Case of the Day: Doe v. Germany

A panel discussion about the Panama Papers. On the screen is the text: "Hello. This is John Doe. Interested in Data?"

The case of the day is Doe v. Federal Republic of Germany (S.D.N.Y. 2023). It’s a weird one. A pseudonymous plaintiff, who claimed he was the person who leaked the Panama Papers, sued the German government for breach of contract, alleging that the government had breached a promise to pay him a portion of the back taxes collected as a result of the leak. He sued first in Washington. When the court there refused to allow him to proceed using a pseudonym, he dismissed the action and brought a new case in New York, acting pro se. He asked the court to required the Marshal to sign and transmit the request for service under the Service Convention. (Of course, there’s no question that service via the Convention is the proper way to serve Germany in the case, assuming there is no special arrangement for service).

The court denied the motion. It reasoned, correctly, that the plaintiff, a pro se litigant, was not a competent person under US law to sign the request for service. But it went on to hold that the court had no obligation to assist, because, under the court’s handbook of guidance to litigants in foreign service cases, it’s the litigant’s responsibility to transmit a request of service abroad.

I am not a fan of this holding for a few reasons. First, even assuming it’s right that the plaintiff should have to send the request to the German central authority through the mail, the court recognized that he cannot sign it, and it would be simple just to have the clerk’s office sign the form, especially given that the plaintiffs was acting pro se. Second, under FRCP 4(c)(3), the court may (though it need not) appoint the Marshal or someone else as a special process server. It would have been reasonable for the court to construe the motion as one to appoint the Marshal as process server. And in any case, the clerk’s guidance on mailing in cases of foreign service cannot override a rule of civil procedure.

Of course, there’s a bigger question about why the plaintiff should be allowed to proceed under a pseudonym. I don’t know what the justification is, though I could take some guesses based on the unhappiness the Panama Papers leak caused to many wealthy people around the world. And there’s a question about why the plaintiff doesn’t just hire a lawyer!

Photo credit: Nordiske Mediedager (CC BY-SA)

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