MOSCOW, March 24 (RAPSI, Vladimir Yaduta) – U.S. District Court for the Southern District of New York granted a motion to allow Richard Fisher of Malibu to service a complaint on Moscow-based Petr Konchalovsky Foundation via email.

The court ruled that "service via email for a defendant residing in Russia may qualify as an alternative means of service under Rule 4(f)(3)."

Fisher turned to the federal court on December 17, 2015. He alleged that the foundation wrongfully declared the oil painting by Petr Konchalovsky he owned a fake.

On January 14, Fisher filed a motion seeking to serve the foundation through U.S. Postal Service. The court declined to grant Fisher's request. It noted that although Article 10 of the Convention authorizes service "by postal channels ... absent any objection by the country in which the defendant is located," Russia has objected to Article 10.

The motion was accompanied by an affidavit from John Pierceall, an attorney for Ancillary Legal Corporation, a company that serves international legal process.

Pierceall confirmed that the foundation has its principal place of business in Moscow. He further averred that Russia suspended all judicial cooperation with the United States in civil and commercial matters since July 2003. Russia does not effect service through its Central Authority, which is the method prescribed under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention), according to Pierceall.

The U.S. State Department warns in turn that “The Russian Federation refuses to serve letters of request from the United States for service of process presented under the terms of the 1965 Hague Service Convention or to execute letters rogatory requesting service of process transmitted via diplomatic channels. The Russian Federation also declines to give consideration to U.S. requests to obtain evidence.”

Russia opted to suspend judicial cooperation after the United States imposed a fee for all requests for service from any foreign country whether submitted under the Convention or via diplomatic channels. The fee was reportedly imposed to cover costs incurred by a private contractor hired by the U.S. Department of Justice to administer the service functions. The United States claim that fees are permitted under the Convention and charged by a number of countries that are party to the Convention.

As a result of Russia’s policy, litigants were advised to seek guidance regarding alternative methods of service.

Due to these complications, Fisher proposed serving the foundation by email. His counsel, David Steiner, submitted an affidavit confirming that Alexander Konov, the Director of the foundation, used email account for some work-related business earlier.

“It has been my experience that Russia is the only Hague Convention nation that refuses to serve documents for United States litigants based upon Russia’s reasoning that the U.S. is in breach of the treaty by charging fees,” Pierceall told RAPSI in an email. He added that China, Canada, Australia, Cyprus, Estonia and Greece charge fees as well.

Meanwhile, U.S. law allows Russian litigants to serve legal documents on persons in the United States outside of treaty procedures by using a private company such as Ancillary Legal Corporation. “No Russian lawyer has ever contacted us, however,” Pierceall said.

RAPSI reached Pamela Egan, partner at Rimon P.C. , for comment. An American federal judge has the power to authorize service by any means not prohibited by international agreement. The service also has to meet American notions of due process, which in the case of a complaint, means that the method of service has to be reasonably calculated to provide notice of the action and provide a reasonable opportunity to respond, according to Egan. “Thus, if the plaintiff presents evidence that the defendant uses the email, then the court may well authorize service by email. If on the other hand, there is no evidence that the Defendant actually uses the email address, then such service will not be allowed,” Egan said. “The availability of email - and the lack of any mention of email in the Hague Convention - threatens to render the Hague Convention obsolete,” she added.