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United States v. The Public Warehousing Co. K.S.C.

United States District Court, N.D. Georgia, Atlanta Division

February 17, 2017

UNITED STATES OF AMERICA Ex Rel, et al.,
v.
THE PUBLIC WAREHOUSING COMPANY K.S.C. also known as Agility, et al., Defendants.

          OPINION AND ORDER

          THOMAS W. THRASH, JR. United States District Judge.

         This is a qui tam action. It is before the Court on the Defendant The Public Warehousing Company's (“PWC”) Motion to Dismiss [Doc. 163-8], the Defendant The Sultan Center's (“Sultan Center Food Products”) Motions to Dismiss for Insufficient Service [Docs. 181, 195], the Defendant Al-Saleh's Motion to Dismiss [Doc. 201], the Defendant Switzer's Motion to Dismiss [Doc. 202], and the Defendants PWC and Al-Essa's Motion to Dismiss [Doc. 205-2]. Although these motions deal with a wide variety of issues, the Court is addressing the issue of service of process only in this Order. For the reasons stated below, the Defendants' Motions to Dismiss [Docs. 163-8, 181, 195, 201, 202, 205-2] are DENIED as to the issue of insufficiency of service.

         I. Background

         The Defendants PWC and Sultan Center Food Products are Kuwaiti companies that have allegedly overcharged the United States on defense contracts for supplies to United States' armed forces serving in the Middle East. After a long period of investigation, the United States decided to intervene against these Defendants in 2011. In the six years since then, the Plaintiffs have been diligently attempting to serve the Defendants but have been consistently rebuffed by the Kuwaiti government. As a result of Kuwait's obstructionism, the Court granted the United States' Motion for Service by Alternative Means in an Order entered on February 5, 2016.[1][2]

         In that Order, the Court instructed the Plaintiffs to serve PWC by serving its domestic counsel and by publication, and to serve Sultan Center Food Products by email and publication. As to Sultan Center Food Products, the United States sent emails to six different email addresses, four of which were returned as undeliverable. The United States also published a notice in the Kuwait Times.[3] As to PWC, the United States sent the service documents to PWC's counsel via email, which counsel acknowledged they had received. The United States also sent counsel copies via the United States Postal Service.

         The Court also authorized the Plaintiff and Relator Al-Sultan to serve the Defendants through counsel, email, international courier, and publication in an Order on May 13, 2016. The Relator served Sultan Center Food Products by email to the same six email addresses as the United States had done, and likewise received receipts that four were undeliverable. The Relator also sent emails to Sultan Center Food Products' Kuwaiti counsel and sent a copy of the Service Documents via FedEx to their offices. At one office, the FedEx package was originally received by “X. Amal.” Later that afternoon, however, “X. Amal” contacted FedEx to return the package because “he did not want the package.” Likewise, the other counsel's office tried to return the package because “it did not belong to them.” The Relator also sent copies to Sultan Center Food Products' Kuwait address, and published a notice in both the Al Rai and Al Qabas newspapers.[4]

         As to PWC, Al-Essa, and Switzer, the Relator served their counsel through mail and email. The Relator also sent print copies through FedEx to PWC's offices in Kuwait, to Switzer and Al-Essa's homes, and published notices in two Kuwaiti newspapers: Al Rai and Al Qabas. Regarding Switzer and Al-Essa, the courier was originally unable to deliver them to the addresses given. While a correct address for Switzer could not be found, the courier eventually delivered the service documents to Al-Essa at PWC's offices. The package was refused by someone at the office, however, who told the courier that they did not want the package. And lastly, as to Al-Saleh, the Relator served him through email to a LinkedIn account, as well as email and FedEx to his counsel in Kuwait. The Relator also served Al-Saleh at his home in Kuwait, and on Al-Saleh's American counsel that was hired after the Court's Order had already been issued.[5]

         The Defendants now move to dismiss both Plaintiffs' Complaints due to insufficient service of process. All of the Defendants effectively make two different arguments. First, they argue that alternative means of service authorized by the Court were legally insufficient. Second, they argue that the Plaintiffs' actual efforts to carry out service pursuant to the Court's Order were insufficient. The Court has already addressed the first set of arguments in its Orders authorizing alternative means of service, and will not address them again here. The Court, therefore, turns to the second line of argument and addresses whether the Defendants have been sufficiently and effectively served.

         II. Legal Standard

         Rule 12(b)(5) of the Federal Rules of Civil Procedure allows for a complaint to be dismissed due to insufficient service of process. Rule 4(f) outlines the authorized methods for serving individuals located in a Foreign Country. Rule 4(f)(1) authorizes courts to serve defendants by any internationally agreed means of service, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. Rule 4(f)(3) allows courts to authorize by service by other means, as long as they are not prohibited under international agreement. Importantly, Rule 4(f) “does not create a hierarchy of preferred means of service...”[6] Service under 4(f)(3) is just as favored as service under 4(f)(1), and “is merely one means among several which enables service of process on an international defendant.”[7] Regardless of which method of service is chosen, the touchstone is whether the means chosen give “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”[8]

         III. Discussion

         As discussed above, the Court has already spoken on why the alternative means of service it authorized complied with Rule 4(f) and constitutional requirements of due process. At this time, the Court is only addressing the issue of whether the execution of those alternative means complied with the Court's Order and due process. The Court now addresses service on each Defendant in turn.

         A. The Public Warehousing Company

         The United States served PWC by sending copies of its First Amended Complaint to PWC's counsel through email and certified mail, and by publication on one occasion in the Kuwait Times. The Relator Al-Sultan, meanwhile, served PWC by sending copies of his Complaints and summons to PWC's counsel through email and certified mail, to PWC itself through corporate emails and through certified mail to its corporate offices in Kuwait, ...


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