Moskovits v. Federal Republic of Brazil

Background

Alexander Moskovits, proceeding without a lawyer, submitted a declaration after the court directed him to show that he had attempted to serve the defendants in Brazil or to show a legally sufficient reason for not doing so. The court had previously dismissed the action for failure to serve the defendants within 90 days under Federal Rule of Civil Procedure 4(m). The Second Circuit vacated that dismissal because the district court had not given Moskovits advance notice and an opportunity to address the service issue.

Moskovits said he attempted to serve the foreign-state defendants by contacting a lawyer who had represented some defendants in an earlier related proceeding and by visiting the offices of the Brazilian states. He reported that the lawyer was not authorized to accept service in this case and that staff at the state offices would not accept hand-delivered service. A Brazilian civil lawyer also stated that service in Brazil must be carried out through the Brazilian civil courts by a lawyer licensed there.

Service deadline

The court held that Moskovits’s declaration appeared to show an attempt to serve the foreign-state defendants in Brazil. Rule 4(m)’s 90-day service requirement does not apply to service in a foreign country under the rules governing service on foreign states and their subdivisions. The court therefore stated that it would not dismiss Moskovits’s claims against the foreign-state defendants under Rule 4(m).

The court emphasized that the foreign-service exception does not give a plaintiff unlimited time to serve defendants. If Moskovits had not served the foreign-state defendants by September 5, 2024, he was required to provide a status letter describing his efforts.

The court said it was unclear whether Moskovits had attempted to serve Raimundo Colombo, Jorge Siega, or CELESC of Santa Catarina in Brazil. By September 5, 2024, Moskovits had to tell the court whether he had attempted service on those defendants or show good cause for failing to do so. The court stated that, if he did not, the claims against those defendants would be dismissed under Rule 4(m).

Required method for serving foreign states

Moskovits argued that he should be allowed to serve the foreign-state defendants through attorneys at Arnold & Porter because the firm had represented defendants in earlier litigation and had provided legal advice related to the transactions at issue. The court rejected that method.

Under Federal Rule of Civil Procedure 4(j), service on a foreign state or its political subdivision must comply with 28 U.S.C. § 1608(a). That statute lists four methods in order of preference: a special arrangement with the foreign state; an applicable international convention; specified mail sent by the court clerk to the foreign state’s head of the ministry of foreign affairs; and, if the third method cannot be completed within 30 days, specified mail sent through the United States Secretary of State for diplomatic transmission. The court stated that the statute does not allow service by emailing the summons and complaint to the foreign state’s lawyers. Moskovits therefore had to comply with § 1608(a).

Request for recusal

Moskovits also asked Judge Ramos to step aside under federal recusal statutes. He alleged that Judge Ramos had ties to Simpson Thacher & Bartlett, that the firm had a connection to matters described in his complaint, and that the judge had acted to conceal alleged wrongdoing. He also claimed that the case had been assigned through an improper process.

The court rejected those assertions. Judge Ramos had worked at Simpson Thacher from 1987 to 1992, but the court found that this past employment did not provide a basis to question his impartiality. The court also stated that the case had been randomly assigned under the district’s rules. It further explained that disagreement with a judge’s rulings is ordinarily addressed through an appeal, not through a request for recusal, and noted that the Second Circuit had rejected Moskovits’s request to reassign the case.

Disposition

Judge Ramos denied Moskovits’s request for recusal. The court did not dismiss the claims against the foreign-state defendants under Rule 4(m) at this stage, required service-related submissions by September 5, 2024, and stated that the claims against the individual defendants and CELESC of Santa Catarina would be dismissed under Rule 4(m) if Moskovits did not provide the required showing.