, however, not within the courtroom. In addition,
I conveyed my concern to Ms. Carlson that, as Mr. Manafort was in Federal custody, he would enter and exit the courtroom
through chambers, making it impossible to serve him outside of the courtroom
That on July 18, 2018, my agent, Rebecca Short, spoke to Kimberly Carlson of the law firm of Cohen Milstein regarding the
logistics of serving the defendant, Paul Manafort at the Northern Neck Regional Jail Accordingly, Ms. Short spoke with the
Richmond County Sheriffs office on June 19, 2018, who stated that under no circumstances would we be able to serve Paul
Manafort, as the U.S Marshal's typically serve inmates being held under federal statute. Additionally, Ms. Short followed up with
the U.S Marshal's Richmond office for the Eastern District of Virginia, and they advised Ms Short that inmates being held under
federal statute are not made available for service, and under no circumstances would we be able to serve Paul Manafort.
That my agent, Abel Emiru, attempted to serve the defendant, Paul Manafort, at his urnal place of abode and where he 1s, at
present, confined to his apartment, at 60 I North Fairfax Street, Apartment 405, Alexandria, VA 22314. Mr. Emiru stated that on
July 3, 2018 at 2:52 PM, July 5, 2018 at 7.42 PM and on July 6, 2018 at 10.41 AM, he was denied access by the guard and that on
each occasion the desk attendant called up to Mr. Manafort's unit, the call went unanswered.
I declare under penalty of perJury that this mformation 1s true.

Sworn to before me on

01(t~(/ [

~rf.00~

Ange a H
son
Notary Pu , D1stnct of Columbia
My Co1:1m1SSI011'6l{p!~;~ March 31, 2019

~A~dlL

David S. Felter

Client Ref Number NIA

Job#· 1547454
... 'l;

p.

: ,, ,", _Capitol P.topess Services, Inc. j 1827 18th Street, NW, Washington, DC 20009 j [phone]

..

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Case 1.18-cv-03501-JGK Document 137-3 Filed 07/16/18 Page 1 of 2

EXJH[[RKT C

Case 1: 18-cv-03501-JGK Document 137-3 Filed 07/16/18 Page 2 of 2
UNITED S1f\TES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Democratic National Committee
Ptmmifl

vs

Case No.: l:18-cv-03501-JGK

The Russian Federation, et al.
AFFIDAVIT OF DUE DILIGENCE

D£STRICT OF COLUMBIA, SS ·
Tommy K Williams, II, being duly sworn deposes and says:

Deponent is not a party herein, is over 18 years of age and does business in Washington DC.
· Deponent attempted to serve the w1chm Summons, Complaint, Electronic Case Filing Rules & Instructions, Individual Practices of Judge
John 0. Koeltl on Paul J. Mana fort, Jr., therem named, and that afier due search, careful inquiry and diligent attempts at deponent was
unable to effect process upon the person being served because of the following reason(s):

D
D
D
D

Service re fused

~

Other On each occasion, [ observed a 20 [ I Land Rover in the driveway with tag. J4 I9PA.

Unknown at address

LJ House/building vacant

Moved, left no forwarding

0

Address docs not exist

Evading

D
!Kl

Service canceled
No answer at door I buzzer/ call box

ATTEMPTS WERE MADE AS FOLLOWS.
Time
Place
Date
07/06/18

5· 30 PM

JO St. James Dnvc, Palm Beach Gardens, F_lo_r_1d_a_33_4_1_8_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

07/09/18

I000AM

IO St. James Drive, Palm Beach Gardens, Florida 334_1~ .

------------------------------- -- ---··-

Sworn to before me on

-~lr

IO 2 0 1_c;c__
1

~-Tommy K. Williams, II

Job#

1547230

Ref#

NIA

C1nTOL Prwc1,:rs Se1mces, I Ne. I I 827 18TH SrRF.t,7, NW, WAsm.voroN, DC 200091 [phone]

Case 1:18-cv-03501-JGK Document 137-4 Fifed 07/16/18 Page 1 of 2

lEXJH[[BlIT D

Case 1: 18-cv-03501-JGK Document 137-4 Filed 07 /16/18 Page 2 of 2
U'NlTED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Democratic National Committee
PlaiNtjf

VS

Case No.: 1:18-cv-03501-JGK

The Russian Federation, et al.

AJi1''IDAVIT OF DUE DILIGENCE

DISTRICT OF COLUMBIA, SS.:
Joshua Lee, being duly sworn deposes and says·

Deponent is not a party herem, ls over 18 years of age and does business in Washington DC.
Dcpouenr attempted to serve the within Summons, Complaint, Electronic Case Filing Rules&: Instructions, Individual Practices of Judge
John G Kooltl on Paul J. Munafort, Jr., therein named, and that afler due search, careful inquiry and diligent attempts ut deponent was
unable 1,1 effoct process upon the person being served because of the following reason(s).
[ ~ Unknown at address

~J

2<J

[ j Address docs not exist

Moved, left no forwarding

House/building vacant

fj Evndmg

[J

Service canceled

iJ

[]

No answer at door I buzzer/ call box

Service refused

[ZJ Other. On this occasion, I spoke with a security guard who staled that Paul W. Manafort, Jr. has not !lved at 721 5th Avenue,
Apnrtment43G, New York, New York 10022 mover a year.

ATTEMPTS WERE MADE AS FOLLOWS.
Date
Time
Place.
07103/18

f·29PM

721 5th Av-=-~-~-e:.,Apartmcnt 430, New York, New yor~_I0022

- - ·-----Sworn <o t,ofon,

mz

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EVANC~N
~NOTARY PUBLIC & ATTORNEY AT LAW
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.Tob # 1547453
NO. 02CO4998577
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Ref# NIA
CERTIFICATE F LEO IN NEW YORK COUNTY
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COMMISSION ~~~fti~ /Ne. f 182 7 J8m Snm.7, NW, WAS/IJN<rro.v, DC 20009 f(2U2) 667-0050