# Opposition Brief — Gordon v. Hunt > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1533%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 486 U.S. 1008 ## Text > No. 87-1577 |“) Supreme Court, U.S, In the APR 20 198g Supreme Court of the United Spate@sern F. sranion, yp October Term, 1987 — ee RONALD GORDON, PHILIP and DOROTHY KORWEK, MARTY FINKELSTEIN, WILLIAM L. COHN, and JAMES G. WILLIAMS, Petitioners, VS. NELSON BUNKER HUNT, WILLIAM HERBERT HUNT, LAMAR HUNT, INTERNATIONAL METALS INVESTMENT, CO., LTD., SHEIK MOHAMMET ABOUD AL-AMOUDI, SHEIK ALI BIN MUSSALEM, FAISAL BEN ABDULLAH AL SAOUD, MAHMOUD FUSTOK, NAJI ROBERT NAHAS, BACHE HALSEY STUART SHIELDS, INC., BACHE GROUP, INC., MERRILL LYNCH, PIERCE FENNER & SMITH, INC., CONTICOMMODITY SER- VICES, INC., CONTICAPITAL MANAGEMENT, INC., CONTI- CAPITAL LTD., NORTON WALTUCH, MELVIN SCHNELL, GILION FINANCIAL, INC., BANQUE POPULAIRE SUISSE, AD- VICORP ADVISORY AND FINANCIAL CORPORATION, S.A., COMMODITY EXCHANGE, INC., THE BOARD OF TRADE OF THE CITY OF CHICAGO, ACLI INTERNATIONAL COMMODITY SERVICES, INC., LITRADEX TRADERS, S.A., and JOHN DOES 1 THROUGH 15, Defendants, MAHMOUD FUSTOK, Respondent. BRIEF OF MAHMOUD FUSTOK IN OPPOSITION TO A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT HERBERT STOLLER Attorney for Respondent 101 Park Avenue CURTIS, MALLET-PREVOST New York, NY 10178 COLT & MOSLE (212) 696-6000 Of Counsel Dick Bailey Printers, 203 Richmond Avenue @™ Staten Island, New York 10302 Tel: (212) 608-7666 — (718) 447-5358 — (516) 222-2470 — (914) 682-0848 QUESTION PRESENTED Whether the decision of the court below, affirming the dismissal of petitioners’ actions pursuant to Fed. R. Civ. P. 4(j) for failure without good cause to effect timely service of the summons and complaint, raises an impor- tant issue of federal law that has not been, and should be, settled by this Court. li TABLE OF CONTENTS Pages ISILON ene hee ee a Se ane i os vn divcwesuanekecsdueenvowcadaacd ili ss os divunwencecaied Geasunudsdedacde 2 TN OE PUN cca scucsescsouesescscesecsschddusesaces 3 ARGUMENT I. There Is No Basis In Law Or Fact For Creating An - Exception To The Express Language Of Rule 4(j) For Non-Resident Alien Defendants And The Failure Of The Courts Below To Create Such An Exception Does Not Raise An Important Question Of Federal eth Nees saensdebbeswieneaceeodineasases 4 II. Given The Findings Below That There Was No Evidence Of Actual Delivery Of The Summons And Complaint, No Important Question Of Federal Law Is Raised By The Holding That Service Was Not Deemed Effective Merely By Mailing ...................00085 6 aida dsddcovd ier balecvasesedeusntisnuecaiese 7 iil TABLE OF AUTHORITIES Cases Pages Bersch v. Drexel Firestone, Inc., 389 F. Supp. 446 (S.D.N.Y. 1974), modified on other grounds, 519 F. 2d 974 (2d Cir. 1975), cert. denied, 423 U.S. 1018 COTO kins cancvadas cushanticacseaennuneincakantasesstandaaeeneuun: 6,7 Hunt v. Mobil Oil Corp., 410 F. Supp. 4 (S.D.N.Y. DGD ccncvsaniutsicniissavaketiaskeccr sp cseaaulentnanecaamiiel 6 Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737 Ce Oar SE acc anoncacedeenabans sian Re Oe RR oe 5 Morse v. Elmira Country Club, 752 F.2d 35 (2d Cir Pee c5c suas uaasecaweccusacinsGaascuianbassnbideredmanaananaks 6 Statutes ae ee a OE ERED oc cco cinacundaandeuascaneinetes 6 Bis Ret AR apt pean ae inne Se RRS eT" 4,5 2) ok A 1) Pe UNC e emia, ] In the - Supreme Court of the United States October Term, 1987 RONALD GORDON, PHILIP and DOROTHY KORWEK, MARTY FINKELSTEIN, WILLIAM L. COHN, and JAMES G. WILLIAMS, Petitioners, VS. NELSON BUNKER HUNT, WILLIAM HERBERT HUNT, LAMAR HUNT, INTERNATIONAL METALS _INVEST- MENT, CO., LTD., SHEIK MOHAMMET ABOUD AL- AMOUDI, SHEIK ALI BIN MUSSALEM, FAISAL BEN AB- DULLAH AL SAOUD, MAHMOUD FUSTOK, NAJI ROBERT NAHAS, BACHE HALSEY STUART SHIELDS, INC., BACHE GROUP, INC., MERRILL LYNCH, PIERCE FENNER & SMITH, INC., CONTICOMMODITY SER- VICES, INC., CONTICAPITAL MANAGEMENT, INC., CONTI-CAPITAL LTD., NORTON WALTUCH, MELVIN SCHNELL, GILION FINANCIAL, INC., BANQUE POPULAIRE SUISSE, ADVICORP ADVISORY AND FINANCIAL CORPORATION, S.A., COMMODITY EX- CHANGE, INC., THE BOARD OF TRADE OF THE CITY OF CHICAGO, ACLI INTERNATIONAL COMMODITY SERVICES, INC., LITRADEX TRADERS, S.A., and JOHN DOES 1 THROUGH 15, Defendants, MAHMOUD FUSTOK, Respondent. BRIEF OF MAHMOUD FUSTOK IN OPPOSITION TO A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 2 Respondent, Mahmoud Fustok, submits this brief in opposition to a petition for a writ of certiorari to review the judgment and opinion of the United States Court of Apeals for the Second Circuit which affirmed, per curiam, the orders and final judgment entered by the United States District Court for the Southern District of New York (the Hon. Morris E. Lasker). Statement of the Case These actions, which were consolidated for appeal, are brought on an individual and class basis for violations of federal and state law arising out of events in the silver market in 1979 and 1980. Respondent Fustok is one of ap- proximately twenty named defendants. He is a citizen of Saudi Arabia who resides and has business interests in London, Paris and the United States. (7a.)* Fustok is a regular visitor to the United States and has spent the winter months each year in Fort Lauderdale, Florida since prior to 1981. (/d.) In 1986, he was present in a courtroom of the federal courthouse for the Southern District of New York during each day of a four-week trial in which he was the plaintiff and which also related to certain events in the silver market in 1979-80. (8a.) Although Fustok was named and successfully served in four other actions arising out of the events in the silver market in 1979 and 1980, Fustok was not served in the these actions until almost five years after the filing of the Gordon complaint and more than two years after the filing of the Korwek complaint. (11la.) On Fustok’s motion to dismiss the actions under Fed. R. Civ. P. 4(j) for failing to effect timely service of the complaints, the district court dismissed both actions *Citations are to the decisions and orders of the courts below assembled in the appendix to petitioners’ writ. 3 without prejudice, holding that petitioners had failed to show ‘‘good cause”’ for failing to serve Fustok within the 120 days provided by Rule 4. (29a, 30a.) The district court also held that petitioners’ initial attempts in the Gordon case to serve Fustok by mail did not of themselves con- stitute effective service in view of the court’s further fin- ding that the mailings had never been received by Fustok. (13a-14a.) The decision of the district court was affirmed in its entirety on appeal for the reasons stated in the district court’s opinion at 116 F.R.D. 313 (S.D.N.Y. 1987). (la-3a.) Summary of Argument The decisions below are correct as a matter of law and fact. Notwithstanding the initial attempts to serve Fustok by mail in the Gordon action (no attempt to serve by mail was made in Korwek), petitioners failed to show good cause for failing to serve Fustok for up to five years after the first complaint was filed, or for failing to request addi- tional time (as provided by Fed. R. Civ. P. 6(b)) from the district court to effect service. Nothing in the findings and decisions by the courts below is in conflict with existing federal precedent nor do the decisions raise important questions of federal law that have not been, or should be, settled by this Court. Fustok was served personally in New York and the validity of that service must be tested by the standards of Rule 4(j). The fact that Fustok resides primarily abroad does not create an exception to the 120 day rule of Fed. R. Civ. P. 4(j), which governs service in the United States. Moreover, where the evidence showed that the summonses and com- plaints mailed by petitioners were never received by Fustok, the district court correctly held that merely mail- ing the summons and complaint in conformity with the rule did not constitute effective service. ARGUMENT POINT I THERE IS NO BASIS IN LAW OR FACT FOR CREATING AN EXCEPTION TO THE EXPRESS LANGUAGE OF RULE 4(j) FOR NON-RESIDENT ALIEN DEFENDANTS AND THE FAILURE OF THE COURTS BELOW TO CREATE SUCH AN EXCEPTION DOES NOT RAISE AN IMPOR- TANT QUESTION OF FEDERAL LAW. Although petitioners attempted service upon Fustok by mail to his office address in London, that mail was never received by Fustok. He was later served in hand with the summons and complaint but that service was not ef- fected until he appeared for a deposition in another case in New York. Service made personally upon a defendant in the United States is governed by Rule 4(j) and subject toa 120-day limitation. Petitioners’ argument that in these circumstances they should be exempted from the clear and unambiguous re- quirements of Rule 4(j), would have the effect of creating an unlimited -- and clearly unintended -- exception for ser- vice made upon defendants who reside primarily abroad. Rule 4(j) requires that service be completed within 120 days of filing unless good cause can be shown for not do- ing so. The rule states that these requirements shall not ap- ply to ‘‘service in a foreign country’’ pursuant to Rule 4(i). Petitioners have argued that Rule 4(j) should, in effect, be rewritten to siate that it also does not apply to service in the United States if the defendant is a ‘‘foreign resident.’”’ That argument fails for two reasons. First, Rule 4(j) is expressly written to exclude only ser- vice made ‘‘in a foreign country.’’ For such service, Rule 4(i) sets forth the various methods that may be used to ef- fect service in that country, including service through let- ters rogatory, personal delivery in that country, or mail addressed and dispatched through the clerk of the court. Had the framers of Rule 4(j) intended to create the excep- tion petitioners argue they are entitled to here, it would have been a simple matter to state expressly that the 120 day limit also does not apply to service upon a foreign resi- dent, wherever he may ultimately be served. No such ad- ditional exception was stated and there is no basis for tak- ing the extraordinary step of creating such an exception through judicial interpretation.* Second, even if service upon Fustok were to be governed by Rule 4(i), that Rule is not without some limitations. We know of no case in which service by mail upon a person residing in another country could be effec- tive without any limitation of time. In the absence of a fix- ed number of days, such as the 120 day limit provided by Rule 4(j), the effectiveness of service should be judged by the standards of due diligence that prevailed prior to the amendments to Rule 4. Whether measured by the 120 day rule or the due diligence standard, the lapses of two and five years between filing and serving these complaints is not justified by any evidence of due diligence, and the district court so found. (23a-24a.) *Petitioners cite to a ‘‘suggestion’’ in a Second Circuit decision that Rule 4(j) does not apply where a plaintiff attempted to serve a defen- dant in a foreign country. Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir. 1985). In fact, there is no such suggestion made anywhere in that decision and Judge Lasker, in the district court opi- nion in the instant actions, relied on Montalbano in dismissing the very argument petitioners advance on this writ. (15a). 6 POINT Il GIVEN THE FINDINGS BELOW THAT THERE WAS NO EVIDENCE OF ACTUAL DELIVERY OF THE SUMMONS AND COMPLAINT, NO IM- PORTANT QUESTION OF FEDERAL LAW IS RAISED BY THE HOLDING THAT SERVICE WAS NOT DEEMED EFFECTIVE MERELY BY MAILING. Petitioners argue that having taken ‘‘all-the required acts’’ to attempt service by mail in the Gordon case (they concede no such steps were taken in Korwek), the service should be deemed effective once those steps were com- plete. In support of this argument, they rely upon Morse v. Elmira Country Club, 752 F.2d 35, 39 (2d Cir. 1984), and cases under Rule 4(c)(2)(C)(ii) where mailings were made but no signed acknowledgments were received. Hunt v. Mobil Oil Corp., 410 F. Supp. 4, 9 (S.D.N.Y. 1975); Bersch v. Drexel Firestone, Inc., 389 F. Supp. 446, 462-63 (S.D.N.Y. 1974), modified on other grounds, $19 F.2d 972 (2d Cir.), cert. denied, 423 U.S. 1018 (1975). Those cases are readily distinguishable from the cir- cumstances in Gordon. In Gordon, the district court made an affirmative finding that the summons and complaint were never delivered to Fustok’s London office address. (13a-14a.) In Morse v. Elmira Country Club, on the other hand, there was no evidence that the complaint had not been received and the court concluded that ‘“‘[iJn the absence of any contrary indication we assume delivery in due course,’’ 7§2 F.2d at 36 n.2. In the other two cases (and the line of cases like them) the decisions turn on evidence of actual receipt. See Hunt v. Mobil Oil Corp., 410 F. Supp. at 9 (foreign defendant had received the com- plaint and signed the return receipt; its only argument for - defective service was based on the fact that the complaint had not been enclosed in official stationery of the court clerk); Bersch v. Drexel Firestone, Inc., 389 F. Supp. at 462-63 (court made specific finding of actual receipt based upon markings on the mailing envelope). See also cases cited by Judge Lasker in the district court opinion below. (13a.) Fustok produced sufficient evidence to rebut any assumption that the Gordon mailings had been received in due course and the district court below made an affir- mative finding of non-delivery. Based on that finding, the court properly held that no valid service by mail under Rule 4(c)(1)(D) had been made. That decision was proper as a matter of law and fact and raises no important ques- tion of federal law to be settled by this Court. CONCLUSION For the foregoing reasons, respondent respectfully re- quests that petitioners’ writ be denied. New York, New York April 21, 1988 Respectfully Submitted, HERBERT STOLLER Attorney for Respondent 101 Park Avenue New York, NY 10178 CURTIS, MALLET-PREVOST (212) 696-6000 COLT & MOSLE Of Counsel --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1533%3A2. Public record. Not legal advice.