The case of the day is Halvorssen v.Simpson (E.D.N.Y. 2018). Thor Halvorssen, a human rights advocate, claimed that after he criticized Derwick Associates, a Venezuelan power company, for corruption, Derwick hired Fusion GPS, the intelligence firm made famous for its connection with the Steele Dossier, to do a number on him. The claim was brought under the civil RICO statute. Halvorssen sought leave to serve three Venezuelan defendants, Leopoldo Betancourt-Lopez, Pedro Trebbau-Lopez, and Francisco Convit-Guruceaga, by service on their US lawyers.
The court denied the motion, holding that Halvorssen should first seek to make service via the Hague Service Convention, even though the judge recognized that there is no rule requiring first resort to the Convention. He noted that the defendants had made representations about their addresses in connection with the motion that likely would estop them to argue later that service effected at those addresses was invalid.
The decision is pretty plainly within the court’s discretion. When I see a decision like this, though, I wonder what purpose the judge is trying to serve. The defendants plainly are on notice of the suit, so what purpose is gained by requiring resort to the Convention rather than allowing the plaintiff to use an alternate method? Perhaps it is not in the plaintiff’s interest to serve process by alternate means, because a judgment that results may not be enforceable in Venezuela (I don’t know whether that’s so or not). But isn’t that a problem for the plaintiff to worry about? Perhaps service on US counsel is inconsistent with FRCP 4(f)—an argument I have noted before that is probably but not certainly incorrect. If so, then the issue isn’t one of discretion, but no one in the case apparently made this argument. So the decision is curious. It really is difficult to see a purpose behind the decision.