 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 11, 2014             Decided September 12, 2014

                        No. 13-7019

                  FREEDOM WATCH, INC.,
                       APPELLANT

                             v.

 ORGANIZATION OF THE PETROLEUM EXPORTING COUNTRIES
                       (OPEC),
                      APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:12-cv-00731)


    Larry Klayman argued the cause and filed the briefs for
appellant.

     Carolyn B. Lamm argued the cause for appellee. With her
on the brief were Hansel T. Pham and Anne D. Smith.

   Thomas G. Corcoran Jr. was on the brief for amicus curiae
Republic of Austria in support of appellee.

    Before: TATEL, SRINIVASAN and WILKINS, Circuit Judges.
                                2

    Opinion for the Court filed by Circuit Judge SRINIVASAN.

    Opinion concurring in part and dissenting in part filed by
Circuit Judge WILKINS.

     SRINIVASAN, Circuit Judge: Freedom Watch, Inc. filed an
action against the Organization of the Petroleum Exporting
Countries alleging that OPEC violates United States antitrust
law by fixing the price of gasoline. The district court dismissed
the complaint for insufficient service of process. The court held
that Freedom Watch had failed to effectuate valid service on
OPEC, and it declined Freedom Watch’s request to authorize
service through alternative means pursuant to Federal Rule of
Civil Procedure 4(f)(3). We agree with the district court that the
methods of service attempted by Freedom Watch failed to
satisfy the federal rules. We remand, however, for the district
court to reconsider Freedom Watch’s request under Rule 4(f)(3)
to authorize alternative methods of serving process on OPEC.

                                I.

     OPEC is an intergovernmental organization whose
membership consists of twelve petroleum-exporting nations. As
set out in its governing statute, OPEC’s “principal aim” is “the
coordination and unification of the petroleum policies of
Member Countries and the determination of the best means for
safeguarding their interests, individually and collectively.”
OPEC Stat. art. 2(A) (2000). The organization is headquartered
in Vienna, Austria. Its relationship with its host nation is
governed by a “Headquarters Agreement,” formally entitled the
Agreement Between the Organization of the Petroleum
Exporting Countries and the Republic of Austria Regarding the
Headquarters of the Organization of the Petroleum Exporting
Countries, Austrian Official Gazette [BGBL] No. 379/1985
(bilateral agreement codified into Austrian law).
                                3


     On May 7, 2012, Freedom Watch filed suit against OPEC,
alleging violations of section 1 of the Sherman Act, 15 U.S.C.
§ 1, and sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15,
26. The complaint asserts that OPEC and its member nations
engage in an international conspiracy to “raise, fix and stabilize
the price of gasoline and other petroleum products in the United
States” through the use of production quotas and price-fixing
agreements. J.A. 8-9, 12-13. Freedom Watch contends that it
attempted to serve process on OPEC in two ways: (i) by
delivering a copy of the summons and complaint by hand to
OPEC headquarters in Vienna, where an individual ostensibly
accepted service, and (ii) by sending a copy of the documents
via Austrian mail to OPEC headquarters. Freedom Watch filed
a proof of service confirming the first of those methods.

     On August 21, 2012, after successfully moving to bifurcate
its service-of-process objection from the rest of its potential
defenses, OPEC moved to dismiss the complaint for insufficient
service of process. OPEC argued that neither of Freedom
Watch’s attempts at service met the requirements of United
States (or Austrian) law for effective service. It also asserted
that no means of service could be validly effectuated without the
express consent of OPEC’s Secretary General.

     In opposing dismissal, Freedom Watch argued that its
attempts to serve process complied with Federal Rule of Civil
Procedure 4(f). Freedom Watch stressed that OPEC had
received actual notice of the pending action. Freedom Watch
also requested that, if the court should deem its attempted
methods inadequate, the court then exercise its discretion under
Rule 4(f)(3) to authorize alternative methods of service.
Freedom Watch suggested, in particular, that service could be
effectuated on OPEC via email or fax, or through OPEC’s
United States counsel.
                                4


    On September 4, 2013, the district court granted OPEC’s
motion to dismiss. See Freedom Watch, Inc. v. OPEC, 288
F.R.D. 230, 231 (D.D.C. 2013). The court determined that
Freedom Watch had failed to establish that it validly served
process on OPEC under Rule 4. The court also declined to
authorize any alternative form of service of process on OPEC
pursuant to Rule 4(f)(3). Freedom Watch appeals.

                               II.

     We review de novo the district court’s determination that
Freedom Watch has failed to effectuate valid service of process
on OPEC. Gorman v. Ameritrade Holding Corp., 293 F.3d 506,
509 (D.C. Cir. 2002). We review for abuse of discretion the
district court’s denial of Freedom Watch’s request to authorize
alternative methods of service pursuant to Rule 4(f)(3). See
Prewitt Enters., Inc. v. OPEC, 353 F.3d 916, 921 (11th Cir.
2003); Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007,
1014 (9th Cir. 2002). Applying those standards, we agree with
the district court that Freedom Watch has not validly served
process on OPEC. But we vacate the judgment and remand the
case to enable the district court to exercise its discretion under
Rule 4(f)(3) to consider Freedom Watch’s suggestion that
service could be effectuated on OPEC through OPEC’s United
States counsel.

                               A.

    A federal court may assert personal jurisdiction over a
defendant only if “‘the procedural requirements of effective
service of process are satisfied.’” Mann v. Castiel, 681 F.3d
368, 372 (D.C. Cir. 2012) (quoting Gorman, 293 F.3d at 514);
see Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97,
104 (1987). Service of process “‘notif[ies] a defendant of the
commencement of an action against him’” and “‘marks the
                               5

court’s assertion of jurisdiction over the lawsuit.’” Mann, 681
F.3d at 372 (quoting Okla. Radio Assocs. v. FDIC, 969 F.2d
940, 943 (10th Cir. 1992)). Federal Rule of Civil Procedure 4
generally “governs the form, issuance, and service of summons
in federal civil actions.” Eades v. Clark Distrib. Co., 70 F.3d
441, 442 n.1 (6th Cir. 1995). If a defendant challenges the
validity of service of process, the plaintiff bears the burden to
“‘demonstrate that the procedure employed to deliver the papers
satisfies the requirements of the relevant portions of Rule 4.’”
Mann, 681 F.3d at 372 (quoting 4A Wright & Miller, Federal
Practice and Procedure § 1083 (3d ed. 2002 & Supp. 2012)).

     Freedom Watch contends that it satisfied Rule 4 by serving
process on OPEC at its headquarters in Vienna via personal
delivery and Austrian mail. The district court, relying on the
Eleventh Circuit’s decision in Prewitt Enterprises, Inc. v.
OPEC, supra, concluded that neither of those methods passes
muster under Rule 4. Prewitt, like this case, addressed the
validity of attempted service of process on OPEC. There, the
plaintiff asked the clerk of the court to send a copy of the
summons and complaint to OPEC by international registered
mail, return receipt requested. 353 F.3d at 919. The clerk did
so, mailing the documents to OPEC at its headquarters in
Vienna. Id. The district court granted dismissal for insufficient
service of process. Id. at 920. The Eleventh Circuit affirmed,
holding, inter alia, that service on OPEC via international
registered mail, absent OPEC’s consent, was ineffective under
Rule 4. Id. at 919. Here, although Freedom Watch attempted to
serve process on OPEC by means other than the method
specifically addressed in Prewitt—i.e., international mail—the
district court deemed Freedom Watch’s efforts at service invalid
for substantially the same reasons advanced by the Eleventh
Circuit in that case. We agree.

    Rule 4(h) governs service of process on OPEC, a foreign
unincorporated association. Under Rule 4(h), “[u]nless federal
                                6

law provides otherwise or the defendant’s waiver [of service]
has been filed,” service abroad on a foreign business entity must
be effectuated “in any manner prescribed by Rule 4(f) for
serving an individual, except personal delivery under
(f)(2)(C)(i).” Fed. R. Civ. P. 4(h)(2). Here, because OPEC has
not filed any waiver of service, and because federal law does not
“provide[] otherwise,” we look to Rule 4(f). Freedom Watch
belatedly argues in this court, despite having made no such
argument in the district court, that federal law does “provide[]
otherwise”: according to Freedom Watch, OPEC is a “political
subdivision of a foreign state,” and service on OPEC thus can be
effectuated under the Foreign Sovereign Immunities Act (FSIA),
28 U.S.C. § 1608(a). But it “‘is well settled that issues and legal
theories not asserted at the District Court level ordinarily will
not be heard on appeal.’” Potter v. District of Columbia, 558
F.3d 542, 550 (D.C. Cir. 2009) (quoting District of Columbia v.
Air Fla., Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984)). In any
event, OPEC is not a political subdivision of a foreign state
subject to service under § 1608 of the FSIA. See Prewitt, 353
F.3d at 922 n.9. OPEC instead is an intergovernmental
organization whose members are foreign sovereign states. Id. at
919. The propriety of Freedom Watch’s efforts to serve process
on OPEC therefore turns on the provisions of Rule 4(f).

     Rule 4(f)(1) provides for service of process “by any
internationally agreed means of service that is reasonably
calculated to give notice, such as those authorized by the Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents.” Fed. R. Civ. P. 4(f)(1). As the Eleventh Circuit
explained in Prewitt, there is no “internationally agreed means
of service” applicable in this case. See 353 F.3d at 922. The
evidence submitted by OPEC confirms the point. See Expert
Decl. of Wolfgang Hahnkamper ¶ 12, ECF No. 7, J.A. 143.
Although Austria is a party to the Hague Convention on Civil
Procedure, the United States is not. Hahnkamper Decl. ¶ 12.
                                 7

Conversely, although the United States is a party to the Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents, Austria is not. Hahnkamper Decl. ¶ 12; Prewitt,
253 F.3d at 922 n.10. And in a diplomatic note, the Austrian
government confirmed the absence of any treaty between the
European Union and United States that could supersede the
requirements of Austrian law for serving process on OPEC.
Note Verbale from the Austrian Fed. Ministry for European &
Int’l Affairs, to OPEC 2 (June 21, 2012). Because Freedom
Watch’s attempts to serve process on OPEC cannot be sustained
under Rule 4(f)(1), we turn to Rule 4(f)(2).

     Rule 4(f)(2) states that, “if there is no internationally agreed
means, or if an international agreement allows but does not
specify other means,” process may be served “by a method that
is reasonably calculated to give notice”:

     (A) as prescribed by the foreign country’s law for
         service in that country in an action in its courts of
         general jurisdiction;

     (B) as the foreign authority directs in response to a
         letter rogatory or letter of request; or

     (C) unless prohibited by the foreign country’s law,
         by:

          (i) delivering a copy of the summons and of
              the complaint to the individual
              personally; or

          (ii) using any form of mail that the clerk
               addresses and sends to the individual and
               that requires a signed receipt . . . .
                               8

     OPEC’s unchallenged evidence of Austrian law
demonstrates the inapplicability of Rule 4(f)(2)(A) here.
Austrian law considers service of process to be a sovereign act.
Hahnkamper Decl. ¶ 13. In Austria, unlike the United States,
“service of a complaint (regardless of the sender) is a judicial
act that may be exerted only by a court . . . unless an
international convention provides specifically for the opposite.”
Id. ¶ 13; see also id. ¶ 15; Austrian Service of Documents Act
§§ 1, 12(1). Here, no such international convention exists.
Hahnkamper Decl. ¶ 15. And because Austrian courts had no
involvement with either of Freedom Watch’s attempts to serve
OPEC in Austria, those efforts were not “prescribed by”
Austrian law governing service of process. Fed. R. Civ. P.
4(f)(2)(A). Freedom Watch’s attempts in fact violated Austrian
law. Austria prohibits service of process on an international
organization holding privileges and immunities under
international law (which OPEC does) without the involvement
of the Austrian Federal Ministry. Hahnkamper Decl. ¶ 16;
Austrian Service of Documents Act § 11(2). In addition, the
OPEC Headquarters Agreement, a part of Austrian law, bars
service of legal process within the headquarters seat without the
express consent of OPEC’s Secretary General. Prewitt, 353
F.3d at 925. Freedom Watch does not contend that it sought the
involvement of the Austrian Federal Ministry or received
consent from OPEC’s Secretary General.

     The remainder of Rule 4(f)(2) is equally unhelpful to
Freedom Watch. Freedom Watch makes no suggestion that
there was any “letter rogatory or letter of request” here—or any
response thereto—as would be required for service under Rule
4(f)(2)(B). As for Rule 4(f)(2)(C), its provisions are
inapplicable to methods of service, like those attempted by
Freedom Watch, “prohibited by the foreign country’s law.” In
any event, personal delivery under Rule 4(f)(2)(C)(i) is
unavailable for an unincorporated association like OPEC. See
                                9

Fed. R. Civ. P. 4(h)(2). And there is no evidence of compliance
with the requirements of 4(f)(2)(C)(ii)—i.e., that a clerk of the
court addressed and dispatched the mailing or that it required a
signed receipt.

     The final provision of Rule 4(f) allows service “by other
means not prohibited by international agreement, as the court
orders.” Fed. R. Civ. P. 4(f)(3) (emphasis added). To validly
effectuate service under Rule 4(f)(3), a plaintiff therefore must
affirmatively seek and obtain the district court’s authorization
for a particular means of service. See, e.g., Rio Props., 284 F.3d
at 1013. Here, however, Freedom Watch neither sought nor
secured the district court’s authorization to serve OPEC through
personal delivery or Austrian mail. As a result, Freedom
Watch’s attempts to effectuate service of process on OPEC
through those means failed to satisfy Rule 4(f)(3), or Rule 4(f)
more generally.

     Unable to demonstrate compliance with Rule 4(f), Freedom
Watch principally defends its attempted methods of service on
the ground that OPEC gained actual notice of the action, as
evidenced by OPEC’s participation in the litigation. It is well
established, however, that “before a court may exercise personal
jurisdiction over a defendant, there must be more than notice to
the defendant.” Omni Capital, 484 U.S. at 104. Although
notice is “[a]n elementary and fundamental requirement of due
process,” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950), it “cannot by itself validate an otherwise
defective service.” Entm’t Grp. v. Star Media Sales, Inc., 988
F.2d 476, 492 (3d Cir. 1993); accord Prewitt, 353 F.3d at 925;
LSJ Inv. Co. v. O.L.D., Inc., 167 F.3d 320, 322 (6th Cir. 1999).
Rather, “the procedural requirement of service of summons
must be satisfied,” and “[t]oday, service of process in a federal
action is covered generally by Rule 4.” Omni Capital, 484 U.S.
at 104; see Mann, 681 F.3d at 372 (“[C]ourts have uniformly
held . . . a judgment is void where the requirements for effective
                               10

service have not been satisfied.” (internal quotation marks
omitted)). In certain circumstances in which service of process
was “in substantial compliance with the formal requirements of
the Federal Rules,” courts have considered actual notice in
sustaining the adequacy of service despite a minor,
nonprejudicial defect. Prewitt, 353 F.3d at 924 n.14 (collecting
cases). But there was no substantial compliance with the
requirements of Rule 4 here. We therefore affirm the district
court’s determination that Freedom Watch failed to effectuate
valid service of process on OPEC.

                               B.

     There remains the question whether the district court
abused its discretion in declining to authorize alternative means
of service on OPEC. Rule 4(f)(3) permits service of process
“by other means not prohibited by international agreement, as
the court orders.” Fed. R. Civ. P. 4(f)(3). The parties agree that
“[t]he decision whether to allow alternative methods of serving
process under Rule 4(f)(3) is committed to the ‘sound discretion
of the district court.’” Brockmeyer v. May, 383 F.3d 798, 805
(9th Cir. 2004) (quoting Rio Props., 284 F.3d at 1016).

    Rule 4(f)(3) contemplates a district court “order[]”
authorizing alternative means of service. Fed. R. Civ. P. 4(f)(3).
Generally, under the Federal Rules of Civil Procedure and the
applicable local rules, a party seeking a district court order
would file a formal motion and include a proposed order
apprising the court of its request and specifying the relief
sought. See Fed. R. Civ. P. 7(b) (“In General. A request for a
court order must be made by motion.”); D.D.C. R. 7(c) (“Each
motion and opposition shall be accompanied by a proposed
order.”). Here, however, Freedom Watch did not file a motion
or submit a proposed order. Instead, it requested the district
court to authorize alternative means of service in its
                              11

memorandum in response to OPEC’s motion to dismiss. But
insofar as Freedom Watch should have perfected its request
through a separate motion and proposed order, OPEC made no
objection in the district court to the manner in which Freedom
Watch sought authorization under Rule 4(f)(3). OPEC instead
fully engaged on the merits of Freedom Watch’s request. And
the district court, following OPEC’s lead, squarely addressed
(and rejected) Freedom Watch’s Rule 4(f)(3) request in its
opinion. OPEC waited until oral argument in this court to
object to the manner in which Freedom Watch made its Rule
4(f)(3) request, but “oral argument is too late to raise an
objection for appellate consideration.” Robertson v. Am.
Airlines, Inc., 401 F.3d 499, 504 n.2 (D.C. Cir. 2005). In light
of the absence of any timely objection by OPEC and of the
district court’s consideration of Freedom Watch’s request on the
merits, we likewise address the merits of Freedom Watch’s
request for authorization of alternative means of service.

     Freedom Watch proposed three alternative methods of
serving process on OPEC: email, fax, and service through
OPEC’s United States counsel. For each of those methods,
Freedom Watch expressly invoked the district court’s power
under Rule 4(f)(3) to authorize alternative means of service.
See Pl.’s Opp. to Def.’s Mot. to Dismiss at 7 (“Email and fax
have frequently been approved to effectuate service pursuant to
Rule 4(f)(3).”); id. at 8 (“Another common method of service
pursuant to Rule 4(f)(3) is service on a defendant’s United
States-based attorney.”). Yet in addressing Freedom Watch’s
request that the court “permit alternative methods for service of
process pursuant to Rule 4(f)(3),” the district court appeared to
focus solely on the initial two methods. Freedom Watch, 288
F.R.D. at 233 (citing page in Freedom Watch’s opposition in
which it proposed service via email and fax, but not page in
which it proposed service through counsel). Recognizing that
the plaintiff in Prewitt had made “identical arguments”
concerning those two methods, the court saw no reason “to stray
                               12

from Prewitt’s reasoning here.” Id. (citing Prewitt, 353 F.3d at
928).

     We perceive no basis for disturbing that conclusion. The
plaintiff in Prewitt did suggest that service could be effectuated
on OPEC via the alternative means of email and fax. 353 F.3d
at 927. The Eleventh Circuit rejected those arguments, noting
that the Advisory Committee Notes for Rule 4(f)(3) state that
“‘an earnest effort should be made to devise a method of
communication that is consistent with due process and
minimizes offense to foreign law.’” 353 F.3d at 927 (emphases
added by the Eleventh Circuit). In the view of the Eleventh
Circuit, service on OPEC via email or fax, without OPEC’s
consent and in violation of the OPEC Headquarters Agreement,
“would constitute a substantial affront to Austrian law.” Id. As
a result, “the district court did not abuse its discretion in
denying Prewitt’s motion to authorize alternative means of
service.” Id. at 928. The district court here, while engaging in
no extended discussion of the matter, considered Freedom
Watch’s request for service on OPEC via email and fax and
rejected it for the reasons set forth in Prewitt. We see no abuse
of discretion in that ruling.

     We reach a contrary conclusion concerning the district
court’s consideration of Freedom Watch’s third proposed
method: service through OPEC’s United States counsel, the law
firm of White & Case. As the district court noted, Prewitt gave
no consideration to that alternative means. The district court
examined it under the criteria set out in Rule 4(h)(1), making no
reference to Rule 4(f)(3) in its analysis. The former provision
allows for service of process on an unincorporated association
in the United States “by delivering a copy of the summons and
of the complaint to an officer, a managing or general agent, or
any other agent authorized by appointment or by law to receive
service.” Fed. R. Civ. P. 4(h)(1)(B). The district court ruled
that OPEC “could not have been validly served through its
                              13

counsel” under Rule 4(h)(1). The court reasoned that White &
Case had not been “authorized by appointment or by law to
receive service on [OPEC’s] behalf,” and also observed that
Freedom Watch had not filed proof of service on OPEC’s
attorneys. Freedom Watch, 288 F.R.D. at 233 (citing Williams
v. GEICO Corp., 792 F. Supp. 2d 58, 65 (D.D.C. 2011)); see
Williams, 792 F. Supp. 2d at 65 (“Delivering a summons and
complaint to a corporate representative who is not an officer, a
managing or general agent, or an agent authorized to accept
service fails to satisfy the requirements of Rule 4(h)[(1)].”).

     Although there is no basis for questioning the district
court’s conclusion as a matter of interpreting Rule 4(h)(1),
Freedom Watch relied solely on Rule 4(f)(3)—not Rule
4(h)(1)—in seeking authorization to serve OPEC through its
United States counsel. And the district court’s stated reasons
for rejecting service through counsel would not preclude
authorization of such service under Rule 4(f)(3). The
requirements of Rule 4(h)(1) do not carry over to Rule 4(f)(3).
A number of courts thus have sanctioned service on United
States counsel as an alternative means of service under Rule
4(f)(3) without requiring any specific authorization by the
defendant for the recipient to accept service on its behalf. See
U.S. Commodity Futures Trading Comm’n v. Aliaga, 272
F.R.D. 617, 619-20 (S.D. Fla. 2011) (authorizing service on
foreign defendants through local counsel who stated that “he is
not authorized to accept service of process on behalf of either
defendant”); In re Potash Antitrust Litig., 667 F. Supp. 2d 907,
931-32 (N.D. Ill. 2009) (permitting substituted service on U.S.
attorneys retained by Russian defendants without requiring
specific authorization); LG Elecs., Inc. v. ASKO Appliances,
Inc., No. 08-828 (JAP), 2009 WL 1811098, at *4 (D. Del. June
23, 2009) (similar); RSM Prod. Corp. v. Fridman, No. 06 CIV.
11512(DLC), 2007 WL 2295907, at *1-6 (S.D.N.Y. Aug. 10,
2007) (similar); Brookshire Bros. v. Chiquita Brands Int’l, No.
                               14

05-CIV-21962, 2007 WL 1577771, at *2 (S.D. Fla. May 31,
2007) (similar).

     Additionally, while the district court relied on Freedom
Watch’s failure to file proof of service on OPEC’s attorneys, the
absence of proof of service poses no inflexible barrier to the
prospective authorization of such service under Rule 4(f)(3). As
a general matter, “[f]ailure to prove service does not affect the
validity of service. The court may permit proof of service to be
amended.” Fed. R. Civ. P. 4(l)(3). Freedom Watch, moreover,
volunteered to re-serve OPEC through any of the methods it
proposed in its brief. Courts disagree on whether alternative
means of service undertaken without court order may be
authorized retroactively under Rule 4(f)(3).            Compare
Brockmeyer, 383 F.3d at 806 (Under Rule 4(f)(3), plaintiffs
“must obtain prior court approval for the alternative method.”),
with Marks v. Alfa Grp., 615 F. Supp. 2d 375, 379-80 (E.D. Pa.
2009) (retroactively authorizing plaintiffs’ attempted service via
FedEx). Here, in light of Freedom Watch’s failure to file proof
of service on OPEC’s counsel, there was no reason for the
district court to authorize such service retroactively. But as a
prospective matter, the district court presumably could have
elected to grant Freedom Watch’s Rule 4(f)(3) request by
ordering service on White & Case within a specified time period
and requiring proof of that subsequent service. See Kaplan v.
Hezbollah, 715 F. Supp. 2d 165, 167 (D.D.C. 2010) (refusing to
authorize previous attempt at service retroactively, but
authorizing prospective service via publication); see also Fed.
R. Civ. P. 4(m) (120-day time limit for service of process “does
not apply to service in a foreign country under Rule 4(f)”).

     The district court’s apparent consideration of service
through OPEC’s United States counsel under Rule 4(h)(1)—in
lieu of Rule 4(f)(3)—is understandable: it was fully in keeping
with OPEC’s approach to the issue. OPEC treated Freedom
Watch’s service-through-counsel argument as entirely distinct
                               15

from Freedom Watch’s request for Rule 4(f)(3) authorization.
And when it addressed the counsel argument, OPEC focused
exclusively on Rule 4(h)(1) and cases interpreting that provision.
The district court understandably followed suit. Nonetheless,
because Freedom Watch specifically relied on Rule 4(f)(3), and
because the district court invoked Rule 4(h)(1) instead of its
discretionary authority under Rule 4(f)(3) in rejecting Freedom
Watch’s request, we remand to enable the district court to
exercise its discretion under the latter provision. See Avocados
Plus Inc. v. Veneman, 370 F.3d 1243, 1250 (D.C. Cir. 2004) (on
review for abuse of discretion, remanding for the district court
to exercise its discretion when it was “not so clear” that “the
district court thought it had discretion”).

     On remand, the district court retains discretion under Rule
4(f)(3) to authorize service even if the alternative means would
contravene foreign law. See Rio Props., 284 F.3d at 1014 (“[A]s
long as court-directed and not prohibited by an international
agreement, service of process ordered under Rule 4(f)(3) may be
accomplished in contravention of the laws of the foreign
country.”); cf. Prewitt, 353 F.3d at 928 n.21. In contrast to the
Advisory Committee Notes for Rule 4(f)(2), which state that
“[s]ervice by methods that would violate foreign law is not
generally authorized,” the Rule 4(f)(3) Advisory Notes state
only that “an earnest effort should be made to devise a method
of communication that is consistent with due process and
minimizes offense to foreign law.” Fed. R. Civ. P. 4 Notes of
Advisory Comm. on Rules – 1993 Amendments (emphasis
added). Accordingly, even if service cannot be effectuated on
OPEC through United States counsel without violating Austrian
law, the district court could still authorize such service if it
would “minimize” offense to Austrian law. And while Rule
4(f)(3) addresses service only “at a place not within any judicial
district of the United States,” Fed. R. Civ. P. 4(f), arguably,
when a court orders service on a foreign entity through its
counsel in the United States, the attorney functions as a
                               16

mechanism to transmit the service to its intended recipient
abroad. The parties do not address that issue and we have no
occasion to resolve it.

     Our decision to remand should not be mistaken for
agreement with Freedom Watch that the district court must
authorize some method of serving process on OPEC as a matter
of due process, public policy, or enforcement of United States
antitrust law. Freedom Watch identifies no authority obligating
a district court to authorize an alternative method of service
under Rule 4(f)(3) when there is no other available method to
serve the defendant without its consent. Indeed, this court has
made clear that, insofar as the formal requirements of service of
process give rise to a “loophole” enabling a defendant to evade
service of process, “the legislature can, of course, remove it by
amending [the statute] to provide an alternative method of
service.” Gorman v. Ameritrade Holding Corp., 293 F.3d 506,
516 (D.C. Cir. 2002) (emphasis added). But the district court
must at least exercise its discretion under Rule 4(f)(3), which it
can now do on remand.

                         * * * * *

      For the foregoing reasons, we vacate the district court’s
order of dismissal and remand for further proceedings consistent
with this opinion. Freedom Watch also raises arguments entirely
unrelated to OPEC’s service-of-process objections. Those
arguments are not properly before this court at this time. The
district court established a bifurcated briefing schedule under
which OPEC initially submitted a motion to dismiss addressing
only service of process. If the district court authorizes
alternative service of process on remand, briefing on OPEC’s
other defenses may properly proceed in the district court in the
first instance. See Doe v. DiGenova, 779 F.2d 74, 89 (D.C. Cir.
1985) (“When the issue has, through no fault of the parties, not
                              17

been briefed or argued in any forum, the appropriate disposition
is typically to remand the case to the district court.”).

                                                    So ordered.
     WILKINS, Circuit Judge, concurring in part and dissenting
in part: With one exception, I join the Court’s fine explication
and application of Rule 4. I concur that the service attempted
by Freedom Watch was defective.

     But I part ways with the Court in its remand ordering the
District Court to exercise its discretion under Rule 4(f)(3)
with respect to the prospective authorization of service
through counsel. See Fed. R. Civ. P. 4(f)(3). In my view,
Freedom Watch did not invoke the exercise of that discretion
in the District Court proceedings and so no question about it
is properly before the Court here.

     Under the governing rules of civil procedure, such
alternative service is available “as the court orders,” id., and
“[a] request for a court order must be made by motion.” Fed.
R. Civ. P. 7(b)(1) (emphasis added). As is apparent from the
record and as its counsel conceded at oral argument, Oral Arg.
Tr. at 5-6, Freedom Watch did not file a motion with the
District Court on fashioning prospective authorization,
pursuant to Rule 4(f)(3), for service on counsel in the United
States. Freedom Watch did not even explicitly raise the issue
in its opening brief to this Court. I disagree with the Court
that the District Court ruled on a deemed motion for
prospective authorization of service under Rule 4(f)(3)
through one paragraph of the opinion on the motion to
dismiss. To the extent that question is debatable, I would
resolve the uncertainty by assuming, particularly where the
plaintiff was represented by counsel, that the District Court
did not deem something a motion where no motion was made
in a form that complies with the rules. See Fed. R. Civ. P.
7(b)(1) (“The motion must: (A) be in writing unless made
during a hearing or trial; (B) state with particularity the
grounds for seeking the order; and (C) state the relief
sought.”); Benoit v. U.S. Dep’t of Agric., 608 F.3d 17, 21
(D.C. Cir. 2010) (holding that a suggestion in opposition to a
motion to dismiss does not constitute a motion). I do not
                               2
believe we should conclude that once the District Court
considered some of the plaintiff’s improperly raised
arguments, it was an abuse of discretion not to consider all of
the improperly raised arguments. Such an approach validates
the adage that “no good deed goes unpunished.” More
importantly, it threatens to encourage indifference to the rules
and to hinder district courts in their work securing the “just,
speedy, and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1.

     The problem with Freedom Watch’s mode of litigating is
reflected in its opening brief, where it maintains that “OPEC
was properly served,” and alternatively, that “the Court
[should] remand this case with instructions to the lower court
to determine and devise the method for Plaintiff to effectuate
service of process upon Defendant through an alternative
method of service, to alleviate any uncertainty.” Appellant Br.
28 (emphasis added). Freedom Watch actually asked us to
order the District Court to “determine and devise” how the
Defendant can be effectively served. In our adversarial
system, litigation does not proceed along such lines. Instead,
Freedom Watch must identify for itself the appropriate course
of action, file a motion seeking its favored relief, and allow
the other side to respond. Only that way does the trial court
have an explicit request and a reasonably developed record
upon which to base a ruling. Freedom Watch’s litigation
approach is even more inexcusable given that (as OPEC
pointed out to the District Court) this is its second federal
lawsuit against OPEC and its second try at correctly
effectuating service. See Order, Freedom Watch, Inc. v.
OPEC, 08-21630-CIV (S.D. Fla. Dec. 19, 2008), J.A. 586-87.

    The ruling on appeal decided OPEC’s motion to dismiss,
which the District Court granted without prejudice to refiling.
Even without this appeal, Freedom Watch was free to refile
                              3
the case and properly move the District Court for alternative
service under Rule 4(f)(3). To the parties, this may be a
distinction without a difference (except for the filing fee).
But appeals involve rights to review of specific decisions in
the court below; they are not lifelines for lawyers to ask an
appellate bench for help charting a path across the seas of
civil procedure—even when traversing rough waters such as
these in seeking to serve an international organization with
headquarters in a foreign country.

     This Court has previously stated that insufficiency of
service of process warrants dismissal without prejudice. See
Simpkins v. Dist. of Columbia Gov’t, 108 F.3d 366, 369 (D.C.
Cir. 1997). Where, as here, a plaintiff has not raised any
special circumstances of the dismissal that would have
prevented filing of a new lawsuit, this Court “cannot regard
the dismissal as an abuse of discretion.” Ciralsky v. CIA, 355
F.3d 661, 671 (D.C. Cir. 2004) (reviewing dismissal of case
without prejudice under abuse of discretion standard).

    I would stop there and simply affirm.
