Today’s case of the day, Freedom Watch v. OPEC (D.C. Cir. 2016), is, most likely, the last installment in this long-running service of process dispute. I have covered the case several times before. Here once again is my description of the facts:
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.
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The case of the day is Pinnacle Packaging Co. v. Constantia Flexibles GmbH (N.D. Okla. 2015). Pinnacle and the other plaintiffs served a notice for the deposition of Thomas Unger, the CEO of Constantia, and for the depositions of corporate representatives of Constantia and One Equity Partners. Unger resides in Germany. Constantia’s offices are in Austria, and One Equity’s officers are in Germany. The depositions were to take place in New York. The defendants moved for a protective order, arguing that the depositions should take place in Germany and Austria rather than in New York.
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The case of the day is ÖBB Personenverkehr AG v. Sachs (S. Ct. 2015). Carol Sachs, a Californian, bought a Eurail pass via the website of The Rail Pass Experts, a Massachusetts travel agent. She traveled to Innsbruck, intending to use her pass to ride the train to Prague. But as she attempted to board, she fell onto the tracks, and the moving train crushed her legs, which had to be amputated. She sued ÖBB, which operates the railway in Austria, for negligence, failure to warn, breach of implied warranty, etc., in the Northern District of California. ÖBB is owned by ÖBB Holding Group, which in turn is wholly owned by the Austrian Federal Ministry of Transport, Innovation, and Technology.
ÖBB moved to dismiss the action for want of subject matter jurisdiction, arguing that it had sovereign immunity under the FSIA. The District Court granted its motion, and a panel of the Ninth Circuit affirmed, but the full court, en banc, reversed, and ÖBB sought review in the Supreme Court.
Continue reading Case of the Day: ÖBB Personenverkehr v. Sachs