Ryzhov v. $5

Background

Evgeny Ryzhov was proceeding without counsel. The court had previously extended his deadline to serve Konstantin Malofeyev until January 26, 2024. Ryzhov timely filed an affidavit stating that personal service had occurred at a location identified as the “Malofeyev Estate.” According to the affidavit, one of Malofeyev’s bodyguards accepted the documents for Malofeyev while Malofeyev was present and had directed the bodyguard to do so.

Service ruling

Federal Rule of Civil Procedure 4(f)(3) permits a court to authorize alternative service on an individual in another country when the method is constitutionally permissible. The court noted that service through an alternative method can be appropriate when serving defendants in Russia under the Hague Service Convention is practically impossible. The court also said there was reason to believe that the method described by Ryzhov might satisfy due process because it could have been reasonably likely to inform Malofeyev that the lawsuit was pending.

But Ryzhov had not obtained the court’s approval before using the alternative method. The court had previously indicated that approving a Rule 4(f)(3) service method after the fact was impermissible. Accordingly, the court ruled that it could not retroactively treat the purported service on Malofeyev as proper.

Disposition

Because Ryzhov had made a good-faith effort to serve Malofeyev on time, the court granted him one further extension, until March 22, 2024, to complete service. The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and therefore denied fee-free status for purposes of an appeal.

Effect

The order addressed whether Ryzhov’s attempted service was valid and gave him additional time to serve Malofeyev. The opinion did not decide the underlying claims described in the broader lawsuit.