The case of the day is Moriarty v. Hashemite Kingdom of Jordan (D.D.C. 2024). In 2016, a Jordanian soldier, Ma’arek Al-Tawayha, known as Abu Tayeh, shot and killed three American soldiers stationed at Jordan’s King Faisal Airbase. Abu Tayeh was convicted of manslaughter and military offenses in Jordan and is serving a life sentence there. Family members of the dead soldiers brought a wrongful death action against Abu Tayeh and Jordan in Washington. The claim against Jordan was dismissed for lack of jurisdiction under the FSIA.

Jordan is not a party to the Service Convention. The plaintiffs began by asking the court to issue a letter rogatory. The court obliged, and while the letter was transmitted to Jordan via the diplomatic channel in 2019 and, according to the State Department’s account of what the Jordanians had said, Abu Tayeh had been served with process by 2021, Jordan’s official response to the letter rogatory never came. The plaintiffs also hired a private process server to serve Abu Tayeh personally in prison, but the prison guards refused to permit them to enter and refused to accept service on Abu Tayeh’s behalf. It is not clear from the opinion if the plaintiffs know which Jordanian prison Abu Tayeh is in today.

Interestingly, it does not seem that the plaintiffs sought to serve process by the means prescribed by Jordanian law under FRCP 4(f)(2)(A), at least as far as the opinion reveals. With the heavy caveat that you shouldn’t always trust what you read on the web, I found a translation of Jordan’s civil procedure law on the website of a Jordanian law firm that suggests (in article 10(3)) that papers can be served on a prisoner by serving “the prison director” or “the person who acts for him.” The same goes for service by post under FRCP 4(f)(2)(C)(ii). Of course, service by post is only permissible if not forbidden by the foreign state’s law, but the same is true of personal service, the method the plaintiffs did try. These points are important only to the extent the court’s decision in today’s case rested on the idea that the plaintiffs had exhausted all other methods of service.

Anyway, the plaintiffs moved for leave to serve by publication in a Jordanian newspaper. Such service is sometimes permissible, of course. But the service must meet the standards of due process. Ordinarily that is, frankly, a legal fiction. There is no real reason to think that a defendant who is hard to find is reading the legal notices in a local newspaper. But sometimes it is the best we can do.

In this case, the concern is that Abu Tayeh is in prison. The legal fiction that permits service by publication seems to work okay when the defendant is out and about in the world. But in the case of a prisoner, I think the question that has to be answered is whether prisoners can receive newspapers. Here is what the court had to say on that point:

Plaintiffs make the fair assertion “it would be reasonable to assume that this newspaper would be available to the prison population where Defendant Abu Tayeh is incarcerated.”

But why is that a fair assumption? It seems to me there has to be an answer to the question about prisoners’ access to newspapers in Jordan, and the propriety of the service turns on the answer. I am therefore not sure this decision is correct, at least without more information to justify the method of service.

Image credit: US Army (public domain)