RICO’s Nationwide Service-of-Process Rule Does Not Extend Overseas, Holds Eleventh Circuit

In Don’t Look Media LLC v. Fly Victor Ltd., No. 20-10779 (11th Cir. June 4, 2021), the panel affirms dismissal of a case on personal jurisdiction grounds, holding that attempted service of a defendant in London did not satisfy RICO’s nationwide service-of-process rule, 18 U.S.C. § 1965.

A contract to operate a commercial website unraveled. Plaintiff Don’t Look Media (DLM) claimed that defendants “collaborated prior to and during the drafting of the RSA [Revenue Sharing Agreement] for purposes of defrauding [DLM] as these [d]efendants had no intention of Fly Victor honoring any of its obligations under the RSA.” The RSA between the parties, plaintiff alleged, constituted a “fraudulent inducement.” The contract provided that it “shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English Courts.”

DLM filed suit in the Southern District of Florida, alleging civil RICO and state law claims, and later “amended its complaint to allege personal jurisdiction based on RICO’s nationwide service of process provision.” Defendant “Fly Victor’s Miami-based legal counsel informed DLM that it was not authorized to accept service on behalf of any defendant, so DLM hired a process service firm to serve the defendants in England. The firm served Fly Victor [and other defendants] at Fly Victor’s London office.”

“The district court granted the motion to dismiss on personal jurisdiction and forum selection clause grounds. The court held that while RICO provided for personal jurisdiction based on nationwide service of process, DLM had failed to state a colorable RICO claim and therefore could not take advantage of this provision … The district court further held that the RSA’s forum selection clause was mandatory and required dismissal. Accordingly, the court dismissed the entire action without prejudice.”

The Eleventh Circuit affirms. The panel skips the merits ruling on RICO and holds instead that service overseas did not satisfy section 1965.

“The problem in this case is that RICO does not provide for personal jurisdiction because DLM did not serve any party ‘according to’ RICO’s nationwide service of process provision.” That subsection provides that “process in any action or proceeding under [RICO] may be served on any person in any judicial district in which such person resides, is found, has an agent, or transacts his affairs.”

Here, “DLM did not serve any defendant in any United States judicial district. To the extent it served the Individual Defendants (the only ones named in the RICO counts) at all, it did so in London, England. Section 1965(d)’s authorization of service in any judicial district plainly does not authorize service outside the United States …. Thus, the nationwide service of process provision in RICO cannot provide for personal jurisdiction in this case.”

DLM argued that defense counsel waived objection to personal jurisdiction by agreeing (in an email) not to contest service of process. But “[d]efense counsel’s email waived, at most, the ability to argue that DLM’s method of serving the defendants — leaving a bundle of documents for several defendants at Fly Victor’s London reception desk — was insufficient. It did not waive the right to challenge personal jurisdiction. Personal jurisdiction and proper service are distinct requirements and distinct objections,” citing Fed. R. Civ. P. 4(d)(5) and Fed R. Civ. P. 12(b)(2), (5).

“Defense counsel’s representations about insufficient service did not relieve DLM of its obligation to comply with the statutory prerequisites of the jurisdiction conferring provision on which it now relies; that is, it was required to serve the Individual Defendants within the United States. Nothing obligated DLM to accept the defendants’ invitation to cease its efforts to serve them, efforts DLM should have known would be central to the RICO-based personal jurisdiction claim it would bear the burden of proving. Nor did defense counsel’s waiver of the right to contest the service method amount to an affirmative agreement to accept service in the United States on the defendants’ behalf. Indeed, the only record communication regarding acceptance of service is an email from defense counsel (before the insufficient service waiver) informing DLM’s attorney that his firm ‘ha[d] not been authorized to accept service on behalf of any Defendant.’”

Additionally, the court enforced the choice-of-venue clause requiring that the claims be filed in the UK.

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