Exporter Says US Relies on Other Circuits' Case Law in Opposing Mandamus Bid at CAFC
The U.S. brief opposing exporter Koehler Oberkirch GmbH's petition for mandamus relief on the question of whether the government properly served the exporter relies on "case law of other circuits" and not the U.S. Court of Appeals for the Federal Circuit, Koehler argued. Filing a response brief on Nov. 12, the exporter said the "law of other jurisdictions does not determine legal error or a clear abuse of discretion in this Circuit" (In Re Koehler Oberkirch GmbH, Fed. Cir. # 25-106).
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The issue arose from the government's customs penalty suit against Koehler, which alleged that the company failed to pay over $193 million in antidumping duties with interest on thermal paper entries from 2009 to 2011. After a failed attempt to serve the exporter through a German court under the Hague Convention, the U.S. served Koehler on its U.S. counsel.
The Court of International Trade allowed the move, later rejecting Koehler's attempt to certify the decision for interlocutory appeal (see 2408210016 and 2410100018). The trade court said if service couldn't be conducted through Koehler's U.S. counsel, it could be carried out through other means.
Koehler filed a petition for writ of mandamus, arguing that the issue of whether service can be carried out through a defendant's U.S. counsel is undecided in this circuit. The U.S. responded, contesting the points made by the exporter, by arguing, in part, that CAFC panels have "routinely denied petitions for writs of mandamus seeking vacatur of orders entered under Fed. R. Civ. P. 4(f)(3)" (see 2411070012).
Koehler filed a response to address two points made by the government, the first of which concerned CAFC case law. While the U.S. said CAFC has previously said that alternative service on a foreign defendant through its U.S. counsel is allowed, the government cited other circuits' case law. For instance, a 2010 CAFC case relied on by the U.S. "ordered service against a foreign defendant’s wholly-owned domestic subsidiary" under the case law of the U.S. Court of Appeals for the 9th Circuit, the brief said.
However, a "request for service on a defendant’s U.S. counsel who is not authorized to accept service of process is an entirely different matter," Koehler said. None of the CAFC cases cited by the U.S. "dealt with an express request from a foreign official such as occurred here," which specifically stated that the U.S. should conduct service through diplomatic channels, the brief said.
The U.S. also said Koehler would only be forced to expend "unnecessary costs" if it got the requested mandamus relief. In response, the exporter argued that this claim entirely ignores its argument that the trade court doesn't have personal jurisdiction over the company without proper service.
The government "relies on the CIT’s erroneous finding that Petitioners somehow conceded that the Government would 'eventually succeed in serving [Petitioners],'" the brief said. This finding was only based on Koehler's admission that it's not evading service. The argument that Koehler hasn't improperly evaded service "does not equate to a concession that service is unnecessary," the brief said.
Koehler added that under this logic, "there would be no requirement to serve any defendant in any lawsuit so long as the defendant was locatable. The rules for service are not meaningless, nor is the necessity for personal jurisdiction worthless of mandamus review."