Democratic National Committee v. The Russian Federation et al

Filing 141

MOTION to Serve Defendant Jared Kuschner by First Class Mail. Document filed by Democratic National Committee. (Attachments: #1 Exhibit Affidavit of Due Diligence, #2 Exhibit Affidavit of Due Diligence, #3 Exhibit USPS Tracking, #4 Exhibit Affidavit of Due Diligence)(Sellers, Joseph)

Case 1:18-cv-03501-JGK Document 141 Filed 07/17/18 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 JARED C. KUSHNER BY FIRST CLASS MAIL
Plaintiff DNC (“Plaintiff”) respectfully requests leave to serve the Complaint on
Defendant Jared C. Kushner (“Kushner”) by sending the Complaint to his home in the District of
Columbia via first class mail.
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, Plaintiff mailed service waivers to the Defendants with
addresses in the United States, including Kushner, but Kushner did not return the waiver by the
June 2, 2018 deadline. Plaintiff therefore retained Capitol Process Services, Inc. (“CPS”) to
serve Kushner. Between June 11, 2018 and June 25, 2018, CPS tried three times to serve an
individual of suitable age and discretion in Kushner’s Manhattan apartment, but the attempts
were unsuccessful. (Ex. A). As a result, Plaintiff attempted to serve Kushner at his house in
Washington, D.C. (Ex. B).
On June 26, 2018, a CPS process server, Vance Warren, attempted to serve the summons,
Complaint, Electronic Case Filing Rules & Instructions, and Individual Practices of Judge John

Case 1:18-cv-03501-JGK Document 141 Filed 07/17/18 Page 2 of 7

G. Koeltl at Kushner’s D.C. address. (Ex. B). Kushner is a Senior Advisor to the President and
is accordingly afforded protection by the United States Secret Service. When Mr. Warren
arrived at the residence, he spoke with a United States Secret Service agent and explained that he
was attempting to serve process in a matter before the United States District Court for the
Southern District of New York. (Ex. B). After checking with his superior, the Secret Service
agent told Mr. Warren that Mr. Kushner would not be made available and Mr. Warren should
“figure out another way to attempt service.” (Ex. B).
Plaintiff therefore attempted to serve Kushner by certified mail two days later, on June
28, 2018. (Ex. C); see D.C. Super. Ct. R. Civ. P. 4(c)(4) (permitting service by certified mail in
D.C.). On July 9, 2018, the United States Postal Service informed Plaintiff’s counsel that it had
tried and failed to deliver the package to Kushner’s home. (Ex. C).
On July 16, 2018, CPS tried to serve the doorperson, security guard, or mail clerk at
Kushner’s New York residence, or alternatively to affix a copy of the service packet1 to
Kushner’s door. (Ex. D); see Zeballos v. Tan, No. 06 CIV. 1268 (GEL), 2006 WL 1975995, at
*3 (S.D.N.Y. July 10, 2006) (holding that N.Y. C.P.L.R. § 308(2) permits service on the
mailroom staff in a building where a defendant occasionally stays, so long as the summons and
complaint are also mailed to the defendant’s last known residence or place of business); N.Y.
C.P.L.R. § 308(4) (permitting nail and mail service when other means of service are
unavailable). But the staff at Kushner’s building did not accept service. See Ex. D. The staff
similarly refused the process server’s request to affix a copy of the service packet to Kushner’s
door, explaining that Kushner no longer lives there. (Ex. D).

The “service packet” included the summons, Complaint, Electronic Case Filing Rules &
Instructions, and Individual Practices of Judge John G. Koeltl as required by the Court.
1

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 Kushner. The Secret Service informed CPS that
Kushner could not be served personally. At the same time, CPS has repeatedly tried and failed
to serve the Complaint at Kushner’s Manhattan apartment and D.C. home. Finally, Plaintiff does
not know of any agent authorized to accept service on Kushner’s behalf.
Thus, Plaintiff must serve Kushner by following the laws of New York—where the
“district court is located”—or the District of Columbia—where service can be “made” on
Kushner or his home. Fed. R. Civ. P. 4(e)(1). As will be explained further below, the best
available means for serving Kushner under the laws of New York is sending a copy of the
summons, Complaint, Electronic Case Filing Rules & Instructions, and Individual Practices of
Judge John G. Koeltl to his D.C. home via first class mail. Plaintiff therefore requests
permission to serve Kushner in that manner.
New York law provides five procedures for serving a summons on a defendant:
(1) giving the summons and complaint to the defendant within the state of New York; (2) giving
the summons “to a person of suitable age and discretion” at the defendant’s “actual place of
business, dwelling place[,] or usual place of abode” within the state of New York and then

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mailing those materials to the defendant “at his or her last known residence . . . [or] place of
business”; (3) delivering the summons and complaint to the defendant’s agent within the state of
New York; (4) affixing the summons and complaint to the door of the defendant’s dwelling place
or business within New York and mailing the materials to the defendant’s last known residence
or place of business (if the first three methods of service are unavailable); and (5) “in such
manner as the court, upon motion without notice, directs, if service is impracticable” by the first,
second, and fourth means. N.Y. C.P.L.R. § 308.
In this case, it would be “impracticable” to serve Kushner using any of first four
procedures identified in N.Y. C.P.L.R. § 308 because those procedures can only be used if the
defendant is physically present “within the state” of New York or has a dwelling, business, or
agent “within the state of New York.” N.Y. C.P.L.R. § 308. However, after four failed attempts
to serve Kushner or his mailperson at his Manhattan apartment, Plaintiff was finally informed
that Kushner no longer lives there. In addition, Kushner now works at the White House (which
is not in New York), and Plaintiff does not know of any registered agent authorized to accept
service on his behalf. Plaintiff therefore moves for an order allowing service on Kushner “in
such a manner as the court . . . directs.” N.Y. C.P.L.R. § 308(5).
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 (GBD), 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
alternative means of serving a defendant). Here, the means of service most likely to reach

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Kushner is sending the service packet by first class mail to Kushner’s D.C. home. In light of
CPS’s conversations with secret service officers stationed at that house, Plaintiff’s counsel is
confident that Kushner and his family live there; as a result, mail sent to that address is
reasonably calculated to reach him. Cf. Ferrarese v. Shaw, 164 F. Supp. 3d 361, 366 (E.D.N.Y.
2016) (“Courts have found that service by certified mail to a defendant’s last known address is a
valid method of alternate service.”); F.T.C. v. PCCare247 Inc., No. 12 CIV. 7189 (PAE), 2013
WL 841037, at *4 (S.D.N.Y. Mar. 7, 2013) (“Service by email alone comports with due process
where a plaintiff demonstrates that the email is likely to reach the defendant.”). Nevertheless,
nobody at Kushner’s home signed for the Complaint when it was sent by certified mail. By
contrast, first-class mail does not require a signature, and will therefore remain at Kushner’s
home—and not returned to sender--if no one signs a delivery receipt. As a result, the best
remaining option is to serve him by regular, first class mail.
III. Conclusion
For the foregoing reasons, Plaintiff respectfully requests permission to serve Kushner at
his D.C. home via first class mail.

5

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Dated: July 17, 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

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Case 1:18-cv-03501-JGK Document 141 Filed 07/17/18 Page 7 of 7

CERTIFICATE OF SERVICE
I hereby certify that on July 17, 2018, I electronically filed the Motion to Serve
Defendant Jared C. Kushner by First Class Mail with the Clerk of the Court using ECF, which in
turn sent notice to all counsel of record.

Dated:

July 17, 2018

/s/ Julia A. Horwitz
Julia A. Horwitz

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Case 1:18-cv-03501-JGK Document 141-1 Filed 07/17/18 Page 1 of 2

EXHIBIT A

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EXHIBIT B

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EXHIBIT C

7/9/2018

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EXHIBIT D

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