Doe v. The Federal Republic of Germany

Background

John Doe filed a breach-of-contract action against the Federal Republic of Germany and the Bundeskriminalamt of the Federal Republic of Germany. Doe alleged that the defendants had promised to pay him part of the taxes and fines collected as a result of his disclosure of the Panama Papers. Doe proceeded without a lawyer and under a pseudonym.

The court had previously denied Doe's request for alternative service and had denied without prejudice his request to proceed anonymously until the defendants were served and Doe showed that he was willing to disclose his identity to the court under seal. The Clerk later issued summonses for the defendants. Doe then moved for the issuance of USM-94 Forms and asked the court to transmit those forms to the German authorities for service under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.

Legal framework

Because the complaint invoked the Foreign Sovereign Immunities Act, service had to follow that statute's exclusive procedures, found in 28 U.S.C. § 1608. The statute lists four methods of serving a foreign state in a required sequence. Doe's motion concerned the second method: service under an applicable international convention. The Hague Convention supplied such a method.

Under the Hague Convention, a request for service is generally sent to the designated Central Authority in the country where the defendant is located. In the United States, the request uses a USM-94 Form. The court explained that a person qualified to serve process under Federal Rule of Civil Procedure 4(c)(2), such as an attorney or certain government or court officials, may issue the request. But the Hague Convention does not require the court to transmit the request, and Federal Rule of Civil Procedure 4(c)(1) places responsibility for serving the summons and complaint on the plaintiff.

Court's reasoning

The court held that Doe had no right to have the court transmit the USM-94 Forms to Germany. The court distinguished service under the third or fourth methods in § 1608(a), for which the Clerk must dispatch certain documents, from service under the Hague Convention, for which the Southern District of New York's instructions state that litigants must transmit the completed forms and service documents.

Doe could not sign and issue the forms himself because a party cannot serve the summons and complaint personally. The court noted that he could retain counsel to issue the forms, although he had a right to represent himself. Doe had not shown that he had located or retained an international process server, and the court was aware of no authority requiring or permitting it to arrange for one on his behalf.

The court also rejected Doe's reliance on Federal Rule of Civil Procedure 4(f), explaining that the rule did not apply because service on a foreign state in this case was governed by § 1608. The court further found no relevance in the other statutes Doe cited concerning oaths and notarial acts by government officials.

Finally, the court stated that Doe's unwillingness to provide his identity to the court under seal independently prevented him from receiving the requested judicial relief. The court acknowledged Doe's safety concerns and stated that it was prepared to protect his confidentiality as much as possible through a sealing procedure, but concluded that he was not entitled to relief while refusing to disclose his identity to the court.

Disposition

Judge Gary Stein denied Doe's motion for the issuance of USM-94 Forms under the Hague Convention. The Clerk was requested to terminate the pending motion. The order did not decide the underlying breach-of-contract claims.