Yesterday, we wrote about the US Justice Department arguing that there's no problem
with the fact (which it admits) that it did not and could not properly "serve" Megaupload as a corporation, since it has no US presence, arguing that as long as it generally makes an effort to do so, and also promises to really serve the company once its execs are extradited to the US, it's perfectly fine. Megaupload has now hit back by pointing out that the DOJ appears to be making up the rules
that it would like to exist, rather than following the rules that do exist.
The Government bears the burden of proving that it has validly served Megaupload
within the letter of the Rule... and effectively concedes it cannot carry it. So the
Government instead urges this Court to rewrite the Rule. It specifically puts forth three
alternative arguments that no federal court has ever accepted, as far as we are aware, and for
which it cites not a single relevant precedent.
First, the Government argues that, because Megaupload is aware of these proceedings
and purportedly had “minimum contacts” with the United States, the Rule has no application.
By this argument, the entire Rule can be disregarded wherever the Government deems it
unnecessary or perhaps unduly burdensome. Second, the Government contends that, even if it
must otherwise conform to the Rule, it may disregard the latter portion of the corporate-service
requirement and decline to mail the summons to Megaupload. With this argument, the
Government would read out of existence the express mailing requirement of Rule 4(c)(3)(C).
Finally, the Government argues that, to the extent it must nod at Rule 4’s mailing requirement, it
may ignore the Rule’s express prescription and simply send the summons to an address of its
choosing. Here, the Government goes so far as to claim it can deliver the summons to
Megaupload’s address in Hong Kong, even though that approach would essentially strike Rule
4(c)(3)(C)’s requirement that the summons be mailed to the company’s “last known address
within the district or to its principal place of business elsewhere in the United States.”
But... but... you don't understand. Since the MPAA and RIAA explained to the DOJ that Megaupload is evil and Kim Dotcom is a real life super villain, the rules don't matter, right?