Opposition Brief — Konanykhine v. Izvestia Newspaper

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AUG 186 2001

No. 01-103

IN THE

Supreme Court of the United States

ALEXANDRE KONANYKHINE,

Petitioner.

IZVESTIA NEWSPAPER, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Virginia

BRIEF IN OPPOSITION

JOHN C. KEENEY, JR.*

RONALD J. WILTSIE, I

HOGAN & HARTSON L.L.P.

555 THIRTEENTH STREET, N.W.

WASHINGTON, D.C. 20004

(202) 637-5750

* Counsel of Record Counsel for Respondents

Fem tere ROT cn er ns EN a, LO a EE eS RR gre Open ee nay ey tas

QUESTION PRESENTED

Whether the court below correctly held that service of

process under a since-repealed Virginia statute on a

defendant in Russia by first-class mail conflicted with a

current treaty between the United States and Russia, a treaty

consistently interpreted by the United States Department of

State and the Russian government as requiring such service

be made by letters rogatory.

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RULE 29.6 STATEMENT

Respondent Izvestia Newspaper is not a legal entity, but

rather is the newspaper publication Jzvestia. Respondent

Editorial Staff of Izvestia Newspaper is a misnomer for Open

Joint Stock Company Editorial Staff Izvestia, a Ru:

corporation. Open Joint Stock Company Editorial Staff

Izvestia has no parent corporation and no publicly held

corporation owns 10% or more of its stock.

Sal OO! Peete a

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TABLE OF CONTENTS

Page

QUESTION PRESENTED .....--+-+-sssssssssssssssesnssennnssseesstnnenennnssseee i

RULE 29.6 STATEMENT........:::sescsssssssssesesenenerenssesenennnensnsncnsncnens il

TABLE OF AUTHORITIES .......---:sssssesssessserenenensessnensnanenssnsnsenes iv

STATEMENT OF THE CASE. .........::::seeresssesssssetssnsenennnnnenensnsnenes 3

REASONS FOR DENYING THE WRIT.........---:+-:s:ssssserseserseeees 6

I. INTERVENING STATE LEGISLATION

MAKES THIS CASE ILL-SUITED FOR

CERTIORARI ........0:0:c:cssesecssssssecssscesesessnsnenenssrsssrsenenesssonconsess 6

fl. THE TRIAL COURT APPLIED THE

SETTLED INTERPRETATION TO THE

EXCHANGE OF NOTES AND REACHED

THE CORRECT RESULT .......:.csssssssssssssesenenesensnsnsnsnsnsnsnnnces 9

Il. ADDITIONAL INDEPENDENT STATE

LAW GROUNDS VOID THE VACATED

DEFAULT JUDGMENT.......+:::s:sssesesessessensnesssssesssnnnsnsncnenens 12

CONCLUSION ......0:sscssesssssssssesscsssescnsesernsnssenenensnensnsensnensacocsereees 14

1V

TABLE OF AUTHORITIES

Page

CASES:

Chappell v. Smith, 156 S.E.2d 572 (Va. 1967) ..........:cc00cce0000 12

Choctaw Nation of Indians v. United States, 318

NCPR kivsiieiceutiotindahe dail ie tee eo 9

Filus v. LOT Polish Airlines, 819 F. Supp. 232

Pee Hs. SEED itadinscisecesstiinddeshtnaniadantiadscmibecssnbissuaskadiccooeanits 8

Forum Financial Group, LLC v. President of

Harvard College, 199 F.R.D. 22 (D. Me.

SON Dies sUicdecnkitsiasescalsiateeslanasshistasAimenimedacidd tidcnlata cpeckba cab diesads nighaieddeds 8

Glumina Bank d.d. v. D.C. Diamond Corp., 527

Ra Fa i ME cetbhscirctccccscbigdcadseesbdcetedcaaniakiidicdnnbdennicabecin 9

Miserandino v. Resort Properties, Inc., 691

A.2d 208 (Md. 1997), cert. denied, 522 U.S.

RM TIPE Wi paicaichesidicasisbccelindcassscacsbes eanaecleigaiacadiacee Kei iadliesdekacalaet ta 7

Mullane v. Central Hanover Bank & Trust Co.,

Fe a Ne ee deivikceenitasietneeiilihincinaphasihaiNaidkassciaishiaibuiitisuianan 7

Semtek Int'l, Inc. v Merkuriy Ltd., No. 95-

11820-RCL (D. Mass. Aug. 13, 1996) .0.0........cceeceeeeeeeeeeees 10

Sumitomo Shoji America, Inc. v. Avagliano, 457

pc ea UIE icsecuichsaecadclucibatoana sepia cxstbuieiisaieabohadadanutasabasctieidehienias 9

United States v. Belmont, 301 U.S. 324 (1937) ............ccsceeeeeeeee 9

Volkswagenwerk Aktiengesellschaft v. Schlunk,

ee alicia ciinsiit tucaiatcistconvitinsettanSaicenmancuueraeine 2

CONSTITUTION:

a a dee tage 12

Pies ee MUNI, FU og WEB iectstoccdeniaiacaiensoiapencnssichiaionineasnann 2

STATUTES:

PF GAIT UII cin sissanuaniasdice seansinteasiaccadaadeiidniahia eaapaniiaa ieee a 11

Be eas UID -csinscssccsbaseshsininibeienthachachin che einindhddeaitadeiaadie 8

BF 8 ene ee ee Te a 12

Vv

TABLE OF AUTHORITIES—Continued

Page

STATUTES:

Ve. Code Amn. $4 B1SP inc Se 2,7

Va. Code Ann. § 8.01-329 (1997) ...ccccccscccssssessesscssceseceesceneene 1,2

1998 Va. Acts ch. 259 (adopted Apr. 7, 1998) .......cccccecccesceees 7

RULES:

Fed. R. Civ. P. 4(£)(2)(C)(ii) ..ssesccccssssecessssssssssssessscsssscececssseceeee 5

DiC. Supper. Ct. R. ADACHI) sccccseceserinsocsassascaacaressasiiecesneeces. 5

RN. Wi Gh 28 vc cciisaciaeioscenaten ae ee 6

Bh. Wa Re BF cn skeet eee 12

TREATY:

Fe HOI Ti eicsccssdidisanidccineorddenSete oe eee 2

OTHER AUTHORITIES:

Agreements Establishing the Commonwealth of

Independent States, Dec. 21, 1991, 31 I.L.M.

Be CC UNE iissnsehiviai dopiisenhadinateisieamieaeniams Weal tteies acm 12

Amram, The Revolutionary Change in Service of

Process Abroad in French Civil Procedure, 2

eS Er Ie Ce iiicncnsnctcnldnciatnnik 2

C. Burrell, INS Arrests Couple Accused of

Embezzling From Russian Investors,

Associated Press, June 28, 1996 .0.........ccccccsccssecccsscecccecsecceeeee 4

P. Constable, From Russia With Chutzpah,

Washington Post, Aug. 18, 1996 .o......c.c.ccceccccscessssessscececeeseees 5

P. Constable, Russian Pair in Custody, Accused

of Embezzlement, Washington Post, June 29,

DSA TN EM I BEL ON oN DOTA CORE CL RTEE 4

D. Farah, Russian Crime Finds Haven in

Caribbean, Washington Post, Oct. 7, 1996 ......ccccccccccscseseceoses 5

vi

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES:

J. Gould, Gangster Bankers: A Young Russian's

Run-ins with Organized Crime and Offshore

Money Laundering, Village Voice, Sep. 16,

RDP T ..11scccsccsnsunsasinsitiiiatipusiishssentlienatasisiuineliiiliniiniasianmaasiaiilaamaanal 5

G. Simpson & D. Cloud, Fed Probed Russian

Bank Menatep in 1995, Wall St. J., Sep. 3,

NOD ..nocacesnsnseseseccseonssentnenseseniniatianpiaaasniiinmmeaanmaaianaaiadaaialai 5

intl Let AAA LG tle a acl a Be i te al PO EE vas —

IN THE

Supreme Court of the Anited States

No. 01-103

ALEXANDRE KONANYKHINE,

Petitioner,

V.

IZVESTIA NEWSPAPER, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Virginia

BRIEF IN OPPOSITION

In a state court action in Virginia, petitioner — a Russian

national — obtained a $33.5 million defauit judgment against

respondents — a Russian newspaper and its publisher

(hereafter, collectively “Izvestia”) — on a defamation claim

arising from the publication of an article in Russia. Pet. 4-5;

Pet. App. 8a-9a. When he initiated this action, petitioner

chose to serve respondents through substituted service on the

Secretary of the Commonwealth under Virginia’s long-arm

statute. Pet. 4. The Secretary then allegedly forwarded the

process to respondents overseas via first-class mail, see Va.

Code Ann. 8.01-329 (1997), a method lacking any proof of

actual receipt. Respondents’ three weeks to answer this

action began not upon their alleged receipt of the process, but

when the Secretary filed a certificate of compliance with the

2

trial court shortly after the alleged mailing. Va. Code Ann.

8.01-329 (1997).

This procedure closely parallels the discredited civil-law

practice of notification au parquet, whereby actions against

foreign defendants were commenced merely by depositing a

writ with a local official who then attempted to notify them.

See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S.

694, 709 n.1 (1988) (Brennan, J., concurring) (citations

omitted). Those actions proceeded whether or not the official

succeeded. Jd. The head of the United States delegation that

helped to draft the Hague Service Convention referred to

notification au parquet as an ““[ijnjustice, extravagance,

[and] absurdity... .” Jd. at 710 (quoting Amram, 7he

Revolutionary Change in Service of Process Abroad in

French Civil Procedure, 2 Int’! Law 650, 650-651 (1968)).

More germane to this petition, however, is that petitioner’s

choice for service of process violated an active agreement

between Russia and the United States governing service of

process on Russian defendants. That agreement required that

such service be via the verifiable medium of letters rogatory.

See Exchange of Notes at Moscow Nov. 22, 1935; related

Note of Jan. 19, 1937, 11 Bevans 1262 (“Exchange of

Notes”); Pet. App. 15a-23a. Petitioner now asks this Court to -

intrude into the foreign relations power to declare that the

_ Exchange of Notes is not the exclusive means of serving

defendants in Russia. Implicitly, the petition also asks the

Court to determine that service of process on overseas

foreign defendants by untraceable first-class mail satisfies the

Due Process Clause of the Fourteenth Amendment.

Appearing specially, Izvestia asks that the petition be

denied. A ruling by the Court on these issues is neither

necessary nor appropriate on this petition. First, only four

months after petitioner filed this suit and attempted service,

the Virginia General Assembly repealed the long-arm

provision that authorized service by first-class mail. This

3

intervening legislation makes this a poor case for certiorari.

| Second, deferring to the well-settled construction given the

Exchange of Notes by its signatories, the Virginia courts

; correctly ruled that service of process by first-class mail on

Russian defendants was precluded. Third, the many state law

| irregularities committed by petitioner below — including,

significantly, not providing the Secretary of the

Commonwealth with the Russian translation of respondents’

address — all demonstrate that this petition does not meet the

rigorous standards for certiorari.

This petition seeks an extraordinary result. Simply put, the

| article at issue was published and read almost entirely within

Russia. Petitioner nevertheless sought recovery in the United

States. By doing so, petitioner contends that newspapers are

: subject to global liability from the sale of a few copies of

their papers overseas or from publication of their articles on

the internet, liability that can be initiated by the thin thread of

service by first-class mail.

Such a result should give the Court pause. The risk that the

Washington Post Company, because of the presence of a

handful of copies of the Washington Post, could be subject to

liability in Moscow or Benghazi could have a chilling effect

on the dissemination of information and news here. Because

of these significant First Amendment implications, a

newspaper should, at a minimum, be proven to have received

actual notice of a foreign action before such liability could be

imposed.

STATEMENT OF THE CASE

Respondents publish Jzvestia, a daily newspaper printed in

Russia, Trial Tr. 34-35, written in Russian, id. 32, and

distributed to approximately 2 million Russians daily, id. 40.

Respondents have no contacts with Virginia. They have not

entered any contracts, possessed any property, or transacted

4

any business in that state.! They do not sell or otherwise

make IJzvestia available in Virginia. See id. Contrary to

petitioner’s unsupported assertions, Pet. 4, other than some

mention of an ability to obtain or read copies of Jzvestia in

Virginia, the record lacks any evidence of contacts between

respondents and Virginia. Like major American papers, a

few copies of Jzvestia may find their way to other countries.

To the extent those copies find their way to the United States

and Virginia, however, they do so through the actions of

others, not respondents. In sum, respondents have never

purposefully directed their business activities to nor derived

substantial revenue from Virginia.

Petitioner is a Russian national previously granted asylum

in the United States. He claims that by 1992, when he was

only 25, he owned four banks, the largest brokerage, and

extensive real estate holdings in Russia. Trial Tr. 50-51. He

claims to have been worth $300 million. Jd. That same year,

he claims that he was kidnapped by former KGB officials,

who allegedly stole most of his assets. Jd. 56. Ultimately

settling in the United States, he was arrested in June 1996?

and detained until July 1997 while fighting extradition to

Russia on charges that he had embezzled over $8 million

from a Russian bank. Jd. 63-65.

Prior to September 16, 1997, petitioner granted numerous

interviews for articles in such widely read newspapers as the

Village Voice, Washington Post, and Wall Street Journal, and

for a 60 Minutes television segment. These news stories

detailed the various crimes that petitioner was suspected of

by the Russian government, the FBI, and the Federal

1 Amended Mot. of Def. Open-Joint Stock Co. Editorial Staff

Izvestia to Vacate Default J., Ex. 1, Aff. N. Tanchevskaya {ff 5-7.

2 C. Burrell, INS Arrests Couple Accused of Embezzling From

Russian Investors, Associated Press, June 28, 1996; P. Constable,

Russian Pair in Custody, Accused of Embezzlement, Washington

Post, June 29, 1996, at A2.

5

Reserve, crimes including embezzlement, money laundering,

and racketeering.3

Despite these prior articles, to which he did not object,

petitioner sued respondents for allegedly publishing similar

allegations in the September 16, 1997 issue of Jzvestia.4

Though a resident of the District of Columbia, Mot. for J.

{ 4, petitioner chose an-unrelated forum — Virginia — to sue a

Russian newspaper over stories published almost exclusively

in Russia.5 Ignoring the Exchange of Notes, petitioner

- Tequested service under Virginia’s long-arm statute, Pet. 4,

resulting in the process being transmitted overseas via first-

class mail. Notably, had he sued either in the District of

Columbia or in a United States district court, he would not

have been able to use first-class mail service. Both those

court systems require, at a minimum, that service on overseas

defendants use a mail method that provides a signed receipt

to evidence that the addressee actually received the process.

Fed. R. Civ. P. 4(f)(2)(C)ii); D.C. Super. Ct. R.

4(f)(2)(C)(ii).

> E.g., P. Constable, From Russia With Chutzpah, Washington

Post, Aug. 18, 1996, at F1; J. Gould, Gangster Bankers: A Young

Russian’s Run-ins with Organized Crime and Offshore Money

Laundering, Village Voice, Sep. 16, 1997; D. Farah, Russian

Crime Finds Haven in Caribbean, Washington Post, Oct. 7, 1996,

at Al5; G. Simpson & D. Cloud, Fed Probed Russian Bank

Menatep in 1995, Wall Street Journal, Sep. 3, 1999, at A4 (“The

U.S. Federal Reserve in 1995 conducted an inquiry into possible

illegal banking activities by Menatep, the Russian bank . . ..

According to court documents, the 1995 Fed probe of Menatep

concerned the activities of former Menatep Vice President

Alexandre Konanykhine. . . .”)

4 Initially, petitioner also sought recovery for a December 1996

article that allegedly claimed he was a swindler. Mot. for J. ¥¥j 42-

55. Petitioner abandoned this claim at trial.

5 Initially, the suit listed four other defendants, none of whom

had any relation to Virginia either. Those other defendants were a

web-site operator in New Mexico, a reporter residing in New

Jersey, and two reporters residing in Russia.

6

When respondents failed to answer the process, petitioner

moved for entry of default. He then set the issue of damages

for trial, never notifying respondents of the trial date. He

then tried his case to a jury ex parte, dismissing the only two

defendants who had appeared in the action — the last on the

eve of trial — thereby ensuring that he would proceed ex

- parte.

Petitioner’s maneuvers paid off. Including jury selection

and deliberations, the trial lasted two to three hours. Trial Tr.

4. The evidence consisted of two exhibits and two witnesses.

The jury returned a verdict of $3.5 million in compensatory

damages and $30 million in punitive damages, the maximum

amounts that the trial court permitted petitioner to seek. Trial

Tr. 107-108.

After learning of the judgment, respondents appeared

specially to challenge jurisdiction and to set aside the default

verdict. After full briefing and oral argument, the trial court

vacated the default and the default judgment because of

petitioner’s failure to serve process under the Exchange of

Notes. Pet. App. 2a-3a. The trial court reaffirmed this ruling

on rehearing. Respondents subsequently moved to dismiss

the case for petitioner’s continuing refusal to serve them

properly within one year of commencing the action, as

required by Virginia law. See S. Ct. Va. R. 3:3. The trial

court granted that motion on August 25, 2000. Pet. App. 6a.

Petitioner subsequently petitioned the Supreme Court of

Virginia to review the decision of the trial court. After full

briefing on the petition and oral argument by petitioner, the

Supreme Court of Virginia declined review. Pet. App. 1a.

REASONS FOR DENYING THE WRIT

I. INTERVENING STATE LEGISLATION MAKES

THIS CASE ILL-SUITED FOR CERTIORARI

_ 1. The Exchange of Notes aside, petitioner’s attempted use

of first-class mail to serve respondents had to satisfy due

process for the judgment to be valid. To do so, such service

7

must have been “reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency

of the action and afford them an Opportunity to present their

objections.” Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 314 (1950). Less than four months after

petitioner attempted service, the Virginia General Assembly

apparently decided that service by first-class mail was not so

“Teasonably calculated” and repealed the provision petitioner

used. 1998 Va. Acts ch. 259 (adopted Apr. 7, 1998). In its

place, Virginia now requires that substituted service on the

Secretary of the Commonwealth be forwarded to defendants

by certified mail, return receipt requested. Va. Code Ann.

8.01-329.

The General Assembly’s action was prompted by the

refusal of Maryland to award full faith and credit to a

Virginia default judgment against Maryland residents who

had allegedly been served by first-class mail. See

Miserandino v. Resort Properties, Inc., 691 A.2d 208, 220

(Md.), cert. denied, 522 U.S. 953 (1997). As the Court of

Appeals explained in that case, service by first-class mail

provided no indicia that service was actually received, see id.

at 215, thereby rendering it constitutionally insufficient to

confer personal jurisdiction on domestic non-residents of

Virginia. The Virginia legislature promptly agreed.

Nevertheless, petitioner now requests that this Court reinstate

a vacated state court judgment based on the alleged

constitutional sufficiency of first-class service on foreign

defendants. Virginia’s repeal of the very provision on which

petitioner must rely to support his judgment establishes that

this Court should not entertain the petition.

2. This Court need not be concerned about the purported

conflict among the district courts concerning the scope of the

Exchange of Notes. For while petitioner cites two cases that

question the exclusivity of the agreement, both those cases

are consistent with the principle enunciated in Miserandino

and supported by the Virginia legislature’s amendment of the

F

long-arm statute, namely that service on an overseas

defendant has to be by a more effective method than first-

class mail. In Forum Financial Group, LLC v. President of

Harvard College, 199 F.R.D. 22 (D. Me. 2001), the court

ordered that plaintiff personally serve the domestic attorney

for the overseas defendant. And in Filus v. LOT Polish

Airlines, 819 F. Supp. 232 (E.D.N.Y. 1993), the service was

made under the Foreign Sovereign Immunities Act, which

requires, at a minimum, that service be by a form of mail

requiring a signed receipt. 28 U.S.C. 1608(a). Thus both

cases acknowledge what petitioner chose to ignore: in

personam jurisdiction over foreign defendants requires a

verifiable means of service, whether or not the Exchange of

Notes applies. Petitioner’s use of first-class mail violated

this principle, so the petition does not raise an issue

substantial enough for this Court to grant the writ.

3. This petition squarely presents the very concern that

underlies the opinion in Miserandino and the amendment of

the Virginia long-arm statute, namely actually establishing

that a non-resident defendant received notice of an action.

Respondents do not concede that they ever received the

process allegedly mailed by the Secretary of the

Commonwealth or, in fact, answered it. In June 1998,

respondents underwent a complete change in management.®

At the time of that change and continuing until after the

judgment, respondents’ current management was unaware of

this suit. Jd. ¥] 5-6. Because of the change, respondents

cannot ascertain if the alleged writing is authentic or whether

it was sent in response to the process, to unofficial

communications from petitioner’s attorneys, or for some

other reason. This state of affairs highlights the need for a

traceable means of serving process on overseas defendants.

In any event, Virginia law treats the writing as a nullity,

6 Pl. Konanykhine’s Resp. to Amended Mot. of Def. Editorial

Staff of Izvestia Newspaper Mot. to Vacate Default J., Ex. 8, Aff.

N. Tanchevskaya9 4. —~

9

because a corporation cannot appear pro se in a Virginia

court. Glumina Bank d.d. v. D.C. Diamond Corp., 527

S.E.2d 775, 776 (Va. 2000). Petitioner’s avoidance of the

procedures in the Exchange of Notes left the trial court with

no means of determining whether a foreign newspaper had

received actual service of a defamation suit that resulted in a

multi-million dollar default judgment against it.

II. THE TRIAL COURT APPLIED THE SETTLED

INTERPRETATION TO THE EXCHANGE OF

NOTES AND REACHED THE CORRECT

RESULT

1. The signatories’ construction of the Exchange of Notes

establishes that petitioner was required to serve respondents

by letters rogatory. An exchange of notes is the

constitutional equivalent of a treaty of the United States.

United States v. Belmont, 301 U.S. 324, 331 (1937). This

Court has stated that, to properly ascertain a treaty’s

meaning, it is appropriate to go beyond the text and consider

such factors as its history, negotiations, and, of particular

significance here, the construction given it by the parties.

_ Choctaw Nation of Indians v. United States, 318 U.S. 423,

431-432 (1943). Moreover “[tJhe meaning attributed to

treaty provisions by the Government agencies charged with

their negotiation and enforcement is entitled to great weight.”

Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176,

184-185 (1982).

Here, the United States and Russia have consistently

interpreted the Exchange of Notes as being nearly exclusive,

requiring that all service of process on Russian defendants by

United States courts be via letters rogatory unless a Russian

court — after a hearing — rules otherwise.

Requests for service . . . in Russia may be accomplished

only by means of letters rogatory. This was codified by

an exchange of notes at Moscow on November 22, 1935

and a related note of January 19, 1937 (49 Stat. 3849;

Executive Agreement Series 83).

10

U.S. Dep’t of State Circular on Foreign Law, Preparation of

Letters Rogatory for the Use in Russia (emphasis supplied);

Resp’ts App. la.

According to [a Supreme Soviet decree], which Russia

has recognized since 1991, the one exception to service

by letters rogatory is service by an agent or through

international registered mail with prior permission from a

Russia court.

Semtek Int'l, Inc. v. Merkuriy Ltd., No. 95-11820-RCL

(D. Mass. Aug. 13, 1996) (citing Presidium of Supreme

Soviet of U.S.S.R., Acknowledgement of the Decisions of

Foreign Courts and Courts of Arbitration in the U.S.S.R.,

Decree No. 9131-XI, 26 Vedomosti SSSR item 427 (1988)).

Pet. App. 37a.

The State Department’s current website reiterates the

continuing validity of this statement in Semtek:

The service of United States judicial documents in

Russia is usually effected by letters rogatory. . . .

Legal documents may also be served by agent or

through international registered mail. However, in

accordance with the directive of the Supreme Soviet of

June 21, 1988, compulsory service of legal documents is

not possible by these means without prior permission

from a Russian court. In this event, an open hearing is

held (of which the defendant must be informed) to

determine the suitability of the request. If the court

grants its permission for service, a Russian Writ of

Execution (Ispolnitelniy List) is issued, and _ the

documents may be served through the requested means.

Judicial Assistance in the Russian Federation, at

http://www.travel.state.gov/ russia legal. htm] (last visited

Aug. 10, 2001). Resp’ts App. 4a.

1]

Additionally, the Administrative Office of the United

States Courts has recognized the mandatory nature of the

Exchange of Notes since 1980:

[W]e are requesting clerks of court to refrain from

sending summonses and complaints by international mail

to foreign defendants in those countries which have

protested service by international mail, namely .. . the

Union of Soviet Socialist Republics. Jn those countries,

letters rogatory are the appropriate mechanism for

service.

Memorandum of Gen. Counsel of Admin. Office of the

United States Courts, Service of Process in Foreign

Countries (Nov. 6, 1980) (emphasis in original). Resp’ts

App. 9a.

In sum, here the United States and Russia completely

agree: letters rogatory under the Exchange of Notes is

virtually the sole method by which a United States plaintiff

may serve a Russian defendant. The only exception does not

include service by first-class mail, but like letters rogatory

provides safeguards to ensure that the defendant receives

actual notice of the suit. Though petitioner reads the

language differently and argues that the Exchange of Notes

does not delineate the exclusive means of service, under

Avagliano the longstanding, contrary interpretations of the

Department of State, the Administrative Office, and the

Russian government are entitled to great weight and, in fact,

are dispositive.

2. Having properly interpreted the Exchange of Notes, the

trial court then also properly determined that the Exchange

was still recognized by both signatories despite the fall of the

Soviet Union. The United States still lists the Exchange of

Notes in United States Treaties and Other International

Agreements, which by law compiles all valid treaties and

other international agreements. 1 U.S.C. §112a. And

Russia, having proclaimed that the treaties and agreements of

12

the Soviet Union would remain in force until further notice,’

has never notified the United States that the Exchange of

Notes is no longer recognized.

Thus, the Exchange of Notes remains a valid treaty binding

on Virginia under the Supremacy Clause. U.S. Const. art.

VI, cl. 2. Consequently, the trial court properly vacated the

default resulting from petitioner’s use of Virginia’s long-arm

statute rather than the Exchange of Notes to serve

respondent. There is no need for this Court to grant the

petition.

_Iif. ADDITIONAL INDEPENDENT STATE LAW

GROUNDS VOID THE VACATED DEFAULT

JUDGMENT

This record is a particularly inappropriate platform for the

Court. Simply put, this case is nfe with petitioner’s

procedural defaults as a matter of Virginia law. For example,

if Izvestia did file an answer, as petitioner contends, Pet. 4,

then Virginia law required an additional notice to Izvestia of

the trial date. S. Ct. Va. R. 3:17. Petitioner’s failure to

provide that date deprived respondents of their right to cross-

examine petitioner’s witnesses, rebut his evidence, ask for

jury instructions, and argue damages to the jury. Chappell v.

Smith, 156 S.E.2d 572, 574 (Va. 1967). Additionally,

petitioner failed to assist the trial court by alerting it that over

$29.6 million of the judgment exceeded Virginia’s $350,000

limit on punitive damages. Va. Code Ann. § 8.01-38.1.

Petitioner therefore permitted the court to enter a judgment

that violated Virginia law.

7 Agreements Establishing the Commonwealth of Independent

States, Dec. 21, 1991, 31 LLM. 138, 145-146 (1992) (“The The High

Contracting Parties (Belarus, Russian Federation, and Ukraine]

undertake to discharge the international obligations incumbent on

them under treaties and agreements entered into by the former

Union of Soviet Socialist Republics.”)

13

But the most significant error concerns the attempted

service in this case. Petitioner provided the Secretary with

only the English translation of respondents’ address. This

was crucial because not only do our two countries not share a

language, we do not share an alphabet:

As requested: Actual address:

18 Tverskaya Street, yn. TBepcxas, om 18,

Building 1 CTpoenue |

Moscow K-6 GSP 103791 103791 Mocxsa K-6 CI

Russia® Poccua

Thus, petitioner essentially misaddressed the process here,

trusting to fortune that the receiving Moscow post office

might translate and properly deliver the parcel. As noted

above, however, we cannot now determine whether

respondents actually received this process.

Thus, were this Court to grant the writ and ultimately

remand this case, the underlying result would likely be the

same. Petitioner’s judgment is so flawed that it will not

stand up to further scrutiny by the Virginia courts.

Accordingly, the petition does not present a compelling case

for addressing the question presented.

8 Aff. for Service of Process on Sec’y of the Commonwealth.

14

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

JOHN C. KEENEY, JR. *

RONALD J. WILTSIE, I

HOGAN & HARTSON L.L.P.

555 THIRTEENTH STREET, N.W,

WASHINGTON, D.C. 20004

(202) 637-5750

* Counsel of Record Counsel for Respondents

FES Ns ee