The case of the day is Freedom Watch v. OPEC (D.D.C. 2013). Freedom Watch, a right-wing organization that accuses the “Obama-Clinton regime” of “using the economic crisis as an excuse to turn our nation into a socialist Euro-style welfare state,” sued OPEC on antitrust theories. I am going to go out on a limb here and guess that its claims lacked merit. OPEC moved to dismiss for insufficient service of process. According to OPEC’s motion to dismiss, “Plaintiff’s counsel, Mr. Larry Klayman,¹Klayman, incidentally, is a cartoonish character, and perhaps one of the “carnival barkers” whom President Obama decried when, in 2011, he released a copy of his his “long-form” birth certificate in an attempt to finally put to bed the so-called “birther” conspiracy theories—theories that claimed, outlandishly, that President Obama was ineligible to be President for various obviously false reasons. personally handed an envelope containing a summons, the complaint and other documents, all in English, to an Austrian police officer (not an employee of OPEC) who was present at the reception desk in the lobby of OPEC’s headquarters in Vienna.” On the other hand, according to the return of service, filed after the motion to dismiss, Courtney Butcher of Beverly Hills, California served the summons at OPEC headquarters on Frederich Luger, “intake officer of OPEC,” who supposedly was designated by law to accept service of process on OPEC. Unfortunately for Klayman and Freedom Watch, OPEC submitted a declaration from Mr. Luger:

1. I am not, and have never been, an employee of [OPEC]. I have been employed with the police since 1978 and am currently serving as a plain-clothes police officer in the Provincial Department for State Protection.

2. On May 14, 2012, I was tasked with performing security services at OPEC Headquarters …. At a time when the OPEC security officer was temporarily absent from the reception desk, two individuals, an elderly man and young woman, approached me and told me in English that they had to deliver a letter. These individuals did not tell me who they were or what organization had sent them. They did not ask me any questions and made no representations to me. They did not inform me what the envelope contained, nor was I asked whether I was authorized to accept service. They did not ask me what function I have. After having handed over the letter, they asked me for my name which I told them.

All this was ultimately beside the point, however. Service was governed by FRCP 4(h)(2), which requires that “unless federal law provides otherwise or the defendant’s waiver has been filed,” an unincorporated association served abroad must be served “in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).” FRCP 4(f), in turn, permits service by an internationally agreed means of service (e.g., the Hague Service Convention) or, “if there is no internationally agreed means, or if an international agreement allows but does not specify other means,” then as prescribed by the foreign country’s law, as the foreign authority directs in response to a letter rogatory, by mail addressed and sent by the clerk (unless prohibited by the foreign country’s law), or by such other means as the court orders. There was no internationally agreed means here, because Austria is not a party to the Hague Service Convention. There was no attempt at service by mail, though even if there had been, it would have been ineffective, as Austrian law prohibits service by mail. There was no letter rogatory directed to the Austrian authorities. There was no request to the US court to make service by alternative means under FRCP 4(f)(3). So the service was good only if it used a method prescribed by Austrian law. But in fact Austrian law forbids direct service from abroad by private parties, and more specifically, Austrian law prohibits service of process on OPEC without the express consent of OPEC’s secretary general. All of this follows from Prewitt Enterprises v. OPEC, 353 F.3d 916 (11th Cir. 2003), a case I noted in § 2.7.1(a) of International Judicial Assistance (MCLE 2012).

Freedom Works also claimed to have served process on OPEC’s lawyers in Washington. The judge rejected this service because there was no return of service on file and because OPEC’s lawyers were not authorized by OPEC to accept service of process in any case.

I don’t want to give advice to someone like Klayman, but it seems to me that there is an easy way forward: file a motion under FRCP 4(f)(3)—in advance—for leave to serve OPEC’s US lawyers in Washington.

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  Klayman, incidentally, is a cartoonish character, and perhaps one of the “carnival barkers” whom President Obama decried when, in 2011, he released a copy of his his “long-form” birth certificate in an attempt to finally put to bed the so-called “birther” conspiracy theories—theories that claimed, outlandishly, that President Obama was ineligible to be President for various obviously false reasons.