[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-11580 DECEMBE R 18, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 00-00865-CV -C-S
PRE WIT T EN TER PRIS ES, IN C.,
on its own behalf and o n behalf of all others
similarly situ ated,
Plaintiff- Appe llant,
versus
ORG ANIZAT ION OF P ETR OLE UM EXP ORT ING COU NTR IES,
Defen dant-A ppellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 18, 2003)
Before AN DERS ON, BA RKET T and RO NEY, C ircuit Judges.
BARKE TT, Circuit Judge:
Prew itt Enterp rises, Inc. ( “Prew itt”) appea ls from th e dismiss al of its
complaint against the Organization of the Petroleum Exporting Countries
(“OPEC”) for insufficient service of process and from the denial of its motion for
alternative service of process. Prewitt’s complaint against OPEC alleged a
violation of the Sherman Act, 15 U.S.C. § 1,1 for illegal price-fixing agreements on
production and export of crude oil and claimed equitable relief pursuant to the
Clayton Act, 15 U.S.C. § 26.2 Because OPEC initially did not respond to the
complaint, the district court entered a default final judgment against OPEC
enjoinin g it from entering into, imp lementin g or enf orcing a ny agree ments to fix
and control the production and export of crude oil for one year. OPEC then
appeared and moved to vacate the default judgment and injunction on the grounds
1
15 U.S.C § 1 states that:
Every contract, combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with foreign nations,
is declared to be illegal. Every person who shall make any contract or engage in
any combination or conspiracy hereby declared to be illegal shall be deemed
guilty of a felony, and, on conviction thereof, shall be punished by fine not
exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by
imprisonment not exceeding three years, or by both said punishments, in the
discretion of the court.
2
15 U.S.C. § 26 provides that:
Any person, firm, corporation, or association shall be entitled to sue for and have
injunctive relief, in any court of the United States having jurisdiction over the
parties, against threatened loss or damage by a violation of the antitrust laws . . .
when and under the same conditions and principles as injunctive relief against
threatened conduct that will cause loss or damage is granted by courts of equity,
under the rules governing such proceedings, and upon the execution of proper
bond against damages for an injunction improvidently granted and a showing that
the danger of irreparable loss or damage is immediate, a preliminary injunction
may issue . . . . In any action under this section in which the plaintiff
substantially prevails, the court shall award the cost of suit, including a
reasonable attorney’s fee, to such plaintiff.
2
that OPEC had never been properly served with process, and thus, the court lacked
jurisdictio n over it. T he district c ourt con cluded th at, becaus e OPE C reside s in
Austria and the a pplicable Austria n law p rohibits s ervice w ithout O PEC ’s consen t,
Prewitt’s complaint must be dismissed for lack of jurisdiction. We agree and
affirm the dismissal of Prewitt’s complaint for lack of jurisdiction because service
of process o n OPE C has not b een effectuated . We also affirm the district court’s
denial of alternative service of process because, in this case, there are no means
available f or servic e upon OPE C und er the Fe deral Ru les of Civ il Proced ure.
I. BACKGROUND
Prewitt is a corporation organized and existing under the laws of Alabama
with its principal place of business in Birmingham, Alabama. Prewitt purchases
substantial quantities of gasoline and other refined petroleum products for resale at
its Eastw ood T exaco S ervice C enter gas oline statio n.
OPEC is an intergovernmental organization originally established in 1960
via resolutions promulgated at the Conference of the Representatives of the
Gove rnmen ts of Iran , Iraq, K uwait, S audi A rabia and Venez uela in B aghdad , Iraq.
The principal aim of OPEC is “the co-ordination and unification of the petroleum
policies of Member Countries and the determination of the best means for
safeguarding their interests, individually and collectively.” OPEC Stat. art. 2(A)
3
(2000). Presently, OPEC’s membership consists of: Algeria, Indonesia, Iran, Iraq,
Kuwait, Libya, Nigeria, Qatar, Saudi Arabia, the United Arab Emirates and
Venezuela. Since September 1, 1965, OPEC has been headquartered in Vienna,
Austria. Its relationship with the Austrian government is governed by the
Agreement Between the Republic of Austria and the Organization of the Petroleum
Exporting Countries Regarding the Headquarters of the Organization of the
Petroleu m Exp orting C ountries , Febru ary 18, 1 974, BGBL 1974/382
(“Austr ian/OP EC H eadqua rters Ag reemen t” or “He adquar ters Ag reemen t”).
Prewitt filed a complaint with the district court against OPEC on behalf of
itself and a s the repr esentative of all pers ons or e ntities wh o have in directly
purcha sed petro leum or petroleu m prod ucts in the United States sin ce Mar ch 199 9.
Prewitt claimed that OPEC has been coordinating an international conspiracy
through agreements among its Member States and non-OPEC members to limit the
production and export of oil in order to fix world oil prices above competitive
levels. Prewitt argued that these agreements constitute violations of United States
antitrust laws, specifically the Sherman and Clayton Acts, and have resulted in a
substan tial and ad verse im pact on U nited Sta tes trade an d comm erce. Pre witt
claimed that as a result of OPEC’s illegal conduct, its own acquisition and
invento ry costs fo r gasolin e have in creased s ignifican tly. Cons equently , Prew itt
4
requested that the court declare the OPEC-coordinated agreements illegal under
United States law, enjoin implementation of the agreements, grant any other
appropriate equitable relief, and award costs of the suit against OPEC for injuries
sustained by Prew itt.
Prewitt attempted service on OPEC by requesting that the trial court send a
copy of the complaint to OPEC by international registered mail, return receipt
requeste d. The c ourt clerk did so, m ailing Pr ewitt’s su mmon s and co mplaint to
OPEC at its headquarters in Vienna. The pleadings were signed for, stamped
“received” by OPEC’s Administration and Human Resources Department, and
forwarded to the Director of OPEC’s Research Division as well as other
departments including the Secretary General’s office. Ultimately, the Secretary
General decided that the OPEC Secretariat would not take any action with regard
to the sum mons a nd com plaint.
Without the participation of OPEC, the district court certified a class defined
as all persons or entities who purchased refined petroleum products in the United
States from March 1999 to the present and entered a default final judgment and
order of injunction against OPEC. The court found that there was a conspiracy
between OP EC, its Member S tates, and non-OPE C members, nam ely Norway,
Mexico, the Russian Federation and Oman, to fix and control crude oil prices; that
5
the agreements coordinated and implemented by OPEC were illegal under United
States antitrust laws; that OPEC’s illegal conduct has resulted in substantial and
adverse impact on United States trade and commerce of approximately $80-120
million per day; and that OPEC and those acting in concert with OPEC should be
enjoined from entering into, implementing, and enforcing any further oil price-
fixing agreements for a period of twelve months. Copies of the court’s orders were
delivered to each o f the Un ited States embass ies for the Mem ber State s of OP EC.
In response, OPEC made a special appearance and filed a motion to set
aside the default judgment and stay its enforcement pursuant to Rule 60(b)(1), (4),
(5) and (6)3 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), which the
district court granted, vacating the default judgment and injunction.4 OPEC then
filed a motion to dismiss Prewitt’s complaint on various grounds including
insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(5).5 The district
3
Fed. R. Civ. P. 60(b) provides, in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a
party’s legal representative from a final judgment, order, or proceeding, for the
following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . .
(4) the judgment is void; (5) . . . it is no longer equitable that the judgment should
have prospective application; or (6) any other reason justifying relief from the
operation of the judgment.
4
Prewitt also appeals the district court’s decision to vacate the default judgment and
injunction. We need not reach that issue in light of our disposition of this case.
5
Fed. R.Civ. P. 12(b)(5) provides that:
6
court dismissed the case without prejudice, finding that Prewitt had failed to serve
OPEC its summons and com plaint properly under the Federal Rules. Prewitt then
filed a motion to pursue alternative means of effecting service or to amend the
judgment. The district court denied the motion finding that, in this case, OPEC
cannot b e effective ly served with pr ocess.
II. DISCUSSION
We review the district court’s grant of a motion to dismiss for insufficient
service of process under Fed. R. Civ. P. 12(b)(5) by applying a de novo standard to
the law a nd a clear error stan dard to a ny findin gs of fac t. S & Davis Int’l, Inc. v.
Republic of Yemen, 218 F.3d 1292, 1298 (11th Cir. 2000). We generally review
the district court’s interpretation of Fed. R. Civ. P. 4 on service of proce ss as a
matter of law de novo. Vencor Ho sp., Inc. v. Standard Life & A ccident Ins., 279
F.3d 1306, 1308 (11th Cir. 2002). Likewise, the district court’s interpretation of
foreign law in determining sufficiency of service of process is subject to de novo
review . United States v. McNab, 331 F.3d 1228, 1240 (11th Cir. 2003) (citing
United States v. Gecas, 120 F.3d 1419, 1424 (11th Cir. 1997) (en banc)).
Every defense, in law or fact, to a claim for relief in any pleading, whether a
claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the
responsive pleading thereto . . . except that the following defenses may at the
option of the pleader be made by motion: . . . (5) insufficiency of service or
process . . . .
7
However, we join our sister circuit in holding that the district court’s denial of a
motion for altern ative serv ice of pro cess und er Fed. R . Civ. P. 4 (f)(3) is s ubject to
an abuse of discretion standard because the plain language of the rule stipulates
that the dis trict court “m ay” direct a lternative m eans of s ervice. Rio Properties,
Inc. v. Rio Int’l Interlink, 284 F .3d 100 7, 1014 (9th Cir . 2002) .
The threshold issue in this case is whether OPEC has been effectively served
under the Federal Rules of Civil Procedure. If it has not, we must then determine
whether extraterritorial service of process on OPEC may be effectuated at all under
the circumstances here. By definition, “service of summons is the procedure by
which a court h aving v enue an d jurisdic tion of th e subject m atter of the suit asserts
jurisdiction over the person of the party served.” Miss. Publ’g Corp. v. Murphree,
326 U.S. 438, 444-45 (1946). A court is required to have personal jurisdiction
under the Due Process Clauses of the Fifth and Fourteenth Amendments to the
United States Constitution “as a matter of individual liberty” so that “the
maintenance of the suit . . . [does] not offend ‘traditional notions of fair play and
substantial justice.’” Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 702-03 (1982) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945 )).
There are two rules of fed eral civil procedure that apply to service of process
8
upon an international entity located outside of United States jurisdiction: Fed. R.
Civ. P. 4(f) (Service Upon Individuals in a Foreign Country) and Fed. R. Civ. P.
4(h) (Service of Process Upon Corporations and Associations). The latter governs
service on unincorporated associations located outside of the United States and
provid es that:
Unless otherw ise prov ided by f ederal law , service u pon a[n ] . . .
unincorporated association that is subject to suit under a common name, and
from which a waiver of service has not been obtained and filed, shall be
effected: . . .
(2) in a place not within any judicial district of the United States in
any manner prescribed for individuals by subdivision (f) except
personal delivery . . . . (emphasis added).
Fed. R. Civ. P. 4(h)(2). Thus, an “unincorporated association”6 headquartered
6
The district court treated OPEC as an unincorporated association pursuant to Fed. R.
Civ. P. 17(b)(1). Under this Circuit’s jurisprudence, an unincorporated association is defined as
“a body of persons acting together, without a charter, but upon the methods and forms used by
corporations, for the prosecution of some common enterprise.” Penrod Drilling Co. v. Johnson,
414 F.2d 1217, 1222 (5th Cir. 1969) (holding that labor unions, agricultural societies, co-ops,
banking associations, charitable associations, news associations, and religious societies may all
be considered unincorporated associations). But see Dean v. Barber, 951 F.2d 1210, 1215 n.4
(11th Cir. 1992) (holding that a government unit, subdivision or agency may not be considered
an unincorporated association). Cf. Hennessey v. Nat’l Collegiate Athletic Ass’n, 564 F.2d 1136
(5th Cir. 1977) (treating a college athletic association in an antitrust suit as an unincorporated
association even where some of its members were state institutions rather than individuals).
In this case, OPEC is an administrative body joined together for the common purpose of
acting on behalf of the business and political interests of its members with regard to their
petroleum resources. While its members are sovereign nation states rather than private
individuals, OPEC is not a governmental unit or subdivision and is not incorporated under the
laws of any one Member State. Thus, under the facts of this case, we agree that it is amenable to
the designation of “unincorporated association.” As the court in Penrod has found, the term
unincorporated association is one that is “generic” and of “vague meaning” with few “sharp
legal boundaries.” Penrod Drilling Co., 414 F.2d at 1222-23.
9
outside of the United States that is (1) subject to suit under a common name7 and
(2) has not waived service8 may be served in any manner authorized under Fed. R.
Civ. P. 4 (f) for in dividua ls in a fore ign cou ntry exce pt for pe rsonal d elivery.
Turnin g to Fed . R. Civ. P . 4(f), the f irst relevan t section p rovides that:
Unless otherwise provided by federal law, service upon an individual
from whom a waiver has not been obtained and filed, other than an
infant or an incom petent pe rson, m ay be effe cted in a p lace not w ithin
any judicial district of the United States:
(1) by any internationally agreed means reasonably calculated
to give notice, such as those means authorized by the Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Docu ments . . . .
Fed. R. Civ. P. 4(f)(1). In this case, no other m eans of service has been “otherw ise
provid ed by fed eral law” nor is the re an “inter nationally agreed m eans reas onably
calculated to give notice such as those means authorized by the Hague Convention
on the Service Abroad of Judicial and Extrajudicial Documents . . . .” The federal
laws pertaining to service of process on a foreign entity are codified in 28 U.S.C.
§§ 1602 et seq., the For eign So vereign Immu nities Ac t (“FSIA”), and 22 U.S.C.
§§ 288 et seq., the International Organizations Immunities Act (“IOIA”). The
7
In this case, it is clear that suit was brought against OPEC, the common name for this
international organization of sovereign oil-producing foreign states.
8
No evidence has been presented by either party that any waiver of service was “obtained
and filed” from OPEC.
10
parties agree that neither of these federal laws apply to OPEC in this case.9 The
parties likewise agree that there is no international agreement that stipulates the
appropriate means of service.10
Thus, we must look to the remainder of Fed. R. Civ. P. 4(f), which provides
for other methods by which an unincorporated association may be served in the
absence of relevant federal law or international agreem ents:
(2) if there is no internationally agreed means of service or the
applicable international agreement allows other means of
service, provided that service is reasonably calculated to give
notice:
9
It is clear that OPEC is not a foreign state or political subdivision of a foreign state
pursuant to § 1608 of the FSIA. OPEC also fails to qualify under § 288 of the IOIA because the
statute only applies to international organizations in which the United States participates
pursuant to a treaty or an act of Congress. Cf. Int’l Assoc. of Machinists & Aerospace Workers
v. OPEC, 477 F.Supp. 553 (C.D. Cal. 1979), aff’d 649 F.2d 1354 (9th Cir. 1981) (dismissing
OPEC as a party to the case because it held that OPEC could not be legally served under the
FSIA or IOIA). We note that under the current state of our federal laws, the individual Member
States of OPEC are afforded immunity from suit brought for damage caused by their commercial
activities when they act through OPEC. However, acting individually, a country would be
subject to suit under the commercial activity exception of the FSIA § 1605(a)(2) which provides
that a foreign state has no immunity from suit in cases “in which the action is based upon a
commercial activity carried on in the United States by the foreign state; or upon an act
performed in the United States in connection with a commercial activity of the foreign state
elsewhere; or upon an act outside the territory of the United States in connection with a
commercial activity of the foreign state elsewhere and that act causes a direct effect in the
United States.”
10
The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents
in Civil or Commercial Matters Done at The Hague, the Netherlands, November 15, 1965, 658
U.N.T.S. 163 (“Hague Service Convention”), provides rules governing service of process
between signatory states. However, while the United States is party to the Hague Service
Convention, Austria is not. Austria is party to the Hague Convention on Civil Procedure,
entered into force March 1, 1954, 286 U.N.T.S. 265, 1 Am. J. Comp. L. 282 (1952) (translation),
but the United States is not.
11
(A) in the manner prescribed by the law of the foreign
country for service in that country in an action in any of
its courts of general jurisdiction; or
(B) as directed by the foreign authority in response to a
letter rogatory or letter of request; or
(C) unless prohibited by the law o f the foreign country,
by
(i) delivery to the individual personally of a copy
of the summons and the complaint; or
(ii) any fo rm of m ail requirin g a signe d receipt, to
be addressed and dispatched by the clerk of the
court to the party to be served; or
(3) by other means not prohibited by international agreement as
may be d irected by the cour t.
Fed. R. Civ. P. 4(f)(2) and (3).
Prewitt originally chose to attempt service of process on OPEC under Fed.
R. Civ. P. 4(f)(C)(ii). However, the method set forth under that provision applies
only if it is not prohibited by the law of the foreign country. Based on the evidence
presented,11 the district court correctly found that service on OPEC was prohibited
11
Evidence on service of process in Austria under Austrian and international law was
considered by the district court pursuant to Fed. R. Civ. P. 44.1 (Determination of Foreign Law),
which provides that:
A party who intends to raise an issue concerning the law of a foreign country
shall give notice by pleadings or other reasonable written notice. The court, in
determining foreign law, may consider any relevant material or source, including
testimony, whether or not submitted by a party or admissible under the Federal
Rules of Evidence. The court’s determination shall be treated as a ruling on a
question of law.
12
by the law of Austria. Article 5(2) of the Austrian/OPEC Headquarters Agreement
provides that: “the service of legal process . . . shall not take place within the
[OPEC] headquarters seat except with the express consent of, and under conditions
approv ed by, the Secretar y Gene ral.” 12 Since the Headquarters Agreement was
enacted into law by resolution of the Austrian Parliament and published in the
Austrian Official Gazette pursuant to the Austrian Constitution, the district court
The evidence before the district court included: sections of Austrian law from the Austrian
Constitution, the Austrian Service Act, and the Austrian Code of Civil Procedure; articles of
international treaties such as the Vienna Convention on the Law of Treaties, entered into force
January 27, 1980, 1155 U.N.T.S. 331, and the Austrian/OPEC Headquarters Agreement; expert
affidavits and testimony from Austrian lawyers and professors on Austrian law; correspondence
between Austrian law experts; “Notes Verbales” between the Austrian Ministry of Foreign
Affairs and OPEC; correspondence from the Austrian Embassy to the District Court for the
Northern District of Alabama on service of process in Austria; the United States State
Department circular on service of process abroad; the Austrian Foreign Ministry website on
Austrian law; and academic treatises on transnational litigation.
12
As noted in some of the amicus curiae briefs submitted to this Court, this provision is
commonly found in numerous other Headquarters Agreements between sovereign states and
international organizations around the world. See e.g. Headquarters Agreement between the
Organization of American States and the Government of the United States of America, signed
May 14, 1992, art. IX, §1, (“The service and execution of legal process . . . may take place within the
Headquarters only with the consent of and under conditions approved by the Secretary
General.”); Agreement Regarding the Headquarters of the Food and Agriculture Organization of
the United Nations, signed October 31, 1950, art. III, § 7(a), 1409 U.N.T.S. 23602 (“The service
of legal process . . . may take place within the headquarters seat only with the consent of, and
under conditions approved by, the Director-General.”); and the Agreement Relating to the
Headquarters of the International Bauxite Association between the International Bauxite
Association and Jamaica, signed November 5, 1975, art. III, § 4, 1021 U.N.T.S. 15000 (“The
service of legal process . . . may take place within the Headquarters premises only with the
express prior consent of and under conditions approved by the Secretary General.”)
13
found it to be an integral part of Austrian law.13 Thus, because service was
prohibited by Austrian law, Prewitt could not have effectively served OPEC under
Fed. R . Civ. P. 4 (f)(C)( ii).
Prewitt nonetheless suggests that we should liberally construe the formal
requirements for service under the Federal Rules because OPEC received actual
notice bu t simply ch ose to “ign ore the w hole thin g.” Br. o f App ellant at 23 .
How ever, w e find no suppo rt for suc h an arg ument. 14 Due process under the
13
We reject Prewitt’s argument that because the Headquarters Agreement is not a
criminal statute with criminal sanctions but merely a “diplomatic accommodation,” it does not
actually “prohibit” service upon OPEC within the meaning of Fed. R. Civ. P. 4(f)(2)(C)(ii). The
Headquarters Agreement has been incorporated into Austrian law and need not provide for
criminal sanctions to enforce its prohibition of service upon OPEC without OPEC’s consent.
We also reject Prewitt’s argument that Article 5(2) of the Headquarters Agreement only bars
physical intrusions into the OPEC headquarters seat by the Republic of Austria or by persons
exercising public authority within Austria and thus does not apply to service by international
mail from someone outside of Austria. Nothing in the plain language of Article 5(2) of the
Headquarters Agreement indicates that the drafters intended for such a narrow interpretation.
14
It is true that receipt of actual notice is an important factor in considering whether
service of process is adequate. Hanna v. Plumer, 380 U.S. 460, 463 n.1 (1965) (dictum);
Milliken v. Meyer, 311 U.S. 457, 463 (1940). However in all of the cases cited by Prewitt, the
courts were careful to determine that service of process was in substantial compliance with the
formal requirements of the Federal Rules; actual notice alone was not enough to allow the court
personal jurisdiction over the defendant. See Sanderford v. Prudential Ins. Co. of America, 902
F.2d 897 (11th Cir. 1990) (holding that service of process was in substantial compliance with
Fed. R. Civ. P. 4(b) even though it did not include a return date for the responsive pleading);
Direct Mail Specialists, Inc. v. Eclat Computerized Tech. Inc., 840 F.2d 685 (9th Cir. 1988)
(finding that a corporation’s receptionist had sufficient authority to receive service of process as
a “managing or general agent” under Fed. R. Civ. P. 4(d)(3) and noting that the president of the
company received actual notice of the summons and complaint a day later); United Food &
Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371 (9th Cir. 1984) (holding that
service was effective under Fed. R. Civ. P. 4(b) even though the summons had a typographical
error stating that the defendant had 10 rather than 20 days to answer the complaint); Banco
Latino, S.A.C.A. v. Gomez Lopez, 53 F.Supp. 2d 1273 (S.D. Fla. 1999) (finding that personal
delivery of service of process on the defendant in Spain was sufficient because it was authorized
14
United States Constitution requires that “before a court may exercise personal
jurisdiction over a defendant, there must be more than notice to th e defend ant . . .
[t]here also must be a basis for the d efendan t's amenability to serv ice of sum mons.
Absent consent, this means there must be authorization for service of summons on
the defendant.” Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104
(1987) (emphasis added).15 In other words, an individual or entity “is not obliged
to engage in litigatio n unless [off icially] notified of the action . . . under a cour t’s
authority, by formal process.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344, 347 (1999). In this case, Fed. R. Civ. P.(f)(2)(C)(ii) clearly states
that service of process by registered mail is only authorized where it is not
prohibited by foreign law. Here, the Headquarters Agreement constitutes Austrian
law and, under Article 5(2), expressly prohibits all service of process upon OPEC
within the headquarters seat that has not been consented to by its Secretary
General. Thus, we agree with the district court that even though OPEC had actual
notice of the filing of the suit, service of process was ineffective because it was
clearly not in substantial compliance with the requirements of Fed. R. Civ. P.
under Spanish law as required by the Hague Convention and Fed. R. Civ. P. 4(f)(1) and the
defendant had actual notice even though he only received a copy of the summons and not the
complaint because he departed hastily).
15
“Personal jurisdiction is a composite notion of two separate ideas: amenability to
jurisdiction, or predicate, and notice to the defendant through valid service of process.” DeMelo
v. Toche Marine, Inc., 711 F.2d 1260, 1264 (5th Cir.1983).
15
4(f)(2) (C)(ii).
Alternatively, Prewitt argues that even if service failed under Fed. R. Civ. P.
4(f)(2) (C)(ii), se rvice by r egistered mail upo n OP EC no netheless complie d with
Fed. R. Civ. P. 4(f)(2)(A), which permits service if it is effectuated “in the manner
prescribed by the law of the foreign country for service in that country in an action
in any of its courts of general jurisdiction.” The provisions of Austrian law that
Prewitt references from Austria’s Civil Procedure Code and regulations for service
of proc ess by m ail relate to se rvice by A ustrian co urts on p ersons r esident in
Austria and abr oad. N one of th ese Au strian law provisio ns directly pertain to
service mailed from abroad upon in ternation al organ izations re sident in A ustria.
Prewitt argues that we should look only to the approved “method” of service
within the foreign jurisdiction and not to the substance of Austrian law. However,
the substance of the law specifically relating to service of process cannot be
divorce d from the “method” of s ervice. In deed, §§ 12(1) and 11(2) of the Austrian
Service Act spe cifically add ress serv ice from authoritie s abroad upon r esidents in
Austria and trump the more general provisions cited by Prewitt from the Austrian
Code o f Civil P rocedu re and re gulation s for serv ice of pro cess by A ustrian co urts
on residents in Austria or abroad.16 Moreover, the Regulation Regarding the
16
Expert Decl. of Dr. Wolfgang Hahnkamper, Dist. Ct. Doc. 56, Exh. 8 at 4.
16
Service of Pro cess by M ail upon Person s Abro ad in Civ il Procee dings th at Prew itt
argues a pplies in th is case spe cifically states that it does not apply to service on
entities specified under § 11(2) of the Austrian Service Act. Dist. Ct. Doc. 87,
Exh. 4B. Section 12(1) (as amended 1990) of the Austrian Service Act requires
that:
The ser vice of d ocume nts gene rated by a uthorities abroad to recipien ts
in Austria shall be carried out in accordance with the existing
internatio nal conv entions, in the abs ence of w hich it has to be do ne in
accordance with this law . . . . (emph asis adde d).
Section 11(2) (as amended 1998) of the Austrian Service Act directly addresses
service fr om abr oad up on intern ational or ganizatio ns such as OP EC req uiring th at:
the mediation of the Federal Ministry for Foreign Affairs shall be
enlisted in undertaking service of process on foreigners or
international organizations that enjoy privileges and immunities under
international law, regardless of their place of residence or
headqu arters.
There would be no way for Prew itt to serve OPEC under § 11(2) of the Austrian
Service Act because we must assume that if it had gone to the Austrian Federal
Ministry of Foreign Affairs, the Ministry would have applied the laws of its own
country and obeyed the dictates of the Austrian/OPEC Headquarters Agreement
prohib iting serv ice witho ut OP EC’s co nsent.
In response, Prewitt again argues that actual notice can cure defective
service of process pursuant to Section 7 of the Austrian Service Act, which
17
provides:
Should defects in service of process occur, service shall be deemed
effectuated at the time when the document has actually reached the recipient
designated by the authority.
Section 7 (as amended January 1, 1991) of the Austrian Service Act. However,
this section has spec ifically been interprete d in Au stria not to apply to d efects in
service of process that are in breach of the requirements for service under an
internatio nal agree ment su ch as the A ustrian/O PEC Headq uarters A greeme nt. 17
Moreover, Section 7 may not cure a failure to obtain OPEC’s express consent
because under the Austrian law of lex specia lis, the more specific provision in the
Headquarters Agreement for service of process upon OPEC takes precedence over
the more general language of the Austrian Service Act. Expert Decl. of Dr.
Wolfgang Hahnkamper, Dist. Ct. Doc. 80, Exh. 5 at 416-17, 420-21.18
17
The Austrian Administrative Court (“Verwaltungsgerichtshof”) has held that a breach
of a rule in an international agreement on service of process was not a “simple defect of service”
that could be cured by Section 7 of the Austrian Service Act. The court stated the rule that:
[S]imple consideration of the generally acknowledged rules of public law, which
apply according to Art. 9(1) B-VG [Federal Constitutional Act] as constituents of
Federal law, and which include the principle that contracts are to be performed in
good faith . . . prohibits § 7 of the Service Act from being afforded the content
that it should also reform breaches of explicit prohibitions on service contained in
international agreements . . . .
Verwaltungsgerichtshof [VwGH] Beschluß, December 18, 1997, No. 97/11/0274 (Aus.).
18
Prewitt similarly argues that because OPEC failed to immediately reject the pleadings
sent to it by international registered mail, return them, or lodge diplomatic protests with the
United States, its actual receipt of the pleadings constituted constructive consent or waiver of the
18
Finally, P rewitt co ntends th at even if its service b y registere d mail on OPE C could
not be effectuated pursuant to any of the provisions of Fed. R. Civ. P. 4(f)(2), the
district court still had the discretion to order service of process pursuant to Fed. R.
Civ. P. 4(f)(3), which pro vides that service may be effected “by other means not
prohibited by intern ational ag reemen t as may b e directed by the co urt.” (empha sis
added). We ag ree with Prew itt that a distric t court’s d enial of re lief unde r 4(f)(3 ) is
reviewed under an abuse of discretion standard. However, there is no abuse of
discretion here; on the contrary, any circumvention of 4(f)(2)(C)(ii) by the district
court in d irecting se rvice aga in by reg istered m ail wou ld constitu te such an abuse.
On these facts, we cannot read 4(f)(3) as permitting that which has already been
specifically prohib ited und er 4(f)(2 ).
Prewitt then argues that, even if service by registered mail is prohibited by
4(f)(2), other means of giving actual notice, such as fax or e-mail, that are not
mentioned in the rule or prohibited by international agreement could be employed
to serve OPEC under Fed. R. Civ. P. 4(f)(3), even if the service is contrary to the
protection under Article 5(2) of the Headquarters Agreement that OPEC may only be served
where it has expressly consented to service of process. Br. of Appellant at 31 n.9. We reject this
argument because Article 5(2) must be read together with Article 9 of the Headquarters
Agreement, which provides that “OPEC . . . shall enjoy immunity from every form of legal
process except in so far as in any particular case OPEC shall have expressly waived its immunity
. . . (emphasis added).”
19
laws of Austria.19 However, the 1993 Advisory Committee Notes to Fed. R. Civ.
P. 4(f)( 3) instru ct that:
Paragraph (3) authorizes the court to approve other methods of service not
prohibited by international agreements. . . . Inasmuch as our Constitution
requires that reaso nable no tice be giv en, an earnest effort should be mad e to
devise a m ethod o f comm unication that is consistent with due process and
minimizes offense to foreign law.
(emph asis adde d). Rather than m inimizing offense to Aus trian law , the failure to
obtain O PEC ’s consen t would constitute a substan tial affron t to Aus trian law . We
can find no sup port per mitting su ch a con sequen ce in the fa ce of A ustria’s dir ect
prohib ition of se rvice on OPE C with out its con sent. 20 The case relied upon as
19
In support of its argument, Prewitt cites to Umbenhauer v. Woog, 969 F.2d 25, 34 (3d
Cir. 1992), which held that “Rule 4(i)(1) neither explicitly or implicitly requires any deference to
foreign governments or the U.S. Department of State in the manner by which service shall be
made.” However, Fed. R. Civ. P. Rule 4(i)(1) was the predecessor to the current Fed. R. Civ. P.
4(f)(2)(C)(ii) for service of process by registered mail, not Fed. R. Civ. P. 4(f)(3), which is at
issue here. In any event, the Umbenhauer court pointed out that the 1993 amendments to the
Federal Rules on service specifically provided for greater deference generally to foreign law. As
the court noted, “the Standing Rules Committee of the Judicial Conference of the United States
recently drafted relevant proposed revisions to Fed.R.Civ.P. 4” and that “[i]f proposed Rule
4(f)(2)(C) were in effect today, then contrary to our holding here, the new Rule would preclude a
district court clerk from serving process by signed receipt mail on a defendant in a country
whose laws forbid that method of service.” Id. at 33.
20
Prewitt also cites to In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 2003 WL
21659368 (S.D.N.Y. July 15, 2003) (unpublished), where again there was no Austrian law
explicitly prohibiting service of process on the defendant, an Austrian corporation, without its
consent. We do not find this case applicable. But see Mayoral-Amy v. BHI Corp., 180 F.R.D.
456 (S.D. Fla.1998) (declining to authorize service of process by facsimile under Fed. R. Civ. P.
4(f)(3) where doing so would be in contravention of Belize law); Lord v. Living Bridges, 1999
WL 528833 (E.D. Pa. 1999) (unpublished) (ordering plaintiffs to serve defendants under Fed. R.
Civ. P. 4(f)(3) in a manner that was not prohibited by international agreement or applicable
Mexican law).
20
persuas ive by P rewitt, Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007,
1014 (9th Cir. 2002), is not at all applicable to the circumstances here. In Rio, the
court held that the district court did not abuse its discretion by ordering service by
email upon an international corporation based in Costa Rica. However, the
primary issue in th at case w as whe ther Fed . R. Civ. P . 4(f) sho uld be re ad to crea te
a hierarchy of preferred methods of service of process, requiring a party to attempt
service by the methods enumerated in Fed. R. Civ. P. 4(f)(2) before petitioning the
court for alternative relief under Fed. R. Civ. P. 4(f)(3). More importantly, the
facts supporting the district court’s direction of alternative service in Rio are
completely different from the facts here. In Rio, the court determined that the
defendant, an international internet company do ing business in the United States,
had a viable presence in the United States; that physical personal service had been
legally attempted by actually serving a legitimate agent of the defendant in the
United States; and that the defendant had ev aded the attempted service. The mo st
important distinction, however, is that in Rio, there w as no dis cussion of Cos ta
Rican law at all, much less of any prohibitions relating to service of p rocess and
thus, no need to take into account the advisory note to Fed. R. Civ. P. 4(f)(3)
directing that alternative service of process should minimize offense to foreign
21
law.21
Austrian law clearly provides protection to OPEC as an international
organization from all methods of serv ice of process without its consent and also
requires that any service of process from abroad be effected through Austrian
authoritie s. In this ca se, OP EC ha s made c lear that it ref uses to co nsent ex pressly
to service of process by Prewitt; thus, the district court did not abuse its discretion
in denying Prewitt’s motion to authorize alternative means of service.
III. CONCLUSION
Based on the foregoing, we AFFIRM the district court’s motion to dismiss
this case for insufficient service of process and its denial of alternative service of
process on OP EC.
21
We do not say that a district court never has discretion to direct service of process under
Fed. R. Civ. P. 4(f)(3) that is in contravention of a foreign law. Rather, we are satisfied that
under the facts and circumstances of this case, directing service of process would constitute a
clear abuse of discretion.
22