Slip Op. 24- 

UNITED STATES COURT OF INTERNATIONAL TRADE

UNITED STATES, Plaintiff,

v. KOEHLER OBERKIRCH GMBH, f/k/a PAPIERFABRIK AUGUST KOEHLER SE, f/k/a PAPIERFABRIK AUGUST KOEHLER AG; and KOEHLER PAPER SE,

Defendants. Before: Gary S. Katzmann, Judge Court No. 24-00014

OPINION AND ORDER [ The court grants Plaintiff’s Motion for Alternative Service on Defendants.] Dated: August 21, 2024 Luke Mathers, Trial Attorney, U.S. Department of Justice, New York, N.Y, argued for Plaintiff United States. With him on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, Justin R. Miller, Attorney-in-Charge, International Trade Field Office, and Edward F. Kenny, Senior Trial Couns el. Of counsel were Sasha Khrebtukova, Attorney, and Br andon T. Rogers, Senior Attorney, Offices of the Assistant Chief Counsel, U.S. Customs and Border Protect ion, of New York, N.Y. and Indianapolis, IN. John F. Wood, Holland & Knight LLP, of Washi ngton, D.C., argued for Defendants Koehler Oberkirch GmbH and Koehler Paper SE. With him on the briefs were Andrew McAllister, Anna P. Hayes, and Stuart G. Nash. Katzmann, Judge: Defendants Koehler Oberki rch GmbH (“Koehler GmbH”) and Koehler Paper SE (“Koehler SE”) (collectively, “Koehler” or “Defendants”) are German manufacturers of lightweight thermal paper 1 that allegedly owe about $200 mi llion in unpaid antidumping duties

1 Lightweight thermal paper is pa per of a certain weight that “form[s] an image when heat is applied,” and is “typically (but not exclusively) used in point-of-sale applications such as ATM receipts, credit card receipts, gas pump receipts, and retail store receipts.” Antidumping DutyCourt No. 24-00014 Page 2 and interest to the United States. See Papierfa brik August Koehler SE v. United States, 843 F.3d 1373 (Fed. Cir. 2016). The United States (“the Gove rnment”) brought this action to recover that sum, filing a summons and a complaint with the U.S. Court of International Trade (“USCIT”) on January 24, 2024. See Summons, Jan. 24, 2024, ECF No. 1; Compl., Jan. 24, 2024, ECF No. 2; see also Am. Compl., Feb 8, 2024, ECF No. 4; USCIT R. 3(a). 2 Before this litigation can proceed further, the Government must serve copies of the Summons and Amended Complaint on both defendants. See USCIT R. 4(b)(1). In the motion now before the court, the Govern ment requests that the court order service through Koehler’s U.S.- located counsel, arguing that this method of service constitutes “means not prohibited by international agreement” and is in accordance w ith federal law. USCIT R. 4(e)(3). Koehler opposes this request, insisting that the Government instead effect service through the issuance of diplomatic letters r ogatory to the government of Germany. Because USCIT Rule 4(e) is the relevant provision, and because the Government’s proposed service on Koehler through its U.S. couns el would accord with that provision—violating neither international agreemen t nor federal law—the court gr ants the Government’s motion.

BACKGROUND To fully unspool the sixteen-year history of the administrative proceedings underlying this case would make this opinion even more of a pa per-intensive endeavor than its subject matter demands. The court instead sets forth only the facts necessary to explain how Koehler came to

Orders: Lightweight Thermal Pape r from Germany and the People’s Re public of China, 73 Fed. Reg. 70959, 70960 (Dep’t Com. Nov. 24, 2008) (“Antidumping Duty Orders”).

2 “The Rules of the United States Court of International Trade, necessary to implement the Customs Court Acts of 1980, are styled, numbe red and arranged to the maximum extent practicable in conformity with th e Federal Rules of Civil Proce dure[].” Preface, USCIT Rules.Court No. 24-00014 Page 3 owe about $200 million to the United States. The U.S. Department of Commerce (“Comme rce”) imposed an antidumping duty order on lightweight thermal paper from Germany in 2008. See Antidumping Duty Orders, 73 Fed. Reg. 70959. Koehler’s U.S. imports of lightweight ther mal paper were subject to that order from its imposition to its revocation in 2013. See id. at 70960; Lightweight Thermal Paper from the People’s Republic of China and Germany: Continuation of th e Antidumping and Countervailing Duty Orders on the People’s Republic of China, Revocation of the Antidumping Duty Order on Germany, 80 Fed. Reg. 5083 (Dep’t Com. Jan. 30, 2015). During Commerce’s third administr ative review of the antidumping duty order, which took place from 2011 to 2013, Commerce discovered that Ko ehler had engaged in a “deliberate scheme to conceal home market sales and manipulate home market price data . . . .” Mem. from C. Marsh to P. Piquado, re: Issues and Decision Memo randum at 7, Case No. A-428-840, Bar Code: 3129807-01 (Dep’t Com. Apr. 11, 2013). Comme rce solicited information from Koehler regarding its home-market sales of lightweight thermal paper, but “Koehler inten tionally provided incomplete and inaccurate information in response to the Department’s detail ed and very specific . . . questionnaire” and “continued to misrepresent its home market sa les reporting in response to . . . supplemental questionnaires that included specif ic questions concerning home market sales.” Id. at 10. On account of this misrepresentation Commerce made an adverse inference that resulted in the assignment of a 75.36% ad valorem antidumping duty rate to Koehler’s imports of subject merchandise from November 1, 2010 to October 31, 2011. See id. at 17–18; Lightweight Thermal Paper from Germany: Final Re sults of Antidumping Duty Administrative Review; 2010–2011, 78Court No. 24-00014 Page 4 Fed. Reg. 23220, 23221 (Dep’t Com. Apr. 18, 2013). 3 Then, following the Government’s voluntary remand request in litigation pertaining to the second administrative review (covering the period between 2009 to 2010), Comme rce applied the same 75.36% dum ping margin to Koehler’s imports during that period as well. See Final Remand Redetermin ation Pursuant to Court Remand Order at 52–53, Papierfabrik August Koehler AG v. United States, No. 12-00091 (CIT filed June 16, 2014), ECF No. 76, Bar Code: 3210702-01. Koehler challenged both applications of the 75.36% dumping margin in a pair of actions before this court, from which ensued appeals to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”), and petitions for writs of certiorari from the U.S. Supreme Court. See Papierfabrik August Koehler AG v. United States, 40 CIT 983, 180 F. Supp. 3d 1211 (2016), aff’d sub nom. Papierfabrik August Koehler SE v. United States, 710 F. App’x 889 (Fed. Cir. 2018), cert. denied, 139 S. Ct. 1290 (2019); Papierfabrik A ugust Koehler SE v. United States, 38 CIT 1239, 7 F. Supp. 3d 1304 (2014), aff’d, 843 F.3d 1373, cert. denied, 583 U.S. 1038 (2017). None of these challenges were successful, and the 75.36% marg in’s applicability to Koehler’s imports of lightweight thermal paper from November 200 9 through October 2011 is now final. See 19 U.S.C. § 1514(a); Notice of Lifting of Suspension, Case No. A-428-840, Bar Code: 3806295- 01 (Dep’t Com. Mar. 15, 2019). The amount of Koehler’s antidumping duty liab ility consequently exceeded the amount of Koehler’s cash deposits, which were premised on estimated 3.77% and 6.50% dumping margins, to a considerable degree. The Government alleges that Koehler’s unpaid antidumping duties

3 For a lengthier summary of this administrativ e proceeding, see Papierfabrik August Koehler SE, 843 F.3d at 1375–77.Court No. 24-00014 Page 5 amount to $145,288,597.04, and that the pre-liquidation interest on these unpaid duties amounts to $48,343,045.04. Am. Compl. ¶ 24 (citing 19 U.S.C. § 1677g). The sum of these figures— allegedly a total of $193,631,642.08 at the time of this action’s commencement—does not include post-liquidation interest that accr ues each month on the unpaid duties. Id. ¶ 26 (citing 19 U.S.C. § 1505(d)). The Government seeks Koehler’s payment of this post-liquidation in terest as well. Id. The Government brought this action to recover the unpaid duties and in terest, alleging that Koehler is engaged in a scheme (separate from the home-market price ma nipulation scheme noted above) to avoid payment and defr aud Customs through the transfer of assets between related corporate entities. Am. Compl. ¶¶ 29–53. The Govern ment claims that the entity that incurred the antidumping liability—Koehler GmbH, which in tu rn changed its name fro m Papierfabrik August Koehler SE in 2021, id. ¶¶ 4–5, transferred assets and liabilities to a new entity, Koehler SE, fewer than nine months after Customs’s assessment of Koehler GmbH’s antidumping duty liability became final. Id. ¶ 29. At the time of the tran sfer, Koehler GmbH and Koehler SE allegedly had the same corporate address and the same slate of officers and directors. Id. ¶¶ 30–31. According to the Government, “[a]t the end of the FY 2021, Koehler [GmbH]’s assets had been reduced to . . . less than a quarter of what they were at the close of the prior fiscal year before the ‘spin-off.’ ” Id. ¶ 36. After initiating this action, the Government unsuccessfully atte mpted to serve Koehler with copies of the Summons and Complaint under th e Hague Convention on the Service Abroad of Judicial and Extrajudicial Do cuments, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. 6638 [hereinafterCourt No. 24-00014 Page 6 Hague Convention], 4 to which the United States and Germany are both signatories. The Government sent a request for Hague Convention se rvice with a German district court in Freiburg im Breisgau, Baden-Württemberg (the German st ate where Koehler’s Oberkirch headquarters are located), but that court conclude d in a pair of identically-wor ded letters (dated March 13, 2024) that “[t]his matter concerns cla ims under public law and is not a civil or commerc ial matter” and that “[t]he Hague Service Convention is theref ore not applicable to the servicing of the documents.” Gov’t Br. Ex. B at 2, 5, Apr. 22, 2024, ECF No. 7-2. Instead, the German court “request[ed] that a request should be made thro ugh diplomatic channels, so that the relevant administrative authorities can take action if necessary.” Id. (emphasis in original). While the Hague Convention request remain ed pending, the Government attempted to serve Koehler through Steptoe LLP, a law firm whose Washington, DC-bas ed counsel actively represent both Koehler GmbH and Koehler SE in separate ongoing litiga tion pertaining to a different antidumping duty order on thermal paper from Germany. See Matra Ams., LLC v. United States, No. 21-00063 (CIT filed Dec. 22, 2021). Th e Government sent an email inquiry on January 24, 2024, to which counsel from Steptoe responded as follows (on March 12, 2024): As I previously indicated, Steptoe does not represent the defendants in this action and that remains so. Nonetheless, I woul d expect that the defendants would be interested in attempting to resolve this matter amicably with the U.S., without litigation. Toward that end, I would expect that the defendants would be willing to appoint counsel (not Steptoe) for this matter for the purpose of attempting to negotiate a settlement, provided that the U.S. agreed that by doing so the defendants are not consenting to service of proce ss and are not waiving any objections to

4 The Hague Convention is a multila teral treaty whose “purpose . . . is to simplify, standardize, and generally improve the proce ss of serving documents abroad.” Water Splash, Inc. v. Menon, 581 U.S. 271, 273 (2017). Its first Article provides that “[t]he present C onvention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for se rvice abroad.” Hague Conve ntion, supra, at art. 1.Court No. 24-00014 Page 7 service, and that the U.S. will not attempt to effectuate service through that counsel. Please let me know whether you will agree to these terms and I will pass it on. Gov’t Br. Ex. C at 2–3, Apr. 22, 2024, ECF No. 7- 3. The Government emailed the following reply the following day: We are open to considering a reasonable settlement proposal from the defendants. As we are in the process of servi ng the defendants pursuant to the Hague Convention, we don’t currently have a ny reason to attempt service through alternative means; however, we can agree to those terms (i.e., that the defendants are not consenting to, nor waiving any obj ections to, service by negotiating, and are not authorizing their U.S. counsel to accept service; and that we will not to attempt to effect service on such counsel unless authorized). Id. at 2. About thirty minutes later, counsel from Steptoe replied in turn: “Thanks. Message received and passed on. Tapping out here.” Id. It appears that after this exchange, and after the Government’s receipt of the German court’s letters, the Government made no further attempt to serve Koehler with the voluntary cooperation of either the German government or U.S.-based couns el. The Government instead proceeded to seek a judicial order from the U.S. Court of International Trade.

The Government filed the instant motion fo r alternative service on April 22, 2024, seeking “an order authorizing the Government to effect service on defendants . . . through their U.S. counsel of record” in the Matra litigation (Steptoe ). Gov’t Br. at 1, Apr. 22, 2024, ECF No. 7. Koehler was unrepresented in this case at the time the Government filed this motion, and remained unrepresented for three weeks. But on Ma y 13, 2024, Washington, DC-based counsel from Holland & Knight, LLP entered notices of appearan ce on behalf of all defendants. See Form 11 Notice of Appearance, May 13, 2024, ECF No. 9; Form 11 Notice of Appearance, May 13, 2024, ECF No. 10; Form 11 Notice of Appearance , May 13, 2024, ECF No. 13; Form 11 Notice of Appearance, May 13, 2024, ECF No. 14 (collectively, the “Form 11 Notices”). Koehler concurrently filed a response in opposition to the Government’s mo tion, see Defs.’ Resp. in Opp’nCourt No. 24-00014 Page 8 to Mot. for Alternative Service, May 13, 2024, EC F No. 11 (“Defs.’ Br.”), and moved for oral argument. See Mot. for Oral Arg., May 13, 2024, EC F No. 12. The court granted this motion for oral argument and ordered the Government to f ile a reply in further support of its motion for alternative service. See Order, May 14, 2024, ECF No. 14. The Government timely complied. See Reply in Support of Pl.’s Mot. for Alterna tive Service, May 28, 2024, ECF No. 17 (“Gov’t Reply”). In its reply, the Gove rnment broadened its request for service on Koehler through U.S. counsel to include Holland & Knight. See id. at 9. Oral argument took place on June 25, 2024, after which the parties filed post-argument submissions at the court’s request. See Pl.’s Post-Oral Arg. Br., July 1, 2024, ECF No. 24; Defs.’ Po st-Oral Arg. Br., July 3, 2024, ECF No. 25.

DISCUSSION This action lies under 28 U.S.C. § 1582(3), whic h vests the U.S. Court of International Trade with exclusive jurisdiction over “any civil action which arises out of an import transaction and which is commenced by the United Stat es . . . to recover customs duties.”

The sole issue before the court is how the Government may serve copies of the Summons and Amended Complaint on Koehler GmbH and Koeh ler SE. Rule 4(e) of the U.S. Court of International Trade, which pertains to “S erving an Individual in a Foreign Country,” 5 provides as

follows: Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:

5 USCIT Rule 4(g) provides that service on a corpor ation “at a place not within any judicial district of the United States” must be effected “in any manner prescribed by Rule 4(e) for serving an individual, except personal delivery unde r (e)(2)(C)(i).” US CIT R. 4(g)(2).Court No. 24-00014 Page 9 (1) by any internationally agreed me ans of service that is reasonably calculated to give notice, such as thos e authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; (2) if there is no internationally agreed means, or if an international agreement allows but does not specify ot her means by a method that is reasonably calculated to give notice: (A) as prescribed by the foreign country’s law for service in that country in an action in its cour ts of general jurisdiction; or (B) as the foreign authority directs in response to a letter rogatory or letter of request; or (C) unless prohibited by the foreign country’s law, by (i) delivering a copy of the summons and of the complaint to the individual personally; or (ii) using any form of mail that the clerk addresses and sends to the individual and that re quires a signed receipt; or (3) by other means not prohibited by in ternational agreement, as the court orders. USCIT R. 4(e). The Government seeks to invoke subdivision (3), which it asserts “was built for these circumstances,” Gov’t Br. at 10, and asks th e court to order service on Koehler either through Koehler’s U.S.-located counsel or through email. Other means of service, according to the Government, would constitu te “time-consuming” and “unnecessary” processes. 6 Id.

6 Nothing in USCIT Rule 4(e)’s text requires a plaintiff to exhaust, or establish the futility of exhausting, the procedures enumerated in subdivi sions (1) and (2) before it may properly request a court order pursuant to subdivision (3). But USCIT Rule 4(e) does facially require a plaintiff to establish that its proposed court- ordered means of service would not contravene “federal law,” and that those means would not be “prohibited by in ternational agreement.” Id. And because the Hague Convention is an “internati onal agreement” which by its term s “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad,” Hague Convention, s upra, at art. 1, USCIT Rule 4(e)(3)’s “by other means not prohibited by international agreement” language effectively imports an exhaustion requirement with respect to Hague Convention service. As explained below, however, the German court’s conclusion that the Hague Convention does not apply in this matter obviates this quasi -exhaustion requirement. See infra Section IV.Court No. 24-00014 Page 10 Koehler opposes the Government’s request on two grounds. First, Koehler argues that USCIT Rule 4(e) does not permit service on a fore ign defendant through its U.S. counsel because “Serving an Individual in a Fore ign Country” refers to the pla ce of service—and that service through Koehler’s U.S. counsel would take place in the United States. Defs.’ Resp. at 3–4. Second, Koehler argues that as a matter of inte rnational comity and “due process principles,” alternative service under USCIT Rule 4(e)(3) is improper until the Government first exhausts the “diplomatic channels” referenced by the German court in Baden-Wür ttemberg. Id. at 4. For the reasons explained below, the court hol ds that USCIT Rule 4(e) permits service on a foreign-located defendant through its U.S.-l ocated counsel, and concludes that under the circumstances of this case, international comity and due process considerations do not preclude service through Koehler’s particular U.S.-located counsel. The court also concludes that the Government has carried its burden, under USCIT Ru le 4(e), of showing that its proposed means

of service on Koehler would contravene neither federal law nor international agreement.

I. USCIT Rule 4(e) Applies to Service on a Foreign Defendant Through U.S. Counsel Although Koehler (both GmbH and SE) is inco rporated and headquartered in Germany, the Government’s proposed conduit for service under Rule 4(e)(3) is counsel located in the United States. This raises a matter of first impression in the U.S. Court of International Trade, which is whether the scope of “Serving an Individual in a Foreign Country” include s service on a foreign defendant through U.S.-located counsel. USCIT R. 4(e). This is a matte r on which other federal courts, applying the identically-worded Rule 4(f) of the Federal Rules of Civil Procedure (“FRCP”), are not unanimous. Two opinions by the U. S. District Court for the Southern DistrictCourt No. 24-00014 Page 11 of New York illustrate the main point of disagreement—and prove, through their patent reasonableness, that FRCP Rule 4(f)’s scope is a matter on which reasonable minds can disagree. In Convergen Energy LLC v. Brooks, the distri ct court reasoned that by their “plain language,” FRCP Ru les 4(e) and 4(f) 7 “speak not to whether the indi vidual to be served is located

or resides outside of the United States but to wh ere the individual ‘may be served’ or the ‘place’

where service is to be made.” 2020 WL 403835 3, at *8 (S.D.N.Y. 2020). This language, the district court held, “does not permit the Court to order alternative service at a place outside any judicial district of the United States when the service would be made in a judicial district of the

United States.” Id. at *9. 8 This, in Convergen, precluded se rvice on the defendant through its counsel in New York City. Id. In United States v. Mrvic, the district court di verged in part from the Convergen approach. 652 F. Supp. 3d 409, 413 (S.D.N.Y. 2023) . Although th e district court did not reject Convergen’s premise that FRCP Rule 4(f)(3) permits service on ly “at a place not within any jurisdiction of the United States,” it held that the provision neve rtheless “permits service through U.S. counsel, because ‘the relevant circumstance is where the defendant is, and not the location of the

7 These subdivisions correspond to subdivisions (d ) and (e), respectively, of USCIT Rule 4. “USCIT Rule 4 is substantially identical to Federa l Rule of Civil Procedure 4; therefore, the court may consider decisions and commentary on Federa l Rule of Civil Procedure 4 for guidance.” United States v. Zatkova, 35 CIT 1059, 1061 n.1 (2011).

8 The underlying reason for this, as explained by the di strict court in Convergen, is that FRCP Rule 4(f) (“Serving an Individual in a Foreign Country ”) “operates as a counterpart to [FRCP Rule] 4(e), which is entitled ‘Serving an Individual Within a Judicial District of the United States,’ and sets forth the rules by which service can be effected in a judicial district of the United States.” Id. at *3. No federal court appears to dispute that the two provisions, take n together, fill out the universe of possible lo cations of service.Court No. 24-00014 Page 12 intermediary.’ ” Id. (collecting cases) (quoting Wash. State Inv. Bd. v. Odebrecht, S.A., 2018 WL 6253877, at *4 (S.D.N.Y. 2018)). The court follows Mrvic, which appears to re present the majority view among the federal judiciary, 9 in parsing the heading of USCIT Rule 4( e). Even though “Serving an Individual in a Foreign Country” refers to the pl ace of service and not the identity of the defendant, service on a foreign defendant through U.S.-lo cated counsel is generally an ac t that takes place in a foreign country. This is because service through U.S. coun sel is not service on U.S. counsel: the recipient of service is the defendant, 10 and the defendant receives the summons and complaint from its U.S.

counsel wherever the defendant is located. See Freedom Watch, Inc. v. Org. of the Petroleum Exp. Countries, 766 F.3d 74, 84 (D.C. Cir. 2014) (“[W]hen a court orders service on a foreign entity through its counsel in the United States, the attorn ey functions as a mechanism to transmit the service to its intended recipient abroad.”). Delivering the summons and complaint to a defe ndant’s U.S. counsel may alone suffice to satisfy the due process requireme nt of “notice reasonably calcula ted, under all the circumstances,

9 The Government contends that Convergen “represents the minority position within the federal judiciary,” see Pl.’s Post-Oral Arg. Br. at 1, and that Mrvic represents the view of “most courts”. Gov’t Br. at 6. While this appears to be accurate, see Bazarian Int’l Fin. Assocs., L.L.C. v. Desarrollos Aerohotelco, C.A., 168 F. Supp. 3d 1, 15 (D.D.C. 2016) (collecting cases), the court pays no heed to Mrvic’s seeming “majority” status in adopting that case’s reading of FRCP Rule 4(f). Nor does any Federal Circuit precedent comp el the court’s holding on this question. See In re OnePlus Tech. (Shenzhen) Co., Ltd., 2021 WL 4130643, at *3 (Fed. Cir. 2021) (declining to disturb the United States Dist rict Court for the Western Di strict of Texas’s Mrvic-like interpretation of Federal Rule 4(f)(3), under a high ly deferential “clear and indisputable” standard, in ruling on a mandamus petition in a patent infringement case).

10 The text of USCIT Rule 4 makes this clear. It refers, for example, to a “domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, [that] must be served.” USCIT R. 4(g).Court No. 24-00014 Page 13 to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). But whatever the reasonableness of this calculation, service does not actually occur until the defendant receives the required documents. The location of U. S. counsel is no more the place of service thana last-mile distribution center is the destination of a package. See Spin Master, Ltd. v. AomoreUS, 2024 WL 3030405, at *7 (S.D.N.Y. June 17, 2024) (“Put another wa y, [FRCP] Rule 4(f) permits a method of service that entails trans mitting documents through U.S. counsel, but only if service is ultimately completed abroad.” (emphasis in original)). Because Koehler is a corporation that is ba sed in Germany, Germany is in all likelihood where Koehler will receive service of process. It is accordingly USCIT Rule 4(e) (“Serving an Individual in a Foreign Country”), and not 4(d) (w hose heading is “Serving an Individual Within

a Judicial District of the United States”), which governs the court’s consideration of the Government’s proposed method of service in this case.

II. International Comity Does Not Preclude Service Through Koehler’s U.S. Counsel Koehler argues that service through any me ans other than the “diplomatic channels” 11 referenced by the German court in Freiburg im Brei sgau “would violate princi ples of international

11 The Government argues that Koehler conflates “Diplomatic channels” with “diplomacy,” and quotes a statement on the U.S. Department of Stat e’s website that define s “diplomatic channels” as “a formal system of communication between governments . . . used to transmit letters rogatory to a foreign government so that they may be dire cted to the appropriate foreign court.” Gov’t Reply at 6 n.1. The court is unpersuaded that “diplo matic channels” necessarily refers to a category as narrow as the formal transmission of letters rogatory, and recognizes that this question’s resolution would ultimately depend on the proper construal of the German term “ diplomatischem Wege .” Gov’t Br. Ex. B at 4. For the reasons e xplained below, however, even a maximally broad construal of this term would not compel a conc lusion that the German government has issued a categorical objection to all forms of non-le tters rogatory service in this case.Court No. 24-00014 Page 14 comity, which requires that foreign and public international law be gi ven effect in U.S. courts.” Defs.’ Resp. at 4. Even though USCIT Rule 4(e) facially require s compliance only with U.S. federal law and international agreement—and not with foreign law—the comity principles cited by Koehler are not toothless. “American courts should,” after all, “take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovere ign interest expressed by a fore ign state.” Société Nationale Industrielle Aérospa tiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 546 (1987). The Advisory Committee Note to (Federal) Rule 4(f)(3) states that “an earnest effort should be made

to devise a method of communication that is cons istent with due process and minimizes offense to foreign law.” Fed. R. Civ. P. 4 advisory committ ee’s note to 1993 amendment. And international comity does sometimes favor channe ling service on a foreign defendant through the issuance of letters rogatory. In Tucker v. Interarms, a case that Koehler highlights, the district court cited “principles of comity” as the basis for its insistence that the plaintiff “follow Brazilian law and obtain letters rogatory to ensure service of process.” 186 F.R.D. 450, 452 (N.D. Ohio 1999). International comity does not compel a similar insistence here. Koehler’s representations do not establish a German sovereign interest to which comity might conceivably be owed. Koehler cites no provision of German law that, like the Brazilian law referenced in Tucker, would as a general matter require that “service of pro cess by a foreign party upon a party domiciled in [Germany] . . . be made by means of letters roga tory”. Id. (quoting Alpha Omega Tech., Inc. v. PGM - Comercio E Participacoes Ltda., 1994 WL 37787, at *1 (S.D.N.Y. 1994)). Indeed, another district court has found that Germany, as of 2009, “has not expressly forbidden numerous otherCourt No. 24-00014 Page 15 potential avenues to insure that a defendant is aware of the allegations against it.” In re S. African Apartheid Litig., 643 F. Supp. 2d 423, 437 (S.D.N.Y. 2009). Nor do the statements by the German district court in Freiburg im Breisgau evince a German sovereign interest in Koehler’s avoidance of alternative service. The (translated) documents issued by that court read in their entirety as follows: Dear Sirs, dear Madams, I am returning the above request for service without addressing it. Completion under the Hague Service Conven tion is out of the question, as the present proceedings are not a civil or commercial matter. The plaintiff in the present case is the Unite d States of America. In the proceedings, the plaintiff is demanding payment of anti-dumping duties in the amount of over USD 193,000,000.00. This matter concerns claims under public law and is not a civil or commercial matter. The Hague Service Convention is therefore not applicable to the servicing of the documents. The execution of the requested service was therefore to be denied. I therefore request that a request should be made through diplomatic channels, so that the relevant administrative authorities can take action if necessary. With the highest regards [Signature] Gov’t Br. Ex. B at 2 (emphasis in original ). Even through the mists of translation, 12 the court does not read this as a statement requiring that dipl omatic channels form the U.S. Government’s exclusive means of serving Koehler. Instead, the German court’s request-for-a-request through diplomatic channels is tied to a specific rejection of the U.S. Government’s requests for service under the Hague Convention. Most of the text of the German court’s letters is devoted to explaining why Hague Convention service is inapp licable—which is apparently because this case

12 No party disputes the accu racy of this translation.Court No. 24-00014 Page 16

is not “a civil or commercial matter” as defined 13 by German law. Id.; see also Hague Convention, supra, at 362. The letters then conclude by frami ng “diplomatic channels” as an alternative to Hague Convention service: “The execution of the re quested service was therefore to be denied. I therefore request that a request should be made th rough diplomatic channels.” Gov’t Br. Ex. B at 2 (emphasis in original). This series of statements directs the U.S. Government, to the extent it seeks the German government’s assistance with se rving Koehler, to obtain that assistance through diplomatic means. It does not suggest that w ithout such assistance, Koehler cannot be served. Invoking the persuasive force of internati onal comity requires a stronger showing of a foreign sovereign interest than what Koehler has made here. If “due respect” for Germany’s “sovereign interest” thwarted the operation of USCIT Rule 4(e)(3) in this case, it would be hard to imagine when the court’s exercise of discretion to order alternative service under Rule 4(e)(3) might ever be proper. Aérospatiale, 482 U.S. at 546. Such vestigiality would distort Rule 4’s structure, wherein “[FRCP] Rule 4(f)(3) is not subsumed within or in any way dominated by [FRCP] Rule 4(f)’s other subsecti ons; it stands independently, on e qual footing.” OnePlus, 2021 WL 4130643, at *3 (quoting Nuance Commc’ns, Inc. v. Abbyy Software House, 626 F.3d 1222, 1239 (Fed. Cir. 2010)); see also Wright & Miller, 4B Fed. Prac. & Proc. Civ. § 1134 (4th ed. 2024) (“[FRCP R. 4(f)(3)] may be used for example . . . wh en the Central Authority of the foreign country has refused to serve a particular complaint (per haps based on its own public policy or substantive

13 It appears that at least some German courts , upon concluding that a matter involves a claim for punitive damages, do not consider the matter to be “civil or commercial” in nature. See United States ex rel. Bunk v. Birkart Globistics GmbH & Co., 2010 WL 423247, at *2–3 (E.D. Va. 2010). The German court in this case did not expressl y state this proposition in its letters to the Government in this case. But its reliance thereon might be inferred from the statement that “[i]n the proceedings, the plaintiff is demanding paym ent of anti-dumping duties in the amount of over USD 193,000,000.00.” Gov’t Br. Ex. B at 2.Court No. 24-00014 Page 17 law limitations) . . . .”). The court accordingly c oncludes that alternative service pursuant to USCIT Rule 4(e)(3) would not offend international comity in this case. 14

III. Service Through U.S. Counsel Would not Deprive Koehler of Due Process The court next must ensure compliance with USCIT R. 4(e)’s general requirement that service in a foreign country not contravene “feder al law.” Id. This, for present purposes, means ensuring that the Government’s proposed means of service would satisfy the (U.S.) constitutional requirement of providing “notice reasonably calc ulated, under all the circumstances, to apprise interested parties of th e pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314; see al so Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988) (“[T]here has been no question in this country of excepting foreign nationals from the protection of our Due Process Cl ause.”). The court concludes that service on Koehler through Holland & Knight would satisf y the Mullane standard for constitutionally sufficient notice, and thus w ould not violate federal law. Recall that on May 13, 2024, counsel from Ho lland & Knight electronically filed USCIT Form 11 Notices of Appearance on the court’s docket in this case. See Form 11 Notices. Each attorney signed and filed a form that states, “the undersigned appe ars as attorney for defendant, Koehler Oberkirch GMBH and Koehler Paper SE, in th is action . . . and requests that all papers be

14 Nor would alternative service “deprive the German government of an opportunity to assess whether it might have a beneficial role to play in helping to negotiate an equitable resolution of the dispute.” Defs.’ Resp. at 4–5. That oppor tunity still exists. While it may be that “[c]ollectability of judgment in this case is a matter on which the Germ an government might well have views that could help resolve this dispute wi thout further use of judi cial resources,” Defs.’ Post-Oral Arg. Resp. at 2 n.2, the court is unpersua ded that the completion of service of process would forestall a hypothetical atte mpt by the German government to negotiate a resolution of this case with the United States.Court No. 24-00014 Page 18 served on him/her.” Id. ( underlining in originals). 15 Boilerplate 16 though this language may be, it leaves no doubt that Holland & Knight can be relied on to inform its client of the existence of the very action for which the c lient engaged its services. 17 See Mullane, 339 U.S. at 314. Hypothetical 18 unreliability on this score might even constitute a violation of the District of

Columbia Rules of Profe ssional Conduct, to which Holland & Kni ght’s lead counsel is apparently subject, and which provide that “[a] lawyer shall ke ep a client reasonably in formed about the status of a matter and promptly comply with reasonable requests for information.” D.C. Rs. Pro. Conduct 1.4(a). Koehler’s invocation of United States v. Zieg ler Bolt & Parts Co. for the proposition that “[t]he mere relationship between a defendant and his attorney does not, in itself, convey authority

15 The court does not address the separate question of whether these filings establish Koehler’s amenability to service by the method of “deliverin g a copy of [the summons and complaint] to an agent authorized by appointment or by law to rece ive service of process.” USCIT R. 4(d)(2)(C). This is because, as explained above, the method of service proposed by the Government will not take place “Within a Judicial District of the United States.” USCIT R. 4(d).

16 Koehler notes that USCIT Rule 75(b)(2) requires that notices of appearance “must be substantially in the form as set forth in Form 11 of the Appendix of Forms,” and argues that “[a]ltering the form to materially change the subs tance (striking the language ‘request[ing] that all papers be served on’ counsel) would not have complied with CIT Rules.” Defs.’ Post-Oral Arg. Resp. at 3 (quoting USCIT Form 11). Without o ffering a view as to the legal hypothesis that “substantially in the form” refers to substance, the court notes that Koehler did not test this hypothesis by moving for the court’s leave to submit a differently-worded form.

17 It is also virtually certain that Koehler itsel f knows of pendency of this action. Why, otherwise, would Holland & Knight have been authorized to enter an appearance in this case? But actual notice, in any event, would not obviate adherenc e to USCIT Rule 4’s service provisions. See Wright & Miller, supra, § 1134 (“The primary functi on of Rule 4 is to provide the mechanism for bringing notice of the commencement of an action to the defendant’s atte ntion and to provide a ritual that marks the court’s assertion of jurisdiction over the lawsuit.”) (emphasis added).

18 The court outlines this hypothetical scenario only for the purpose of illustration, and casts no doubt whatsoever on the integrity of either party’s counsel.Court No. 24-00014 Page 19 to accept service” is misplaced. 111 F.3d 878, 881 (F ed. Cir. 1997). The Federal Circuit in Ziegler held on non-constitutional grounds that service on a defendant’s attorney did not satisfy the specific agency requirement of USCIT Rule 4(d )(3) (now USCIT Rule 4(g)(1)(B)). Id. That stricter requirement is inapplicable to the Mulla ne-focused inquiry here. The Government targets Koehler’s U.S. counsel not as an agent for accep ting service under USCIT Rule 4(g)(1)(B), but as an instrument for conveying it. The attorney-client relationship at issue in Ziegler, moreover, pertained to an administrative proceeding that was distinct from the litigation in which the Government sought to serve the defendant. The Government’s evidence was “insufficient to show that Ziegler had empowered [the attorney] to receive service in th e current action.” Id. (e mphasis added). Mrvic, the S.D.N.Y case, neatly illustrates this distinc tion. See 652 F. Supp. 3d at 414–15. In that case, the district court declined the Government’s reque st for service through an attorney who “indicated

he has not had recent communica tions with Defendant, attempted to reach him without success, and does not have [contact] information for him,” but granted the Government’s request for service through attorneys who “specifically communicate d with the IRS in providing a substantive, detailed, and lengthy protes t letter to the IRS regarding the me rits of the underlying . . . dispute here,” and who were unlikely to “have prepared th is significant submission on behalf of Defendant

without extensive communications w ith Defendant.” Id. at 414. He re, as with the second request at issue in Mrvic, it would have been practically impossible for counsel from Holland & Knight to participate in this litigation on Koehler’s behalf without establis hing a channel of communication through which a Summons and Complaint coul d be reasonably presumed to travel.Court No. 24-00014 Page 20 Koehler raises a concern that granting the Government’s request for service through Holland & Knight would impair future foreign de fendants’ ability “to re tain counsel without mooting objections to service of process by establis hing an avenue of alternative service.” Defs.’ Post-Oral Arg. Resp. at 3 n.6. Koehler envisions a malign outcome in which a foreign defendant

cannot retain U.S. counsel to contest service without paradoxically rende ring itself amenable to service through that counsel. This outcome is not so malign as Koehler make s it out to be. No private defendant, foreign or domestic, enjoys a rebuttable procedur al right to avoid service of process. 19 What a defendant instead enjoys is a procedural right to be pr operly served—which involves both compliance with USCIT Rule 4 as well as “notice reasonably cal culated, under all the circumstances, to apprise [him] of the pendency of the action and afford [h im] an opportunity to present [his] objections.” Mullane, 339 U.S. at 314. A defe ndant may retroactively vindicate this latter right by asserting, in a motion, a defense of insufficient service of pr ocess. USCIT R. 12(b)(5). The defendant at that time may also raise other defenses or obj ections without waiving the insufficient-service defense. USCIT R. 12(b). But until service is attempted, a defendant ha s no cognizable interest in engaging U.S. counsel for prospective advi ce on how to avoid being served at all.

19 The due process considerations pertaining to serv ice of process are in this sense distinguishable from those pertaining to personal jurisdiction. Thos e latter considerations re quire that a defendant “have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justi ce”. Int’l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310 , 316 (1945) (internal quo tation marks omitted).Court No. 24-00014 Page 21

IV. Service Through Koehler’s U.S. Counsel Would not Contravene an Applicable International Agreement The court’s remaining task is to ensure th at service on Koehler through Holland & Knight would not constitute means “prohibited by international agreement.” USCIT R. 4(e)(3); see Gov’t Br. at 8. It would not. Koehler does not specify an international agreement other than the Hague Convention that would prohibit the means of se rvice proposed by the Government, and the courtis not aware of any. And the Hague Convention, according to the German court in BadenWürttemberg, is “not applicable to the servicing of the documents” because this case is not a “civil

or commercial matter.” G ov’t Br. Ex. B at 2; see also Hague C onvention, supra, at art. 1. This

court has no occasion to disturb the German court’ s legal conclusion on this point. Neither party makes such a request, and the court in any event “has no practical ability to require the German Central Authority to effect service under an inte rnational convention that it has determined does not apply.” Bunk, 2010 WL 423247, at *4. It is accordingly unnecessary to determine at this stage whether the terms of the Hague Convention, if applicable, woul d prohibit the “other means” of service proposed by the Government in this case. USCIT R. 4(e)(3). The Government has made a sufficient showing that service through Holland & Knight would not contrave ne any applicable international agreement. See id.; see also Gov’t Br. at 8. 20

CONCLUSION Koehler asserts that service through its U.S. counsel—an action that would manifestly

20 As the court grants the Government’s request to serve Koehler through Holland & Knight, the court does not address the Governme nt’s alternative requests to serve Koehler (1) through Steptoe (Koehler’s U.S. counsel in the Matra litigation) or (2) through email. The court holds those requests in abeyance. The court will consider them on the Government’s renewed motion, if necessary, without the need for further briefing.Court No. 24-00014 Page 22

result in Koehler’s awareness of the Government ’s action to recover Customs duties, and thus allow the judicial process to resume its course—would implicate “serious issues of international

relations at stake in this case . . . .” Defs.’ Br. at 4. Koehler is correct in the broad sense that any service on a foreign defendant necessarily implicates an important issue of international relations. That issue is fairness. Foreign and domestic litigants alike are entitled to their day in court. See Schlunk, 486 U.S. at 705. USCIT Rule 4 is a mechanism that helps ensure that a defendant—no matter where it is in the world, and no matter its nationality—has an oppor tunity to vindicate its rights before the U.S. Court of

International Trade. But that does not mean that defendant may rely on USCIT Rule 4’s protections as a defensive moat against a plaintiff’s attempts to vindicate its own rights through the judicial process in the United States. Cf. USCIT R. 1 (“[The USCIT Rules] should be construed, administered, and employed by the court and the pa rties to secure the just, spee dy, and inexpensive determination of every action and proceeding.”). Koehler is entitle d to notice, but not to the avoidance of notice. For the foregoing reasons, it is hereby

ORDERED that Plaintiff’s Motion for Alternative Service is GRANTED ; and it is further

ORDERED that Plaintiff may, in accordance with the relevant provisions of USCIT Rule 4, effect service of the Summons and Amended Complaint on Defendants through the delivery of copies thereof to Defendant’s counsel of record in this matter.

SO ORDERED

. /s/ Gary S. Katzmann Gary S. Katzmann, Judge Dated: August 21, 2024 New York, New York