                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
CHAIM KAPLAN, et al.,         )
                              )
          Plaintiffs,         )
                              )
          v.                  )      Civil Action No. 09-646 (RWR)
                              )
HEZBOLLAH, et al.,            )
                              )
          Defendants.         )
______________________________)


                         MEMORANDUM ORDER

     Plaintiffs attempted to serve defendant Hezbollah by sending

a summons and the complaint by DHL to Mohammed Fneish, a minister

in the Lebanese government and an alleged leader within

Hezbollah.   Fneish received the package on March 18, 2010.   On

April 12, 2010, plaintiffs filed an affidavit of default as to

Hezbollah, but the Clerk’s Office refused to enter default on the

grounds that under 28 U.S.C § 1608 Hezbollah had sixty days to

answer or otherwise respond to the complaint, and that those

sixty days had not yet elapsed.   On April 15, 2010, plaintiffs

filed an ex parte motion to direct the Clerk to enter default as

to defendant Hezbollah, arguing that 28 U.S.C. § 1608 does not

govern Hezbollah’s time to answer, that Hezbollah had been served

under Federal Rules of Civil Procedure 4(f)(2)(C)(ii) and

4(h)(2), and that the 21-day period to answer under Rule

12(a)(1)(A)(i) had expired.   Plaintiffs were ordered to
                                - 2 -

supplement their motion to explain the basis for asserting that

Fneish is an official of Hezbollah and a proper person upon whom

service may be made on behalf of Hezbollah.    On May 17, 2010,

plaintiffs filed a supplemental memorandum and motion stating

that they could not base service of Hezbollah on Rule

4(f)(2)(C)(ii), which does not allow foreign service by mail if

it is prohibited by the foreign country’s law, because they could

not state with certainty that service by DHL did not violate

Lebanese law.    Because plaintiffs concede that defendant

Hezbollah has not yet been served under Rule 4(f)(2)(C)(ii),

their motion to direct the Clerk to enter the default of

defendant Hezbollah will be denied.

     Plaintiffs instead moved for leave nunc pro tunc to serve

Hezbollah by serving Fneish by DHL under Rule 4(f)(3).    Rule

4(f)(3) provides for international service “by other means not

prohibited by international agreement, as the court orders.”

“The rule was ‘adopted in order to provide flexibility and

discretion to the federal courts in dealing with questions of

alternative methods of service of process in foreign

countries[.]’”    Smith v. Islamic Emirate of Afg., Nos. 01 CIV

10132 (HB), 01 CIV 10144 (HB), 2001 WL 1658211, at *2 (S.D.N.Y.

Dec. 26, 2001) (quoting In re Int’l Telemedia Assoc., Inc., 245

B.R. 713, 719 (Bankr. N.D. Ga. 2000)).    Several courts have

approved of service by publication upon al Qaeda under Rule
                                - 3 -

4(f)(3).    See Mwani v. bin Laden, 417 F.3d 1, 8 (D.C. Cir. 2005)

(approving service of Osama bin Laden and al Qaeda by publication

under Rule 4(f)(3)); Smith, 2001 WL 1658211, at *3-4 (allowing

service of bin Laden and al Qaeda by publication for six weeks in

four Afghani newspapers, one Pakistani newspaper, and five

broadcast networks).    Other service methods, such as service by

email, have also been approved under Rule 4(f)(3) in this

district.   See, e.g., Juniper Networks, Inc. v. Bhattab, Civil

Action No. 07-1771 (PLF), 2008 WL 250584, at *1-2 (D.D.C.

Jan. 30, 2008).

     Plaintiffs argue that serving Fneish by DHL is “infinitely

more certain to ensure that the defendant actually receives

notice of the action” than service by publication would be.

(Pl.’s Mot. for an Order Pursuant to Fed. R. Civ. P. 4(f)(3) and

Related Relief at 5.)   Plaintiffs have submitted with their

motion an affidavit of Yoram Schweitzer, the Director of

Terrorism and Low Intensity Warfare Project at Tel Aviv

University’s Institute for National Security Studies, in which he

opines that “it is simply inconceivable that Fneish would not

convey to the other leaders of Hezbollah an American court

summons addressed to Hezbollah and a civil complaint against

Hezbollah received by him.”   (Id., Decl. of Yoram Schweitzer

¶ 22.)
                               - 4 -

     Courts are divided as to whether service may be authorized

retroactively under Rule 4(f)(3).   Compare Export-Import Bank of

U.S. v. Asia Pulp & Paper Co., Ltd., No. 03Civ.8554 (LTS) (JCF),

2005 WL 1123755, at *4-5 (S.D.N.Y. May 11, 2005) (allowing

service under Rule 4(f)(3) nunc pro tunc) with Brockmeyer v. May,

383 F.3d 798, 805-06 (9th Cir. 2004) (refusing to allow service

under Rule 4(f)(3) on the ground that the rule requires

plaintiffs to obtain prior court approval for the alternative

method of service).   Marks v. Alfa Group, 615 F. Supp. 2d 375,

380 (E.D. Pa. 2009), authorized service nunc pro tunc by FedEx

under Rule 4(f)(3) after the defendant returned a signed receipt

acknowledging that it had received the summons.   Marks

distinguished Brockmeyer on the ground that the plaintiff in

Brockmeyer had placed the complaint and summons in ordinary

international first class mail and had not received a signed

receipt that would have signaled that the defendant had actual

notice of the suit.   Marks, 615 F. Supp. 2d at 380.

     Here, even though DHL’s tracking service confirmed that

Fneish received the shipment (see Pl.’s Aff. in Supp. of

Default), the plaintiffs have not filed on the docket any proof

that Fneish is authorized to accept service on behalf of

Hezbollah, or any receipt reflecting that Hezbollah as an

organization received the summons and complaint and has actual

notice of the suit.   Nor has an attorney representing Hezbollah
                                - 5 -

filed a notice of appearance on the docket.   Just as in

Brockmeyer, where there was no evidence that the defendants had

received actual notice of the suit, the plaintiffs here will not

be authorized nunc pro tunc to serve Hezbollah by only serving

Fneish by DHL.    Instead, plaintiffs will be authorized to serve

Hezbollah by including service by publication.   Since Lebanon is

not a party to the Convention on Service Abroad of Judicial and

Extrajudicial Documents in Civil and Commercial Matters, Nov. 15,

1965, 20 U.S.T. 361, T.I.A.S. No. 6638, the Inter-American

Convention on Letters Rogatory, Jan. 30, 1975, 14 I.L.M. 339

(reprinted following 28 U.S.C. § 1781), or Regulation (EC) No.

1393/2007 of October 12, 2003, O.J. (L 331), the combination of

service by DHL on Fneish and service by publication would not

appear to violate any international agreement regarding service

of process and is reasonably calibrated to achieve notice to

Hezbollah.    Accordingly, it is hereby

     ORDERED that plaintiffs’ ex parte motion [14] to direct the

Clerk to enter the default of defendant Hezbollah be, and hereby

is, DENIED.    It is further

     ORDERED that plaintiffs’ motion [16] for an Order pursuant

to Fed. R. Civ. P. 4(f)(3) be, and hereby is, GRANTED in part.

Plaintiffs are authorized to complete service upon Hezbollah

within 75 days by publishing full notice of the suit in the three

Lebanese newspapers with the largest national circulation twice
                              - 6 -

per week in each newspaper on a staggered schedule to cover six

days each week for a period of four weeks.    Plaintiffs shall file

proof of service upon defendant Hezbollah by publication within

75 days.

     SIGNED this 7th day of June, 2010.


                                      __________/s/_______________
                                      RICHARD W. ROBERTS
                                      United States District Judge
