Doe v. The Federal Republic of Germany

Background

John Doe alleged that he was the person who provided the Panama Papers to journalists and that, in 2017, Germany agreed to pay him €5 million, 10% of certain collections exceeding €50 million, and annual accountings. He claimed that Germany and the Bundeskriminalamt, Germany’s federal criminal police agency, paid the €5 million but failed to pay the additional percentage or provide the required accountings. He brought breach-of-contract and implied-covenant claims under the Foreign Sovereign Immunities Act and sought at least $14.5 million, along with declaratory relief.

Doe proceeded without a lawyer and used the pseudonym “John Doe.” Before the defendants appeared or were served, he filed motions to serve them through electronic communications, proceed anonymously, and obtain electronic case-filing privileges. The court addressed only those motions; it did not decide the underlying contract claims.

Alternative Service

The court denied Doe’s motion to serve Germany and the Bundeskriminalamt through secure electronic communications or email to counsel. The Foreign Sovereign Immunities Act, 28 U.S.C. § 1608, provides the exclusive methods for serving a foreign state and its political subdivisions. The court concluded that both Germany and the Bundeskriminalamt are treated as part of the foreign state for service purposes under § 1608(a), rather than as an agency or instrumentality served under § 1608(b). It reached that conclusion because the Bundeskriminalamt’s core functions—central criminal investigations, police coordination, and investigation of international crime—are governmental rather than commercial.

Section 1608(a) lists four service methods, in order: an agreed method, an applicable international convention, specified mail through Germany’s foreign ministry, and specified mail through the United States Secretary of State. The court held that prior communications between Doe and Bundeskriminalamt agents did not establish an agreement to accept service electronically, and the alleged agreement did not contain such a provision. The court also held that § 1608(a) does not authorize email service or court-ordered alternative service. Rule 4(f)(3), which can allow alternative service on some foreign defendants, did not apply because Germany and the Bundeskriminalamt are foreign-state defendants covered by the Foreign Sovereign Immunities Act.

Proceeding Under a Pseudonym

The court denied Doe’s motion to proceed anonymously without prejudice. It did not decide whether Doe’s claimed safety concerns justified using a pseudonym. Instead, it found that the issue should be considered only after the defendants had been served and given an opportunity to respond. The court also noted that Doe had not clearly stated whether he was willing to disclose his identity to the court under seal.

The court explained that a person may be allowed to use a pseudonym in public filings but must still identify himself to the court. If Doe renews the request, the court stated that it would require him to provide his identifying information under seal, even if it later allowed him to proceed publicly as “John Doe.” The court denied the motion without prejudice.

Electronic Filing Privileges

The court denied Doe’s motion for electronic case-filing privileges with leave to renew. Southern District of New York rules require a self-represented party seeking electronic filing access to provide identifying information, including a name, address, telephone number, and email address, and to submit the required application. Doe had not made the required representations or stated that he was willing to provide the information to the court, at least under seal.

Disposition

The court denied the motion for alternative service, denied without prejudice the motion to proceed anonymously under a pseudonym, and denied with leave to renew the motion for electronic case-filing privileges. The Clerk was directed to terminate the pending motions. Judge Gary Stein did not rule on the merits of Doe’s contract or payment claims.