Case of the Day: Orsi v. Falah
Posted on October 8, 2012
Orsi sued Al-Nahyan in Massachusetts for defamation and intentional infliction of emotional distress. The defamation claim rested on the allegation that “during and since the encounter, Al-Nahyan and his affiliates made false statements implying that Orsi is homophobic and violent.”
Al-Nahyan was the brother of the President of Abu Dhabi. The decision does not say where Al-Nahyan resides, though the complaint alleges, oddly, that Al-Nahyan “is, for purposes of this suit and the directives of Swiss law, a resident of Geneva, Switzerland.”
The procedural course of the case was highly unusual. Orsi sought and received a routine extension of time to effect service of process.1 Orsi then attempted to make service in three ways, all clearly insufficient: (1) he attempted to serve process on Al-Nahyan’s Swiss lawyer in a related Swiss civil litigation, without first seeking leave of court under FRCP 4(f)(3) and apparently without attempting to comply with the Hague Service Convention; (2) he attempted to serve process on the “self-proclaimed attorney” for Abu Dhabi’s royal family, of which Al-Nahyan was a member, again without seeking leave of court; and (3) he sent the summons and complaint by mail to Al-Nahyan’s business office in Abu Dhabi, apparently without seeking to comply with FRCP 4(f)(2)(C)(ii), which requires the clerk to send the documents.2 Yikes!
Orsi then moved for leave to make service by alternate means under FRCP 4(f)(3). Orsi’s motion sought what he should have sought in the first place, namely, leave to make service by mail on Al-Nahyan’s lawyers in Switzerland and Abu Dhabi and on the “office director” at Al-Nahyan’s business address in Abu Dhabi.3
The court denied the motion. The judge recognized that there was no requirement of exhausting other options before seeking to make service under FRCP 4(f)(3), but but he held that Orsi should have done more to serve process in a way that did not offend UAE law, which, accourding to the judge, required “service by a court bailiff or private company appointed by the UAE Ministry of Justice.” Orsi had claimed that no process server in Abu Dhabi would agree to serve process on a member of the royal family, but the court found that to be pure conjecture, as Orsi had not shown that he had tried to find a process server, nor had he sought to effect service via a letter rogatory.
I think the decision’s reasoning is problematic. The judge found that service on Orsi’s Swiss lawyer would satisfy due process, and it’s not clear how service in Swiss territory would raise concerns under UAE law. On the other hand, service in Switzerland would raise its own complications (e.g., Swiss law forbids service by mail from the United States), which the judge did not discuss.
But while the judge’s reasoning was somewhat suspect, the basic point—that Orsi should have tried a letter rogatory or some other method of service “more respectful of the foreign jurisdiction” first—is most probably within the judge’s discretion.
There is another aspect of the decision worth noting. The judge held that the court lacked personal jurisdiction over Al-Nahyan. This is odd, because lack of personal jurisdiction is a waivable affirmative defense, and Al-Nahyan had not yet made an appearance in the case. “A district court has no authority, sua sponte, to dismiss for lack of personal jurisdiction.” Pilgrim Badge & Label Corp. v. Barrios, 857 F.2d 1, 3 (1st Cir. 1988). The judge reasoned that the rule of Pilgrim governed only when the defendant had waived the affirmative defense (e.g., by failing to assert it as required by FRCP 4(h)(1)). But Pilgrim doesn’t say so. More generally, plaintiffs aren’t required to plead facts sufficient to establish personal jurisdiction in their complaints. So I don’t think it’s wise for judges to examine complaints with an eye to dismissing cases that don’t appear to support the court’s personal jurisdiction. They should wait for defendants to raise the issue if they choose. I don’t think this was a denial of Orsi’s due process rights, because the judge did give him an opportunity to show that he could establish the court’s jurisdiction over Al-Nahan. Still, it’s an odd move. Maybe this was just an exercise in docket management.
Photo credit: Wikipedia
- Insofar as Al-Nahyan was not residing in the United States, the ordinary time limit of FRCP 4(m) was inapplicable, so Orsi probably made this motion out of an abundance of caution.
- Some clerks apparently do not allow plaintiffs to meet the literal requirements of FRCP 4(f)(2)(C)(ii), instead requiring plaintiffs to mail the documents themselves. There’s no indication that that’s what happened here, though.
- Service by mail in Switzerland would violate both Swiss law and the Hague Service Convention, but that’s a small point in the mess of this case.