Ryzhov v. $5

Background

Evgeny Ryzhov filed a second amended complaint against Konstantin Malofeyev and Tsargrad Media. The opinion states that Ryzhov resides in Florida, that he and Malofeyev are alleged to be Russian nationals, and that Tsargrad Media is a Russian company purportedly owned or controlled by Malofeyev. The court had previously declined to issue a certificate of default and had said it could dismiss the case for failure to properly serve the defendants. It then gave Ryzhov an opportunity to seek court-approved alternative service.

Ryzhov moved under Rule 4(f)(3) of the Federal Rules of Civil Procedure. That rule permits a court to authorize another method of serving a defendant outside the United States when the method is not prohibited by an international agreement. The proposed methods were email to tsargradtv@gmail.com, service by publication, and registered mail through Russia’s domestic postal service.

Legal Standard

The court explained that an alternative service method must satisfy two requirements: it must not be prohibited by an international agreement, and it must satisfy constitutional due process. Due process requires a method reasonably likely, under the circumstances, to notify interested parties that the case is pending and give them an opportunity to object or respond.

The court stated that service by email may generally be available for a defendant in Russia, particularly when the email address is undisputedly connected to the defendant and used for business. But the party requesting email service must provide facts showing that the defendant is likely to receive the summons and complaint at that address.

Email Service

The court denied Ryzhov’s request to serve both defendants at tsargradtv@gmail.com, without prejudice to a new application. Ryzhov relied on the defendants’ alleged legal action against Google concerning restrictions on their joint account. But he did not provide the pleadings or orders from that proceeding. The court therefore lacked enough evidence to determine whether, in fall 2023, the address was currently used by Malofeyev and Tsargrad Media for business purposes or whether an email sent there would reach both defendants.

The court said a renewed request would need affidavits or other appropriate evidence showing that service on each defendant at a particular email address would likely notify that defendant about the action and the opportunity to answer the second amended complaint. The court also reiterated that documents submitted in Russian would need certified translations.

Publication

The court denied Ryzhov’s request for service by publication, without prejudice to renewal. Ryzhov had not identified a particular publication method, media outlet, publication language, duration, or other details. He also had not provided facts showing that publication in a proposed outlet would likely reach the defendants. Because the court could not determine whether the proposed publication would provide adequate notice, it could not approve that method.

Domestic Russian Registered Mail

The court also denied the request to serve the defendants through Russia’s domestic registered-mail service, without prejudice to renewal. Ryzhov did not clearly specify the addresses where he proposed to serve the defendants. Although his materials identified an address for Tsargrad Media and an address where Malofeyev allegedly resides in Russia, the court said it was unclear how the addresses had been identified, whether the company address was that of a designated service agent, how recently the addresses had been used, and whether Malofeyev still physically resided at the listed address.

The opinion notes that international postal service was unavailable because Russia had objected to the relevant provision of the international service convention. The court did not decide that domestic Russian mail was categorically unavailable; it instead found that Ryzhov had not shown that mailing documents to particular addresses would likely notify the defendants about the case.

Disposition

The court denied Ryzhov’s motion for an order authorizing alternative service under Rule 4(f)(3), without prejudice to renewal within thirty days of the opinion and order. The court directed the Clerk of Court to terminate the motion and correct the docket to identify the defendants in the second amended complaint as Tsargrad Media and Konstantin Malofeyev, rather than Tsargrad TV and Malofeyev. The court also certified that an appeal from the order would not be taken in good faith and denied fee-free appeal status for that purpose. The order addressed service of process; it did not decide the underlying claims.