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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JANE DOE , et al., Plaintiffs, Civ. 93-0878 PXL v. RADOVAN KARADZIC, Defendant. PLAINTIFF'S SUR-REPLY BRIEF IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS BEFORE ANSWER BETH STEPHENS MATTHEW J. CHACHERE JENNIFER GREEN PETER WEISS MICHAEL RATNER JULES LOBEL RAYMOND H. BRESCIA CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 212-614 -6464 Local Rule 1: MC-2653 RHONDA COPELON CELINA ROMANY INTERNATIONAL WOMEN'S HUMAN RIGHTS CLINIC CUNY Law School 65-21 Main Street Flushing, New York 11367 718-575-4329 JUDITH LEVIN INTERNATIONAL LEAGUE FOR HUMAN RIGHTS 432 Park Avenue South New York, NY 10016 212-684-1221 Dated: October 18, 1993
Plaintiffs seek leave to file this Sur-Reply Brief in order to respond to new factual allegation" and legal issues raised by Defendant in his Reply Brief. As explained below, the new material proffered by the Defendant concerning service of process confirms the validity of service in this case. In addition, Defendant's new arguments concerning his assertion of immunity clarify that he lacks any legal authority for his novel claim and further undermine his policy argument.
As part of his Reply papers on his Motion to Dismiss, Defendant for the first time offers evidence as to the events surrounding service of process in this lawsuit. Defendant has submitted the Affidavit of Roy Diebler, a State Department security officer, who recounts what he recalls of the moment seven months ago in which Plaintiffs' process server approached Defendant.
Defendant offers no legal analysis of this affidavit. Rather than supporting Defendant's claim that he was not properly served, Agent Diebler's affidavit also demonstrates the validity of service of process in this case. While Agent Diebler's version of the events surrounding service differs from that sworn to by Plaintiffs' process server and an associate who was present with him at the time (see February 12, 1993, Affidavits of Jonathan Soroko and John Schuler, filed as attachments to Plaintiffs' Memorandum of Points and Authorities in Opposition to Defendant's Motion to Dismiss Before Answer thereinafter, Pltfs. Memo.]), service was adequate under either version of the events.
Agent Diebler states that at approximately 8:00 p.m. on February 11, 1993, as the Defendant and his security detail crossed the hotel lobby, a man approached the Defendant (,& lO) and removed papers from his Jacket (& 11). Mr. Diebler, who was standing four feet fron the Defendant, batted the man's hand away (&& 11,13) and began to move away with the Defendant (&10). The man then shouted Awords to the effect, 'You've been served. You've been served.=" &12. Mr. Diebler was with the Defendant at the time, and heard those word.--or Awords to [that] effect."& 12
Defendant's version of the events surrounding service thus corroborates Plaintiffs' process server's sworn allegation that the legal papers were tendered to the Defendant by the process server and that the Defendant was told that he had been served. This is sufricient to meet the requirement of personal service set forth in New York C.P.L.R. S 308(1). As discussed at length in Plaintiffs' prior brief, it is not necessary that a defendant physically receive the papers. See Pltfs. Memo. at 17-19 and cases cited. As set forth therein, the papers must be "tendered" to the defendant; service is valid even if he or she then walks away without taking physical possession of the documents. Indeed, when "exigent circumstances" make physical delivery to the defendant impossible, delivery to a third party in the presence of the person to be served satisfies the statute. See Epsy v. Giorlando, 85 A.D.2d 652-53, 445 N.Y.S.2d 230, 231 (1981), affd. 56 N.Y.2d 640, 445 N.Y.S.2d 786 ("delivery to a person who is in the proximity and view of the person to be served, together with attendant exigent circumstances"); Selby v. Jewish Memorial Hosp. , 130 A.D.2d 651, 515 N.Y.S.2d 580, 581 (1987).
In McDonald v. Ames Supply Co. , 22 N.Y.2d 111, 291 N.Y.S.2d 328, 331 (1968), the Court held that it is sufficient that the process server act reasonably and with "due diligence" to effect service. The McDonald Court reviewed a series of Cases in which process was adequate even though the defendants did not physically receive the papers:
In all of these cases, the process server has acted reasonably and diligently in attempting to fulfill the statutory mandate and under circumstances bringing the question process within the purview of the person to be served.
McDonald at 332 (emphasis added). Here, even as Agent Diebler remembere the events, Plaintiffs' process server approached the Defendant and his sizable security detail and "tendered" the legal papers to him. He stated "You've been served," or words to that effect, in a voice audible to Agent Diebler, who was standing next to the Defendant. The Defendant then hurried away. Faced with the difficult task of serving a man surrounded by security officials, the process server couplied with his obligation to act "reasonably and diligently" to meet the requirements of personal service. Just as clearly, his efforts brought the process "within the purview" of Defendant. That Defendant chose to leave the scene at that point is not relevant to the adequacy of service.
The sole new argument presented by Defendant on his immunity claim is difficult to decipher: he apparently argues that public safety considerations weigh against allowing service on people surrounded by security personnel. How he would distinguish his case from that of a common criminal who happened to employ armed guards is not clear. Obviously, public policy militates in favor of making it easier, not harder, to serve people surrounded by guards, so as to eliminate their incentive to block service, possibly endangering bystanders in the process.
Defendant now appears to concede that his claimed immunity has no basis in statute or prior case law. With supreme arrogance, he asks this Court to create an entirely new category of immunity based on a policy determination that Kadovan Karadzic's presence in New York was necessary to enable the United Nations to meet its most important obligation, "to eliminate the scourge of war." His argument serves as a warning of the complexities of such policy decisions. In fact, the failed U.N. negotiations in which he has participated have come to symbolize the inability of the United Nations to end the "scourge" of war, and the importance of other remedies. The balance between negotiations, criminal prosecutions and private legal actions is indeed a delicate one. Representatives of the United States and the United Nations chose to leave open the possibility of private actions in exactly this situation, when they agreed that the Jurisdiction of U.S. law would be limited only in certain narrow situations, none of them relevant here. This case demonstrates the wisdom of their decision, and the dangers of a case-by-case tinkering with the clearly delineated rules.
Defendant's submission does contain a startling new fact relevant to his claim that he was engaged solely in United Nations related business while he was in this Jurisdiction. Much to the chagrin of defense counsel (see Affidavit of Lawrence Shilling, submitted with Defendant's Reply Brief), Agent Diebler notea tbat Defendant Karadzic held several Afundraisers" while he was in New York. &18. In addition, the U.S. State Department has made available to counsel the "log" of the security detail assigned to Defendant while he was in New York. Those logs contain references to at least three "parties" at Defendant's hotel, in addition to the single "fundraiser" mentioned by Attorney Shilling in his affidavit.
Plaintiffs maintain that Defendant's activities were irrelevant to service: since he was physically present in this jurisdiction when served, service was proper under U.S. law. However, it is even clearer now that even if the Court were to engage in a minimum contacts analysis, Defendant's non-United Nations activities--at a minimum, press interviews, fundraisers, and parties--would be a sufficient basis for this Court'sJurisdiction. See Klinghoffer v. PLO, on remand, 795 F. Supp. 112, 114 (S . D. N. Y. 1992 ) .
For all of the above reasons, as well as these set forth in Plaintiffs' prior submission, Defendant's Motion to Dismiss Before Answer should be denied.Respectfully submitted
I hereby certify that I served a copy of Plaintiffs' Motion to Strike, or, in the Alternative, for Leave to File a Sur-Reply Brief; Declaration of Beth Stephens: and Sur-Reply Brief, by hand delivery messenger service to defendant's counsel at the following address:Lawrence W. Schilling
1.Plaintiffs do question, however, the reliability of Mr. Diebler's memory of the exact details of the service. His affidavit was signed on September 30, 1993, more than 7 months after the events at issue. It contains internal inconsistencies, and he himself acknowledges that he is relying on his best recollection, stating that some of the facts therein are "as memory recalls.. &13. In contrast, the Affidavits of Mr. Soroko and Mr. Schuler were written and signed on February 12, 1993 less than 24 hours after the events in question. Agent Diebler's affidavit, therefore, even if construed as not alleging sufficient service, could not, on its own, in light of Plaintiffs' evidence, support a dismissal for inadequate service.
2.Whether Defendant was 2 feet away when the words were spoken (as Mr. Soroko and his associate affirm) or further away (as Mr. Diebler remembers), is not determinative, given that the words were clearly audible to a man standing next to the Defendant. Further, Agent Diebler'c statement that Defendant Karadzic was unaware of the service (&16) is mere speculation, given that he also states that he and the Defendant did not discuss the service or the -flurry of activity. ourrounding it. && 14, 16. The assertion that tbe Defendant was unaware of the cause of that "flurry" is inherently incredible.
3.The difficulties encountered by the plaintiff in the related case of Radic v. Karadzic, 93 Civ. 1163 (PKL), demonstrate that service upon Defendant was extremely difficult. Service in that case was attempted after the successful service in the instant case. There, the plaintiff's process server concluded that she would not be able to approach the Defendant and obtained a court order permitting service on a State Department security agent.
4.Defendant Karadzic has yet to submit legally admissible evidence in support of his claim that he was unaware of service. Plaintiffs prior memorandum pointed out that Defendant's May 2, 1993 statement was neither notarized nor signed under penalty of perjury. Pltfs. Memo. at 17, n.16. Defendant now purports to "swear" to the accuracy of that statement, but continues to ignore the requirements of U.S. procedure, even though he was clearly put on notice of those requirements by Plaintiffs' prior submission. In fact, in his Response to Interrogatories in Kadic v. Karadzic, 93 Civ. 1163 (PKL), the Defendant stated that he refuses to swear under penalty of perjury under the lawa of the United States. See Exhibit A to Affldavit of Beth Stephens. He also apparently refuses to have his signature notarized or use any other form of authentication of his oath which would comply with the requirements of U.S. law. As a sanction for his continued refusal to abide by the rules of this Court, his Astatement" should be stricken.
5.In a sworn affidavit accompanying Defendant's Reply Brief, Defendant's attorney, Lawrence Shilling, stated that he had received the logs and would make them available on reguest. &1. When Plalntiffs' counsel contacted him to request a copy of the logs, he refused to provide them unless Plaintiffs signed a confidentiality agreement, despite the fact that the State Department had imposed no such reguirement and had already redacted the documents to protect the privacy of those named therein. Plaintiffs' counsel refused to sign the stipulation, and obtained the documents independently from the State Department. This process delayed preparation of this Sur-Reply Brief. Copies of the relevant pages of the logs are attached as Exhibit B to the Affidavit of Beth Stephens.