Case of the Day: Opati v. Republic of Sudan
Posted on October 31, 2013
The plaintiffs filed their initial complaint in July 2012 and sought to make service on the defendants via mail as required by 28 U.S.C. § 1608(a)(3) (neither Iran nor Sudan is a party to the Hague Service Convention, and there were no special arrangements for service, so the plaintiffs were entitled to begin with service by mail). The two defendants refused to accept the mail. Then the plaintiffs, before proceeding to serve process via diplomatic channels under 28 U.S.C. § 1608(a)(4), amended their complaint. The plaintiffs sought an order from the court permitting them to serve the amended complaint via diplomatic channels rather than starting over with service by mail.
The judge refused to issue the order the plaintiffs sought, on the grounds that they were really seeking an advisory opinion about the validity of the service they proposed to make under § 1608(a). I think this is right on the money, for basically the same reasons I gave regarding motions to validate service already attempted. Not only are such motions—whether brought before or after the attempted service—advisory; they are ex parte. Courts should wait for an objection to service of process from the defendant or a motion for entry of default and then judge the service in the ordinary course.