United States Court of Appeals, District of Columbia Circuit
Argued March 11, 2014.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Columbia. (No. 1:12-cv-00731).
Larry Klayman argued the cause and filed the briefs for appellant.
Carolyn B. Lamm argued the cause for appellee. With her on the brief were Hansel T. Pham and Anne D. Smith.
Thomas G. Corcoran Jr. was on the brief for amicus curiae Republic of Austria in support of appellee.
Before: TATEL, SRINIVASAN
and WILKINS, Circuit Judges. Opinion concurring in part and dissenting in part filed by Circuit Judge WILKINS.
Srinivasan, Circuit Judge:
Freedom Watch, Inc. filed an action against the Organization of the Petroleum Exporting Countries alleging that OPEC violates United States antitrust law by fixing the price of gasoline. The district court dismissed the complaint for insufficient service of process. The court held that Freedom Watch had failed to effectuate valid service on OPEC, and it declined Freedom Watch's request to authorize service through alternative means pursuant to Federal Rule of Civil Procedure 4(f)(3). We agree with the district court that the methods of service attempted by Freedom Watch failed to satisfy the federal rules. We remand, however, for the district court to reconsider Freedom Watch's request under Rule 4(f)(3) to authorize alternative methods of serving process on OPEC.
OPEC is an intergovernmental organization whose membership consists of twelve petroleum-exporting nations. As set out in its governing statute, OPEC's " principal aim" is " the coordination and unification of the petroleum policies of Member Countries and the determination of the best means for safeguarding their interests, individually and collectively." OPEC Stat. art. 2(A) (2000). The organization is headquartered in Vienna, Austria. Its relationship with its host nation is governed by a " Headquarters Agreement," formally entitled the Agreement Between the Organization of the Petroleum Exporting Countries and the Republic of Austria Regarding the Headquarters of the Organization of the Petroleum Exporting Countries, Austrian Official Gazette [BGBL] No. 379/1985 (bilateral agreement codified into Austrian law).
On May 7, 2012, Freedom Watch filed suit against OPEC, alleging violations of section 1 of the Sherman Act, 15 U.S.C. § 1, and sections 4 and 16 of the Clayton Act, 15 U.S.C. § § 15, 26. The complaint asserts that OPEC and its member nations engage in an international conspiracy to " raise, fix and stabilize the price of gasoline and other petroleum products in the United States" through the use of production quotas and price-fixing agreements. J.A. 8-9, 12-13. Freedom Watch contends that it attempted to serve process on OPEC in two ways: (i) by delivering a copy of the summons and complaint by hand to OPEC headquarters in Vienna, where an individual ostensibly accepted service, and (ii) by sending a copy of the documents via Austrian mail to OPEC headquarters. Freedom Watch filed a proof of service confirming the first of those methods.
On August 21, 2012, after successfully moving to bifurcate its service-of-process objection from the rest of its potential defenses, OPEC moved to dismiss the complaint for insufficient service of process. OPEC argued that neither of Freedom Watch's attempts at service met the requirements of United States (or Austrian) law for effective service. It also asserted that no means of service could be validly effectuated without the express consent of OPEC's Secretary General.
In opposing dismissal, Freedom Watch argued that its attempts to serve process
complied with Federal Rule of Civil Procedure 4(f). Freedom Watch stressed that OPEC had received actual notice of the pending action. Freedom Watch also requested that, if the court should deem its attempted methods inadequate, the court then exercise its discretion under Rule 4(f)(3) to authorize alternative methods of service. Freedom Watch suggested, in particular, that service could be effectuated on OPEC via email or fax, or through OPEC's United States counsel.
On September 4, 2013, the district court granted OPEC's motion to dismiss. See Freedom Watch, Inc. v. OPEC, 288 F.R.D. 230, 231 (D.D.C. 2013). The court determined that Freedom Watch had failed to establish that it validly served process on OPEC under Rule 4. The court also declined to authorize any alternative form of service of process on OPEC pursuant to Rule 4(f)(3). Freedom Watch appeals.
We review de novo the district court's determination that Freedom Watch has failed to effectuate valid service of process on OPEC. Gorman v. Ameritrade Holding Corp., 293 F.3d 506, 509, 352 U.S.App. D.C. 229 (D.C. Cir. 2002). We review for abuse of discretion the district court's denial of Freedom Watch's request to authorize alternative methods of service pursuant to Rule 4(f)(3). See Prewitt Enters., Inc. v. OPEC, 353 F.3d 916, 921 (11th Cir. 2003); Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). Applying those standards, we agree with the district court that Freedom Watch has not validly served process on OPEC. But we vacate the judgment and remand the case to enable ...