United States District Court, S.D. New York
June 10, 2004.
In Re: Terrorist Attacks on September 11, 2001. Federal Insurance Co., et al., Plaintiffs,
Al Qaida, et al., Defendants.
The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM OPINION AND ORDER
Federal Insurance Company and several other insurance
companies, (collectively, "Plaintiffs") move to effectuate
service of process by alternative means on certain defendants in
Federal Ins. Co. v. Al Qaida, 03 Civ. 6978 (RCC), which is part
of the multidistrict litigation In Re: Terrorist Attacks on
September 11, 2001, 03 MD 1570 (RCC).
Specifically, Plaintiffs move for leave to serve process, with
the assistance of the United States Department of Justice, on
certain individuals allegedly in U.S. custody and on certain
defendant foreign terrorist organizations ("FTOs") through
representatives of those organizations who are allegedly in U.S.
custody. Additionally, Plaintiffs move for permission to serve
individuals incarcerated in foreign states by sending the summons
and complaint via international registered mail to the ministry of justice in that
Upon learning of Plaintiffs' motions, the United States
Government ("Government") filed a statement of interest, arguing
that Plaintiffs' requests for relief compromise national security
interests and that the relief requested is precluded by the
doctrine of sovereign immunity.
A. Propriety of Service of Process with the Assistance of the
Plaintiffs seek to serve individual defendants allegedly in
U.S. custody by requesting that the Attorney General deliver
copies of the Summons and Complaint to those individuals.
Delivery of a summons and complaint to a prisoner by a prison
employee is considered effective service on that prisoner.
United States v. Letscher, 83 F. Supp.2d 367, 380 (S.D.N.Y.
1999). Accordingly, the Court finds that service of a summons and
complaint on individual defendants in U.S. custody by an employee
of the Justice Department is sufficient to effect service on that
2. Foreign Terrorist Organizations
Plaintiffs seek to serve defendants A1 Qaida, Egyptian Islamic
Jihad, Jemaah Islamiyah, and Ansar Al-Islam (collectively,
"foreign terrorist organizations" or "FTOs") by serving the
summons and complaint on specified incarcerated individuals who
are allegedly senior officials of those organizations and are
therefore qualified to accept service on behalf of the FTOs.
Plaintiffs seek serve process on (1) al Qaida and Egyptian
Islamic Jihad through service on Khalid Sheik Mohammed, Abu
Zubaydah, and Ramzi Binalshibh; (2) Jemaah Islamiya through
service on Nurjaman Riduan Ismudin; and (3) Ansar Al-Islam
through service on Huam al-Yemeni. Plaintiffs assert that these
individuals are currently in United States custody. Rule 4(h) of the Federal Rules of Civil Procedure provides, in
relevant part, that service on a domestic or foreign corporation
or upon a partnership or other unincorporated association may be
effected in a judicial district of the United States "by
delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of
process. . . ."
Whether an individual is a managing or general agent for the
purposes of service on an organization depends on the factual
circumstances surrounding that person's authority within the
organization. Legend Industries v. C.P.P. Corp., 49 B.R. 935,
937 (Bankr. E.D.N.Y. 1985); Insurance Co. of N. America v. S/S
"Hellenic Challenger", 88 F.R.D. 545 (S.D.N.Y. 1980). Plaintiffs
have submitted numerous media reports and government documents in
support of their claim that these individuals are senior
officials of the respective FTOs. The Court is satisfied that the
named individuals have sufficient authority within their
respective organizations to render them suitable to accept
service on behalf of those organizations. Thus, delivery of the
summons and complaint to these individuals by an employee of the
Justice Department would be sufficient to effect service.
B. Concerns Raised by the Government
The greater concern raised by Plaintiffs' request is that the
United States Government refuses to disclose whether many of
these individuals are currently in U.S. custody. The Government
has repeatedly insisted that the identity of individuals detained
by the U.S. in connection with the war on terrorism is sensitive
information that could have negative consequences on U.S.
national security; thus it has resisted public disclosure of this
The Government argues that effecting service on detained
individuals would cause their identities to be revealed, which would have a damaging effect on
national security. The Government cites Plaintiffs' proposed
Declaration of Service of Process which the Attorney General
would publicly file upon completion of service of process as
evidence of this threat, because it would set forth the names of
those individuals who had been served, thereby disclosing which
individuals are in U.S. custody and which are not. This Court
defers to the judgment of the executive branch with respect to
issues of national security, and agrees with the conclusions of
the Third and D.C. Circuits in upholding the Government's
determination to not reveal the names of detainees in connection
with September 11 and the war on terror. Center for Nat'l Sec.
Studies v. DOJ, 331 F.3d 918, 925-37 (D.C. Cir. 2003); North
Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 199-203 (3d
The Government has already confirmed that 10 of the 23
defendants named in connection with Plaintiffs' motions are
currently in custody with the Federal Bureau of Prisons or the
U.S. Marshal's Service and has stated that it would assist
Plaintiffs in facilitating service of process on these
defendants.*fn1 To the extent that the Government chooses to
effectuate service on those defendants in custody, this Court
will recognize such service as sufficient. This Court will not,
however, order the Government to serve those 10 defendants. Nor
will it order the Government to disclose whether the remaining 13
defendants are in U.S. custody. To the extent that the Government
chooses not to effectuate service on the 10 defendants
acknowledged to be in custody, and as to the remaining 13
defendants, service by publication is approved as an acceptable alternative. The Plaintiffs should provide this Court
with specific proposals of service by publication if they choose
C. Service on Defendants in the Custody of Foreign States
Plaintiffs propose to serve defendants incarcerated in foreign
states by sending a copy of the summons and complaint, together
with a request from this Court, via international registered mail
to the foreign state's ministry of justice. These foreign states
include Spain, Italy, Germany, Pakistan, and the United Kingdom.
(Sommi Aff. ¶ 17.) Plaintiffs infer that other states may be
included in this list; however, they do not explain why these
other countries were not disclosed to the Court.
Where two countries are parties to the Hague Convention on
Service Abroad of Judicial and Extrajudicial Documents in Civil
or Criminal Matters ("Hague Service Convention" or "Convention"),
service of process must be made pursuant to one of the methods
set forth in the Convention. See Volkswagenwerk AG v.
Schlunk, 486 U.S. 694, 705 (1988) ("[C]ompliance with the
Convention is mandatory in all cases to which it applies.");
Silver Top Ltd. v. Montery Indus., 1995 WL 70599 (Feb. 21,
1995) ("Rule 4(f)(1) provides that where there is a treaty with a
foreign nation, service of process must be effected by the means
provided in the treaty.").
Here, Plaintiffs' proposed method of service complies with the
requirements set forth in Article X of the Convention. Article X
provides, in relevant part:
Provided the State of destination does not object,
the present Convention shall not interfere with
. . . .
(b) the freedom of judicial officers, officials or
other competent persons of the State of origin to
effect service of judicial documents directly through
the judicial officers, officials or other competent
persons of the State of destination. The Court finds that Plaintiffs' proposed method of service
complies with the Hague Service Convention. Therefore,
Plaintiffs' motion to effect service in this manner is
Plaintiffs' motion to effect service on incarcerated defendants
in U.S. custody with the assistance of the Department of State is
GRANTED insofar as the Court will recognize such service as
valid. However, the Court will not order the Justice Department
to assist with such service; nor will it order the Government to
disclose the names of individuals who are currently in custody,
but whose incarceration has not been made public by the
Government. Any defendants in United States custody whose status
has not been disclosed may be served by publication. Finally,
Plaintiffs' motion to serve defendants incarcerated by a foreign
state that is a signatory to the Hague Service Convention by
sending a summons and complaint to that state's ministry of
justice is GRANTED.