MANN v. EUROPEAN AMERICAN INVESTMENT BANK AG

Filing 6

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 10/25/2011, that Plaintiff's Motion to Serve Letters Rogatory on Defendant (Docket Entry 5 ) is GRANTED and the Court will issue a Request for Judicial Assistance (Letters Rogatory), along with a copy of the Complaint and Summons in this case, to judicial officials in Austria for purposes of accomplishing service of process on Defendant. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RICHARD W. MANN,

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Plaintiff,
v.
EUROPEAN AMERICAN INVESTMENT
BANK AG,
Defendant.

1:11CV516

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiff’s Motion to
Serve Letters Rogatory on Defendant (Docket Entry 5) with an
attached,

proposed

Request

Rogatory) (Docket Entry 5-1).

for

Judicial

Assistance

(Letters

Plaintiff did not file a brief in

support of said Motion as required by this Court’s Local Rules.
See M.D.N.C. R. 7.3(a) (requiring submission of brief with all
motions not listed in M.D.N.C. R. 7.3(j)); see also M.D.N.C. R.
7.3(j)

(failing

to

list

motions

seeking

issuance

of

letters

rogatory among motions exempted from M.D.N.C. R. 7.3(a)).

The

Court could have stricken Plaintiff’s instant Motion based on this
deficiency, see M.D.N.C. R. 83.4(a), but instead, after conducting
independent research, will grant it.
Plaintiff’s Complaint identifies Defendant as “a company
organized under the laws of a foreign state, Austria.”
Entry 1, ¶ 3.)

(Docket

The Federal Rules of Civil Procedure generally

provide for service of process upon a corporation, partnership, or
other unincorporated association, “at a place not within any
judicial district of the United States, in any manner prescribed by

[Federal] Rule [of Civil Procedure] 4(f) for serving an individual,
except personal delivery under (f)(2)(C)(i).”
4(h)(2).

Fed. R. Civ. P.

The cross-referenced provision authorizes service “by an

internationally

agreed

means

of

service

that

is

reasonably

calculated to give notice, such as those authorized by the Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents,”

Fed.

R.

Civ.

P.

4(f)(1),

or,

“if

there

is

no

internationally agreed means, . . . by a method that is reasonably
calculated

to

give

notice

.

.

.

[including]

as

the

foreign

authority directs in response to a letter rogatory or letter of
request,” Fed. R. Civ. P. 4(f)(2)(B).
Other courts previously have observed that Austria was not, at
the time of said opinions, a signatory to the relevant Hague
Convention on service.

See, e.g., In re Ski Train Fire in Kaprun,

Austria on Nov. 11, 2000, No. MDL 1428 SAS, 2003 WL 1807148, at *7
n.15 (S.D.N.Y. Apr. 4, 2003) (unpublished). This Court’s review of
the Hague Conference’s webpage regarding the Hague Convention on
service,

see

http://www.hcch.net/index_en.php?act=conventions.

status&cid=17 (last visited Oct. 23, 2011), confirms that Austria
remains a non-signatory.

Accordingly, resort to letters rogatory

constitutes an appropriate step toward accomplishing service of
process in this case.

Moreover, based on a review of the sample

letters rogatory on the website of the Bureau of Consular Affairs
of

the

United

States

Department

of

State,

see

http://

travel.state.gov/law/judicial/judicial_683.html (last visited Oct.

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23, 2011), the Court finds Plaintiff’s proposed letters rogatory
generally appropriate.1
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Serve
Letters Rogatory on Defendant (Docket Entry 5) is GRANTED and the
Court

will

issue

a

Request

for

Judicial

Assistance

(Letters

Rogatory), along with a copy of the Complaint and Summons in this
case,

to

judicial

officials

in

Austria

for

purposes

of

accomplishing service of process on Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 25, 2011

1

The relevant State Department website, http://travel.state.gov/law/
judicial/judicial_683.html (last visited Oct. 23, 2011), states that “[t]he
letters rogatory and accompanying documents may be submitted to the Office of
American Citizen Services, (CA/OCS/ACS), U.S. Department of State, SA-29 4th
Floor, 2201 C Street NW, Washington, DC 20520-0001.” Plaintiff, however, should
note the existence of authority that, “[u]nder Austrian federal law, service of
a foreign document in a foreign language, to which no certified German
translation is attached, shall only be permissible provided the recipient is
willing to accept it.” In re Ski Train Fire, 2003 WL 1807148, at *7 (internal
ellipses, footnote, and quotation marks omitted). Moreover, according to said
authority, Austrian federal law mandates that “[t]he translation of a legal
document in judicial proceedings must be certified by a sworn court interpreter/
translator . . . [and] must include a certification clause together with a round
seal affixed, which only certified court interpreters may use.” Id. at *7 n.16.

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