DC Court to serve summons to Rajapakse
[TamilNet, Wednesday, 09 February 2011, 01:38 GMT]
Attorney for the three Tamil plaintiffs who are suing Sri Lanka's President Rajapakse in the District of Columbia Federal court for monetary damages under US's Torture Victims Protection Act (TVPA) said in a press release issued Tuesday that he will be requesting the Clerk of the United States District Court to send summons by mail to Rajapakse's residence "Temple Trees" in Colombo 3. Civil procedure rules normally require a properly served defendant 21days to file an answer.
"On January 28, 2011, I filed a Torture Victims Protection Act suit against President Mahinda Rajapaksa in the United States District Court for the District of Columbia for extra-judicial killings of Tamil civilians perpetrated by the Sri Lankan Armed Forces under color of foreign law, sub nom. Manoharan et al v. Rajapaksa," the plaintiffs' attorney, Mr Fein, said in the release.
"The next step in the lawsuit entails service of the summons and complaint on President Rajapaksa. Three parallel procedures will be employed to effectuate service under Rule 4 of the Federal Rules of Civil Procedure. The Clerk of the United States District Court will send the summons and complaint by mail to the President Rajapaksa’s address at President’s House, Temple Trees, Colombo 3, Sri Lanka.
"In addition, I will attempt to make service under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. Lastly, I will seek an order from the District Court authorizing service of the summons and complaint on the Sri Lankan Embassy in Washington, D.C., which does not conflict with diplomatic immunities established in the Vienna Convention," Mr Fein said in the press release.
Federal Rules of Civil Procedure (FRCP), Rule-4 (f)(2)(C)(ii), authorizes the Court Clerk to address the summons to the defendant.
Meanwhile, legal sources in Colombo said, in Sri Lankan judicial system, the normal procedure to serve to a foreign defendant is to send the summons through the Sri Lanka's foreign office.
When, TamilNet queried about this possibility, Mr Fein said, that he would be communicating with the US Embassy in Colombo should Mr Rajapakse ignore D.C. Courts summons directed to his address in Colombo.
Legal sources also pointed out that in there is also precedent in the District Court of District of Columbia, in Mawani v. Osama Bin Laden, 417 f.3d 1, when foreign defendants avoid recognizing the service of process the court has granted plaintiffs leave to serve those defendants by "publishing...notice for six weeks in the Daily Washington Law Reporter,..."
The court would likely prefer to see more than one of the above avenues exhausted before allowing the plaintiffs to seek a default judgment, sources added.