# Petition for Writ of Certiorari — Konanykhine v. Izvestia Newspaper

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 890

## Text

FILED

() Supreme Court, U.8.

01 103 yu ! 7 2003

No. ——
LTO

IN THE
Supreme Court of the Anited States

ALEXANDRE KONANYKHINE,

Petitioner,
Vv.

IZVESTIA NEWSPAPER and EDITORIAL STAFF
OF IZVESTIA NEWSPAPER,
Respondents.

On Petition for a Writ of Certiorari to the
Virginia Supreme Court

PETITION FOR WRIT OF CERTIORARI

MELISSA WARNER SCOGGINS JOHN PAUL SZYMKOWICZ *

4129 Scotfield Drive JOHN THOMAS SZYMKOWICZ

Chesapeake, VA 23321 SZYMKOWICZ & ASSOCIATES, P.C.

(757) 465-3036 1899 L Street, N.W., Suite 250
Washington, DC 20036

* Counsel of Record (202) 862-8500

AIA SE RNIN MINION IS TS SERA R I AT PI IIT SING SES ME I ASIN SERINE SS 9 ES SEBS
WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

A 1935 agreement between the United ‘States and the
former Soviet Union established procedures to be followed in
the execution of letters rogatory.. This agreement lay
dormant and without judicial interpretation for almost sixty
years, but was recently resurrected in a series of contradictory
decisions concerning service of process on defendants located
in the Russian Federation.

The questions presented are:
1. Whether the 1935 agreement is valid.

2. Whether the 1935 agreement provides the
exclusive method of perfecting service of process on
defendants located in the Russian Federation.

3. Whether the trial court erred in vacating a default
judgment and in dismissing a civil action against a
Russian defendant on the sole ground that service of
process was not perfected via letters rogatory pursuant to
the 1935 agreement.

* Agreement Relating to the Procedure to be Followed in the Execution
of Letters Rogatory; Exchange of Notes at Moscow, Nov. 22, 1935,
U.S.—U.S.S.R., 49 Stat. 3840, E.A.S. No. 83, II Bevans 1262. (“1935
agreement”) (reprinted at pages 15a-23a of the-appendix).

(i)

TABLE OF CONTENTS

Page
QUESTION PRESENTED .........s:0sssssssersnsnsnsnnssenenenenens i
TABLE OF CITED AUTHORITIES. ..........:ceseeeseeeeeeeees vii

CITATIONS OF OPINIONS AND ORDERS
BELOW .......ccccecscocssccsscscsscccssesccseesssssssscsssssssensssensens l
BASIS FOR JURISDICTION. ............:ccsersseeseeeeneensenenees 2

INTERNATIONAL AGREEMENT INVOLVED IN
THIS CASE .......ccccsccesssccssscccssseeeensseessessnsnsennsssnnessners 2
STATEMENT OF THE CASE..........:sscseesseereeeensereneneees 3
A. Introduction ...........cccscssceseseeseenensssernseeseneesnnenenss 3

B. Background of Parties, Service of Process and
Default Judgment ..........-.sssseserserseensnnsensnnseesnnees 3

C. Orders Dismissing Case based on Non-
compliance with 1935 Agreement ..........-+-+-+++++ 5
1. Trial Court Orders...........:ccscceseresserreeeneeeeenes 5

| 2. Virginia Supreme Court Refusal to Review
Trial Court Orders ...........scsseessseeeresenenneeeenes 5
REASONS FOR GRANTING THE WRIT........-.-+-+++++ 6

I RECENT CONFLICTING U.S. DISTRICT
COURT DECISIONS INTERPRETING THE
LONG DORMANT 1935 AGREEMENT
BETWEEN THE UNITED STATES AND
SOVIET UNION REVEAL A NEED FOR
CLARIFICATION REGARDING THE AP-
PLICABILITY OF THIS AGREEMENT TO
SERVICE OF PROCESS ON RUSSIAN
DEFENDANTS .........:00esseeesesssenesensnenennesnnnenenses 6

A. Completely Conflicting Decisions of U.S.
District Courts Interpreting the 1935

AQTECMEN.........ceseseererserenenennenensnnsnsnennenenenees 7
B. Importance of a Definitive Interpretation
of the 1935 Agreement............ssesereeereeeeees 9
(iii)

iv
TABLE OF CONTENTS—Continued

Il. THE LOWER COURT ERRED IN HOLD-

ING THAT SERVICE OF PROCESS ON A
RUSSIAN DEFENDANT IS_ INVALID
UNLESS PERFECTED VIA _ LETTERS
ROGATORY PURSUANT TO THE 1935
PUETINEIN TS sccnesnniccnscencccnsoqnstansenennnssennsstnnanacne

A. The Plain Language of the 1935 Agree-
ment does not Set Forth the Exclusive or
Mandatory Method of Perfecting Service
on a Russian Defendant ...................cceceeeeeees

1. Societe Nationale’s Literal Interpreta-
RGN RR seesecnsictscinicsisnnanitininieninsnhidntinaninsicne

2. The Foreign Sovereign Immunities Act
does not Require a U.S. Plaintiff to
Serve the Russian Government via
EURRES TET cesecesnnvennptnnntveectanenrennatie

B. Izvestia did not Contest Service in its
Original Response to Konanykhine’s Suit...

. AN INTERPRETATION OF THE _ 1935
AGREEMENT WHICH REQUIRES SERV-
ICE TO BE PERFECTED ON A RUSSIAN
DEFENDANT VIA LETTERS ROGATORY
RENDERS U.S. JUDICIAL SOVEREIGNTY
SUBSERVIENT TO THE JUDICIAL SOV-
EREIGNTY OF THE RUSSIAN FED-

A. The Russian Legal System is a to
Ouateide Wenfteren 006 iccscccccccecessisccccssesseccessccsee

1. The Soviet Government has Already
Protected Izvestia from a US.
LOE cn cshissictitnanenshanittinptiinsisienahaohadldeseaie

Page

10

10

v
TABLE OF CONTENTS—Continued

2. The Russian Government has Perse-
CUbOd TOMA YES .......ccccrsescssccassscsseness

CATE AIT csiscnnsteniainnsitintiscatesssbiinhabiinisbiintasisssnadesiid
APPENDICIES

Virginia) Supreme Court Order refusing
discretionary petition for appeal, dated March 5,

Arlington County Circuit Court Order vacating
default judgment dated March 10, 2000................
Arlington County Circuit Court Order quashing
service and dismissing case, dated October 13,

Arlington County Circuit Court Letter Opinion
quashing service and dismissing case, dated
FE Feds te ceicdctentiactininnininiiateanielatiariancaninpad

Arlington County Circuit Court Final Judgment
Order, dated December 16, 1999 0.0.0... cescssceseee

Arlington County Circuit Court Order finding
Editorial Staff of Izvestia Newspaper to be in
Default, dated April 17, 1998 .............ccccssscssssssssers

Arlington County Circuit Court Order finding
Izvestia Newspaper to be in Default, dated April

Virginia Supreme Court Order denying Petition for

Rehearing, dated April 20, 2001 ...............cssscceseeee
Agreement Relating to the Procedure to be
Followed in the Execution of Letters Rogatory;
Exchange of Notes at Moscow, Nov. 22, 1935,
U.S.—U.S.S.R., 49 Stat. 3840, E.A.S. No. 83, I
I Si itisicivhiansatichininscisceedaginasiiaiaieahccebtipaiisanpdes

2a

4a

vi

TABLE OF CONTENTS—Continued

Izvestia’s Response to Konanykhine’s Initial
UDINE scxcecececceessusseqenennsusaseceasesoncnenbetnnbesbecocessnsecete
Forum Financial Group, L.L.C. v. President and
Fellows of Harvard College, 199 F.R.D. 22 (D.

Semtek International Inc. v. Merkuriy Lid., C.A.
No. 95-11920-RCL, 1996 U.S. Dist. LEXIS
SEB OG GD. BER. Tp accsneveneentennntnsnscettinesvinisinaiancinte

JL. Reardon Associates, Lid. v. NPO Energo-
mash, C.A. No. 97-10409-GAO, (D. Ma. 1998)....

40a

vii
TABLE OF CITED AUTHORITIES
CASES Page

Compagnie NOGA D'’ Importation Et D’ Expor-
tation S.A. v. Russian Federation, No. 00-CIV-
0632 (WHP) and No. 00-CIV-6995 (WHP),
(combined cases), (S.D.N.Y. 2000)

Filus v. LOT Polish Airlines, 819 F. Supp. 232
(S.D.N.Y. 1993)

Filus v. LOT Polish Airlines, 907 F.2d 1328
(2nd Cir. 1990)

Forum Financial Group, L.L.C. v. President and
Fellows of Harvard College, 199 F.R.D. 22
(D. Me. 2001)

Gregorian v. Izvestia, 658 F. Supp. 1224 (C.D.
Ca. 1987)

Japan Whaling Association v. American Ceta-
cean Society, 478 U.S. 221 (1986)

J.L. Reardon Associates, Ltd. v. NPO Energo-
mash, C.A. No. 97-10409-GAO, (D. Ma.

Kozorowski v. Russian Federation, 1997 U.S.
App. LEXIS 26266 (9th Cir. 1997)

Mullane v. Central Hanover Bank and Trust Co.,
339, U.S. 306 (1950)

Semtek International Inc. v. Merkuriy Ltd., C.A.
No. 95-11920-RCL, 1996 U.S. Dist. LEXIS
22248 (D. Ma. 1996)

Societe Nationale Industrielle Aerospatiale v.
United States District Court for the
Southern District of lowa, 482 U.S. 522

9, 11, 12, 13, 14

Trans World Airlines, Inc. v. Franklin Mint
Corp., 466 U.S. 243 (1984)

United States v. Alvarez-Machain, 504 U.S. 655

Volkswagenwerk Aktiengesellschaft, v. Schlunk,
486 U.S. 694 (1988)

viii
TABLE OF CITED AUTHORITIES—Continued
STATUTES AND RULES Page

Foreign Sovereign Immunities Act, 28 U.S.C.

OR BO, Bails OE BOM. cancnscncccccscrcescssenscscnsnsteonsnes 14, 15
2B UBL. § TZSTA) GRO cccccccccrcscccesccsscccsssecssesces
28 U.S.C. § 2403(a) (2001)........scccsccccrsecrreeerreeenees
VA. CODE ANN. § 8.01-328.1 (Michie 1997).........
I Ce Bi Pi cities ciiniiccisieinadciiadanispicmnaiinbiniisinmenionen
SUP. Cr. BR. ZH AGB) cccccreccesccccecscesscacesesssocensscseses —

TREATIES AND INTERNATIONAL
AGREEMENTS

Agreement Relating to the Procedure to be
Followed in the Execution of Letters
Rogatory; Exchange of Notes at Moscow,

Nov. 22, 1935, U.S.—U.S.S.R., 49 Stat. 3840,
E.A.S. No. 83, II Bevans 1262.............sssscesssees passim

Hague Convention on the Taking of Evidence
Abroad in Civil or Commercial Matters,
March 18, 1970, 23 U.S.T. 2555, T.LA.S. No.

Nm nN kN LY

FAFA ccccocecssnenssrinntrnenienpaninantatinbianneeonnincintintocenen 11, 12, 13
MISCELLANEOUS
BLACK’S LAW DICTIONARY 1092 (3rd ed.
NDAD) scceresersscccsscsnbacanetehionsnensspsmateionsentnnabigncceasoss 10, 11

U.S. Dept. of Commerce, Business Information
Service for the Newly Independent States,
U.S—Russia Trade Highlights (2000),
available at http://www.bisnis.doc.gov/bisnis/

country/USRStrade_2000.1tM ...........sc0sssseeseees 9
U.S. Dept. of State, FY 2001 Country Com-
mercial Guide: Russia, July 2001 at 47............. 17

U.S. Dept. of State, Judicial Assistance in the
Russian Federation, available at http://travel.
state.gov/russia_legal Ntml...............scsessesseeeeees

IN THE
Supreme Court of the United States

No.

ALEXANDRE KONANYKHINE,

Petitioner,
Vv.

IZVESTIA NEWSPAPER and EDITORIAL STAFF
OF IZVESTIA NEWSPAPER,
Respondents.

On Petition for a Writ of Certiorari to the
Virginia Supreme Court

PETITION FOR WRIT OF CERTIORARI

Alexandre Konanykhine (“Konanykhine”) respectfully
petitions for a writ of certiorari to the Virginia Supreme

Court.

CITATIONS OF OPINIONS AND ORDERS BELOW

The Arlington County Circuit Court order vacating the
default judgment is reproduced at page 2a of the appendix
(“Pet App.”). The Arlington County Circuit Court letter
opinion quashing service of process and dismissing the case
against respondents is reproduced at Pet. App. 6a. The
Arlington County Circuit Court order formally quashing
service of process and dismissing the case against respondents
is reproduced at Pet. App. 4a. The Virginia Supreme Court
order refusing to consider Konanykhine’s petition for appeal

2

is reproduced at Pet. App. la. The Virginia Supreme Court
order denying Konanykhine’s petition for rehearing is
reproduced at Pet. App. 14a. No opinion or order was
reported.

BASIS FOR JURISDICTION

The Arlington County Circuit Court vacated the default
judgment on March 10, 2000. Pet. App. 2a. The Arlington
County Circuit Court quashed service of process and
dismissed the case on October 13, 2000. Pet. App. 4a. The
Virginia Supreme Court denied Konanykhine’s petition for
appeal on March 5, 2001. Pet. App. la. The Virginia
Supreme Court denied Konanykhine’s petition for rehearing
on April 20, 2001. Pet. App. 14a.

The jurisdiction of this Court is invoked pursuant to 28
U.S.C. § 1257(a) (2001) and Sup. CT. R. 10(c) since this case
involves an important question of federal law that has not
been, but should be, settled by this Court. Specifically, the
state court applied its interpretation of a treaty between the
United States and the former Soviet Union in vacating a
default judgment and in dismissing a case against a defendant
located in the Russian Federation.

Since 28 U.S.C. § 2403(a) (2001) may apply, notifications
required by Sup. CT. R. 29.4(b) have been made.

INTERNATIONAL AGREEMENT INVOLVED
IN THIS CASE

Agreement Relating to the Procedure to be Followed in the
Execution of Letters Rogatory; Exchange of Notes at
Moscow, Nov. 22, 1935, U.S.—U.S.S.R., 49 Stat. 3840,
E.A.S. No. 83, Il Bevans 1262.

Because of its length, the full text of this agreement is set
forth at Pet. App. 15a-23a.

3
STATEMENT OF THE CASE

A. Introduction

This case presents the narrow issue of whether a party
suing a Russian defendant in a United States court must resort
to the exclusive use of the complicated, dilatory and
expensive system of letters rogatory in order to perfect service
on the Russian defendant. In the instant matter, a Russian
defendant who transacted business in Virginia, was served
with process pursuant to the Virginia long-arm statute. This
statute prescribed delivery of the initial pleadings and Russian
translations thereof to the Secretary of the Com-
monwealth of Virginia, who, under Virginia law, was the
Russian defendant’s involuntary agent for service of process.
The Russian defendant filed a response to Konanykhine’s
initial pleading but did not raise defective service as a
defense. Aside from filing its response, the Russian defend-
ant failed to further participate in the litigation until after a
default judgment was entered. The sole issue to be decided is
whether service on the Russian defendant’s involuntary agent
for service of process which actually reached the Russian
defendant is valid, despite the 1935 agreement. Agreement
Relating to the Procedure to be Followed in the Execution of
Letters Rogatory; Exchange of Notes at Moscow, Nov. 22,
1935, U.S.—U.S.S.R., 49 Stat. 3840, E.A.S. No. 83, II
Bevans 1262. (“1935 agreement”) Pet. App. 15a-23a.

B. Background of Parties, Service of Process and
Default Judgment

Alexandre Konanykhine was born in the former Soviet
Union in 1966. By 1992, Konanykhine’s estimated worth
was over three hundred million dollars, making him one of
the wealthiest men in Russia. In addition to his business
pursuits, Konanykhine was politically active and supported
Russian President Boris Yeltsin’s anti-corruption, pro-
capitalist and pro-democratic policies by providing half of

4

President Yeltsin’s campaign funds. In mid-1992, several
current or former KGB members kidnapped Konanykhine and
seized control of his businesses under threat of death. After
escaping from his kidnappers, Konanykhine fled to the United
States, where he sought political asylum. In awarding
Konanykhine political asylum, the United States Immigration
Court found that the Russian government engineered false
claims against Konanykhine in order to punish him for
exposing corruption among Russian government and business
officials.

Izvestia Newspaper and Editorial Staff of Izvestia
Newspaper (collectively “Izvestia”) publish the newspaper,
Izvestia, in Moscow, Russia. In 1996 and 1997, Izvestia
published several defamatory articles concerning Konanyk-
hine. Because Izvestia transacted business in Virginia by
employing an editor in Virginia, by locating its U.S. bureau in
Virginia, and by delivering the defamatory articles into
Virginia, Konanykhine filed a civil action in the Arlington
County Circuit Court pursuant to the Virginia Long-Arm
Statute, VA. CODE ANN. §8.01-328.1 (Michie 1997). In
December 1997, Konanykhine served both English and
Russian language copies of his initial pleadings on the
Secretary of the Commonwealth of Virginia, who, under
Virginia law, was Izvestia’s involuntary agent for service of
process. Izvestia received the documents served on the
Virginia Secretary of the Commonwealth and filed a legally
defective response to Konanykhine’s initial pleading. Pet.
App. 24a-26a. Izvestia’s response did not raise defective
service as a defense. In April 1998, the trial court found that
valid service of process was made upon Izvestia and that
Izvestia was in default for its failure to properly respond to
Konanykhine’s claims. Pet. App. 10a-13a. Aside from filing
its initial response, Izvestia failed to further participate in the
defamation litigation or jury trial on Konanykhine’s damages.
In December 1999, the jury returned a $33,500,000 verdict in

5

Konanykhine’s favor and the trial court entered judgment by
default in the amount of the jury verdict. Pet. App. 8a.

C. Orders Dismissing Case based on Non-compliance
with 1935 Agreement

1. Trial Court Orders

In February 2000, Izvestia filed its motion to vacate the
default judgment, claiming that the 1935 agreement required
service of process via letters rogatory. In March 2000, after
extensive briefing and oral argument, the trial court vacated
the default judgment on the sole ground that “service was not
perfected pursuant to the 1935 agreement.” Pet. App. 2a.
Konanykhine objected to the entry of this order interpreting
the 1935 agreement pursuant to Virginia law by endorsing the
order “SEEN AND OBJECTED.” Izvestia then moved to
dismiss Konanykhine’s case since service of process was not
perfected via letters rogatory. On August 25, 2000, after
entensive briefing and oral argument, the trial court dismissed
the case via a letter opinion, holding that “the only proper
means of service on Defendant Izvestia Newspaper is through
letters rogatory. No such service was made. Thus, service
was not proper in this case.” Pet. App. 6a. On October 13,
2000, the trial court incorporated its letter opinion into a
formal order dismissing the case. Pet. App. 4a. Konanykhine
objected to the entry of this order interpreting the 1935
agreement pursuant to Virginia law by endorsing the order
“SEEN AND OBJECTED TO ON ALL GROUNDS
ASSERTED ON BRIEF AND AT ORAL ARGUMENT.”

2. Virginia Supreme Court Refusal to Review Trial Court
Orders

On November 21, 2000, Konanykhine petitioned the
Virginia Supreme Court for review of the trial court’s orders
vacating the default judgment and dismissing the case,
claiming that the 1935 agreement did not require service to be

6

perfected via letters rogatory. On March 5, 2001, the Virginia
Supreme Court refused to exercise its discretion to review the
trial court’s orders in an unpublished two sentence order. Pet.
App. la. On March 19, 2001, Konanykhine filed his timely
petition for rehearing of the Virginia Supreme Court’s refusal
to review the trial court’s orders. On April 20, 2001, the
Virginia Supreme Court denied Konanykhine’s petition for
rehearing. Pet. App. 14a.

REASONS FOR GRANTING THE WRIT

I. RECENT CONFLICTING U.S. DISTRICT
COURT DECISIONS INTERPRETING THE
LONG DORMANT 1935 AGREEMENT BE-
TWEEN THE UNITED STATES AND SOVIET
UNION REVEAL A NEED FOR CLARIFICA-
TION REGARDING THE APPLICABILITY OF
THIS AGREEMENT TO SERVICE OF PRO-
CESS ON RUSSIAN DEFENDANTS

In 1935, the United States and Soviet Union entered into an
agreement regarding the procedures for execution of letters
rogatory. Agreement Relating to the Procedure to be
Followed in the Execution of Letters Rogatory; Exchange of
Notes at Moscow, Nov. 22, 1935, U.S.—U.S.S.R., 49 Stat.
3840, E.A.S. No. 83, If Bevans 1262. Pet. App. 15a-23a.
The 1935 agreement did not establish the exclusive or
mandatory method of perfecting service of process on a
defendant located in the Soviet Union, as the lower court in
the instant matter held, but rather sets forth such ministerial
procedures as the fees to be paid in the execution of letters
rogatory, the name of the court to which the letters rogatory
were to be addressed and nature of the documents which must
accompany the letters rogatory. In addition, there were very
few, if any, private parties in the Soviet Union engaged in
international transactions when the agreement was made.
Therefore, in all likelihood, the 1935 agreement’s drafters did

7

not contemplate that this agreement would require perfection
of service via letters rogatory on a defendant which had
conducted business in the U.S. but is domiciled in the Soviet
Union, or as in the instant case, the successor state, the
Russian Federation.

A. Completely Conflicting Decisions of U.S.
District Courts Interpreting the 1935
Agreement

For almost sixty years, the 1935 agreement lay dormant and
without court interpretation. In 1993, a court, for the first
time, interpreted the 1935 agreement. In Filus v. LOT Polish
Airlines, 907 F.2d 1328 (2nd Cir. 1990), which involved the
U.S.S.R.’s claim of sovereign immunity, the Soviet Union
objected to service of process based, in part, on non-
compliance with the 1935 agreement. In Filus, the Second
Circuit remanded the case to the district court, stating “[t]he
legality of the service of process obtained by plaintiff must be
- evaluated in the light of the diplomatic exchange of notes [the
1935 agreement].” Filus, 907 F.2d at 1333. On remand, the
district court found that the-1935 agreement does not require
service via letters rogatory, stating “[p]lainly this exchange
does not constitute an ‘applicable international convention’
for service of judicial documents. It covers procedures ior
each country to honor letters rogatory issued by courts of the
other country.” Filus v. LOT Polish Airlines, 819 F. Supp.
232, 237 (S.D.N.Y. 1993). Then, in Semtek International Inc.
v. Merkuriy Ltd., C.A. No. 95-11920-RCL, 1996 U.S. Dist.
LEXIS 22248 (D. Ma. 1996), reprinted at Pet. App. 33a, the
court came to a different interpretation of the 1935 agreement.
In Semtek, the court observed that “[pJursuant to [the
agreement], the service of United States judicial documents
upon a defendant in Russia is proper if it is accomplished by
means of a letter rogatory.” Semtek also observed that
“fwjhile there is nothing in [the 1935 agreement] which
explicitly precludes other methods of service other than letters

8

rogatory, a Supreme Soviet decrees strongly indicates that this
is the case.” In 1998, the United States District Court for the
District of Massachusetts again held that the 1935 agreement
“requires service by letters rogatory.” JL. Reardon
Associates, Ltd. v. NPO Energomash, C.A. No. 97-10409-
GAO, (D. Ma. 1998), reprinted at Pet. App. 40a. In 2000, the
trial court in the instant matter, in reliance upon Semtek and
Reardon, vacated the default judgment and dismissed the case
against Izvestia even though Izvestia had actual knowledge of
Konanykhine’s case, and filed a response in the case, solely
because Konanykhine did not perfect service via letters
rogatory pursuant to the 1935 agreement. Pet. App. 2a-7a.
The Virginia Supreme Court exercised its discretion to refuse
to consider Konanykhine’s appeal of the trial court’s orders
vacating the default judgment and dismissing the case. Pet.
App. la. Also in 2000, a case in the Southern District of New
York involved the interpretation of the 1935 agreement, but
the defendant in that case, the Russian Federation, withdrew
objections to service of process prior to court ruling on the
Russian Federation’s objections. See Compagnie NOGA
D’ Importation Et D’ Exportation S.A. v. Russian Federation,
No. 00-CIV-0632 (WHP) and No. 00-CIV-6995 (WHP),
(combined cases), (S.D.N.Y 2000). Finally, in 2001, a court
held that the 1935 agreement “merely sets forth procedures
for executing letters rogatory” and “does not prohibit other
means of service.” Forum Financial Group, L.L.C. v.
President and Fellows of Harvard College, 199 F.R.D. 22 (D.
Me. 2001), reprinted at Pet. App. 27a. In fact, Forum
Financial observed that the “continuing validity and
applicability of the 1935 Agreement with the U.S.S.R. (not
Russia) is unclear” and compared Semtek, which held that
service on Russian defendants must be made via letters
rogatory, with the U.S. State Department publication Judicial
Assistance in the Russian Federation, available at
http://travel.state.gov/ russia_legal.html which stated that

- gees esseseeenessneenrnesmnmencneemesneeeanneacmenocnsnstnacsteenadnen_annpasepntemeaemnemmeemnemesmenenmmenmmanmmenaaee ee

9

“[a]t present, no bilateral agreement on judicial assistance
exists between the United States and Russia.”

B. Importance of a Definitive Interpretation of
the 1935 Agreement

The issue presented by this case is important. In Societe
Nationale Industrielle Aerospatiale v. United States District
Court for the Southern District of lowa, 482 U.S. 522, 531
(1987), this Court noted that there has been a “substantial
increase -in litigation with foreign aspects arising, in part,
from the unparalleled expansion of international trade and
travel in recent decades.” Since this Court’s decision in
Societe Nationale in 1987, the Iron Curtain has fallen,
providing much opportunity for investment in, and trade with,
former Eastern-bloc nations, such as the Russian Federation.
In fact, total bilateral trade between the United States and
Russia expanded 32% in 2000 to more than $10 Billion. U.S.
Dept. of Commerce, Business Information Service for the
Newly Independent States, U.S—Russia Trade Highlights
(2000), § Il, available at http://www.bisnis.doc.gov/bisnis/
country/USRStrade_2000.htm. U.S. imports from Russia in
2000 reached an all-time high of nearly $7.8 billion,
increasing more than 34% over 1999. Id. at § IV.
Furthermore, Russia provides more products to the United
States than all other Central and Eastern European countries
combined. /d. at § VI. With such trade inevitably comes
litigation. The particular issues presented by this case are
likely to recur with some frequency. Indeed, it is to be
expected that plaintiffs in U.S. courts will attempt to perfect
service on defendants located in the Russian Federation in
ways other than by letters rogatory, which this Court
described as “complicated, dilatory and expensive” and “the
exception, rather than the rule” for obtaining evidence located
in other countries. Societe Nationale, 482 U.S. at 531.

This case provides an ideal vehicle for the Court to resolve
the significant dispute between recent conflicting decisions

10

interpreting the 1935 agreement before additional disputes
involving Russian defendants reach litigation. | More
specifically, this case presents the Court with the opportunity
to provide guidance to plaintiffs in American courts seeking
to perfect service on defendants located in the Russian
Federation and other countries formerly associated with the
Soviet Union.

Il. THE LOWER COURT ERRED IN HOLDING
THAT SERVICE OF PROCESS ON A RUSSIAN
DEFENDANT IS INVALID UNLESS PER-
FECTED VIA LETTERS ROGATORY PURSU-
ANT TO THE 1935 AGREEMENT

A. The Plain Language of the 1935 Agreement
does not Set Forth the Exclusive or
Mandatory Method of Perfecting Service on a
Russian Defendant

The plain language of the 1935 agreement evidences no
intent on the part of its drafters to make letters rogatory the
exclusive method of perfecting service on a defendant located
in the Russian Federation; nor does the history of the 1935
agreement evidence any such intent. Nothing in the 1935
agreement even refers to service of process on a defendant,
but rather, the agreement sets forth such ministerial
procedures as the fees to be paid in the execution of letters
rogatory, the name of the court to which the letters rogatory
were to be addressed and nature of the documents which must
accompany the letters rogatory. Pet. App. 15a-23a. In fact, a
leading American law dictionary, available to the 1935
agreement’s drafters, defined “letters rogatory”’ as:

[a] formal communication in writing, sent by a court in
which an action is pending to a court or judge of a
foreign country, requesting that the testimony of a
witness resident within the jurisdiction of the latter court
may be there formally taken under its direction and
transmitted to the first court for use in the pending
action.

11

BLACK’S LAW DICTIONARY 1092 (3rd ed. 1933). This
1933 edition of Black’s Law Dictionary did not define the
term “letters rogatory” in any way as encompassing the
service of process on a defendant.

1. Societe Nationale’s Literal Interpretation
Rule

Courts have the authority to construe treaties and executive
agreements. Japan Whaling Association v. American Ceta-
cean Society, 478 U.S. 221, 230 (1986). Societe Nationale
held that “[t}he great object of an international agreement is to
define the common ground between sovereign nations. Given
the gulfs of language, culture, and values that separate
nations, it is essential in international agreements for the
parties to make explicit their common ground on the most
rudimentary of matters.” Societe Nationale, 482, U.S. 522,
537, n.23 (1987). See also Trans World Airlines, Inc. v.
Franklin Mint Corp., 466 U.S. 243, 262 (1984) (Stevens, J.
dissenting). In construing a treaty, as in construing a statute,
the court must first look to its terms to determine its meaning.
United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992).
Since the 1935 agreement makes no mention of service of
process, the trial court was in error in holding that service of
process on a Russian defendant is valid only if perfected via
letters rogatory.

In Societe Nationale, the court interpreted the Hague
Convention on the Taking of Evidence Abroad in Civil or
Commercial Matters, March 18, 1970, 23 U.S.T. 2555,
T.LA.S. No. 7444 (“Hague Convention”). The Hague Con-
vention (like the 1935 agreement) prescribes certain
procedures by which a judicial authority in one contracting
state may request evidence located in another contracting
state. The question presented in Societe Nationale concerned
the extent to which a federal district court is required to
employ the procedures set forth in the Hague Convention
when litigants seek responses to written discovery from an

12

adversary located within a treaty signatory’s territory. Societe
Nationale rejected the interpretation of the Hague Convention
as requiring the use of the procedures set forth in the
Convention to the exclusion of any other discovery
procedures whenever evidence located abroad is sought for
use in an American court. Societe Nationale, 482 U.S.
at 533-34. Societe Nationale held that the Hague Convention
does not provide the exclusive or mandatory procedures for
obtaining documents and information located within the
territory of a foreign signatory. /d. at 529. Societe Nationale
also rejected the interpretation of the Hague Convention as
requiring that the procedures set forth in the Convention be
used before resorting to other methods of gathering evidence.
Id. at 533-34. Like the 1935 Agreement at issue in the instant
case, the Hague Convention had a simple and unambiguous
purpose - “to facilitate the transmission and execution of
Letters of Request [and] to improve mutual judicial
cooperation in civil or commercial matters.” /d., quoting
Hague Convention, 23 U.S.T. at 2557. As should also be the
interpretation of the 1935 agreement at issue in the instant
matter, Societe Nationale held that the Hague Convention’s
preamble “does not speak in mandatory terms which would
purport to describe the procedures for all permissible
transnational discovery and exclude all other existing
practices.” Jd. In addition, Societe Nationale held that the
text of the Hague Convention itself “does not modify the law
of any contracting state, require any contracting state to use
the Convention procedures, either in requesting evidence or in
responding to such requests, or compel any contracting state
to change its own evidence-gathering procedures.” /d.
Societe Nationale further found that the words used in the
Hague Convention “delineate the extent of their agreement,
without prejudice to their existing rights and practices, they
bound themselves to comply with any request for judicial
assistance that did comply with the treaty’s procedures.” /d.
at 537, n.23. The 1935 agreement’s preambles (like the

i - eee

13

Hague Convention’s preamble, as interpreted by Societe
Nationale) simply state:

Confirming conversations between the American Em-
bassy in Moscow and the People’s Commissariat for
Foreign Affairs with regard to the desirability of setting
forth the procedure followed in our respective countries
in the matter of the execution of letters rogatory issuing
out of courts in the other, I have the honor to inform you
of the conditions under which and the manner in which
courts in the United States may execute letters rogatory
issuing out of courts in the Union of Soviet Socialist
Republics.

Note from American Ambassador to the People’s Commissar
for Foreign Affairs, pmbl. Pet. App. 15a. (emphasis added),

and:

Confirming conversations between the People’s Com-
missariat for Foreign Affairs and the American embassy
in Moscow with regard to the desirability of setting forth

the procedure followed in our respective countries in the
matter of the execution of letters rogatory issuing out of
the courts in the other, I have the honor to inform you of
the procedure according to which the courts of the Union
of Soviet Socialist Republics will accept for execution
letters rogatory of courts in the United States of
America.

Note from the People’s Commissar for Foreign Affairs to the
American Ambassador, pmbl. Pet. App. 19a-20a. (emphasis
added).

The 1935 agreement did not modify the laws of the United
States or Soviet Union which were in effect at the time the
agreement was made. The 1935 agreement did not require
either party to change any of its laws upon the entering of the
agreement. The agreement was therefore, as the formal title
of the 1935 agreement suggests, only related to the procedures
to be followed in the execution of letters rogatory.

14

Societe Nationale found that the “utter absence in the
Hague Convention of an exclusivity provision has an obvious
explanation: the contracting states did not agree that its
procedures were to be exclusive.” 482 U.S. 537, n.23.
Societe Nationale further found that “the treaty language that
the parties have agreed upon and ratified fis] a surer
indication of their intentions than the separate opinion’s
hypothesis about the expectations of the parties.” /d. The
1935 agreement, like the Hague Convention, set forth
procedures to be used in the performance of ministerial
judicial tasks such as obtaining evidence and taking witness
testimony. The language used by the drafters of the 1935
agreement is clear. Had the drafters intended that the 1935
agreement apply to service of process on defendants located
in the former Soviet Union, they would have placed such
language in the text of the agreement itself. Since no such
language is present in the 1935 agreement, the Societe
Nationale literal interpretation rule applies — that the 1935
agreement does not require that service of process be
perfected on a Russian defendant via letters rogatory.

2. The Foreign Sovereign Immunities Act
does not Require a U.S. Plaintiff to Serve
the Russian Government via Letters
Rogatory

Even the Foreign Sovereign Immunities Act, 28 U.S.C.
§§ 1330, 1602, et seg. (2001), which confers immunity on
foreign governments, does not require service to be perfected
on the Russian Government via letters rogatory. It is illogical
to interpret the 1935 agreement as requiring service on a non-
governmental entity located in Russia to be perfected via
letters rogatory, but permit service on the Russian government
to be perfected by simply having a U.S. trial court clerk mail a
copy of the summons, complaint and notice of suit, together
with a Russian translation of each document, to the head of
the Russian Federation’s Ministry of Foreign Affairs. See 28

15

U.S.C. § 1608(a)(3) (2001). In fact, a literal reading of the
1935 agreement makes no distinction between a private party
in Russia, such as Izvestia, and the Russian Government
itself; an important fact, considering that neither the Russian
Federation, nor the Soviet Union, are believed to have ever
sought the protection of the 1935 agreement when sued as a
defendant in the United States besides the withdrawn
objections to service of process in the New York case. See
Compagnie NOGA D’ Importation Et D’Exportation S.A. v.
Russian Federation, No. 00-CIV-0632 (WHP) and No. 00-
CIV-6995 (WHP), (combined cases), (S.D.N.Y. 2000). It is,
perhaps, unfortunate that the Russian Federation withdrew its
objections to service of process in the New York case before
the court could rule upon whether the 1935 agreement’s
provision allowing the Soviet government to unilaterally
refuse to permit service on a defendant shields the Russian
government from suit when that government is sued in U.S.
courts pursuant to the Foreign Sovereign Immunities Act, but
it is likely that this issue will reoccur.

B. Izvestia did not Contest Service in its Original
Response to Konanykhine’s Suit

In its original response to Konanykhine’s lawsuit, Izvestia
did not argue that service on its involuntary agent for service
of process was defective or improper pursuant to Virginia
law. Izvestia received actual notice of Konanykhine’s suit,
filed a response to that suit, and failed to further participate in
the litigation until a $33,500,000 default judgment was
entered after a jury trial on damages. Because Izvestia
received actual notice of Konanykhine’s suit, Konanykhine’s
service on the Virginia Secretary of the Commonwealth,
Izvestia’s involuntary agent for service of process, met the
Due Process Clause requirement that every method of service
provide “notice reasonably calculated, under all the circum-
stances, to appraise interested parties of the pendency of the
action and afford them an opportunity to present their

16

objections.” Volkswagenwerk Aktiengesellschaft, v. Schlunk,
486 U.S. 694, 706 (1988), quoting Mullane v. Central
Hanover Bank and Trust Co., 339, U.S. 306, 314 (1950).

Iii, AN INTERPRETATION OF THE 1935 AGREE-
MENT WHICH REQUIRES SERVICE TO BE
PERFECTED ON A RUSSIAN DEFENDANT
VIA LETTERS ROGATORY RENDERS USS.
JUDICIAL SOVEREIGNTY SUBSERVIENT TO
THE JUDICIAL SOVEREIGNTY OF THE
RUSSIAN FEDERATION

An interpretation of the 1935 agreement which requires the
use of letters rogatory in order to perfect service on a Russian
defendant transacting business in the United States will allow
the Russian government to use its own unreviewable
discretion to decide whether an action against the Russian
defendant can proceed in United States courts. The 1935
Agreement provides that “[t]he execution of letters rogatory
issuing out of a court in the United States may be refused in
whole or in part, if the appropriate authorities in the Union of
Soviet Socialist Republics consider that the execution thereof
would affect its sovereignty or safety.” Note from the
People’s Commissar for Foreign Affairs to the American
Ambassador, art. 8. Pet. App. 20a-22a. Requiring U.S.
litigants, in all cases, to attempt to serve defendants located in
the Russian Federation via letters rogatory pursuant to the
1935 agreement renders United States judicial sovereignty
subservient to the judicial sovereignty of a foreign nation.
Russian litigants will have a substantial advantage over
domestic litigants in litigation in United States courts. While
U.S. parties and foreign parties who are not Russian nationals
will be subject to traditional service of process rules,
including long-arm statutes, litigants who are Russian
nationals will be able to hide behind the 1935 agreement,
leaving the plaintiff’s ability to obtain service of process
wholly within the discretion of the Russian government.

17

Thus, if the Russian government refused to permit service via
letters rogatory on the Russian defendant, the party who filed
the suit in the U.S. court would have no way of obtaining
service on the Russian defendant.

A. The Russian Legal System is Subject to
Outside Influences

The U.S. Department of State has stated:

Russia has a body of conflicting, overlapping and
changing laws, decrees and regulations, which has
resulted in an ad hoc and unpredictable approach to
doing business. Independent dispute resolution in
Russia can be difficult to obtain in a developing judicial
system. Regional and local courts are often subject to
political pressure.

U.S. Dept. of State, FY 2001 Country Commercial Guide:
Russia, July 2001 at 47.

Without a stable judicial system in the Russian Federation,
the United States should not cede control over whether a U.S.
_ plaintiff can perfect service on a Russian defendant to a
Russian court which is subject to outside influences.

1. The Soviet Government has Already
Protected Izvestia from a U.S. Lawsuit

Izvestia is no stranger to American courts, having appeared
as a defendant in Kozorowski v. Russian Federation, 1997
U.S. App. LEXIS 26266 (9th Cir. 1997), and, while not hav-
ing filed an appearance, was served with process through
diplomatic channels and failed to respond to the complaint in
Gregorian v. Izvestia, 658 F. Supp. 1224 (C.D. Ca. 1987). In
Gregorian, the Foreign Ministry of the U.S.S.R. rejected the
U.S. State Department’s diplomatic transmittal of the
summons and complaint, citing “the principle of sovereign
equality of states” and stating that “the Soviet State and its
organs enjoy immunity from the jurisdiction of foreign
courts.” Gregorian, 658 F. Supp. at 1227. Had Konanykhine

18

(or any other U.S. plaintiff) attempted to serve Izvestia via
letters rogatory pursuant to the 1935 agreement, the Russian
Government could have, in their sole discretion, protected
Izvestia from such a suit. Since Izvestia received such
protection under the Soviet system, there is no reason to
believe that it would not continue to receive such protection
from the Russian Government.

2. The Russian Goverament has Persecuted
Konanykhine

While in the dying Soviet Union and in the newly-born
Russian Federation, Konanykhine was politically active and
supported Russian President Boris Yeltsin’s anti-corruption,
pro-capitalist and pro-democratic policies by providing half of
President Yeltsin’s campaign funds. In mid-1992, several
current or former KGB members kidnapped Konanykhine and
seized control of his businesses under threat of death. Upon
his escape from his kidnappers, Konanykhine fled to the
United States, where he sought political asylum. In awarding
Konanykhine political asylum, the United States Immigration
Court found that the Russian government engineered false
claims against Konanykhine in order to punish him for
exposing corruption among Russian government and business
officials. Just as it is likely that the Russian Government will
protect Moscow’s leading daily newspaper, /zvestia, from
U.S. lawsuits, it is also likely that the Russian Government
will not permit a pro-democracy and anti-corruption supporter
living outside of Russia, such as Konanykhine, to perfect
service on a high-profile Russian corporation. Therefore,
because the Russian Government, at its sole discretion, can
choose whether or not to allow service on a Russian
defendant, it is illogical that the United States of America
would have ever agreed to make the 1935 agreement the
mandatory and exclusive method of perfecting service on a
Russian defendant.

19
CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

MELISSA WARNER SCOGGINS JOHN PAUL SZYMKOWICZ *

4129 Scotfield Drive JOHN THOMAS SZYMKOWICZ

Chesapeake, VA 23321 SZYMKOWICZ & ASSOCIATES, P.C.

(757) 465-3036 1899 L Street, N.W., Suite 250
Washington, DC 20036

* Counsel of Record (202) 862-8500

July 17, 2001

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2137%3A1. Public record. Not legal advice.