1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AREEJ AL-SADHAN, et al., Case No. 23-cv-02369-EMC
8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PLAINTIFFS’ MOTION FOR SERVICE BY 10 TWITTER INC., et al., ALTERNATIVE MEANS
11 Defendants. Docket No. 75 12 13 14 Currently pending before the Court is Plaintiffs’ motion for service by alternative means. 15 Specifically, Plaintiffs ask for leave to serve four individual defendants (Ahmad Abouammo, Saud 16 Al-Qahtani, Ali Alzabarah, Ahmed Almutairi, and Bader Al-Asaker) by means such as service on 17 U.S.-based counsel and service on the embassy for the Kingdom of Saudi Arabia (“KSA”). 18 Having considered Plaintiffs’ motion and supporting papers, the Court hereby GRANTS in part 19 and DENIES in part the request for relief. 20 I. DISCUSSION 21 A. Federal Rule of Civil Procedure 4(f) 22 The four individual defendants all reside in the KSA. Federal Rule of Civil Procedure 4(f) 23 addresses service of an individual in a foreign country. It provides as follows:
24 Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual – other than a minor, an 25 incompetent person, or a person whose waiver has been filed – may be served at a place not within any judicial district of the United 26 States:
27 (1) by any internationally agreed means of service that is and Extrajudicial Documents; 1 (2) if there is no internationally agreed means, or if an 2 international agreement allows but does not specify other means, by a method that is reasonably calculated to give 3 notice:
4 (A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general 5 jurisdiction; (B) as the foreign authority directs in response to a letter 6 rogatory or letter of request; or (C) unless prohibited by the foreign country’s law, by: 7 (i) delivering a copy of the summons and of the complaint to the individual personally; or 8 (ii) using any form of mail that the clerk addresses and sends to the individual and that 9 requires a signed receipt; or
10 (3) by other means not prohibited by international agreement, as the court orders. 11 12 Fed. R. Civ. P. 4(f). 13 In the instant case, Plaintiffs are invoking Rule 4(f)(3). The Ninth Circuit has held that 14 Rule 4(f)(3) simply requires that service by ordered by a court and that service not be prohibited 15 by an international agreement. “No other limitations are evident from the text. In fact, as long as 16 court-directed and not prohibited by an international agreement, service of process ordered under 17 Rule 4(f)(3) may be accomplished in contravention of the laws of the foreign country.” Rio Props. 18 v. Rio Int'l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). 19 In the same case, the Ninth Circuit rejected the proposition that Rule 4(f) “create[s] a 20 hierarchy of preferred methods of service,” i.e., requiring an attempt at service by the means 21 identified in Rule 4(f)(1) and (2) before a party can ask for alternative relief under (3). Id. at 1014. 22 “No such requirement is found in the Rule's text, implied by its structure, or even hinted at in the 23 advisory committee notes.” Id.; see also id. at 1015 (stating that “service of process under Rule 24 4(f)(3) is neither a ‘last resort’ nor ‘extraordinary relief’”). A district court has discretion to 25 determine “when the particularities and necessities of a given case require alternate service of 26 process under Rule 4(f)(3).” Id. at 1016. 27 Finally, the Ninth Circuit has indicated that service under Rule 4(f)(3) can be accomplished 1 service including publication, ordinary mail, mail to the defendant's last known address, delivery 2 to the defendant's attorney, telex, and most recently, email.” Id. See, e.g., id. at 1018 (noting that 3 “we leave it to the discretion of the district court to balance the limitations of email service against 4 its benefits in any particular case”). That being said, service authorized under Rule 4(f)(3) must 5 still comport with due process. “To meet this requirement, the method of service crafted by the 6 district court must be ‘reasonably calculated, under all the circumstances, to apprise interested 7 parties of the pendency of the action and afford them an opportunity to present their objections.’” 8 Id. at 1017. 9 B. Service of Process in the KSA 10 Although Rule 4(f) does not create a hierarchy of preferred methods of service, Plaintiffs 11 have explained why they are seeking service pursuant to Rule 4(f)(3). For example, the KSA is 12 not a party to the Hague Convention. Plaintiffs also assert that the KSA does not accept letters 13 rogatory. Although Plaintiffs do not provide authority to support that assertion, using the letter 14 rogatory process would likely be time consuming. See Oueiss v. Mohammed Bin Salman Bin 15 Abdulaziz Al Saud, No. 1:20-cv-25022-KMM, 2021 U.S. Dist. LEXIS 217068, at *20 (S.D. Fla. 16 Jan. 17, 2021) (crediting attorney declaration that “‘service via Letters Rogatory would be very 17 time consuming and could potentially take over a year . . . [and] Plaintiff would incur a charge of 18 approximately $6,000.00’ from the process server retained by Counsel's firm[;] [t]he time- 19 consuming nature of Letters Rogatory is supported by United States Department of State 20 publications attached to the Declaration”). Finally, Plaintiffs submitted evidence that they 21 contacted two different international service providers regarding service on the individual 22 defendants, but the providers essentially declined for safety reasons. See generally Larson Decl. 23 Based on the above, Plaintiffs have established that they have a factual basis for their 24 request under Rule 4(f)(3). 25 C. Service on Mr. Almutairi 26 Plaintiffs ask for permission to serve Mr. Almutairi by: (1) substitute service on the KSA 27 Ambassador in Washington, D.C. and (2) certified mail at the KSA Embassy in Washington, D.C. 1 have failed to establish that service by such means meets due process. There is no allegation or 2 concrete evidence that Mr. Almutairi is a KSA government employee, let alone one of such 3 significance that notice to the KSA Ambassador or Embassy would likely be conveyed to Mr. 4 Almutairi. Although Plaintiffs allege that the individual defendants worked in conjunction with 5 the KSA to violate their rights, see, e.g., FAC ¶¶ 18-19 (alleging that Mr. Almutairi and Mr. Al- 6 Asaker were charged by federal indictment as acting as agents of KSA), that is only an allegation. 7 D. Service on Mr. Al-Qahtani 8 Plaintiffs propose that Mr. Al-Qahtani be served via the KSA Ambassador and Embassy, 9 plus his U.S.-based counsel (representing him in different litigation). 10 “[S]everal courts have permitted foreign defendants to be served under Rule 4(f)(3) by 11 substituted service on a domestic attorney for the defendant.” Moore’s Fed. Prac. – Civ. § 4.52. 12 This has happened even when the attorney has not been authorized to accept service of process, or 13 when the attorney is representing the defendant in a different litigation. See, e.g.: 14 • Compania De Inversiones Mercantiles, S.A. v. Grupo Cementos de Chihuahua 15 S.A.B. de C.V., 970 F.3d 1269, 1295 (10th Cir. 2020) (indicating that service on 16 U.S. counsel is permissible under Rule 4(f)(3) even though counsel is in the U.S.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AREEJ AL-SADHAN, et al., Case No. 23-cv-02369-EMC
8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PLAINTIFFS’ MOTION FOR SERVICE BY 10 TWITTER INC., et al., ALTERNATIVE MEANS
11 Defendants. Docket No. 75 12 13 14 Currently pending before the Court is Plaintiffs’ motion for service by alternative means. 15 Specifically, Plaintiffs ask for leave to serve four individual defendants (Ahmad Abouammo, Saud 16 Al-Qahtani, Ali Alzabarah, Ahmed Almutairi, and Bader Al-Asaker) by means such as service on 17 U.S.-based counsel and service on the embassy for the Kingdom of Saudi Arabia (“KSA”). 18 Having considered Plaintiffs’ motion and supporting papers, the Court hereby GRANTS in part 19 and DENIES in part the request for relief. 20 I. DISCUSSION 21 A. Federal Rule of Civil Procedure 4(f) 22 The four individual defendants all reside in the KSA. Federal Rule of Civil Procedure 4(f) 23 addresses service of an individual in a foreign country. It provides as follows:
24 Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual – other than a minor, an 25 incompetent person, or a person whose waiver has been filed – may be served at a place not within any judicial district of the United 26 States:
27 (1) by any internationally agreed means of service that is and Extrajudicial Documents; 1 (2) if there is no internationally agreed means, or if an 2 international agreement allows but does not specify other means, by a method that is reasonably calculated to give 3 notice:
4 (A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general 5 jurisdiction; (B) as the foreign authority directs in response to a letter 6 rogatory or letter of request; or (C) unless prohibited by the foreign country’s law, by: 7 (i) delivering a copy of the summons and of the complaint to the individual personally; or 8 (ii) using any form of mail that the clerk addresses and sends to the individual and that 9 requires a signed receipt; or
10 (3) by other means not prohibited by international agreement, as the court orders. 11 12 Fed. R. Civ. P. 4(f). 13 In the instant case, Plaintiffs are invoking Rule 4(f)(3). The Ninth Circuit has held that 14 Rule 4(f)(3) simply requires that service by ordered by a court and that service not be prohibited 15 by an international agreement. “No other limitations are evident from the text. In fact, as long as 16 court-directed and not prohibited by an international agreement, service of process ordered under 17 Rule 4(f)(3) may be accomplished in contravention of the laws of the foreign country.” Rio Props. 18 v. Rio Int'l Interlink, 284 F.3d 1007, 1014 (9th Cir. 2002). 19 In the same case, the Ninth Circuit rejected the proposition that Rule 4(f) “create[s] a 20 hierarchy of preferred methods of service,” i.e., requiring an attempt at service by the means 21 identified in Rule 4(f)(1) and (2) before a party can ask for alternative relief under (3). Id. at 1014. 22 “No such requirement is found in the Rule's text, implied by its structure, or even hinted at in the 23 advisory committee notes.” Id.; see also id. at 1015 (stating that “service of process under Rule 24 4(f)(3) is neither a ‘last resort’ nor ‘extraordinary relief’”). A district court has discretion to 25 determine “when the particularities and necessities of a given case require alternate service of 26 process under Rule 4(f)(3).” Id. at 1016. 27 Finally, the Ninth Circuit has indicated that service under Rule 4(f)(3) can be accomplished 1 service including publication, ordinary mail, mail to the defendant's last known address, delivery 2 to the defendant's attorney, telex, and most recently, email.” Id. See, e.g., id. at 1018 (noting that 3 “we leave it to the discretion of the district court to balance the limitations of email service against 4 its benefits in any particular case”). That being said, service authorized under Rule 4(f)(3) must 5 still comport with due process. “To meet this requirement, the method of service crafted by the 6 district court must be ‘reasonably calculated, under all the circumstances, to apprise interested 7 parties of the pendency of the action and afford them an opportunity to present their objections.’” 8 Id. at 1017. 9 B. Service of Process in the KSA 10 Although Rule 4(f) does not create a hierarchy of preferred methods of service, Plaintiffs 11 have explained why they are seeking service pursuant to Rule 4(f)(3). For example, the KSA is 12 not a party to the Hague Convention. Plaintiffs also assert that the KSA does not accept letters 13 rogatory. Although Plaintiffs do not provide authority to support that assertion, using the letter 14 rogatory process would likely be time consuming. See Oueiss v. Mohammed Bin Salman Bin 15 Abdulaziz Al Saud, No. 1:20-cv-25022-KMM, 2021 U.S. Dist. LEXIS 217068, at *20 (S.D. Fla. 16 Jan. 17, 2021) (crediting attorney declaration that “‘service via Letters Rogatory would be very 17 time consuming and could potentially take over a year . . . [and] Plaintiff would incur a charge of 18 approximately $6,000.00’ from the process server retained by Counsel's firm[;] [t]he time- 19 consuming nature of Letters Rogatory is supported by United States Department of State 20 publications attached to the Declaration”). Finally, Plaintiffs submitted evidence that they 21 contacted two different international service providers regarding service on the individual 22 defendants, but the providers essentially declined for safety reasons. See generally Larson Decl. 23 Based on the above, Plaintiffs have established that they have a factual basis for their 24 request under Rule 4(f)(3). 25 C. Service on Mr. Almutairi 26 Plaintiffs ask for permission to serve Mr. Almutairi by: (1) substitute service on the KSA 27 Ambassador in Washington, D.C. and (2) certified mail at the KSA Embassy in Washington, D.C. 1 have failed to establish that service by such means meets due process. There is no allegation or 2 concrete evidence that Mr. Almutairi is a KSA government employee, let alone one of such 3 significance that notice to the KSA Ambassador or Embassy would likely be conveyed to Mr. 4 Almutairi. Although Plaintiffs allege that the individual defendants worked in conjunction with 5 the KSA to violate their rights, see, e.g., FAC ¶¶ 18-19 (alleging that Mr. Almutairi and Mr. Al- 6 Asaker were charged by federal indictment as acting as agents of KSA), that is only an allegation. 7 D. Service on Mr. Al-Qahtani 8 Plaintiffs propose that Mr. Al-Qahtani be served via the KSA Ambassador and Embassy, 9 plus his U.S.-based counsel (representing him in different litigation). 10 “[S]everal courts have permitted foreign defendants to be served under Rule 4(f)(3) by 11 substituted service on a domestic attorney for the defendant.” Moore’s Fed. Prac. – Civ. § 4.52. 12 This has happened even when the attorney has not been authorized to accept service of process, or 13 when the attorney is representing the defendant in a different litigation. See, e.g.: 14 • Compania De Inversiones Mercantiles, S.A. v. Grupo Cementos de Chihuahua 15 S.A.B. de C.V., 970 F.3d 1269, 1295 (10th Cir. 2020) (indicating that service on 16 U.S. counsel is permissible under Rule 4(f)(3) even though counsel is in the U.S. 17 and not abroad; counsel is simply a conduit and, “‘ultimately, the foreign individual 18 is served and thereby provided notice outside a United States judicial district, in 19 accordance with Rule 4’s plain language’”); 20 • Freedom Watch, Inc. v. Org. of the Petroleum Exporting Countries OPEC, 766 21 F.3d 74, 83 (D.C. Cir. 2014) (noting that “[a] number of courts . . . have sanctioned 22 service on United States counsel as an alternative means of service under Rule 23 4(f)(3) without requiring any specific authorization by the defendant for the 24 recipient to accept service on its behalf”); 25 • Rio Props., 284 F.3d at 1013, 1017 (noting “[s]ervice upon [the U.S. attorney] was 26 . . . appropriate [even though he had declined to accept service] because he had 27 been specifically consulted by [defendant] regarding this lawsuit[;] [h]e knew of 1 [defendant] in Costa Rica,” and therefore service on the attorney was “reasonably 2 calculated in these circumstances to apprise [defendant] of the pendency of the 3 present action”); 4 • Nader Turiu Aldossari v. Ripp, 2021 U.S. Dist. LEXIS 13684, at *5-6 (E.D. Penn. 5 Jan. 26, 2021) (allowing for service by email and certified mail on the Crown 6 Prince’s U.S. counsel; “[c]ounsel is in communication with the client – albeit for a 7 different civil case – and will know how to locate the Crown Prince to make him 8 aware of this suit”); 9 • Oueiss, 2021 U.S. Dist. LEXIS 217068, at *9, 24 (allowing for “service via Hand- 10 Delivery on [Crown Prince’s] current U.S.-based counsel” representing him in a 11 D.C. lawsuit). 12 In light of the authorities above, the Court gives Plaintiffs leave to serve Mr. Al-Qahtani 13 via his U.S. counsel. Service on U.S. counsel shall be effected via hand delivery, email, and 14 certified mail. 15 The Court also orders Plaintiffs to further serve Mr. Al-Qahtani through: (1) substitute 16 service on the KSA Ambassador in Washington, D.C. and (2) certified mail at the KSA Embassy 17 in Washington, D.C. The Court acknowledges that there is no concrete evidence that Mr. Al- 18 Qahtani is a KSA employee, let alone a high-level KSA employee. See, e.g., FAC ¶ 16 (alleging 19 that Mr. Al-Qahtani is a “trusted adviser” to the Crown Prince and “was considered his enforcer”); 20 Larson Decl. ¶ 4 (testifying that one international service provider characterized the individual 21 defendants as “high profile”). If this were the only means of service proposed by Plaintiffs, the 22 Court would not approve service because of due process concerns (consistent with the discussion 23 related to Mr. Almutairi above). However, as this service would simply serve as a supplement to 24 proper service, and would potentially enhance the likelihood of Mr. Al-Qahtani getting actual 25 notice of this suit, the Court deems it warranted. 26 Accordingly, the Court grants the request for service by alternative means on Mr. Al- 27 Qahtani, as outlined above. 1 E. Service on Mr. Alzabarah 2 For Mr. Alzabarah, Plaintiffs propose (1) service on the U.S.-based counsel for the MiSK 3 Foundation, his last known place of business, and (2) email service on the MiSK Foundation 4 (specifically, contact@misk.org and info@misk.org). In the FAC, Plaintiffs allege that, “after 5 fleeing the United States, [Mr. Alzabarah] received a lucrative position at the MISK Foundation.” 6 FAC ¶ 76. Plaintiffs also allege that MiSK is the Crown Prince’s “personal multi-billion-dollar 7 foundation operating under his control and direction” and engages in “cultural ‘programming’ in 8 Saudi Arabia and abroad,” e.g., “funding and organizing student events across U.S. school 9 campuses.” FAC ¶ 20. 10 The Court denies Plaintiffs’ motion with respect to Mr. Alzabarah. Plaintiffs have failed to 11 show that service by the means identified satisfies due process. To be sure, Plaintiffs have alleged 12 that Mr. Alzabarah is an employee of the MiSK Foundation. But it is not clear that he is a 13 significant enough employee such that service on MiSK would likely lead to his getting notified 14 about this suit. Although he allegedly has a “lucrative position,” it is not entirely clear what that 15 means. Also, there is no indication that Mr. Alzabarah is the individual who gets emails at 16 contact@misk.org and info@misk.org. Compare, e.g., Microsoft Corp. v. Buy More, Inc., 703 17 Fed. Appx. 476, 480 (9th Cir. 2017) (“The district court permitted Microsoft to serve Sajjad 18 through email at admin@sidemicro.com . . . . Sajjad had access to that email account, as Side 19 Micro, Inc.'s RRP account information identified Sajjad as the user associated with that email 20 account.”). 21 F. Service on Mr. Al-Asaker 22 For Mr. Al-Asaker, Plaintiffs propose: (1) service on his U.S.-based counsel (representing 23 him in different litigation); (2) service on the U.S.-based counsel for the MiSK Foundation, his 24 last known place of business; (3) email service on the MiSK Foundation; and (4) service on the 25 KSA Ambassador and Embassy. 26 The Court shall allow service on the U.S. counsel (by hand delivery, email, and certified 27 mail) for the reasons stated above in Part I.D, supra. The Court also orders Plaintiffs to 1 service as described in (2) and (3) may be of benefit given allegations that Mr. Al-Asaker is 2 || MiSK’s Secretary General, see FAC 4 20 —i.e., a person of significance within the organization. 3 Although there is no indication that Mr. Al-Qahtani is a KSA employee or one of significance, 4 service via the means in (4) (i.e., substitute service on the KSA Ambassador in Washington, D.C. 5 and certified mail at the KSA Embassy in Washington, D.C.) will not be any additional burden on 6 || Plaintiffs given that they will already be serving Mr. Al-Qahtani through this means. 7 Il. CONCLUSION 8 For the foregoing reasons, the Court grants in part and denies in part Plaintiffs’ motion. 9 || Plaintiffs have leave to serve Mr. Al-Qahtani and Mr. Al-Asaker in compliance with this order. 10 || The Court denies the motion as to Mr. Almutairi and Mr. Alzabarah, but without prejudice. 11 This order disposes of Docket No. 75. 12 13 IT ISSO ORDERED. 14 g 15 || Dated: June 14, 2024
€ 18 ED . CHEN United States District Judge 19 20 21 22 23 24 25 26 27 28