The case of the day is Freedom Watch v. OPEC (D.D.C. 2015). I’ve covered the case a few times already. Here are links to earlier posts about the District Court decision, the DC Circuit’s first decision, and the District Court’s second decision. I didn’t previously cover the DC Circuit’s decision denying Freedom Watch’s petition for mandamus.
Here was my summary of the case from the first post:
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, 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.
The district court correctly held that the service was improper. In an unusual decision, the DC Circuit remanded to determine whether Freedom Watch should be allowed to serve process on OPEC’s US counsel, even though Freedom Watch had not moved for permission to do that under FRCP 4(f)(3). On remand, the district court denied leave. I thought the DC Circuit’s decision was probably incorrect, but given its mandate, I was surprised by the district court’s decision.
In today’s decision, the judge stuck to his guns and dismissed the action with prejudice. Freedom Watch has now appealed.
It’s difficult, in my view, to justify the judge’s approach here. I think OPEC probably has a lot of good defenses—both defenses to the merits, and defenses of lack of jurisdiction and immunity form suit. But if you think, as I do, that in our system the main point of service of process is to provide notice of the lawsuit, and if you recognize that jurisdictional and immunity defenses can be asserted even if the defendant is validly served with process, I don’t see why the judge wouldn’t grant leave to serve process by a fairly commonly-used method. It’s not a great idea, I think, to use a service of process motion as a way to resolve a case, even if, as in this case, the case almost certainly lacks merit.