The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Court
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 ...