According to a decision by the U.S. Court of Appeals for the Eleventh Circuit (Prewitt Enterprises, Inc. v. Organization of Petroleum Exporting Countries, 11th Cir., No. 03-11580, 12/18/03), there are no means available under the Federal Rules of Civil Procedure ("FRCP") to serve the Austrian headquarters of the Organization of the Petroleum Exporting Countries ("OPEC") with a complaint of illegal price fixing, absent the consent of OPEC. In Prewitt, the court found that the lower court correctly held it lacked jurisdiction over such a case because service of process on OPEC was ineffective and alternative service of process was impossible without OPEC's consent. Hence, Judge Rosemary Barkett upheld the dismissal of a complaint filed against OPEC pursuant to Section 1 of the Sherman Act.
The complaint was filed by Prewitt Enterprises, Inc. ("Prewitt"), an Alabama corporation that buys gasoline and other refined petroleum products for resale at its gasoline service station in Birmingham, Ala. Prewitt sought to represent all persons or entities who had indirectly purchased petroleum or petroleum products from OPEC in the United States since 1999. The complaint accused OPEC of coordinating an international conspiracy to limit the production and export of petroleum in order to fix prices at a supracompetitive level. The alleged conspirators were OPEC, its member states (Algeria, Indonesia, Iran, Iraq, Kuwait, Libya, Nigeria, Qatar, Saudi Arabia, the United Arab Emirates, and Venezuela), and four non- OPEC members (Norway, Mexico, the Russian Federation, and Oman).
At Prewitt's request, the district court sent a copy of the summons and complaint to OPEC at its headquarters in Vienna by international registered mail, return receipt requested. OPEC officials in Vienna ignored the mailing until the district court entered a default judgment and an injunction barring enforcement of the price fixing agreement for a period of 12 months. OPEC then appeared and filed a motion to set aside the default judgment. After the district court granted this motion, OPEC filed another motion seeking dismissal of the complaint on various grounds, including insufficient service of process. The district court initially dismissed the case without prejudice, based on a finding that Prewitt had failed to serve OPEC properly under the FRCP. The court then denied a motion for alternative means of service because it found that OPEC could not be effectively served with the complaint in this case under the FRCP.
In affirming the lower court's decision, the court of appeals ruled that the attempted service of OPEC by registered mail at its Vienna headquarters was ineffective. Although FRCP 4(f)(C)(ii) authorizes service by registered mail if it is not prohibited by foreign law, the court determined that vehicle was ineffective in this case because Austrian law expressly prohibits all service of process on OPEC at its headquarters unless the Secretary General consents. OPEC's consent to service by mail is required by the Austrian/OPEC Headquarters Agreement, which has been codified into law by resolution of the Austrian Parliament. The fact that OPEC had actual notice of the filing of the suit is irrelevant.
The court also found that service by registered mail was not authorized by FRCP 4(f)(2)(A), which permits service "in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction." Prewitt was relying on provisions in Austrian law that related to service by Austrian courts on persons in Austria and abroad, but these provisions were trumped by §11(2) and §12(1) of the Austrian Service Act, which specifically address service from authorities abroad. The Austrian Service Act requires mediation by the Federal Ministry for Foreign Affairs to effectuate service. If service had gone to the Austrian Federal Ministry of Foreign Affairs, the court assumes that the Ministry would have applied the laws of its own country and obeyed the dictates of the Austrian/OPEC Headquarters Agreement prohibiting service without OPEC's consent.
The court of appeals also declined to construe FRCP 4(f)(3) as giving the district court discretion to effect service. Rule 4(f)(3), which authorizes a district court to effect service not otherwise prohibited by international agreement, cannot save service that is specifically prohibited under Rule 4(f)(2).
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