IN THE UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIAAlexandria DivisionUNITED STATES OF AMERICA,v.KIM DOTCOM, et al.,Defendants))))))))The Honorable Liam O’GradyCriminal No. 1:12-CR-3
SPECIALLY APPEARING DEFENDANT MEGAUPLOAD LIMITED’SREQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS RENEWED REQUESTFOR DISMISSAL OF THE SUPERSEDING INDICTMENT WITHOUT PREJUDICE
Specially appearing Defendant Megaupload Limited (“Megaupload”) respectfullyrequests that the Court take judicial notice pursuant to Federal Rule of Evidence 201 of a letter the United States Department of Justice has submitted to the Advisory Committee on theCriminal Rules, recommending amendments to Rule 4 of the Federal Rules of CriminalProcedure “to permit the effective service of a summons on a foreign organization that has noagent or principal place of business within the United States.” (
See
Letter from AssistantAttorney General Lanny Breuer to the Honorable Reena Raggi, Chair, Advisory Committee onthe Criminal Rules, dated October 25, 2012, a true and correct copy of which is attached asExhibit 1.) Specifically, the Government asks the Advisory Committee to “remove therequirement that a copy of the summons be sent to the organization’s last known mailing addresswithin the district or principal place of business within the United States,” and to amend the Ruleto “provide the means to serve a summons upon an organization located outside the UnitedStates.” (
Id.
) In doing so, the Government implicitly acknowledges the force of what
Case 1:12-cr-00003-LO Document 171 Filed 04/18/13 Page 1 of 10 PageID# 2227
- 2 -Megaupload has contended all along—namely, that the Government
cannot
properly serveMegaupload, a Hong Kong corporation with no U.S. agent or office, under the
existing
Rule.The letter is therefore directly relevant to the Court’s consideration of Megaupload’s pendingrequest for dismissal of the Superseding Indictment. (
E.g.
, Dkt. 146.)
BACKGROUND
On July 3, 2012, Megaupload moved to dismiss the Superseding Indictment for lack of personal jurisdiction, based on the Government’s failure to serve Megaupload with a criminalsummons. (Dkt. 114.) As set forth in Megaupload’s motion, Federal Rule of CriminalProcedure 4 provides that:A summons is served on an organization by delivering a copy to an officer, to amanaging or general agent, or to another agent appointed or legally authorized toreceive service of process. A copy
must also
be mailed to the organization’s lastknown address within the district or to its principal place of business elsewhere inthe United States.F
ED
.
R.
C
RIM
.
P. 4(c)(3)(C) (emphasis added). Megaupload argued that the Government cannotserve the corporate defendant consistent with Rule 4, because Megaupload does not have anoffice in the United States, nor has it had one previously. “Service of a criminal summons onMegaupload is therefore impossible, which forecloses the Government from prosecutingMegaupload.” (Dkt. 115 at 6.)The Court issued its Order on Megaupload’s motion to dismiss on October 9, 2012. (Dkt.127.) In its Order, the Court noted that “[t]he government has not served, nor has it attempted toserve, the corporate Defendant.” (
Id.
at 2 n.3.) The Court nonetheless denied Megaupload’smotion without prejudice, reasoning that “the government may be able to prove that at least oneof the individually named defendants is an alter ego of the corporate parent” and that, if it does,the government will be able to serve Megaupload, via that alter ego, once the individual is
Case 1:12-cr-00003-LO Document 171 Filed 04/18/13 Page 2 of 10 PageID# 2228
- 3 -extradited to the United States. (
Id.
at 4-5.) While the Court acknowledged “that the individualDefendants may never be extradited,” (Dkt. 127 at 5 n.6), it left open the question of whether Megaupload has been denied due process by the Government’s delay in attempting service of process and whether the Superseding Indictment should be dismissed until such time as theindividual Defendants are extradited (if ever) and any alter-ego analysis can be conducted. (
Seeid.
at 2 n.3.)On November 19, 2012, Megaupload renewed its request for dismissal of theSuperseding Indictment without prejudice, asking that the case be dismissed “until such time asthe Government is able to serve Megaupload with a criminal summons in accordance withFederal Rule of Criminal Procedure 4.” (Dkt. 146 at 1.) The Government filed an opposition onJanuary 13, 2013. (Dkt. 159.) Among other things, the Government argued that, even if theindividuals are never extradited to the United States, the Government can simply ignore Rule 4’srequirement that the summons be mailed to Megaupload’s “last known address within the districtor to its principal place of business elsewhere in the United States” and instead mail it to analternate destination. (
See
Dkt. 159 at 3-4 (suggesting that the Government could mail thesummons to the Commonwealth of Virginia’s State Corporation Commission; or to thewarehouse of third party vendor Carpathia Hosting; or to other third parties).) Previously, theGovernment had even suggested that Rule 4’s mailing requirement is merely hortatory, and that“[s]ervice of process in the corporate context . . . is complete upon delivering the summons to anofficer or agent” of the corporation. (Dkt. 117 at 9-10.)
1
1
In denying without prejudice Megaupload’s original motion to dismiss, the Court noted, in passing, the prospect that Rule 4’s mailing requirement, while mandatory, might bedifferentiated from its overall service requirement. (
See
Dkt. 127 at 1 n.1.) The Court, however,ultimately reserved any judgment about the matter.
Case 1:12-cr-00003-LO Document 171 Filed 04/18/13 Page 3 of 10 PageID# 2229
Activity (3)
Filters
