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 Counsel. Of counsel were 

Sasha Khrebtukova, Attorney, and Brandon T. Rogers, Senior Attorney, Offices of the Assistant 

Chief Counsel, U.S. Customs and Border Protection, of New York, N.Y. and Indianapolis, IN. 

John F. Wood, Holland & Knight LLP, of Washington, 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 Oberkirch GmbH (“Koehler GmbH”) and Koehler 

Paper SE (“Koehler SE”) (collectively, “Koehler” or “Defendants”) are German manufacturers of 

lightweight thermal paper1

 that allegedly owe about $200 million in unpaid antidumping duties 

1

 Lightweight thermal paper is paper 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 Duty 
Court No. 24-00014 Page 2 

and interest to the United States. See Papierfabrik August Koehler SE v. United States, 843 F.3d 

1373 (Fed. Cir. 2016). The United States (“the Government”) 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 Government 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 with federal law. USCIT R. 4(e)(3). Koehler 

opposes this request, insisting that the Government instead effect service through the issuance of 

diplomatic letters rogatory 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. counsel would accord with that provision—violating 

neither international agreement nor federal law—the court grants 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 paper-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 Paper from Germany and the People’s Republic 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, numbered and arranged to the maximum extent 

practicable in conformity with the Federal Rules of Civil Procedure[].” Preface, USCIT Rules. 
Court No. 24-00014 Page 3 

owe about $200 million to the United States. 

The U.S. Department of Commerce (“Commerce”) 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 thermal 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 the 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 administrative review of the antidumping duty order, which took 

place from 2011 to 2013, Commerce discovered that Koehler 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 Memorandum at 7, Case No. A-428-840, Bar Code: 

3129807-01 (Dep’t Com. Apr. 11, 2013). Commerce solicited information from Koehler 

regarding its home-market sales of lightweight thermal paper, but “Koehler intentionally provided 

incomplete and inaccurate information in response to the Department’s detailed and very specific 

. . . questionnaire” and “continued to misrepresent its home market sales reporting in response to . 

. . supplemental questionnaires that included specific 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 Results of Antidumping Duty Administrative Review; 2010–2011, 78 
Court 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), Commerce applied the same 75.36% dumping margin to Koehler’s 

imports during that period as well. See Final Remand Redetermination 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 August 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% margin’s applicability to Koehler’s imports of 

lightweight thermal paper from November 2009 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 liability 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 administrative 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 accrues 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 interest as well. Id. 

The Government brought this action to recover the unpaid duties and interest, alleging that 

Koehler is engaged in a scheme (separate from the home-market price manipulation scheme noted 

above) to avoid payment and defraud Customs through the transfer of assets between related 

corporate entities. Am. Compl. ¶¶ 29–53. The Government claims that the entity that incurred the 

antidumping liability—Koehler GmbH, which in turn changed its name from 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 transfer, 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 attempted to serve Koehler with 

copies of the Summons and Complaint under the Hague Convention on the Service Abroad of 

Judicial and Extrajudicial Documents, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. 6638 [hereinafter 
Court 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 service with a German district court in Freiburg 

im Breisgau, Baden-Württemberg (the German state where Koehler’s Oberkirch headquarters are 

located), but that court concluded in a pair of identically-worded letters (dated March 13, 2024) 

that “[t]his matter concerns claims under public law and is not a civil or commercial matter” and 

that “[t]he Hague Service Convention is therefore 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 through diplomatic channels, so that the relevant 

administrative authorities can take action if necessary.” Id. (emphasis in original). 

While the Hague Convention request remained pending, the Government attempted to 

serve Koehler through Steptoe LLP, a law firm whose Washington, DC-based counsel actively 

represent both Koehler GmbH and Koehler SE in separate ongoing litigation 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). The 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 would 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 process and are not waiving any objections to 

4

 The Hague Convention is a multilateral treaty whose “purpose . . . is to simplify, standardize, 

and generally improve the process of serving documents abroad.” Water Splash, Inc. v. Menon, 

581 U.S. 271, 273 (2017). Its first Article provides that “[t]he present Convention 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, 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 serving the defendants pursuant to the Hague 

Convention, we don’t currently have any 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 objections 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 counsel. The Government instead 

proceeded to seek a judicial order from the U.S. Court of International Trade. 

The Government filed the instant motion for 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 May 13, 2024, Washington, DC-based counsel from 

Holland & Knight, LLP entered notices of appearance 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 motion, see Defs.’ Resp. in Opp’n 
Court No. 24-00014 Page 8 

to Mot. for Alternative Service, May 13, 2024, ECF No. 11 (“Defs.’ Br.”), and moved for oral 

argument. See Mot. for Oral Arg., May 13, 2024, ECF No. 12. The court granted this motion for 

oral argument and ordered the Government to file 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 Alternative Service, May 28, 2024, ECF No. 17 (“Gov’t 

Reply”). In its reply, the Government 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.’ Post-Oral Arg. Br., July 3, 2024, ECF No. 25. 

DISCUSSION 

This action lies under 28 U.S.C. § 1582(3), which 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 States . . . 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 Koehler SE. Rule 4(e) of the U.S. Court of 

International Trade, which pertains to “Serving 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 corporation “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 under (e)(2)(C)(i).” USCIT R. 4(g)(2). 
Court No. 24-00014 Page 9 

(1) by any internationally agreed means of service that is reasonably 

calculated to give notice, such as those 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 other 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 courts 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 requires a signed receipt; or 

 (3) by other means not prohibited by international 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 the 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 constitute “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 subdivisions (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 international agreement.” Id. And because the 

Hague Convention is an “international agreement” which by its terms “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, supra, 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 foreign defendant through its U.S. counsel because 

“Serving an Individual in a Foreign Country” refers to the place 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 international 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-Württemberg. Id. at 4. 

For the reasons explained below, the court holds that USCIT Rule 4(e) permits service on 

a foreign-located defendant through its U.S.-located 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 Rule 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 incorporated 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” includes service on a foreign 

defendant through U.S.-located counsel. USCIT R. 4(e). This is a matter 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 District 
Court 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 district court reasoned that by their “plain 

language,” FRCP Rules 4(e) and 4(f)7 “speak not to whether the individual to be served is located 

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

where service is to be made.” 2020 WL 4038353, 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 service on the defendant through its 

counsel in New York City. Id. 

In United States v. Mrvic, the district court diverged in part from the Convergen approach. 

652 F. Supp. 3d 409, 413 (S.D.N.Y. 2023) . Although the district court did not reject Convergen’s 

premise that FRCP Rule 4(f)(3) permits service only “at a place not within any jurisdiction of the 

United States,” it held that the provision nevertheless “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 Federal Rule of Civil Procedure 4; therefore, the court 

may consider decisions and commentary on Federal 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 district 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, taken together, fill out the 

universe of possible locations 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 represent 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 place of service and not the identity of the defendant, service on a 

foreign defendant through U.S.-located counsel is generally an act that takes place in a foreign 

country. This is because service through U.S. counsel 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 attorney functions as a mechanism to transmit the 

service to its intended recipient abroad.”). 

Delivering the summons and complaint to a defendant’s U.S. counsel may alone suffice to 

satisfy the due process requirement of “notice reasonably calculated, 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 compel 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 District Court for the Western District of Texas’s Mrvic-like 

interpretation of Federal Rule 4(f)(3), under a highly 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 than 

a 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 way, [FRCP] Rule 4(f) 

permits a method of service that entails transmitting documents through U.S. counsel, but only if 

service is ultimately completed abroad.” (emphasis in original)). 

Because Koehler is a corporation that is based 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) (whose 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 means other than the “diplomatic channels”11

referenced by the German court in Freiburg im Breisgau “would violate principles of international 

11 The Government argues that Koehler conflates “Diplomatic channels” with “diplomacy,” and 

quotes a statement on the U.S. Department of State’s website that defines “diplomatic channels” 

as “a formal system of communication between governments . . . used to transmit letters rogatory 

to a foreign government so that they may be directed to the appropriate foreign court.” Gov’t 

Reply at 6 n.1. The court is unpersuaded that “diplomatic 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 explained below, however, even a maximally broad 

construal of this term would not compel a conclusion that the German government has issued a 

categorical objection to all forms of non-letters rogatory service in this case. 
Court No. 24-00014 Page 14 

comity, which requires that foreign and public international law be given effect in U.S. courts.” 

Defs.’ Resp. at 4. 

Even though USCIT Rule 4(e) facially requires 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 sovereign interest expressed by a foreign state.” Société Nationale 

Industrielle Aérospatiale 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 consistent with due process and minimizes offense to 

foreign law.” Fed. R. Civ. P. 4 advisory committee’s note to 1993 amendment. And international 

comity does sometimes favor channeling 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 process by a foreign party upon a party domiciled in 

[Germany] . . . be made by means of letters rogatory”. 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 other 
Court 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 Convention is out of the question, as the 

present proceedings are not a civil or commercial matter. 

The plaintiff in the present case is the United 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 diplomatic 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 inapplicable—which is apparently because this case 

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

is not “a civil or commercial matter” as defined13 by German law. Id.; see also Hague Convention, 

supra, at 362. The letters then conclude by framing “diplomatic channels” as an alternative to 

Hague Convention service: “The execution of the requested service was therefore to be denied. I 

therefore request that a request should be made through 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 serving Koehler, to obtain that assistance through 

diplomatic means. It does not suggest that without such assistance, Koehler cannot be served. 

Invoking the persuasive force of international 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 subsections; it stands independently, on equal 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 . . . when the Central Authority of the foreign country 

has refused to serve a particular complaint (perhaps 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 expressly 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 payment 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 concludes 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 “federal 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 calculated, under all the circumstances, to apprise 

interested parties of the pendency of the action and afford them an opportunity to present their 

objections.” Mullane, 339 U.S. at 314; see also 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 Clause.”). The court concludes that service on 

Koehler through Holland & Knight would satisfy the Mullane standard for constitutionally 

sufficient notice, and thus would not violate federal law. 

Recall that on May 13, 2024, counsel from Holland & 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 appears as attorney for defendant, 

Koehler Oberkirch GMBH and Koehler Paper SE, in this 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 opportunity still exists. While it may be that 

“[c]ollectability of judgment in this case is a matter on which the German government might well 

have views that could help resolve this dispute without further use of judicial resources,” Defs.’ 

Post-Oral Arg. Resp. at 2 n.2, the court is unpersuaded that the completion of service of process 

would forestall a hypothetical attempt 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 Boilerplate16 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 client engaged its services.17 See Mullane, 339 U.S. at 314. 

Hypothetical18 unreliability on this score might even constitute a violation of the District of 

Columbia Rules of Professional Conduct, to which Holland & Knight’s lead counsel is apparently 

subject, and which provide that “[a] lawyer shall keep a client reasonably informed 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. Ziegler 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 “delivering a copy of [the summons and complaint] to an 

agent authorized by appointment or by law to receive 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 substance (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 offering 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 itself 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 adherence to USCIT Rule 4’s service provisions. See 

Wright & Miller, supra, § 1134 (“The primary function of Rule 4 is to provide the mechanism for 

bringing notice of the commencement of an action to the defendant’s attention 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 (Fed. 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 Mullane-focused inquiry here. The Government targets 

Koehler’s U.S. counsel not as an agent for accepting 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 the current action.” Id. (emphasis added). Mrvic, 

the S.D.N.Y case, neatly illustrates this distinction. See 652 F. Supp. 3d at 414–15. In that case, 

the district court declined the Government’s request for service through an attorney who “indicated 

he has not had recent communications 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 communicated with the IRS in providing a substantive, 

detailed, and lengthy protest letter to the IRS regarding the merits of the underlying . . . dispute 

here,” and who were unlikely to “have prepared this significant submission on behalf of Defendant 

without extensive communications with Defendant.” Id. at 414. Here, 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 establishing a channel of communication 

through which a Summons and Complaint could 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 defendants’ ability “to retain counsel without 

mooting objections to service of process by establishing 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 rendering itself amenable to 

service through that counsel. 

This outcome is not so malign as Koehler makes it out to be. No private defendant, foreign 

or domestic, enjoys a rebuttable procedural right to avoid service of process.19 What a defendant 

instead enjoys is a procedural right to be properly served—which involves both compliance with 

USCIT Rule 4 as well as “notice reasonably calculated, under all the circumstances, to apprise 

[him] of the pendency of the action and afford [him] an opportunity to present [his] objections.” 

Mullane, 339 U.S. at 314. A defendant may retroactively vindicate this latter right by asserting, 

in a motion, a defense of insufficient service of process. USCIT R. 12(b)(5). The defendant at 

that time may also raise other defenses or objections without waiving the insufficient-service 

defense. USCIT R. 12(b). But until service is attempted, a defendant has no cognizable interest 

in engaging U.S. counsel for prospective advice on how to avoid being served at all. 

19 The due process considerations pertaining to service of process are in this sense distinguishable 

from those pertaining to personal jurisdiction. Those latter considerations require 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 justice”. Int’l Shoe Co. v. State of Wash., Off. of 

Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945) (internal quotation 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 that 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 service proposed by the Government, and the court 

is 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.” Gov’t Br. Ex. B at 2; see also Hague Convention, 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 international 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, would 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 contravene 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 Government’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 opportunity 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 parties to secure the just, speedy, and inexpensive determination 

of every action and proceeding.”). Koehler is entitled 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