# Petition — Vesco v. International Controls Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2766%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 442 U.S. 941 ## Text Supreme Court of the Unite Ocroser Term, 1979 om £81621 ROBERT L. VESCO, Petitioner, INTERNATIONAL CONTROLS CORP., Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT JosePH Foa.ia, Law Offices of Rosert D. Foaria Counsel for Petitioner 530 Fifth Avenue New York, New York 10036 (212) 697-8772 (201) 488-4433 TABLE OF CONTENTS Page Preliminary Statement............-. 1 Opinion Below........ceeeeee Wekeweee 2 ; DWUBASGLSCION. acs cccsccccces Teer 2 Questions Presented for Review..... 3 Constitutional Provisions, Treaties, Statutes and tse ecewee | OD Statement of the Case l. The Consolidated Actions... 1 2. The Basis for Federal ee tec eeee 12 3. The District Court PROCPOMENGG c ccc cc escccese ec ee 4. The Decision of the Court of Appeals.......... 14 Reasons for Granting the Writ I. The Court of Appeals, by not setting aside the service in the 2518 and 15868 actions, has accepted and condoned a violation of Petitioner's right to due process of law which calls for the exercise of this Court's power of supervision. TABLE OF CONTENTS (Continued) Page The Departure of the District Court from the Accepted and Usual Course of Judicial Proceedings...... 21 II. F.R.C.P. Rule 4(i) (1) (E) must be applied within the terms of the International Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. A. The Status of the ae ee ceca: Poa B. The Applicability of CHS CONVORECEORecccccsectee ST C. ‘the Burden of Proving SOFVLICS. occ 0606680 68 66 46 ai. TABLE OF CONTENTS (Continued) Page CONSTITUTIONS CITED: Bahamian Constitution, The Bahamas Independence Order 1973, Article 4, Operative July 10, LUEGs vis eens 0% 03s pie aaa bie ke caacee (cee United States Constitution, RECLORS Buns s bos 00 0 6s 66866455 8 88 32 TREATIES CITED: Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, The Hague, November 15, 1965, Effective February 10, BER A C4 Sh b Keke ee Bia be ase Sete cthanssseeeee 37,42, 43,44, 45 CASES CITED: Amba Marketing Systems, Inc. v. Jabar Intern'l, Inc., 55 F.2d Fe THEE GEES BOTT sa hercceveceese 47 Arcata Graphics Corp. v. Murrays Jewelers & Distributors, Inc., 384 F.Supp. 469 (S.D.N.Y. EP Tep cccvcecccessaPocsessctececss 47 iii. “ABLE OF CONTENTS (Continued) CASES CITED: Attorney General for Canada v. Attorney General for Ontario, (1937) A.C. 326 per Ld. Atkins Privy Council. .ccecccvesscsccss In Re Evanishyn, 1 F.R.D. 202 (S.D.N.Y. 1539), aff'd on other grounds 107 F.2u 742 (20 Cike Boab) cc tve isn eee Kadet-Kruger & Co. v. Celanese Corp. Of Amer., 216 F.Supp. 249 (N.D. Ill. 1963)..... ts acs Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Chl. S0TOl sane ace Gaal ee Shoei Kako Co., Ltd. v. Superior Court, 33 C.A.3d 808, 109 Cal. Rptr. 402 (1973)......... ae ae ee. .6 6) 8 6 41-42 TREATISES, ENCYCLOPEDIAS CITED: 32 Am.Jur.2d, Federal Practice Meee PROENO, BLBsiisccaccccccs 32 TABLE OF CONTENTS APPENDIX Order and Opinion of the United States Court of Appeals for the Second Circuit, decided January 24, 1979. .ccececs Order Appointing Person to Serve Process (Civil Docket No. 73 Civ. 2518), Dated July 27, 1973, Entered July 31, 1973... Order Appointing Person to Serve Process (Civil Docket No. 73 Civ. 2513), Dated July 31, 1973.66. Affidavit of Lois Sylor Yohonn sworn to August 6, 1973 (73 Civ. 2518) (regarding service of original summons and COMPLAINE) occccccces Judgment of the United States District Court for the Southern District of New York, Hon. Charles E. Stewart, Jr. (Civil Docket No. 73 Civ. 2518), Entered October 5, 1973 ....2 eee vi. Al A34 A36 A38 A50 TABLE OF CONTENTS - APPENDIX (Continued) 10. Affidavit of Joseph A. Bondi sworn to November 12, 1973 (73 Civ. 2518) (regard- ing service of summons and amended complaint).. Affidavit of Robert L. Vesco, Undated, Filed November 17, 1977....... Affidavit of Lois Sylor Yohonn sworn to April 8, 1974 (Civil Docket No. 74 Civ. 1588) (regard- ing appointment of person to serve process)....... Order Appointing Person to Serve Process (Civil Docket No. 74 Civ. 1588), Dated and Entered April 9, 1974... Affidavit of David M. Butowsky sworn to April 22, 1974 (73 Civ. 1588) (regarding service of summons and CUA MAIIGE 05 4 ok 00 6 0 e000 vii. A56 A80 A99 A102 A105 TABLE OF CONTENTS - APPENDIX (Continued) ll. Judgment of the United States District Court for the Southern District of New York, Hon. Charles E. Stewart, Jr. (Civil Docket No. 74 Civ. 1588), Entered September ll, 1974...... 12. Order with Endorsed Decision Denying Motion to Vacate Default Judgment (74 Civ. 1588), Dated May 2, 1978, Entered tay 3, 2678 cee 13. Convention on the Service Abroad of Judicial and Extrajudicial bocuments in Civil or Commercial Matters, The Hague, November 15, 1965, Effective February 10, A968: 606.5 4d kd Od Cees 14. Letter from the Prime Minister of the Common- wealth of The Bahamas to the Secretary General of the United Nations, Dated July 10, 1973... wits; A110 Al13 A115 A119 TABLE OF CONTENTS - APPENDIX (Continued) 15. The Bahamas Independence Order 1973, Article 4, Operative July 10, BPISCL 6d UEC REPS Eh NSS 600 A123 ix. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1979 No. ROBERT L. VESCO, Petitioner, Vv. INTERNATIONAL CONTROLS CORP., Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT PRELIMINARY STATEMENT Petitioner, Robert L. Vesco, respectfully prays that a writ of certiorari be issued to review the judgment, order and decision of the United States Court of Appeals for the Second Circuit, entered in two cases on January 24, 1979. | Although the Respondent may argue that the actions sought to be reviewed herein have been before this Court on three prior occasions concern- ing other or similar matters, the questions raised in this petition have never been before this Court, and the Petitioner has never sought previous access to this Court. On the three previous occasions, this Court has declined to issue the writ on the questions then raised. OPINION BELOW The opinion of the United States Court of Appeals for the Second Circuit is presently unreported, but appears in full beginning at page "Al" of the Appendix included herein. JURISDICTION The judgment and decision of the Court of Appeals for the Second Circuit was entered on January 24, 1979. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1254(1). QUESTIONS PRESENTED FOR REVIEW l. Whether the particular methods of service of process as directed by the District Court against the Petitioner comports with due process. 2. Whether service of process under Rule 4(i), or more spéci- fically, under Rule 4(i) (1) (E) of the Federal Rules of Civil Procedure, must afford "actual notice." 3. Whether the District Court below, in directing the particular methods of service of process under Rule 4(i) (1) (E), so far departed from the accepted and usual course of judicial procedure, and whether the Court of Appeals so far sanctioned such a de- parture by the District Court, as to call for an exercise of this Court's powers of supervision. 4. Whether the various and several methods of service of process as specifically directed by the District Court were so materially different as to justify inconsistent results, thereby denying the Petitioner due process; i.e. does a prospective defendant have a right to know when there has been proper service consistent with due process. 5. Whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters is subordinate or equivalent to ‘the Federal Rules of Civil Procedure, or more particularly, whether Rule 4(i) (1) (E), providing for service of process in a foreign country “as directed by order of the court," must be applied within the terms of the Convention. 6. Whether the Convention is applicable to service of process in the independent Commonwealth of the Bahamas. 7. Whether the Court of Appeals so far departed from the accepted and usual course of inter- national law and procedure as to call for an exercise of this Court's powers of supervision. CONSTITUTIONAL PROVISIONS, TREATIES, STATUTES AND RULES INVOLVED | & Constitutional Provisions "(NJor shall any State deprive any person of life, liberty, or property without due process of law." U.S. Const. Amend. 14, Section l. "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." U.S. Const. Art. 6. The Bahamas Independence Order 1973, Article 4, Operative July 10, 1973 (A123). a Treaties Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, The Hague, November 15, 1965, Effective February 10, 1969 (A115). : § Statutes Jurisdiction is asserted by Respondent based upon Section 27 of the’ Securities Exchange Act of 1934 (15 U.S.C. §78aa): "The district courts of the United States, and the United States courts of any Territory or other place subject to the jurisdiction 6 of the United States shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations there- under. Any criminal proceeding may be brought in the district wherein any act or transaction con- stituting the violation occurred. Any suit or action to enforce any liability or duty created by this chapter or rules and regulations thereunder, or to enjoin any viola- tion of such chapter or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an in- habitant or wherever the defendant may be found. Judgments and decrees so rendered shall be subject to review as provided in sections 225 and 347 of Title 28. No costs shall be assessed for or against the Commission in any proceeding under chapter brought by Or against it in the Supreme Court or such other courts." Rules Federal Rules of Civil Procedure "Rule 4(i) Alternative Provisions 7 for Service in a Foreign Country. (1) Manner. When the federal or state law referred to in subdivision (e) of this rule authorizes service upon a party not an inhabitant of or found within the state in which the district court is held, and service is to be effected upon the party ina foreign country, it is also sufficient if service of the summons and complaint is made: (A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (B) as directed by the foreign au- thority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice; or (C) upon an individual, by delivery to him personally, and upon a corporation Or partnership or association, by de- livery to an officer, a managing or general agent; or (D) by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or (E) as directed by order of the court. Service under (C) or (£) above may be made by any person who is not a party and is not less than 18 years of age or who is designated by order of the district court or by the foreign court. On re- quest, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service. Mlnienien en «20a 2s "(2) Return. Proof of service may be made as prescribed by subdivision (g) of this rule, or by the law of the foreign country, or by order of the court. When service is made pursuant to subparagraph (1) (D) of this subdivision, proof of service shall include a receipt Signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.” "Rule 82. These rules shall not be construed to extend or limit the juris- diction of the United States district courts or the venue of actions therein." B. Yearbook of the International Law Commission "2. When a successor State [the Commonwealth of The Bahamas] communicates to the third State [member nations of the United Nations, including the United States] a declaration expressing its consent to the provisional application of such treaties pending a decision with regard to their maintenance in force, modification or termination, the treaties shall continue to apply provisionally as between the successor State and the third State unless in the case of a particular treaty: "(a) The treaty comes into force automatically as between the States con- cerned under general international law independently of the declaration; or "(b) It appears from the treaty or is otherwise established that the appli- cation of the treaty in relation to successor State would be incompatible with its object and purpose; or "(c) Within three months of receiv- ing the notification the third State in question has informed the successor State of its objection to such provi- sional application of the treaty.” Yearbook of the International Law Commission, Art. 4, subd. 2, "Unilateral Declaration By a Successor State," Vol. II (1969). STATEMENT OF THE CASE The Consolidated Actions The Court of Appeals for the Second Circuit consolidated for review two appeals by the Petitioner, Robert L. Vesco, (1) from an order of Judge Charles E. Stewart, Jr., United States District Judge for the Southern District 10 Sat Ss beni of New York, entered February 1, 1978, denying a motion pursuant to F.R.C.P. Rule 60(b) (4) to vacate a default judgment entered against the Petitioner on October 5, 1973 (A50); and (2) from another order (A113) of Judge Stewart entered on May 3, 1978, denying a motion by Petitioner in an entirely different action to vacate a default judgment. Judge Stewart's opinions in the two cases are not officially re- ported. It is these ew opinions that the Court of Appeals affirmed, and it is the Court of Appeals decision from which the Petitioner prays that a writ of certiorari issue to review the judgment and decision of the United States Court of Appeals for the Second Circuit entered January 24, 1979. (Al) ll / ai The Basis for Federal Jurisdiction The Respondent, International Controls Corp. ("ICC"), instituted the first action on June 7, 1973, entitled ICC v. Robert L. Vesco, et al., Civil Docket No. 73 Civ. 2518 (the "2518 action"). The complaint generally alleged that the Petitioner, together with numerous other named defendants, did by means of interstate commerce and the national securities exchanges defraud Respondent and its stockholders in violation of the Securities Exchange Act of 1934 (15 U.S.C. §78aa). The alleged violation of the securities laws is the sole basis for federal jurisdiction in the 2518 action. The second action was commenced On April 8, 1974, entitled International 12 a ee ort set Controls Corp. v. Robert L. Vesco, Civil Docket No. 74 Civ. 1588 (the "1588 action"). The complaint alleged breach of the Petitioner's fiduciary duty as president and chairman of the board of directors of ICC, and violation of Rule 10b-5 of the Rules of the Securities and Exchange Commission. Federal jurisdiction was invoked under 28 U.S.C. §§1331, 1332. 3. The District Court Proceedings "Service" in the 2518 Action In an order dated July 27, 1973, but entered July 31, 1973, Judge Stewart appointed Lois S. Yohonn, Esq., a lawyer associated with Shea Gould * Climenko & Kramer, predecessor attorneys of record for Respondent, ICC, to 13 “effect service of process in the [2518] action on defendant, Robert L. Vesco." (A36) In an order dated July 29, 1973, but entered July 3l, 1973, Judge Stewart ordered that: "[Slervice of process upon said defendant Robert L. Vesco may he effected by depositing a copy of the summons and complaint herein upon the premises of the last known residence of said defendant located in Nassau, Bahamas, and mailing a copy of the summons and complaint herein to said defendant at the address of such last known residence in Nassau, Bahamas." (A37) Both applications resulting in the above orders were granted ex parte, the grounds for such orders being explained by Circuit Judge Medina in his Court of Appeals decision as follows: "The reason for the order, and another order to which we shall refer later, was that from the SEC proceedings mentioned in the preliminary part of this opinion 14 es Vesco was known to be not averse to evading the service of process. Thus actual delivery of the summons and complaint to Vesco in person was not required." (A117) In an affidavit sworn to on August 6, 1973, Ms. Yohonn described her inability to locate the Petitioner in the environs of Nassau, The Bahamas, but narrated her valiant efforts in serving the Petitioner at his "residence," afterwards "becoming seriously concerned for [her personal] safety." (A38) On the basis of Ms. Yohonn's affidavit of service, a default judgment was entered against the Petitioner on October 5, 1973: (A50) Judge Stewart, United States District Judge for the Southern District of New York, sub- sequently denied Petitioner's motion to vacate the default judgment despite the 15 obvious questions raised in Petitioner's undated affidavit filed November 17, 1977 contesting service. (A80) On September 7, 1973, Re- spondent filed an amended complaint. As to service of the amended complaint, Judge Stewart authorized Messrs. Bondi and others to "leave" the process at the "residence" of the Petitioner in Nassau, The Bahamas: "ORDERED, that service of process upon any of said defendants [including Petitioner] may be (i) by any method of service of process authorized by Rule 4 of the Federal Rules of Civil Proce- dure; or (ii) as to individual de- fendants, by leaving a copy of the summons, and amended complaint herein upon the premises of such defendant's last known residence located in Nassau, Bahamas and mailing a copy thereof to such defendant at either the Post Office Box of such defendant or to the address of such last known residence of such defendant in Nassau, Bahamas...." (A29) 16 & a The Court of Appeals affirmed the District Court's holding that service of the amended complaint was defective on the grounds that the "summons and [amended] complaint had not been 'left' at Vesco's residence." (A29) "Service" in the 1588 Action Upon the affidavit of Ms. Yohonn sworn to on April 8, 1974 (A99) Judge Stewart issued an order entered April 9, 1974 appointing David M. Butowsky, a member of the firm of Gordon Hurwitz Butowsky Baker Weitzen & Shalov, and appointed special counsel to ICC by Judge Stewart. (A102) In his affidavit sworn to on April 22, 1974, Mr. Butowsky described how he served process in the 1588 17 action at the "premises" of the Peti- tioner: "Upon my arrival at such premises I proceeded to a gate and was confronted by two men who stopped me from entering upon the premises. I held out the summons and complaint and stated that I would like to hand the envelope to Mr. Vesco. One of the guards stated to me 'we are instructed not to accept any papers’. Thereupon I dropped the envelope on the driveway and requested the guard to hand it to Mr. Vesco. He remained mute and I took leave of the premises." (A107) On the basis of the described service, default judgment was entered against the Petitioner on September 11, 1974. (A110) Judge Stewart denied Petitioner's motion to vacate in an endorsed decision entered May 3, 1978. (A113) 4. The Decision of ‘the Court of Appeals Upon appeal to the Second Circuit, the 2518 and 1588 actions 18 were consolidated, Medina, J., speaking for the Court of Appeals, affirmed Judge Stewart's decision in the District Court upholding service of the summons and complaint by the methods above- described, and agreeing with Judge Stewart that service of the amended complaint was defective and juris- dictionally fatal. (Al1-33) In affirmino the lower court, the Court of Appeals held that the international Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters was inapplicable to service of process in the Commonwealth of the Bahamas (A24-27), or if applicable the methods of service prescribed hy F.R.C.P. Rule 4 controls the jurisdictional 19 question. (A27) Under the several and various methods of service as directed by the District Court, the Court of Appeals saw no material differences in the interpretation and application of the Orders of service to justify inconsistent results between service of the amended complaint and the other process. 20 oe REASONS FOR GRANTING THE WRIT I THE COURT OF APPEALS, BY NOT SETTING ASIDE THE SERVICE IN THE 2518 AND 1588 ACTIONS, HAS ACCEPTED AND CONDONED A VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS OF LAW WHICH CALLS FOR THE EXERCISE OF THIS COURT'S POWER OF SUPERVISION. The Departure of the District Court from the Accepted and Usual Course of Judicial Proceedings The Court of Appeals reasoned that F.R.C.P. Rule 4(i) (1) (E) permitted the District Court "to tailor the manner of service to fit the necessities of [the] particular case." (A19) Advisory Committee's Note of 1963 to Rule 4(i) (1) (E). The Court of Appeals relies on the decisions of this Court in upholding the methods of service in these actions: 21 "The Supreme Court has long recognized that no one form of substitute service is favored over any other so long as the method chosen is reasonably calculated, under the circumstances of the particular case, to give the de- fendant actual notice of the pendency of the lawsuit and an opportunity to present his defense. The constitutional determination is derived from the necessities of each case rather than from a preconceived notion of what will provide actual notice in every case." (A19-20) Each of the methods of service under Rule 4(i), including service "as directed by order of court" under subdivision 4(i) (1) (E), is and should be calculated to give "actual notice": (1) subdivision "(A)" prescribes service according to the rules of the subject foreign country; (2) subdivision "(B)" requires service to be "reasonably calculated to give actual notice"; (3) subdivision "(C)" prescribes personal 22 delivery; and (4) subdivision "(D)" necessitates a "Signed receipt." Contrary to the view of the Court of Appeals, the scheme of Rule 4(i) does provide for a preconceived notion of actual notice to be applied to the necessities of the case. Judge Medina would have the exigencies of the case dictate whether actual notice is feasible Or even necessary. The initial question determining the method of service under Rule 4(1i) (1) (E) "as directed by order of ccurt" is how actual notice may be given under the particular circumstances of the case, and not what type of notice (actual or otherwise) the circum- stances will bear: "But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one 23 desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected ... or where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950) ." (Citations omitted) (Emphasis supplied) Therefore, both the District Court and the Court of Appeals erred as to the basic premise of Rule 4(i): an order directing service under sub- division "(E)" must in the first instance conform the method of service to giving actual notice with secondary regard to the hardship created under the circum- stances. In the present case, there 24 was no real attempt to personally serve the Petitioner. In both the 2518 and 1588 actions, service was effected in less than 24 hours of the arrival in Nassau, the Bahamas, of the appointees. No effort to personally serve a prospec- tive defendant need ever be necessary under the interpretation by the Second Circuit of Rule 4(i). Customarily, fair notions of due process require an attempt to serve a defendant personally before substituted service iss permitted (e.g. N.Y. Civil Practice Law and Rules §308 subd. (4) so provides). Furthermore, the more difficult the circumstances of serving a prospec- tive defendant, the more the parties interested in the case, including the ‘attorneys appearing of record in one 25 capacity or another, should disassociate process includes the voluntary surrender themselves from the crucial service of of prospective defendants to marauding process. Ms. Yohonn was associated process servers. Even under general with the attorneys of record for the notions of due process within a civilized Plaintiff-Respondent, ICC; Mr. Butowsky | system of law, no natural person has was appointed Special Counsel for ICC. | been compelled to make himself or In hearing an application by an attorney | herself available for service of process. representing a petitioning creditor for . To assume otherwise would dispense with authorization to serve crucial process } service of process in its entirety, in the action, the Second Circuit | except for retaining archaic methodology stated that an "attorney stands in the | under historical legal tradition. Same relationship as the party" and | Under the circumstances here cannot, and should not be appointed as presented, both lower courts so far process server. In Re Evanishyn, 1 F.R.D. departed from the accepted and usual 202 (S.D.N.Y. 71939), aff'd on other course of judicial procedure, as to grounds 107 F.2a 742 (2a Cir. 1939). call for an exercise of this Court's It appears from the Court of | power of supervision. The particular Appeals decision in this case that the | methods of service described in the Second Circuit's present view of due orders of Judge Stewart (A36 and A102) do not comport with due process. There 26 27 a is no real material difference between "depositing" process and "leaving" process at the last known "residence" of the Petitioner. Both Judges Medina and Stewart agreed that Ms. Yohonn had complied with the order directing service by "depositing" the process at the purported "residence" of the Petitioner, but that service of the amended complaint in the 2518 action was defected and therefore invalid because the process happened to be "thrown back" and carried off in the process server's car, thereby not being "left" at the premises. (A28-29) The deficiency of due process concerning each of the attempted "services" is blatant considering the inconsistent results between substantially the same 28 types of service of the original and amended complaints. It would appear that if a mere "deposit" of the process was required, then whatever happened to the process thereafter is inconsequential; if merely "leaving" the process was all that was necessary, then whatever happened to the process after being "left" is also inconsequential. The reasonable conclusion is the same in each instance. The prospective de- fendant receives no actual notice of the process under each "method," but is subject to in personam jurisdiction in one instance, but not in the other. Either all the services of process are valid, or all are defective. Allowing Judge Stewart to arbitrarily interpret his orders after the fact is abhorrent to standards of 29 due process. The obvious question here is whether the orders directing service were "tailored" to the circumstances, or whether the circumstances of service were "tailored" to the terms of the orders. A prospective defendant should have the right firstly, to know that he or she has been served with process (i.e. "actual notice"), and secondly, when he or she has been properly served: "The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. at 314 (1950). No solace can be found in the fact that a prospective defendant is aware of judicial proceed- ings: "“([NJo jurisdiction is acquired 30 over a defendant defectively served merely because he has full knowledge of the proceedings against him." Wuchter v. Pizzutti, 276 U.S. 13, 24 (1928). Kadet-Kruger & Co. v. Celanese Corp. of Amer., 216 F.Supp. 249 (N.D. Ill. 1963). II F.R.C.P. RULE 4(i) (1) (E) MUST BE APPLIED WITHIN THE TERMS OF THE INTERNATIONAL CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS A. The Status of the Convention "Congress has undoubted power to regulate the practice and procedure of federal courts and may exercise that power by delegating to the Supreme Court or other federal courts authority 31 to make rules not inconsistent with the statutes or Constitution of the United States. 32 Am.Jr.2d, Federal Practice and Procedure, §15. Although the Federal Rules of Civil Procedure have the force and effect of a federal statute, they are not accorded the status of "federal law" and cannot be inconsistent with the statutes or Constitution of the United States. Sibbach v. Wilson & Co., 312 U.S.1l, 9- 10 (1940) reh. denied 312 U.S. 713. "Plainly the Rules are not acts of Congress and can not [sic] be treated as such." 312 U.S. at 18. ' The United States Constitution provides as follows: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall ” 32 be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." U.S. Const. Art. 6 By the Constitution a treaty has the same status as an act of congressional legislation. Both are declared to be the "supreme law of the land" and no Superior efficacy is given to either one over the other. Whitney v. Robinson, 124 U.S. 194 (1888). The Federal Rules of Civil Procedure, although having the force and effect of federal law, are not accorded the same status as the Consti- tution, federal statutes, or treaties. The Rules are not the "supreme law of the land." Sibbach v. Wilson & Co., supra . 33 In Tamari v. Bache & Co., 431 F.Supp. 1226 (N.D. Ill. 1977), the District Court considered F.R.C.P. Rule 4(i) in relation to the international Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the "Convention"), The Hague, November 15, 1965, entered into force February 10, 1969, 20 U.S.T. 361, TIAS No. 6638, 658 UNTS 163. (A115) The District Court for the Northern District of Illinois stated, "(Wle are persuaded by the reasoning of the California court in finding that the treaty [i.e. Convention] was not meant to abrogate the provisions of Rule 4, as evidenced by the fact that there has been no change in the provisions of the Rule since the treaty became effective." 431 F.Supp. at 34 1229, citing Shoei Kako Co., Ltd. v. Superior Court, 33 C.A.3d 808, 109 Cal. Rptr. 402 (1973). Agreeably, the Convention did not "abrogate" the provisions of Rule 4(i) in that the treaty did not abolish, nullify or replace the methods of service described in the Rule. However, the Rules of Civil Procedure cannot be in conflict, or inconsistent with the "supreme law of the land," i.e. the Constitution, federal statutes and relevant treaties. Sibbach v. Wilson & Co., supra. When a treaty and a federal procedural rule relate to the same subject, the courts should endeavor to construe both the treaty and the rule so as to give effect to each without violating the language of the other. Should the language and effect 35 of the rule be totally unsalvageable in relation to similarly applicable provi- sions of a treaty, the federal procedural rule should be subordinated to the provisos of the treaty. In the present case, Rule 4(i) (1) (E) of the Federal Rules of Civil Procedure provides for service "as directed by order of the court." Not only must such an order provide for actual notice in a manner consistent with the other subdivisions of Rule 4(i), but the prescribed method of service under such an order must comply with the terms of the Convention where applicable. An order issued under Rule — 4(i) (1) (E) cannot be construed as ushering a prospective defendant into federal court thereby extending in 36 personam federal jurisdiction into foreign countries, where jurisdiction had not previously existed, or in contravention of a treaty, the "supreme law of the land": "These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein." F.R.C.P. Rule 82. Thus, the terms and methods of service described in an order issued under Rule 4(i) (1) (E) must comply with the provi- sions of the Convention as the "supreme law of the land." U.S. Const. Art. 6. B. The Applicability of the Convention The Court of Appeals for the Second Circuit asserts that, "It is undisputed that the Bahamas has never become a direct signatory to the 37 Convention." (A25) On July 10, 1973, the Common- wealth of the Bahamas became independent from the United Kingdom of Great Britain. In an official letter dated July 10, 1973, from the Office of the Prime Minister of the Bahamas to the Secretary General of the United Nations, the Prime Minister expressed his continuing "desirability of maintaining existing legal relationships, and conscious of its [the Commonwealth of the Bahamas] Obligations under international law to honour its treaty commitments acknowledges that many treaty rights and obligations of the Government of the United Kingdom in respect of the Bahamas were succeeded to by the Commonwealth of the Bahamas upon Independence by virtue of customary international law." (Emphasis supplied) 38 ee (A119) The letter presumes that the Commonwealth of the Bahamas succeeded to "each treaty" entered into by the United Kingdom on behalf of its con- stituents, including the Bahamas, unless the treaty had previously lapsed "by virtue of customary international law": "It is desired that it be presumed that each treaty has been legally succeeded to by the Commonwealth of The Bahamas and that action be based on this presumption until a decision is reached that the treaty should be regarded as having lapsed. Should the Govern- ment of the Commonwealth of The Bahamas be of the opinion that it has legally succeeded to a treaty, and wishes to terminate the operation of the treaty, it will in due course give notice of termination in the terms thereof." (Al120-21) Although the Court of Appeals cites many unofficial sources (including the Memorandum to United States Marshalls 39 Concerning Instructions for Serving Foreign Judicial Documents in the United States and for Processing Re- quests by Litigants in This Country for Service of American Judicial Documents Abroad, Dep't. of Justice Memo No. 386, Revision 2, June 15, 1977) (A27), contending that the Convention does not apply to foreign service of United States documents in The Bahamas, there was no discussion of international law, or of whether the Commonwealth of The Bahamas gave notice of the termination Or inapplicability of the Convention as provided in the above quoted letter, or any official citation from Bahamian sources as to the status of the Conven- tion in the independent Commonwealth. Under generally accepted principles of international law, until 40 express termination by the successor State, all treaties provisionally remain in effect: "2. When a successor State [the Commonwealth of The Bahamas] communicates to the third State [member nations of the United Nations, including the United States] a declaration expressing its consent to the provisional application of such treaties pending a decision with regard to their maintenance in force, modifi- cation or termination, the treaties shall continue to apply provi- sionally as between the successor State and the third State unless in the case of a particular treaty: "(a) The treaty comes into force automatically as between the States concerned under general international law independently of the declaration; or "(b) It appears from the treaty or is otherwise established that the application of the treaty in relation to successor State would be incompatible with its object and purpose; or "(c) Within three months of receiving the notification the third State in question has 41 informed the successor State of its objection to such provisional application of the treaty." Yearbook of the International Law Commission, Art. 4, subd. 2, "Unilateral Declaration By a Successor State," Vol. II (1969) (Emphasis supplied) The official letter from the Office of the Prime Minister of the Commonwealth of the Bahamas (A119) is a unilateral declaration by the Common- wealth, as a “successor State" of the United Kingdom, to member nations of the United Nations, that each treaty, including the Convention signed by the United Kingdom, provisionally remains in effect unless it has previously lapsed, or express notice of termination is received from the Bahamian government. Unquestionably, prior to independence, the Convention formed part of the laws of The Bahamas Islands as a 42 member of the United Kingdom, a direct signatory of the treaty. Subsequent to independence on July 10, 1973, until express declaration to the contrary, and an act of legislation by the Bahamian Parliament, the Convention provisionally formed a part of the laws of the inde- pendent Commonwealth of The Bahamas.* * Under British commonwealth law, treaties remain in full force and effect until termination or alteration by an act of Parliament. And when a treaty affects existing domestic law, only an act of legislation (in this case Bahamian legis- lation) may alter or terminate the provisos of an international treaty entered into for the benefit of common- wealth nations, such as the Bahamas, by the United Kingdom: "Within the British Empire there is a well-established rule that the making of a treaty is an execu- tive act, while the performance of its obligations if they entail alteration of the existing domestic law requires legis- lative action." Attorney General for Canada v. Attorney General for Ontario, A.C. 326 per Ld. Atkins Privy Council. 43 Moreover, as part of the laws of The Bahamas prior to independence, the Convention remained provisionally in effect thereafter under Section 4 of ‘the Bahamas Independence Order 1973 which is an integral part of the Constitution of the Commonwealth of The Bahamas. The Independence Order provides that the laws existing prior to Bahamian inde- pendence are preserved and guaranteed con- tinuity through and after independence until amended or annulled by Parliament of the Commonwealth of The Bahamas. (A122) In writing the Court of Appeals decision, Medina, J., speaking for the Court, is unsure of the Conven- tion's Bahamian legal status even after citing many unofficial U.S. sources, 44 and attempts to gloss over the issue in an obvious misapplication of case law to the present circumstances: "Moreover, there is much to be said in support of the view that, even if the terms of the Convention were applicable, the Convention was not intended to abrogate the methods of service prescribed by F.R.C.P. Rule 4." (A27) There should be no question that service under Rule 4(i) (1) (E) must comply with treaties relating to the same subject matter. The Convention did not “abro- gate" Rule 4, however, that is not to say that Rule 4 need not be construed within the terms of the Convention, especially where service is "as directed by order of the court" under subdivision "(E)." The Convention is the “supreme law of the land" to which federal procedural rules are subordinate. The Court of Appeals surely 45 so far departed from the accepted and “ customary principles of: international law and procedure as to call for an exercise of this Court's powers of supervision. S. The Burden of Proving Service As to any alternative arguments that the Petitioner never demonstrates that the service of process employed in the instant case does not meet the terms of the Convention, the burden of proof is misplaced. The Respondent- Plaintiff, seeking to invoke in personam federal jurisdiction over the Petitioner- Defendant, has the burden of establishing service of \procéss in conformity with applicable law, rules and treaties, and has the obligation to come forward with 46 the facts. Amba Marketing Systems, Inc. v. Jobar Intern'l, Inc., 551 F.2d 784 (9th Cir. 1977). The party seeking to invoke the in personam jurisdiction of the federal court has the burden of proof, and the onus may not be shifted to the party challenging jurisdiction. Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974); Arcata Graphics Corp. v. Murrays Jewelers & Distributors, Inc., 384 F.Supp. 469 (S.D.N.Y. 1974). CONCLUSION For the reasons hereinabove stated, the Petitioner respectfully submits that a writ of certiorari 47 should issue to review the judgment and opinion of the United States Court of Appeals for the Second Circuit. Respectfully submitted, Law Offices of Robert D. Foglia 530 Fifth Avenue New York, New York 10036 (212) 697-8772 (201) 488-4433 48 APPENDIX APPENDIX UNITED STATES COURT OF APPEALS Vor tus Seconp Circurr r.% Nos. 159 & 323—August Term, 1978. (Argued October 6, 1978 Decided January 24, 1979.) Docket Nos. 78-7279 & 78-7092 7 INTERNATIONAL Controis Corp., . Plaintiff-Appellee, — Rosert L. Vesco, Defendant-A ppellant. INTERNATIONAL Controts Corp., Plaintiff-Appellee, —vV Pee Rozsert L. Vesco, Harry L. Sears, Frank G. Bearry, Norman LeBuano, Stan.ey Graze, Mizv0on F. Meissner, Urricu J. Srnickier, Ricnarp E. Cray, Wisert J. Syires, Frevenic J. Weymar, Gitperr R. J. Straus, C. Henry Buuv III, Ratpx P. Dopp, Atwyn Elsen- HAVER, Geonce PHiLuirz, Jor Gravy, Sairuey Baey, Vrsco & Co., Inc., IOS Lrp., Courumsus Trust Company, Limi. », Basnamas Commonwratra Bank, InrTerna- TIONAL Bancorp, Kitmorey Investments Lrp., VaLue Carrrau Lirp., GLopaL Houpines Lrp., GuopaL Financia. Lrv., Butters Bank, Lip. (Now Known as Wao Ho.p- Al xcs Lrp.), Anian J. Butter, Bank Cantrape Lrtp., Famriztp Aviuvrion Coxrrorarion, Fainrienp Gexenan Corroration, Skyways Leastne Corporation and Ma- RINE Miptanp Bank, New York, Defendants, Rozert L. Vesco, Defendant-A ppellant. &. - Before: Mepina and Mansrievp, Circuit Judges, and Warp, District Judge.* A. ~ Consolidated appeals from two orders of the District Court for the Southern District of New York, Judge Charles E. Stewart, Jr. In these two consolidated appeals, Robert L. Vesco appeals from two orders denying: (1) a motion to vacate a default judgment entered against Vesco on October 5, 1973; and (2) a motion in an entirely different action to vacate another default judgment entered against Vesco on September 11, 1974. The orders in each of these two cases are affirmed, with costs. The opinions below have not been officially reported. >. oe Rosert D. Foctia, New York, N.Y., for Defen- dant-A ppellant. Mitton S. Goutp, New York, N.Y. (Daniel L. Carroll, Thomas J. Johnson and Shea Gould Climenko & Casey, New York, N.Y., on the brief), for Plaintiff-Appellee. ae. s ° District Judge of the Southern District of New York, sitting by designation. A2 Se ee a ee Te Mepina, Circuit Judge: We have before us two consolidated appeals by Robert L. Vesco. The first is from an order of Judge Charles E. Stewart, Jr., dated February 1, 1978, denying a motion pursuant to F.R.C.P. 60(b) (4) by Vesco, on certain papers and “on all the proceedings heretofore had herein” to vacate a default judgment entered against him on October 5, 1973. Th: second is from another order of Judge Stewart entered on May 3, 1978, denying a motion by Vesco in an entirely different action, also made “upon all of the proceedings heretofore had herein,” to vacate a default judgment entered on September 11, 1974. We shall proceed with the first appeal, leaving the second until the end of this opinion. Judge Stewart’s opinions in the two cases are not officially reported. After probing and analyzing a considerable number of side issues, digressions and a morass of procedural detail raised in the briefs and on the oral argument of the ap- peals, we have concluded to affirm, as dispositive of the two appeals, Judge Stewart’s findings that: (1) the service of the summons and complaint on Vesco on July 30, 1973 at his Brace Ridge Road residence in Nassau, Bahamas, gave the Court in personem jurisdiction over Vesco (73 Civ. 2518) ; and (2) the service of the summons and complaint on Vesco on April 17, 1974 in the separate action in the South- ern District of New York (74 Civ. 1588) at the same Brace Ridge Road residence in Nassau, Bahamas, gave the Court in personam jurisdiction over Vesco. With regard to the attempted service of the amended complaint on October 24, 1973, referred to in Vesco’s brief on the first of the two appeals, we also approve Judge Stewart’s finding that this service did not give the Court in personam jurisdiction over Vesco. We do not reach Judge Stewart’s ruling that A3 Vesco’s motion to vacate the default judgment of October 5, 1973 was not timely made. As this Vesco controversy will probably reach this Court again from time to time for some years to come, we think it may spare other judges the time and effort we have spent studying the briefs and the twelve large manila folders in the Clerk’s Office containing the “proceedings heretofore had herein,” and constituting the original record in Appeal 78-7092, if we make a preliminary state- ment describing the salient features of the prior proceed- ings and especially the prior opinions filed by various panels of this Court. This we think is especially important as it will serve to place the matters dispositive of these appeals in their proper relation to what has already been decided and what has not already been decided. Part Oxr Prior History of the Case. For some years prior to 1972 the SEC took note of the conduct of Vesco and his manipulation of corporate entities, spin-offs, the shuffling about of individual ofticers and directors and the use of foreign banks as depositaries of the alleged hundreds of millions of dollars he is said to have misappropriated from investors in violation of the federal securities laws. The result of the ensuing in- vestigation was that on November 27, 1972 the Commission filed a suit against Vesco, 20 other individuals and 21 corporate entities in which the complaint, based upon a vast array of alleged wrongdoing by Vesco and his asso- ciates, prayed for extensive legal and equitable relief. This action in the District Court for the Southern District of New York is entitled Securities and Exchange Com- A4 ten Oe wee ate Ge Brest AST OE PS ae ae PD A mission v. Robert L. Veseo, No. 72 Civ. 5001.2 The com- plaint in this action alleged “a scheine of extraordinary magnitude, deviousness and ingenuity in violation of the anti-fraud provisions of the Securities and Exchange Act of 1934 * * * masterminded by Vesco.” One of the defen- dants was International Controls Corp., alleged to be a principal vehicle used by Vesco to implement various fea- tures of the scheme to defraud investors. On March 16, 1973 ICC consented to the entry of final judgment against it in the SEC action, and Judge Stewart, in lieu of the appointment of a receiver sought by the SEC, appointed a Special Counsel and a new interim board of directors to represent ICC. David M. Butowsky, the Special Counsel appointed by the Court as authorized by the terms of the consent judg- ment, on June 7, 1973 filed in the District Court for the Southern District of New York the complaint in the ac- tion in which we have the first of the two consolidated appeals (78-7092). In this action plaintiff ICC sued 32 individual and corporate defendants, 22 of whom were defendants in the already pending SEC action (72 Civ. 1 Securities and Exchange Commission v. Robert L. Vesco, Norman LeBlanc, Milton F. Meissner, Ulrich J. Strickler, Stanley Craze, Frank G. Beatty, Richard E. Clay, Wilbert J. Snipes, James Roosevelt, Frederic J. Weymar, Gilbert K. J. Straub, C. Henry Buhl, I1/, Allan.C, Butler, Lawrence B. Richardson, John D. Schuyler, Edward Stoltenberg, Howard F. Cerny, Georges Phillipe, Allan F. Conwill, Raymond W. Merritt, John 8. D'Alimonte, 10S Ltd., International Controls Corp., Bahamas Commonwealth Bank, Ltd., Overseas Development Bank Luxembourg 8.A., International Bancorp Ltd., Value Capital Ltd., Butlers Bank Ltd., Transglobal Financial Services Ltd., Kilmorcy Investments Ltd., Global Holdings Ltd., Global Financial Ltd., 1.1.T. Management Co., S.A., F.0.F. Management Co., Ltd., Venture Management Co., Ltd., Transglobal Growth Fund Management Co., Ltd., Bank Cantrade, Ltd., Venture Fund (International), N.V., Fund of Funds, Ltd., Transglobal Growth Fund, Ltd., 117, An International Investment Trust, Consulentia Verwaltungs, 4.G., No. 72 Civ. 5001 (S.D.N.Y. Filed November 27, 1972). A5 5001) and 10 of whom were not. These new defendants included Vesco & Co., Inc. and various corporations con- nected in one way or another with a Boeing 707 aircraft purchased for $1,375,000 and refurbished by an expendi- ture of $600,000 to $700,000 “for the personal comforts, conveniences and zest for living” of Vesco and with the yacht Patricia III, located in Miami, Florida, {9 be fitted up at great expense to suit Vesco’s “Sybaritic testes.” On June 20, 1973, Vesco, Patricia Vesco, his wife, « ::1 Vesco’s family boarded the yacht, and Vesco and his family re- mained its sole users until shortly before it was put into Miami for repairs. The first phase of this case (International Controls Corp. v. Vesco, 73 Civ. 2518 (S.D.N.Y.)? to reach this Court was an appeal from an order of Judge Stewart granting a preliminary injunction, among other things enjoining the contro) or disposition of certain assets, in- cluding the Boeing 707 and the yacht Patricia III. This is Appeal No. 1. The opinion affirming Judge Stewart’s in- junction, with a certain modification, was written by Chief Judge Kaufman, for a panel consisting of himself, Judge Mansfield and Judge Mulligan, the latter of whom dis- sented in part. This Appeal No. 1 was argued on Decem- ber 10, 1973, decided on January 15, 1974, and it is reported as International Controls Corp. v. Vesco, 490 F.2d 1334 (2d Cir.), cert. denied, 417 U.S. 932 (1974). The part of that opinion pertinent to these two present consolidated appeals states that Vesco was not one of the appellants but Vesco & Co., Inc. was one of the appellants. The default j.dgment of October 5, 1973 is mentioned (490 F.2d at page 1350); also that Vesco & Co., Inc, was in- corporated by Vesco on July 12, 1972 as an estate planning 2 See the title page of this opinion. A6 ee. Pre. el Ta ie dt Bt BS OR Le Le or device, all the voting common stock of which is owned by Patricia Veseo as custodian for Vesco’s children, and the officers are Mrs. Veseo and Shirley Bailey, Vesco’s personal secretary (490 F.2d at page 1349). Judge Stew- art, in the findings upon which the preliminary injunction was based, stated that “Vesco & Co. is a corporate alter ego for defendant Robert Vesco and was created by him during and after the perpetration of the fraud charged in the complaint.” This is the finding referred to in Chief Judge Kaufman’s opinion (490 F.2d at page 1350). Be- cause of the relevance of this alter ego finding to the disposition of the two appeals now before us, however, we think it proper to state that, at a later date and on August 22, 1975, in connection with a different appli- cation in this same action, Judge Stewart repeated this finding. We shall find that an appeal was taken to this Court and the upshot was that the finding was not re- versed or modified and that it stands now as the law of this case for all purposes. We shall discuss this particular matter later in some detail. For our present purposes this opinion in Appeal No. 1 by Chief Judge Kaufman, made as above stated on the appeal from the order of Judge Stewart granting the pre- liminary injunction, also refers to the fact that Vesco had already absented himself from the territorial limits of the United States, had refused to return and was “safely ensconced in Nassau, the Bahamian capital” (490 F.2d at _ page 1338). The order to show cause, on which this motion for the preliminary injunction was made, is dated June 8, 1973. After the affirmance of the order of Judge Stewart granting the preliminary injunction, Special Counsel for plaintiff proceeded with the utmost diligence to try to reach assets to satisfy the default judgment, which did A7 not provide for the payment of any specific sum as the damages had not yet been proved. This led to extended and time-consuming hearings which resulted in a finding of “specified damages of $2,433,466.72, but left open the possibility that ICC might be able to prove further dam- ages in subsequent proceedings.” A second default judy- ment in this amount was entered against ‘esco on July 16, 1974. All this time, quite obviously ware of the allegations in the complaint in this action and of all the proceedings above referred to, Vesco was sitting in the wings leaving it to his alter ego to do the appealing and the presentation to this Court of the reasons for reversal of some or all of Judge Stewart's rulings. One of these argu- ments asserted by Vesco & Co., Inc. was that because of the alleged defective service of process the judgment against Vesco was void. And this is precisely the prin- cipal question asserted by Vesco in the first of these two consolidated appeals now before us for decision, As he had not directly submitted to the personal jurisdiction of the court, Judge Stewart in the hearings above re- ferred to properly refused to permit Vesco & Co., Ine. to assert or prove defenses personal to Vesco. At this point it is well to remember that the complaint alleges the facts from which the alter ego relationship is to he inferred and Vesco by his default has placed none of the allegations of the complaint in issue. On May 20, 1975 1CC moved before Judge Stewart for an order of execution to reach the assets of Vesco & Co., Inc, to satisfy the default judgment against Vesco. On August 22, 1975 Judge Stewart ruled that Vesco & Co., Inc. was the alter ego of Vesco and directed both Vesco and Vesco & Co., Inc. to turn over their ICC stock to a receiver. Vesco & Co., Inc. took an appeal from this de- A8 cision to our Court. The resulting opinion is reported as International Controls Corp, v. Vesco, 5385 W.2d 742 (2d Cir, 1976), cert. denied, 429 U.S. 1088 (1977). This Appeal No. 2 came on for argument before a different panel con- sisting of Judges Kaufman, Smith and Anderson, The appeal was argued on March 8, 1976 and dacided on May 13, 1976. The Court, in an opinion by Judge Smith, did not decide the merits or any part thereof, Instead, its attention was diverted by counsel for Vesco & Co., Ine. to the interesting questions of finality and compliance with Rule 54(b). Since the judgment appealed from was against Vesco and not the other defendants, it was held that fur- ther damages might be proved later; and, as the complaint contained multiple claims, this Court stated that it could not discern with the clarity required by the final judg- ment rule just how much of the judgment was final and how much was not. The Court was also unsure as to whether the single Section 54(b) certification was intended to apply not only to the first default judgment but also to the second. Accordingly, on May 13, 1976, the case was remanded to Judge Stewart. While the opinion makes no reference to Vesco, the fact is that extradition to face the three indictments described in footnote 1 to Chief Judge Kaufman's opinion on Appeal No. 1 had been re- fused and Veseo was still at large and eluding process servers as will more fully appear later in this opinion. However disheartening the further delay caused by this remand might have seeined to Special Counsel for appellee, he took immediate steps to rernedy the procedural defects that had been brought to the attention of the Court by counsel for Vesco & Co,, Inc. So, upon proper notice to Vesco & Co., Inc. and to Veseo by order to show cause dated May 21, 1976, and on May 27, 1976, despite urgent and prolonged arguments on behalf of Vesco & Co., Inc. A9 for further hearings and further delay, Judge © owart prepared and signed a new and amended judguxat en- tered May 27, 1976, in which the part of the claims as- serted in the complaint that was covered by the judgment and the part of the claims asserted in the complaint that was not covered by the judgment were made unmistakably clear. He also certified, in compliance with the require- ments of Rule 54(b), that as to the amended judgment thus defined “there is no just reason for delay in entering a final judgment.” This led to a fantastic series of events and a new spate of procedural smoke sereens by Vesco & Co., Ine. which, whether so intended or not, resulted in further delays in bringing Vesco to justice, Veseo & Co., Inc. appealed to this Court from the amended judgment, entered on May 27, 1976 on the remand. But this notice of appeal was served on July 7, 1976, nine days too late. The flimsy excuses for this “mistake” are exposed in Judge Stewart's opinion of October 27, 1976. On August 4, 1976 appellee moved in this Court to dis- miss the appeal; on August 31 Vesco & Co., Inc. moved in the District Court, pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure for an extension of time within which to file a notice of appeal, which was denied. On September 14, 1976 this Court heard appellee’s mo- tion to dismiss and a cross-motion by Vesco & Co., Ine, for reconsideration of the remand. On the same day, by order of Judges Anderson, Mansfield and Mulligan, the motion for reconsideration was denied and the motion to dismiss was granted “for lack of jurisdiction.” Accordingly, as no effective appeal was taken by Vesco & Co., Inc. from the order of Judge Stewart holding that Vesco & Co., Inc. was the alter ego of Vesco, that ruling is now the law of this case. Moreover, it is the key to Al10 reaching the assets of Vesco, who, for all these years has by one means or another frustrated every attempt to bring him back to the United States and cause him to disgorge the avails of his misconduct, including the huge sums said to be deposited in seeret accounts in banks in Switzerland, Liechtenstein and elsewhere. p In any event, as of September 14, 1976 it appeared that Special Counsel for appellee might then be able to get at Vesco’s assets in Vesco & Co., Inc. But Vesco merely shifted lawyers and tried something entirely new. This was a motion in the District Court to vacate the May 27, 1976 judgment pursuant to Rule 60(b) of the F.R.C.P. The main thrust of the motion was for the first time to bring before the Court the fact that the judgment of October 5, 1973 was plainly based on the original complaint and, so the argument of Vesco & Co., Inc. went, the mere filing of an amended complaint on September 7, 1973, before the entry of the default judgment of October 5, 1973, super- seded the original complaint and made the default judgment void [Rule 60(b)(4)]. Judge Stewart’s reason for denying this motion on October 27, 1976 was that the mere filing of an amended complaint does not supersede the original complaint, and that until proper service of an amended complaint has been made pursuant to Rule 5(a) the origi- nal complaint remains in full force and effect. He further held that the only attern’;»ted service of the amen@ed com- plaint on Vesco was at his Brace Ridge Road resiience in Nassau, Bahamas, on October 24, 1973, and that this service was invalid and ineffective because not made in compliance with his order authorizing the service. Accordingly, as this service gave the Court no in personam jurisdiction over Vesco, the amended complaint did not supersede the origi- nal co:nplaint and the motion under I'.R.C.P. Rule 60(b) (4) to vacate the default judgment of October 5, 1973 against All Vesco was denied on October 27, 1976. Thus, in connection with the first of the two consolidated appeals, and to be sure that we leave no loose ends, we feel that we should discuss in a later part of this opinion the details concerning this attempted service and our reasons for approving Judge Stewart’s ruling that the service was improperly-ma-le and ineffective to give the Court in personam jurisdiction over Vesco. This brings us to the third time this case has come before our Court. Appeal No. 3 by Vesco & Co., Inc. was from Judge Stewart’s order of October 27, 1976. On June 3, 1977 the order was affirmed, in an opinion by Judge Oakes, in which Judge Wyzanski, Senior Judge of the Dis- trict Court for the District of Massachusetts, sitting by designation, and Judge Holden, Chief Judge of the District Court for the District of Vermont, also sitting by designa- tion, concurred. The case is reported as International Con- trols Corp. v. Vesco, 556 F.2d 665 (2d Cir. 1977), cert. denied, 434 U.S. 1014 (1978). In the opening paragraph of the opinion Judge Oakes commented (556 I'.2d at page 667): While those transactions are not before us in the in- stant appeal, it was Mr. Veseo’s “multifarious manipu- lations” that led him to absent ::imself from this coun: try and to be unavailable for service of process. This persistent refusal to appear in any American court is the single most important contributing cause to the procedural problems that have culminated in this ap- a * * To return to the procedural claim then asserted by Vesco, counsel had a serious problem. This problem, as will ap- pear more clearly when we come to discuss the merits in connection with our disposition of the first of the two con- Al2 solidated appeals, was that a holding that the service of the amended complaint on Vesco on Oc'o ver 24, 1973 was valid would be inconsistent with and greatly weaken the argu- ment now pressed upon us by Vesco that the service of the original complaint on him on July 30, 1973 was not valid. So, true to form, counsel for Vesco & Co., Inc. on Appeal No. 3 so presented his argument for reversal as to concen- trate on the claim that the mere filing of the amended com- plaint on September 7, 1973 superseded the original -om- plaint so tiv:e was no basis on which the default jud;:. ent could rest and it must, therefore, be vacated. And the way Judge Stewart’s ruling that the service on Vesco of the amended complaint on October 24, 1973 was invalid was pushed into the backgroun:: was by the simple expedient of making no attack, on Appeal No. 3, on this ruling. This turns out to be just another of Vesco’s maneuvers as he now, in the first of the appeals before us (Vesco’s Main Brief, in 78-7092, at pp. 19ff), challenges as erroneous Judge Stewart’s finding that the October 24, 1973 service was invalid, whereas in Appeal No. 3 this finding was not chal- lenged by Vesco & Co., Inc. It is interesting to note that the failure to chalienge the finding of invalidity of service on Vesco on Appeal No. 3 did not escape the vigilance of Judge Oakes, who com- mented at 556 F..'d at page 668: “The District Court found that the amended complaint was not properly served on Vesco, a finding not challenged by appella:: here.” The net result was that the finding of invalidity of the service of the amended complaint on Vesco on October 24, 1973 was affirmed. By failing to challenge this finding the .Court was given the impression that the ruling was correct. This deliberate and purpereful act of Vesco & Co., Inc., the alter ego of Vesco, estops Vesco from claiming, on the first of the two consolidated appeals now before us, that the Al3 ruling of Judge Stewart was erroneous. This is especially true in view of all that has oceurred in the interval between the failure to challenge the finding on Appeal No. 3 from Judge Stewart's order of October 27, 1976 and the assertion that the finding was erroncous now made in Vesco’s main brief herein on *ptember 1, 1978. Moreover, as stated infra at p. 28f, we are of the opinion that Judge Stewart’s ruling that the service on Vesco on October 24, 1973 was invalid is correct beeiuse the service was not made in av- cordance with the terms of Judge S‘«wart’s order authoiiz- ing the service of ti... amended com ,.:::int. There is another aspect of the opinion of .J.:dge Dios on Appeal No. 3 that might lead to some misun ' rstanding. As urged on by counsel for Vesco & Co., Inc., Judge Oakes commented with reference to the disposition by this Court of Appeal No. 2, 556 F.2d at page 667: “The court did not reach the question of the va'idity of the alter ego ruling.” This is literally true. But the reason it is true is that this Court remanded the case as we have previously stated, and this was done without reaching any of the que: ions raised by appellant Vesco & Co., Inc. As a r::'ter of fact and law this alter ego ruling was « repetition of the ruling made on Appeal No. 1 as statcd in Chief Judge Kaufman’s opinion above referred to; and the -econd ruling to the same effect by Judge Stewar: »ecams« final, as above stated, when counsel for Vesco & Co., Inc. fil: d its notice of appeal from the order as amended on the r ‘and nine days too late and the appeal was dismissed. After all this litigation over a per'el of five years on’ might surmise that the Special Counsel was at last in a position to close in on some of Vesco’s assets Nothing could b» further from tle fact. During this period of five years and despite the ut: :»st diligence of the Special Conn- sel, the coui ts, and especially this Court, have been wusy Al4 wrestling with Vesco’s procedural inaneuvers. Except for the alter ego finding in Chief Judge Kaufman’s opinion on Appeal No. 1, and repeated from time to time as we have said, progress has been delayed and obstructed by Vesco’s procedural maneuvers, Nevertheless, it now appears that, during all these years, Veseo has had a card up his sleeve and that is his claim that the service of the summons and complaint upon him at his Brace Ridge Road residence in Nassau, Bahainas on J::'y 30, 1973 was not good service. He had “talked” about this off and on, and Vesco & Co., Inc. had mentioned this claim in one way or another on some of its various appea's. but the question had never been squarely decided. And so, on July 29, 1977 Vesco at last moved to vacate the default judgment rendered against him on October 5, 1973, pursuant to Rule 60(b)(4) on the ground that the judgment was void because the service, made almost to the day five full years before, was not properly made and the court had no 7 personam jurisdiction of Veseco. This is the subject of the first appeal before us now. The situation is incongruous, to say the least. Here we have a man who has “masterminded” the whole alleged scheme to defraud investors, who is familiar with every phase of the prolonged effort to defeat justice by absenting himself from the territorial limits of the United States, by avoiding extradition, by evading process servers and by engineering various appeals to this Court, all with full knowledge of the contents of ‘he complaint which charges him as the principal defrau: -:, and he comes before the Court and asserts th» clair: that the service was invalid because he was not yiver “air notice of the charge. Thus ‘there is much to be said in support of Judge Stewart’s finding that the motion, under all the circumstances, was untimely made. Nevertheless, we have decided not to reach Al5 that point but rather to decide on the merits whether or not the service was valid. Part Two The Service by Miss Yohonn at Vesco’s Brace Ridge Road Residence in Nassau on July 30} 1973 Was Good and Effective Service and Gave the Court In Personam Jurisdiction over Vesco. A. Discussion of Law Authorizing Judge Stewart's Orders of July 27, 1973 and July 29, 1973. The service of t!,. summons and complaint on July 30, 1973, was pursua: to the terms of an order by Judge Stewart on July 2%, 1973 authorizing Lois S. Yohonn, a lawyer employed in the office of plaintiff’s attorneys of record in New York,’ to deposit “a copy of the summons and complaint upon the premises of the last known resi- dence of said defendant located in Nassau, Bahamas, and 3 Vesco claims that the appointment of an associate of plaintiff’s law firm was improper, citing a 1939 opinion by District Judge Hulbert in In re Evanishyn, 1 F.R.D, 202 (S.D.N.Y. 1939). We think Evanishyn was wrongly decided and we refuse to follow it. The Advisory Com- mittee’s Note of 1963 to Rule 4(i) statcs that allowing “any person who is not a party” to effect service authorized by a court order “increases the possibility that the plaintiff will be able to find a Process server who ean proceed unimpeded in the foreign country * * *.” Service by Bahamian counsel proved absolutely futilo in this case, and no doubt the same would have been true if the aid of a local official had been solicited. The person selected had the requisite information at her disposul as to both Vesvo’s whereabouts and the ancillary order for service and was knowledgeable about the business of serving process. We believe that so long as the court does not appoint the actual party to effoct service under Rule 4(i)(1)(E), the selection of the person believed to be in the best position to effect service of process is a matter of discretion. Certainly there was no abuse of discretion by Judge Stewart here. Al6 mailing a copy of the summons and complaint to said defen. dant at the address of such last known residence in Nassau, Sahainas.”* The reason for the order, and another order to which we shall refer later, was that from the SEC pro- ceedings mentioned in the preliminary part of this opinion Vesco was known to be not averse to evading the service of process. Thus actual delivery of the Summons and com. plaint to Veseo in person was not required. As will later appear, two bodyguards stationed at Vesco’s residence made any delivery of process to Vesco in person impos- sible. We shall devote this part of the opinion to a brief discussion of the provisions of law that make it proper for Judge Stewart to have made this order of July 29, 1973. As we are dealing here with service of process in a for- eign country, we must, in our consideration of the matter, start with F.R.C.P. Rule 4(f) “T:rritorial Limits of Effee- tive Service.” This subdivisio: provides inter alia for service “when authorized by a statute of the United States.” This statute is Section 27 of the Securities Exchange Act of 1934, 15 U.S.C. §78aa, which is the same statute on which the subject matter jurisdiction® of the District Court in 4 Vesco claims that registered mail with a return receipt requested was required. We disagree. The views expressed by Judge Weinfeld in an analogous case, Levin v. Kuby Trading Corp., 248 F.Supp. 537 (S.D.N.Y. 1965), are applicable. Where, as here, mailing is coupled with leaving the summons and complaint at a place where the defendant is reasonably likely to learn of their contents, and where the defendant has a long history of avoiding process servers, due process is accorded without the use of a return receipt. 5 The complaint here alleged complex schemes involving multiple cor- porate manipulations in violation of Section 10(b) of the 1934 Act, 15 U.S.C. $78j(b), and Rule 10b-5, 17 C.F.R. $240.10b-5. Our Court resolved the question of subject matter jurisdiction in Appeal No. 1, International Controls Corporation v. Vesco, 490 F.2d 1334, 1342-1346, 1350-1351 (2d Cir.), cert. denied, 417 U.S. 932 (1974). (footnote continued on next page) Al? this case is based. But, while Section 27 authorizes service “wherever the defendant may be found,” it does not ex- plicitly authorize service ontside the territorix’ limits of the United States. This gap was bridged by thi. Court in an opirion by Judge Friendly in Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326 (2d Cir. 1972), interpreting Section 27 as authorizing international service of process.* The next step in our reasoning, leading up to Judge Stewart’s orders authorizing service, is F.R.C.P. Rule 4(e), which provides with reference to extraterritorial service that service may be made in the manner authorized by the Veseo further argues that the District Court lacked subject matter jurisdiction because the partial inquests held pursuant to the default judgment focused on damages related to common law claims rather than solely to claims arising under the Sccurities Laws. Appellant's Brief, at pp. 23-27. This is, in reality, a restatement of the argument made by Veseo & Co., Inc., in Appeal No. 1, namely that the facts pleaded in the complaint state claims, if at all, arising under state law and not the Securitics Laws. Chief Judge Kaufman met this argu- ment in his opinion for our Court in Appeal No. 1 at the pages. noted above. Assuming that the partial inquests referred in part to damages arising under state law claims, principles of pendent jurisdiction allowed the District Court to consider these damages once a claim arising under Scction 27 was established. Recent uuthority holds this to be the case even where, as here, extraterritorial service has been made pursuant to a federal statute. Octiker v. Jurid Werke, G.m.b.11., 556 F.2d 1 (D.C. Cir. 1977); Robinson v. Penn Central Co., 484 F.2d 553 (3rd Cir. 1973); Travis v. Anthes Imperial Lid., 473 F.2d 515 (8th Cir. 1973); Schwartz ¥. Eaton, 964 F.2d 195 (24 Cir. 1959) (Dictum) ; Mills, Pendent Jurisdiction and Eztraterritorial Service Under the Federal Securities Laws, 70 Colum. L. Rev. 423 (1970); Note, 63 Colum. L. Rev. 762 (1963); Note, 73 Harv. L. Rev. 1164 (1960). See also 2 Moore’s Federal Practice §4.42[1], at 4-524 n.4/ (1978); 4 Wright & Miller, Federal Practice and Procedure, §1125, at 527 (1969). We believe these authoritics better reasoned than carlier cases, collected in Moore’s Federal Practice and Wright ¢ Miller, holding to the contrary. 6 See also 2 Moore’s Federal Practice 94.42[1], at 4-521, 94.45, at 4-563, and cases cited. Als statute (i.e. Section 27), or, “if there is no provision therein prescribing the manner of service,” then service is to be made “in a manner stated in this rule.” As Section 27 does not, with reference to extraterritorial service, prescribe “the manner of service,” this brings us to the “manner stated in” other relevant parts of F.R.C.P. Rule 4. Thus, in addition to the standard methods of service set dut in Rule 4(d), we find that Rule 4(i) “Alternative Provisions for Service in a Foreign County” comes into play. Rule 4(i) authorizes the use of five alternative forms of sub- stitute service which provide the plaintiff and the court with the flexibility required to effect service on a defendant in a foreign country.’ Subparagraph (5) of Rule 4(i) (1) provides for service “as directed by order of the court,” and in this section we find the specific authority on which . Judge Stewart relied when he signed the orders authoriz- ing service on Vesco, Rule 4(i)(1)(E) permits the district court “by order to\. tailor the manner of service to fit the necessities of a par- ticular case.”* The district court is not limited to those methods for service set out in Rules 4(d) and 4(i)(1)(A) through (D), but is authorized to fashion a method of ser- vice, under Subparagraph (EF), to satisfy the requirements of the case at hand and of the Due Process Clause. The Supreme Court has long recognized that no one form of substitute service is favored over any othe” so long as the method chosen is reasonably calculate. under the 7 Advisory Committce’s Note of 1963 to Rule 4(i). Sce also United States v. Danenza, 528 F.2d 390 (2d Cir. 1975); Levin v. Ruby Trading Corp., 248 F.Supp. 537 (S.D.N.Y. 1965); 2 Moore’s Federal Practice f4.45, at 4-566; 4 Wright § Miller $1133, at 558-559; Kaplan, Amend- ments of the Federal Rules of Civil Procedure, 1961-1963 (1), 77 Harv. L. Rev. 601, 636 (1964). 8 Advisory Committee’s Note of 1963 to Rule 4(i)(1)(E). Sce also 4 Wright g Miller $1124, at 564-565. Al9 circumstances of the particular case, to give the defendant actual notice of the pendency of the lawsuit and an oppor- tunity to present his defense.’ The constitutional deter- mination is derived from the necessities of each case rather than from a preconceiv: } notion of what will provide actual notice in every case. : Thus we think Judge Stewart’s order of July 29, 1973 was clearly authorized by law. That it was designed to give proper notice to Vesco and to comply with ‘':c re- quirements of due process are the only inference... com- patible with the circumstances of this particular case that can be made from the recital of what occurred in Nassau in the months of June and July, 1973, and especially the service first attempted by Miss Yohonn on July 30, 1973, and the service later consummated by her on that same day, to which we shall now turn. B. The Service of the Summons and Complaint on Vesco, July 30, 1973. International Controls Corporation filed its complaint in this action against Vesco and other defendants on June 7, 1973. Service was first attempted on Vesco by Bahamian counsel, authorized by an order of Judge Stewart dated June 15, 1973.° For unstated reasons Bahamian coun- 9 Hlanson v. Denckla, 357 U.S. 235 (1958); McGee v. International Life Insurance Co., 355 U.S. 220 (1957); Walker v. City of Mutchinson, 852 U.S. 112 (1956); Mullane v. Central Hanover Bank § Trust Co., 339 U.S. 306 (1950); Milliken v. Meyer, 311 U.S. 457 (1940). 10 Sce the District Court Docket Entry +r June 15, 1973, appearing at page iv of the Appendix of Defends... Appellant Robert L. Vesco. This was referred to in the Affidavit of I.conard C. Gordon, sworn to on July 27, 1973, submitt.« in support of his request that Miss Yohonn be appointed to serve Vesey in the Bahamas. A20 sel» not able to effeet service. Thus, in July 1973, coun sel fo ICC applied to Judge Stewert for an order permit ting Lois S. Yohonn, one of his associates, t> serve Vesco in Nassau, Bahamas. On July 27, 1973 “lige Stewart signed an order granting this request withoui detailing the methed by which service was to be made." ICC anticipated further difficulty in serving Vesco and therefore prepared at this time an ancillary o:-'er whic!: Judge Stewart ulti- mately signed on July 29, 1973, permitting service } - leaving the summons and complaint at Vesco’s last known residence in the Bahamas and then mailing a copy of the papers to that address.” Miss Yohonn proceeded to Nassau on Saturday, July 28, 1973. Contrary to Vesco’s claim that she never at- tempted personal service, she spent the afternoon and eve- ning of Sunday, July 29, and most of Monday, July 30, searching for Vesco at various locations in Nassau and Paradise Island. Unsuccessful in these efforts, Miss Yohonn drove herself to the Brace Ridge Road residence. ll The order of July 27, 1973 stated in part: “* © * it appearing that Lois S. Yohonn is a qualified person over twenty one years of age and is not a party to this action, and that specd is essential in the service of the summons and complaint and that there will therefore be a saving in fees if service is made by said person, it is hereby ‘.DEKED, that Lois 8. Yohonn be and she hereby is authorized to . “vet dervice of process in the within action on defendant Robert L. Vesco.” 12 The order of July 29, 1973 duplicated the order set out above, adding the following: “e * © and ‘' is further “Orprrep that, service of process upon said defendant Robert L. Veseo may be effected by depositing a copy of the summons and complaint herein upon the premises of the last known residence of said defendant located in Nassau, Bahamas, and mailing a copy of the summons and complaint herein to «uid defendant at the address of such last known residence in Nas. ., Bahamas.” A21 There she found a bolted gate and two men who appeared to he bodyguards. One of them inquired as to her business. She asked if this was Vesco’s residence. After some eva- sion one of the two men said it was his residence. Miss Yohonn represented that she was a friend of Vesco’s and wished to speak with him. One = ° the guards left to go into the house and said he would sake inquiry. While the one guard was in the house two events of particular importance occurred. A car drove up to thie gate and was admitte:’. Inside, according to Miss Yohonn on information and belief, were Mrs. Veseo : ‘1 two chil- dren. Later, a boy of approximately 16 years came out of the house aud, approaching the gate, stated to Miss Yohonn, “My father said to ask what you want.” Miss Yohonn responded that she wished to serve a summons and complaint and threw the papers at the boy. The boy threw them back and returned into the house. In the meantime the first guard had returned. When Miss Yohonn attempted to serve one of the guards, the response was: “You get out of here. We don’t want no papers on this property. Don’t you put anything on this property.” They then threw the papers onto the road. Miss Yohonn ran back to her car, afraid of the guards, and drove toherh: «J. There she telephoned Judge Stewart, who authorized he: to effect service according to the terms of the ancillary order signed on the previous day.” 13 It is interesting to note that, while counsel for Vesco made a showing of skepticism at oral argument with respect to the signing of the second order aud Miss Yohonr’s telephone communication with Judge Stewart, during oral argument before Judge Stewart on December 20, 1977 Veaco’s present counsel authorized a chani:: on the face of Vesco’s undated affidavit acknowledging that Miss sonn telephoned Judge Stewart's chambers iu the afternoon or early «..ning of July 30, 1973, rather than in the morning of that day, to ask permission to use the alternative method of service. A22 Miss Yohonn hired a tani for the second trip to Vesco’s residence. There she threw a copy of the summons and complaint folded and tied with a blue ribbon over the fence and photographed the papers as they remained on the lawn in front of the house. The two gunrds immediately ran out to the gate, one armed with a stick and the other with a piece of pipe. One pulled open th: door of the car and demanded that Miss Yohonn come out. The cab driver remonstrated with the guards and told them they could do nothing to Miss Yohonn while she was in his cab. When she told the guard that he had no right to touch the cab, . he replied that she had no right to put anytl. g on the property. Then the driver began to drive away. After they had driven a short distance the driver in- formed Miss Yohonn that the guards were following them inacar. Fearing for her safety, Miss Yohonn directed the driver to -iroceed to a different hotel that was connected with her jiotel by a series of corridors. She asked that the driver keep secret her whereabouts and returned to her hotel by a circuitous route, where she put the film in a safe deposit box. She arrived at her room at approxi- mately 7:00 P.M. and remained there for some time dur- ing which the phone rang on sever:' occasions, each time with no one on the other end. Mis» Yohonn returned to New York on the following day, July 31, 1973. On August 1, 1973 Miss Yohonn mailed a copy of the summons and complaint to Vesco at his Brace Ridge Road residence by ordinary ‘rst-class mail. We think it quite clear and we hold and decide that the service of the summons and complaint at the Brace Ridge Road residence on July 30, 1973 was reasonably calcu- lated to give Vesco actual notice of the lawsuit. Indeed, there is substantial and persuasive circumstantial proof A23 that, during the entire episode, Vesco himself was physi- cally present in the house and witnessed the entire affair. The very presence of the bods uards indicates this. And the boy’s statement, “My fatiir said to ask what you want,” is most significant. And there is more. Veseo’s motion papers, on the motion to vacate the de- fault judgmer:! of October 5, 1973 were served on July 29, 1977. One of the mystious and singular features of this remarkable case is an undated “aflidavit” by Vesco filed in support of the motion on November 17, 1977. This “affidavit” contains 9 pages of rambling and d‘ Bigtawtinn ieieten os So eae ree comer ncnslpen. mtn A a Nassau, Bahamas. We inquired of one of the residents in the apartment complex where Mr. LeBlanc's apartment was and were advised that Mr. LeBlanc had been known to reside in an apart- ment on the first floor. We then proceeded to such apartment, and knocked on the door. We received no answer. I thereupon taped a copy of the Summons and Amended Complaint herein on the doorway of such premises. i7. Mr. Butowsky, our local guide and I then proceeded to a premises in Nassau, Bahamas, located opposite the residence of a Dr. Applewood, which premises, we had been advised, was presently the residence of Miss Wendy Kenyon, and also one of A71 the customary residences of Mr. LeBlanc in Nassau, Bahamas. We rang the doorbell and knocked on the door of such premises and did not receive an answer. We thereupon returned to our hotel. 18. At 8:00 o'clock on the evening of October 24, Mr. Butowsky and I drove to the premises of Miss Wendy Kenyon. We approached the doorway and rang the bell. A person inside with a female voice asked who we were and we identified ourselves as David Butowsky and Joseph Bondi. The person inside refused to open the door and I thereupon taped a copy of the Summons and Amended Complaint herein to the outside of the door. i9. We then proceeded to the Cafe Martinique on Paradise A72 Island, Bahamas, known by us to be a restaurant frequented by various of the defendants herein. We asked a waiter if he had seen Messrs. LeBlanc, Straub, Clay or Vesco that evening and he said he had not but believed that several of them had been present the previous evening. He then searched the restaurant for such persons and advised us that none were present. 20. At approximately 7:00 A.M. on the morning of October 25, 1973, I received a telephone call from a man who identified himself as (and whose voice I recognized as) Norman LeBlanc. Mr. LeBlanc advised me that he was calling from Costa Rica and that our conversation was being tape recorded. He asked that I cease harrassing his secretary by leaving A73 copies of the Summons and Amended Complaint herein taped on the doorway of her residence. I replied that we were not seeking to harrass him or any other persons, but that we were seeking to effect service in the action herein. He then stated that I should govern my actions in accordance with Bahamian law and that such service was not effective under Bahamian law. I advised him that we believed our service to be effective under the laws of the United States of America and that we were seeking to serve him in an action pending in courts of the United States of America. Mr. LeBlanc suggested that I retain Bahamian counsel and repeated that I should A74 cease harrassing him and his secretary. abe After breakfast on the morning of October 25, 1973, I asked the switchboard operator if I had any messages and she advised me that a man had sought to telephone me at ten minute intervals between 9:30 and 11:00 P.M. on the evening of October 24. I believe that this was Mr. LeBlanc. 22. On the morning of October 25, 1973, Mr. Butowsky and I went to the general post office in Nassau, Bahamas and obtained the Post Office box numbers from the inquiry clerk therein of defendants Robert L. Vesco, Gilbert R. J. Straub, Bahamas Commonwealth Bank, Allan J. Butler, Butlers Bank, and of Miss Wendy Kenyon. [There is no street mail delivery service in the Bahamas]. I A75 thereupon purchased stamps and de- posited copies of the Summons and Amended Complaint herein in envelopes addressed to the Post Office boxes of Bahamas Commonwealth Bank; Inter- national Bancorp, Kilmorey Investment Ltd., Value Capital Ltd., Global Holdings Ltd., Global Financial Ltd., and 1I.0.S., Ltd., all c/o Bahamas Commonwealth Bank; Robert L. Vesco, Gilbert R. J. Straub, Allan J. Butler, Butlers Bank Ltd. (now known as Who Holdings Ltd.) and Norman LeBianc c/o Miss Wendy Kenyon. I then deposited all such envelopes, with the proper postage affixed, into the mail receptacle located in the post office. 23. Thereafter, I went to my hotel to pack and proceed to the airport. I noticed that the man who A76 had identified himself as a security guard of BCB and whom I had met previously at the residence at Brace Ridge Road was sitting outside my hotel. I thereupon checked out of the hotel, intending to proceed by my rented automobile to the airport. Before leaving Paradise Island I noticed that the security officer was following me in an automobile. I sought to verify that he was following me by first driving quickly, then slowing down, then halting and then turning on a side road. He continued to follow me and I determined that it would not be prudent to drive to the airport. I thereupon returned the automobile at the Avis depot in Nassau and proceeded by taxi to the aitport [sic]. I did not notice the security A77 guard following the taxi until I reached the main entrance at the airport. At that time, I again noticed the security guard and upon leaving the taxi at the airport imme- diately approached a policeman. I pointed out the security guard to the policeman and stated that he had been following me. The policeman stated that he knew the security guard to be a former Nassau policeman and asked me who I was. I identified myself and stated that I had been authorized by a United States court to serve process on various defendants including Robert L.‘Vesco and Norman LeBlanc and that I believed the security guard to be in their employ. The policeman acknowledged that he also understood this to be the case and said that he A78 RTO 00 TS ET be would see to it that I would board my airplane without interference. I boarded the airplane and left Nassau, Bahamas without further incident. s/ Joseph A. Bondi Sworn to before me this twelfth day of November, 1973 s/ ; Notary Public A79 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK INTERNATIONAL CONTROLS CORP., Plaintiff, -against- ROBERT L. VESCO, et al., Defendants. Civil Action No. 73 Civ. 2518 AFFIDAVIT ROBERT L. VESCO, being duly sworn, deposes and says: 1. I am now, and I have continuously since at least 1972 been a domicilary and permanent resident of the Republic of Costa Rica. I have also made an express declaration of my intention to continue to reside per- manently in Costa Rica and adopt the nationality at the appropriate time. A80 2A enna Ze My presence and status in Costa Rica has not been a secret. Quite to the contrary, it has been open, documented and internationally publicized. Moreover, on the 15th day of June, 1973, Viron P. Vaky, the Ambassador of the United States of America made a formal request to the Ministry of Foreign Relations of Costa Rica for my extradition and provisional arrest. This request was predicated upon the text of a warrant issued June 1, 1973, by Judge John M. Cannella of the United States District Court for the Southern District of New York. 3 A review of the documents submitted in support of the extradition application contains the statement that the United States Government and the A81 judicial authorities of the SDNY were not only aware of my status as a resident of Costa Rica travelling with a provisional Costa Rican passport, but argued that Costa Rica was my domicile and permanent home. (Paragraph 3 of page 9. Exhibit A with translation). 4. This extradition proceed- ing received international media coverage. At no time have I ever sought to hide my presence in Costa Rica. In point of fact, on numerous Occasions reported in the international media, I have expressed my pleasure and gratitude in being accorded the oppor- tunity to reside with my family in one of the finest democratic countries in the Western Hemisphere. S. Miss Sylor Yohonn, in her affidavit dated August 6, 1973 A&2 states that pursuant to an order dated July 27, 1973, she was authorized to serve the summons and complaint upon me. She further stated that she unsuccessfully spent the afternoon and evening of Sunday, July 29 and most of cia, July 30 searching for me in various places located in Nassau. She then alleges that she went to a house On Brace Ridge Road, Nassau, the Bahamas, where an unidentified person who appeared to be a guard indicated after some evasion that it was my house. 6. It is true that I have at various times been in the Bahama Islands, staying at different hotels, villas, houses and apartments. How- ever, my principal place of residence anc domicile was then and remains now, A383 the Republic of Costa Rica. 7. I do not now, nor have I ever owned, nor has any member of my family owned a house on Brace Ridge Road in Nassau, Bahamas. I have stayed at a house on Brace Ridge Road during several of my trips to Nassau, however, at other times I have also stayed at other locations while in Nassau. 8. I do recall recently reviewing a document prepared by one of the attorneys from International Controls Corp. (ICC) wherein he de- scribes the house on Brace Ridge Road as being owned by Mr. Straub and resided. in periodically by Messrs. LeBlanc and me along with other persons. 9. It would appear that this was a convenient way for counsel to attempt to establish one mail drop A84 ts An ease Ce ESE ab Aes Oe. eee Ts BAS. for a number of persons without regard to the actual facts and in total disregard of fundamental principals of law. Fairness and due process surely require a more substantial predicate upon which to rest proper service of a summons - complaint. 10. Miss Yohonn further states that while she was outside the front gate of the premises, a teenage boy asked her what she wanted, and she replied that she wanted to serve a summons and complaint in an action entitled ICC vs. Vesco, and when the teenage boy jumped back, ste threw the complaint at him, which he caught and threw back at her. She then gave the papers to the unidentified person who threw the papers at her in the road. Miss Yohonn indicated that she was A85 somewhat afraid and ran back to her car and drove to her hotel, where she claims to have telephoned the chambers of Charles E. Stewart, District Judge, on the evening of July 30, 197[(3}), to explain what occured and to request authorization to use an ancillary order which she states was signed on Sunday, July ‘29, 1973. ll. This purported order dated July 29, 1973 authorized the service of process by depositing a copy of the papers upon the premises of the last known residence of the defendant (not Brace Ridge Road) located in Nassau, Bahamas, along with mailing a copy to the same residence, 12. I state without qualifi- cation or reservation that at the time A86 a the summons and complaint was purportedly left on the grass on the premises located at Brace Ridge Road, Nassau, Bahamas, as described in the Yohonn affidavit, I was not informed of such and in fact I was a resident and domicilary of the Republic of Costa Rica, a fact well known to the plain- tiff and their counsel. L3. I further state, again without qualification or reservation, that personal service of the summons and complaint was not made upon me, and I further state to the best of my knowledge and belief, service of the summons and complaint was not made in Costa Rica, by mail, or otherwise at my then known place of residence. 14. A careful analysis of the Yohonn affidavit reveals a series A387 of fatal flaws. At no place in the affidavit does Miss Yohonn state that she had reason to believe that I was in fact in Nassau, Bahamas or attempting to avoid service during the period of time she was purportedly attempting to effect service of process upon me. As a matter of fact, Miss Yohonn quite Clearly states that notwithstanding the fact she went to all the places where I would have normally been seen had I been in Nassau, she was unable to either find me or anyone who had even seen me. 15. The order of October 5, 1973 indicates that service of the summons and complaint was effected in accordance with the provisions of the Order dated July 27, 1973. However, A&s en See A ER ae a es ee Po BIG EA cE LL Rees nee wh 5b iad Eee the July 27, 1973 order required personal service of the summons and complaint and it is an uncontradicted fact that personal service was never made upon me. Miss Yohonn makes reference to the fact that she called chambers in the early evening of July 30, 1973 to ask permission to use another method of service as she was not able to effect personal service. 16. At no point does she ever explain how she knew on July 30 that an order had been signed on a Sunday, July 29, to permit another method of service, when on July 29, there was no need for an alternate means of service as she had not ex- hausted nor even begun her attempt at personal service. Having left New York on July 28, 1973 how did she know an A89 order was signed on Sunday, July 29? Moreover, why was it necessary to sign an order on a Sunday when at the time the order was signed, there was no reason for its existance? Furthermore, if she knew of its existance, why did she have to call for authorization to act pursuant to the order? 17. Miss Yohonn's affidavit offers no proof that the house on Brace Ridge Road was my last known residence in Nassau nor does she submit any evidence that the house was owned by me. 18. The concept of "last known residence" has application where a party is unable to ascertain the present whereabouts of a proposed | defendant. To suggest that ICC was unaware or unable to determine where I A90 v0. Bans re nre gD 7 _ pe ee a a a —pr resided is at best ludicrous, when their own Special Counsel appointed by this court stated two weeks before that I was "residing in Costa Rica". 19. At one point in the Yohonn affidavit, she states that the summons and complaint was thrown out in the road by the unidentified person. She never indicates that she picked it up and in light of her statement that she was somewhat afraid of guards and ran back to her car, it is difficult to perceive that she did. Nevertheless, she later states that she rolled up the said summons and complaint and tied it with a blue ribbon. How she was able to tie a ribbon around a summons and complaint which was still lying on the road is rather difficult to explain or understand. A91 20. The irony of the matter is that ICC, by unilateral action, was successful in setting aside the service of the amended summons and complaint which was purportedly served in an identical fashion at Brace Ridge Road in Nassau, the Bahamas relying sub- stantially upon the argument that at the time of the service the amended pleading, ICC knew of my residence in Costa Rica. It is of interest to note that ICC's knowledge of my Costa Rican residence is described in an affidavit dated prior to the purported service of the original summons and complaint, which is the subject of this motion. 41. On the 18th of June, 1973, the court appointed special counsel for ICC characterized me as a "fugitive from justice residing in A92 Costa Rica". 22. ICC realized that it had committed a fatal error in procuring a default judgement purportedly predicated upon allegations contained in the original oimmkaine, when the pleading had in fact been amended. Despite the fact that an affidavit of service of the amended complaint was not at the time under attack by me, ICC advanced the very argument I am now submitting to this court, in support of its position to void the pleadings which would destroy the efficacy of its judgement. ICC cannot have it both ways. 23. It should not be permitted to argue that service of the amended pleading was properly set aside because I was residing in Costa Rica, ‘however, A93 service of the original summons and complaint is valid. This position is untenable in view of the fact that the information relied upon namely: the Butowsky affidavit, clearly establishes in June of 1973, ICC's knowledge of my actual residence in Costa Rica. Any. attempt to distinguish the purported service of the original complaint from the amended complaint is totally without merit. 24. I did not attack the purported service of the original summons and complaint before, as I was not and am not a resident or citizen of the United States and felt confident that I would be able to defend myself against any attempt to enforce the judgement resulting therefrom, in a court of competent jurisdiction at the A94 wee had 5 Peden veds as 8 place of my domicile. 25. As a matter of fact, for the past two years, i have actively defended against an exequator proceed- ing initiated by Icc in Costa Rica. IcC is aware that one of my defenses in this proceeding is the original lack of jurisdiction, attacking the due process of the alleged default judgement due to the form of alleged service. 26. IcC realizing the ulti- INMate success of these arguments in Costa Rica, initiated proceedings in the United States to satisfy the ICC judgement out of assets owned by Vesco & Co, Inc., a corporation that was Organized as part of an estate planning program with my children. 27. It has come to my attention that Vesco & Co. assets are A95 in danger of being appropriated under a concept of "alter ego" and that the appelate procedure normally available may have been foreclosed by reason of prior counsel's negligence and omission to file a timely appeal. I am also aware of the fact that a petition for a writ of certioari [certiorari] has been filed with the United States Supreme Court to certain of these issues. 28. I. also deem it appropriate to bring to this court's attention, matters which I have only recently become aware of, namely: ICC cefault judgement established damages in the amount of approximately 2.4 million dollars despite the fact that the entire sum was written off by the corporation as a tax deduction, re- ducing the alleged damage to the A96 Se ere corporation of approximately fifty percent of the judgement and certain other benefits have been obtained for the same alleged expenses, it would be unconscionable to permit such a judge- ment in the amount of 2.4 million to remain of record. 29. In view of the foregoing, I have at this time instructed counsel to appear in this action for the purpose of attack this courts juris- diction over my person by reason of IcC's failure to properly effect service of the summons and complaint in * accordance with notions of due process. 30. I request that the service of the summons and complaint be vacated and set aside and the judgement A97 and order thereunder be likewise vacated and set aside. s/ Robert L. Vesco Filed November 17, 1977 A98 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK INTERNATIONAL CONTROLS CORP., Plaintiff, -against- ROBERT L. VESCO, Defendant. Civil Action No. 74 Civ. 1588 AFFIDAVIT STATE OF NEW YORK ) COUNTY OF NEW YORK) Ea LOIS SYLOR YOHONN, being duly Sworn, deposes and says: | Ae I am associated with the firm of Shea Gould Climenko & Kramer, attorneys for plaintiff in the above- entitled action. I make this affidavit in support of the instant application pursuant to Rule 4(c) of the Federal A99 Rules of Civil Procedure for an order appointing David M. Butowsky as a qualified person to effect service of the summons and complaint herein upon defendant Robert L. Vesco. 2. It appears that it may be possible to serve the defendant in Nassau, Bahamas. Since it is not feasible or practical to have the United States Marshal attempt to serve said defendant in the circumstances, and since the appointment of another to make service will result in the saving of fees of the United States Marshal, it is respectfully requested that David M. Butowsky be appointed to serve the summons and complaint herein upon said defendant. Mr. Butowsky is in A100 all respects qualified to serve process in this action. s/ LOIS SYLOR YOHONN Sworn to before me this 8th day of April, 1974. s/ 7 Notary Public Al0l UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK INTERNATIONAL CONTROLS CORP., Plaintiff, -against- ROBERT L. VESCO, Defendant. Civil Action No. 74 Civ. 1588 ORDER APPOINTING PERSON TO SERVE PROCESS Upon the affidavit of Lois Sylor Yohonn sworn to on April 8&8, 1974, and it appearing that David M. Butowsky is a qualified person over twenty-one years of age and not a party to this action, and that there are difficulties entailed in the service of the summons and complaint and that it is expedient that service be made by said person, it A102 is hereby ORDERED, that David M. Butowsky, be and he hereby is, au- thorized to effect service of process in the within action on defendant Robert L. Vesco, and it is further ORDERED, that service of process upon the said defendant may be (i) by any method of service of process authorized by Rule 4 of the Federal Rules of Civil Procedure; or (ii) by leaving a copy of the summons and complaint herein upon the premises of the defendant's last known residence in Nassau, The Bahamas and mailing a copy thereof to the defendant at either the Post Office Box of the defendant or to the address of the last known residence A103 of the defendant in Nassau, The Bahamas. Dated: New York, New York April 9, 1974 s/ Charles E. Stewart, Jr. U.S.D.J. Entered April 9, 1974 Alu4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK INTERNATIONAL CONTROLS CORP., Plaintiff, -against- ROBERT L. VESCO, Defendant. Civil Action No. 74 Civ. 1588 AFFIDAVIT STATE OF NEW YORK ) 4 £8.12 COUNTY OF NEW YORK) DAVID M. BUTOWSKY, being duly sworn, deposes and says: Le I am Special Counsel appointed by this Court in Securities and Exchange Commission v. Robert L. _ Vesco, et al, 72 Civ. 5001 (CES). i By order dated April 9, 1974 I was authorized to effect service Al05 of process in the within action on defendant Robert L. Vesco either (i) by any method of service of process authorized by Rule 4 of the Federal Rules of Civil Procedure; or (ii) by leaving a copy of the summons and complaint herein upon the premises of the defendant's last known residence in Nassau, The Bahamas and mailing a copy thereof to the defendant at either the Post Office Box of the defendant or to the address of the last known residence of the defendant in Nassau, The Bahamas. 3. On Tuesday, April 16, 1974 I proceeded to Nassau, Bahamas. On Wednesday, April 17, 1974, ac- companied by Marvin Groeneweg, Consul to the United States of America, I proceeded to Brace Ridge Road, Nassau, Bahamas, which is known to me based A106 upon prior visits to such residence as the last known residence in the Bahamas of Robert L. Vesco. This is the same residence at which I had served Mr. Vesco with service of process in International Controls Corp. v. Robert L. Vesco, et al, 73 Civ. 2518. Upon my arrival at such premises I proceedec to a gate and was confronted by two men who stopped me from entering upon the premises. I held out the summons and complaint and stated that I would like to hand the envelope to Mr. Vesco. One of the guards stated to me "we are instructed not to accept any papers". Thereupon I dropped the envelope on the driveway and requested the guard to hand it to Mr. Vesco. He remained mute and I took leave of the A107 premises. 4. On April 17, 1974 1 EXHIBIT A mailed a copy of the summons and complaint to Robert L. Vesco at his q. been listed post office box no. N-8323 by Certificate of Posting ‘Tegistered and. posted anya 2 registered mail. A copy of the receipt is affixed hereto as Exhibit A. Accepting ek ; ha. X Lan s/ Initials -..... 2 FOR REGULATIONS SEE ! ove AY AWAD: : David M. Butowsky : : Sworn to before me this 22nd day of April, 1974. s/ Notary Public A108 chub UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK INTERNATIONAL CONTROLS CORP., Plaintiff, -against- ROBERT L. VESCO, Defendant. Civil Action No. 74 Civ. 1588 JUDGMENT This action having been commenced by the filing of a complaint On the 8th day of April, 1974, and this court by order dated April 9, 1974, having authorized David M. Butowsky to effect service of process herein on defendant Robert L. Vesco by David M. Butowsky on the 17th day of April, 1974, and proof of such service having been filed in the office of the Clerk A110 of this Court on the 24th day of April, 1974; and Defendant, Robert L. Vesco, having failed to plead, appear, move or otherwise defend with respect to the complaint herein, and the time for said defendant to appear, answer or other- wise move having expired, and said defendant's default having been noted and entered; AND, it appearing to the court that there is no just reason for delay in entering the within judgment against defendant Robert L. Vesco; NOW, on motion of Shea Gould Climenko & Kramer, attorneys for the plaintiff and upon the affidavit of Sheldon D. Camhy, sworn to the 27th day of August, 1974; it is hereby ORDERED, ADJUDGED AND DECREED Alll UNITED STATES DISTRICT COURT : : SOUTHERN DISTRICT OF NEW YORK that plaintiff have judgment against the defendant Robert L. Vesco as INTERNATIONAL CONTROLS CORP., demanded in the complaint herein; and Plaintiff, it is further -against- ORDERED, ADJUDGED AND DECREED ROBERT L. VESCO, that defendant Robert L. Vesco be and ctwatank. he hereby is, liable to the plaintiff i Civil Action No. 74 Civ. 1588 for damages in the amount of $2,900,000 together with interest thereon, by ENDORSED DECISION ON MOTION TO VACATE DE ULT JUDGMENT reason of the acts alleged in the complaint herein. Vesco's motion to vacate the Dated: New York, New York default judgment pursuant to F.R.Civ.P. August 29, 1974 ; 60(b) is denied. The Court finds that s/ Charles E. Stewart, Jr. the service of the summons and complaint was effectuated in a manner reasonably calculated, under the circumstances, to Entered September 11, 1974 assure delivery to a place where the ‘defendant was likely to receive it and All2 complied with this Court's April 9, 1974 order. Although in his memorandum All13 in support of his motion Vesco asserts service was by registered mail, in fact a review of the affidavit of service indicates that a copy of the summons and complaint was left on the premises of the defendant's last known residence in the Bahamas and a copy was mailed by registered mail. The summons and complaint were delivered to a place reasonably assured to give the de- fendant notice, and in his present application the defendant has submitted nothing to counter this finding. Accordingly, the defendant's motion to vacate the default judgment is denied. SO ORDERED. s/ Charles E. Stewart, Jr. U.S.D.J. May 2, 1978. Entered September 11, 1974 All14 Re CONVENTION ON Tit: SERVIC: ABROAD OF JUDICTAL AND EXTRAIUDICIAL DocumMeryxts in Civit on ComMEnciAL MATTERS Tho States signatory to the present Convention, rat Desiring to ercate approprinte means te ensure that judicial and extrajudic. | wweu- ments to be served abroad shall be brought to the notice of the addressee ins. sient time, : Desiring to improve the organization of mutual judicial assistance for that purpose by simplifying and expediting the procedure, Have resolved to conclude a Convention to this effect and have agreed upon the following provisions: ‘ Article 1 The present Convention shall apply in all cases, in civil or commercial matters, hag there js occasion to trausmit a judicial or extrajudic’:!} document for serv- abroad. This Cor ntion shall not apply where the address of the person to be served with the docunm.. ts not known. CHAPTER I—JUDICIAL DOCUMENTS Article 2 Each coutracting State shall designate a Central Authority which will undertake to receive requents for service coming from other contructing States and to proceed in conformity with the provisions of articles 3 to € Each State shall organize the Central Authority in conformity with its own law. Article 3 The authority or judicial officer competent under the law of the State in which the documents po Ak shall forward to the Central Authority of the State addressed ® request conforming to the model annexed to the peeeuns Convention, without any fequirement of Icgalisation or other equivalent formality. The document to be served or a copy thereof shall be annexed to the request. The request end the document shall both be furnished in duplicate. Article 4 If the Central Authority considers that the soe does not comply with the pro- visions of the present Convention it shall promptly inform the applicant aud specify its objections to the request. Article 5 The Central Authority of the State addressed shall itself serve the document or shail arrange to have it served by au appropriate agency, either— (a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or (b) by & particular met! od requested by the applicant, unless such a method fs in- compatib!+ with the law « the State addressed. Subject «> sub-paray * (b) of the first paragraph ‘of this article, the document may alwnys be served} .+livery'to an addressee who accepts it voluntarily. If the ducument is ty >. served under the first paragraph above, the Central Au- thority may require the «scument to be written in, or trauslated into, the official language or one of the official languages of the State addressed. hat part of the uest, In the form attached to the present Convention, which con- tains a summary of the document to be served, shall be served with.the document. Article 6 The Central Authority of the State addressed o: » ¥ authority which it may have designated for that pespeee, shall complete a cc -ate in the form of the model ennexed to the present Convention. " The certificate shall state that the document hx. of the a a) the a'ynatures and ratifications referred to in article 24- b) the date on which the present Cunvention enters into force In accordance with the first paragraph of article 27; «) the accessiuna referred to in article 28 and the dates on which they take effect; a) the extensions referred to in article 29 and the dates on which they taxe effect; e) the designations, oppositions and declarations referred to In acticle 21; £) the denunciations referred to in the third paragraph of article 30. S WITNESS WHEREOF the undersigned, being duly authorised thereto have signed the present Convention. ; DONE at The Hague, on the 15th day of November, 1985, in the English end French languages, both texts being equally authentic, in a. single copy which shall be de- pos in the archives of the Government of the Netherlands, and of which a cer- ified copy shall be sent, shrough the diplomatic channel, to each of the Stutes rep- resented et the Tenth Session of the Hague Conference on Private International Law. A118 ae COMMONWEALTH OF THE BAHAMAS Office of the Prime Minister P.O. Box N7147 Nassau, N.P. Bahamas 10th July, 1973 Your Excellency, nh I have the honour to refer to my cable dated July 10th 1973. I have the honour, further to inform you that the Government of the Commonwealth of The Bahamas, conscious of the deetéebiisey of maintaining existing legal relationships, and conscious of its obligations under international law to honour its treaty commitments, acknowledges that many treaty rights and obligations of the Government of the United Kingdom in respect of The Bahamas were succeeded to by the Commonwealth of The Bahamas A119 upon Independence by virtue of customary international law. Since, however, it is likely that in virtue of customary inter- national law certain treaties may have lapsed at the date of Independence of the Commonwealth of The Bahamas, it seems essential that each treaty should be subjected to legal examination. It is proposed, after this examination has been completed, to indicate which, if any, Of the treaties which may have lapsed by customary international law the Government of the Commonwealth of The Bahamas wishes to treat as having lapsed. It is desired that it be presumed that each treaty has been legally succeeded to by the Commonwealth A120 of The Bahamas and that action he based on this presumption until a decision is reached that the treaty should be regarded as having tanned. Should the Government of the Commonwealth of The Bahamas be of the opinion that it has legally succeeded to a treaty, and wishes to terminate the operation of the treaty, it will in due course give notice of termination in the terms thereof. The Government of the Common- wealth of The Bahamas desires that this letter be circulated to all members of the United Nations, so that they will Al21 THE BAHAMAS INDEPENDENCE ORDER 1973 fected with notice of the Govern- me Seo Operative July 10, 1973 ment's attitude. Existing laws. Yours sincerely, "4. (1) Subject to the provisions of this section, the existing laws shall s/ be construed with such modifications, PRIME MINISTER. adaptations, qualifications and excep-- tions as may be necessary to bring them into conformity with the Bahamas His Excellency Dr. K. Waldheim, Independence Act 1973(b) and this Order. Secretary General of the United Nations. | (2) Where any matter that falls to be prescribed or otherwise provided for under the Constitution by Parliament or by any other authority or person is prescribed or provided for by or under an existing law (including any amend- ment to any such law made under this section) or is otherwise prescribed Or provided for immediately before the appointed day by or under the existing Order, that prescription or provision shall, as from that day, have effect (with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the Bahamas Independence Act 1973 and this Order) as if it had been made under the Constitution by F [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2766%3A1. Public record. Not legal advice.