# Opposition Brief — Konanykhine v. Izvestia Newspaper

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 890

## Text

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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process under a since-repealed Virginia statute on a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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2137%3A3. Public record. Not legal advice.