UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 15, 2009
INTERNATIONAL RAELIAN MOVEMENT, A FOREIGN CORPORATION, PLAINTIFF,
ABDULLAH HASHEM, JOSEPH MCGOWEN, DRAGONSLAYER PRODUCTIONS, HASHEM(S) FILMS, MUSLIMS UNITED TV AND DOES IXX, DEFENDANTS.
The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Court
MEMORANDUM AND ORDER
This matter is before the court on a motion permitting alternative service of process under Federal Rule of Civil Procedure 4(f)(3) ("FRCP 4(f)(3)"), or alternatively seeking a nunc pro tunc order, validating the service of process on defendant Abdullah Hashem ("defendant" or "Hashem") and his alleged business Hashem(s) Films (sometimes collectively, "defendants") pursuant to FRCP 4(f)(3), filed by plaintiff International Raelian Movement ("plaintiff" or "IRM"). By this motion, plaintiff asks the court to order, nunc pro tunc, that defendants have been served, or if the court finds any deficiencies with the service, that it permit plaintiff to correct those deficiencies, or issue any other appropriate order permitting plaintiff to serve defendants by alternative means.
For the reasons set forth below, plaintiff's motion is DENIED in part and GRANTED in part. According to its plain language, service under FRCP 4(f)(3) must be (1) directed by the court, and (2) not prohibited by international agreement. Because the court may not retroactively validate alternative means of service, plaintiff's motion for an order allowing alternative service of process under FRCP 4(f)(3) nunc pro tunc must be DENIED. Nevertheless, the court GRANTS plaintiff's motion for an order allowing alternative service of process under FRCP 4(f)(3) and gives plaintiff a sixty day extension to serve defendant Hashem and his alleged business Hashem(s) Films.*fn1
This action concerns an alleged scheme of racketeering, fraud, blackmail, and extortion perpetrated against IRM and others by defendants Hashem and Joseph McGowen*fn3 using three false front media companies, Dragonslayer Productions, Hashem(s) Films, and Muslims United TV, to obtain property through fraud, disparagement, threats, extortion, blackmail, damage, and conversion of property of plaintiff, and to file false allegations of criminality against plaintiff for profit. (Compl. at 1-2.) Plaintiff contends that defendants posed as a legitimate media partnership, obtained film footage of plaintiff's operations and members, and used this footage to blackmail plaintiff with threats of violence, disparagement, allegations of criminality, and impugn plaintiff's reputation. (Id. at 2.) Plaintiff contends that as a result of defendants' actions plaintiff suffered direct damages to its operations in excess of $75,000, including adverse publicity and damage to its reputation, legal fees, conversion of its property, and unauthorized use of its officers' and members' likenesses. (Id.) Plaintiff seeks replevin of film footage in defendants' possession.
In a pretrial scheduling order, Magistrate Judge Drozd left the question open as to whether service of process had been effected on defendants Hashem and Hashem(s) Films. (Pl.'s Mot. for Alt. Serv. ["PMAS"] at 2.)*fn4 Plaintiff submits the following as evidence that proper service has been accomplished upon defendants:
(1) The November 5, 2008 Affidavit by Laila Saleh of TCM Egypt, which states: "Abdullah Hashem was traced to American University in Cairo (AUC). Hashem's status as a student was initially confirmed by AUC. We learned from AUC on November 3, 2008, that Abdullah Hashem was no longer a student there. AUC provided a forwarding phone number for Hashem in the United States." (Id.)
(2) The November 6, 2008 Affidavit of Due Diligence by process server Donn Altmann of Hy Tech Response Inc., stating that Altmann checked Hashem's whereabouts with known Hashem associates McGowen and Danielson, Hashem's former landlord in Indiana, at Hashem's parents' former address, made extensive database searches and unsuccessfully attempted to serve Hashem at his last known address in Indiana. (Id.)
(3) The February 2009 Affidavit by Laila Saleh of TCM Egypt, which states: "We learned on January 12, 2009 that Hashem had returned to American University Cairo, and has presented his student identification card #900/08/9603 and retrieved the package containing the summons, complaint, and other documents from the University mailroom. In my professional opinion, Mr. Hashem now has notice of the US legal proceedings against him in a manner consistent with local custom and procedure." (Id.)
(4) The February 25, 2009 declaration by process server Donn Altmann of Hy Tech Response Inc., which states that email messages with the court documents*fn5 attached were sent to and received by Hashem's personal email account and Hashem's email account at www.hashemsfilms.com. (Id. at 3.) Additionally, four identical email messages were successfully sent to all administrative email addresses associated with the domain www.hashemsfilms.com. (Id.) On November 10, 2008, first class mail copies of the court documents were mailed to Hashem's official mail forwarding address with the U.S. Postal Service. (Id.) On January 16, 2009 the same information was published in the Court & Commercial Record newspaper of Indianapolis, Indiana. (Id.) Service by certified mail was had upon the domain www.hashemsfilms.com on January 20, 2009 via its domain server's address and on its web host server on February 19, 2009. (Id.) Altmann further stated that a full copy of the complaint was visible on the www.hashemsfilms.com website in April-May 2008. (Id.)
Plaintiff moves for a court order establishing (1) defendant Hashem has been served, (2) defendant entity Hashem(s) Films, www.hashemsfilms.com, has been served, (3) that if any further remedy is required to effect service, the court permit plaintiff to correct such deficiencies via a nunc pro tunc order under FRCP 4(f)(3), or (4) the court issue any other appropriate order permitting alternative service on Hashem and Hashem(s) Films.
A. Alternative Service of Process
1. Applicability of FRCP 4(f)(3)*fn6
Because plaintiff's motion for alternative service depends on the applicability of FRCP 4(f)(3), the court addresses this issue first.
FRCP 4(f)(3) reads, in pertinent part:
(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served at a place not within any judicial district of the Untied States: . . . .
(3) by other means not prohibited by international agreement, as the court orders.
Fed. R. Civ. P. 4(f)(3).
According to its plain language, service under FRCP 4(f)(3) must be (1) directed by the court, and (2) not prohibited by international agreement. Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). "No other limitations are evident from the text." Id. Court-directed service under FRCP 4(f)(3) is as favored as service available under FRCP 4(f)(1)*fn7 or FRCP 4(f)(2).*fn8 Id. at 1015. No language in FRCP 4(f)(1) or 4(f)(2) indicates their primacy, and FRCP 4(f)(3) includes no qualifiers or limitations which indicate its availability only after attempting service of process by other means. Id. Thus, FRCP 4(f)(3) is merely one means among several which enables service of process on an international defendant. Id. "[T]rial courts have authorized a wide variety of alternative methods of service including publication, ordinary mail, mail to the defendant's last known address, delivery to the defendant's attorney, telex, and most recently, email." Id. at 1016. However, in effectuating service of process under FRCP 4(f)(3), a plaintiff is required to obtain prior court approval for the alternative method of service. Brockmeyer v. May, 383 F.3d 798, 806 (9th Cir. 2004); see also Jenkins v. Pooke, No. C 07-03112, 2009 WL 412987, slip op. at 4 (N.D. Cal. Feb. 17, 2009) (stating that under the plain language of FRCP 4(f)(3), a plaintiff must obtain a court order to effectuate service in the desired fashion).*fn9
In Brockmeyer, the Ninth Circuit held that because the plaintiffs did not seek prior approval of the district court for alternative service under FRCP 4(f)(3), their attempted service was therefore ineffective. Brockmeyer, 383 F.3d at 808-09. The court held: "[c]courts have authorized a variety of alternative methods of service abroad under current Rule 4(f)(3) . . . .
[h]owever, in Rio (and in all the cases it cites as applying Rule 4(f)(3)), plaintiffs are required to take a step that the plaintiffs in this case failed to take: They must obtain prior court approval for the alternative method of serving process." Id. at 806. Accordingly, the Ninth Circuit found FRCP 4(f)(3) inapplicable and refused to retroactively approve the plaintiffs' alternative means of service. Id.
In this case, plaintiff attempted to serve Hashem and Hashem(s) Films both by conventional means in the United States and by alternative methods in the United States and abroad. Plaintiff employed TCM Egypt to locate and serve Hashem in Egypt, which found Hashem's previous location to be the American University in Cairo, to which he later returned and presumably received the court papers left with the University. Plaintiff also employed process server Donn Altmann to locate and serve Hashem in the United States; Altmann checked Hashem's whereabouts with his known associates, former landlord, parents' former address, various databases, and last known address. Altmann further sent electronic copies of the court papers to various email addresses associated with Hashem and his business domain name, as well as sent hard copies of the court papers to the physical address associated with Hashem's domain name. Altmann also states that a full copy of the complaint was visible on the www.hashemsfilms.com website in April-May 2008. However, plaintiff did not follow proper protocol under FRCP 4(f)(3) by obtaining a prior court order for its alternative methods of service. Under controlling Ninth Circuit authority, this court cannot retroactively approve of these methods nunc pro tunc. See Brockmeyer, 383 F.3d at 806.
Because plaintiff did not follow the procedure described in FRCP 4(f)(3) by seeking the approval of the court before utilizing alternative means of service, the attempted service on Hashem and Hashem(s) Films was therefore ineffective, and plaintiff's motion for a nunc pro tunc order approving of these methods is DENIED.
2. Reasonableness of Plaintiff's Methods of Service
Although plaintiff may not retroactively seek court approval of its alternative methods to effect service upon defendants, the court nevertheless considers the reasonableness of the methods used by plaintiff in considering plaintiff's alternative motion for a court order allowing alternative service of process under FRCP 4(f)(3).*fn10
Even if facially permitted by FRCP 4(f)(3), "a method of service of process must also comport with constitutional notions of due process." Rio, 284 F.3d at 1016. "To meet this requirement, the method of service crafted by the district court must be 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Id. "[T]he Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond." Id. at 1017.
In Rio, the Ninth Circuit approved of the plaintiff's alternative service via email in light of the variety of conventional means by which the plaintiff had previously attempted to serve defendant. Rio, 284 F.3d at 1016. In that case, the plaintiff had first attempted to serve the defendant in the United States via the address used to register the defendant's domain name and through the defendant's lawyer. Id. When that failed, the plaintiff made a diligent search for the defendant in the defendant's native country. Id. After these efforts likewise failed, the Ninth Circuit approved of email service because it appeared that email was the only method of contacting the defendant, and because the court concluded that email was reasonably calculated to apprise the defendant of the pending suit in comport with due process. Id. at 1017.
In this case, plaintiff likewise attempted to serve Hashem and his alleged business Hashem(s) Films through a variety of conventional methods in addition to email service to Hashem's various personal and business email accounts. In conjunction with the service apparently made on Hashem at the American University in Cairo by TCM Egypt on January 12, 2009, plaintiff utilized the services of Donn Altmann, who inquired as to Hashem's whereabouts with defendant's associates, former landlord, through various database searches, and at his last known address. As none of these methods were successful, Altmann attempted to serve Hashem and Hashem(s) Films by emails sent to Hashem's personal email address, his business email address, and to four administrative email addresses also associated with www.hashemsfilms.com. Altmann also observed the entire complaint posted on www.hashemsfilms.com for at least 30 days between April and May 2008. Sometime after November 10, 2008, physical copies of the court papers were sent via the U.S. Postal Service to Hashem's forwarding address listed with the U.S. Postal Service. Physical copies of the court papers were also mailed to the physical addresses associated with the domain www.hashemsfilms.com and the hosting servers in January and February of 2009, respectively. Furthermore, a copy of the court papers was published in the Court & Commercial Record located in Indianapolis, Indiana on January 16, 23, and 30 of 2009. As in Rio, plaintiff utilized a wide variety of means in its attempt to locate and serve Hashem and Hashem(s) Films within the United States and Egypt, of which the attempts to mail the court papers electronically by email and physically through the U.S. Postal Service were apparently successful. Thus, in light of plaintiff's concerted effort to locate and serve defendant, the court finds that the alternative methods of service undertaken by plaintiff were reasonably calculated to apprise defendants with notice of the pendent action.
Accordingly, the court approves of plaintiff's alternative methods of service under FRCP 4(f)(3) and finds that any of these means will be sufficient in plaintiff's efforts to re-serve Hashem and Hashem(s) Films.
B. Extension of Service of Process
The court grants plaintiff sixty days to effectuate service on Hashem and Hashem(s) Films through any of the aforementioned means.
For the foregoing reasons, plaintiff's motion for alternative service pursuant to FRCP 4(f)(3) is DENIED in part and GRANTED in part.
IT IS SO ORDERED.