Megaupload cannot be brought within the jurisdiction of a federalcourt in Virginia for criminal proceedings without its consent, asfederal rules do not contemplate service of a criminal summons on awholly foreign corporation without an agent or offices in the U.S.,its lawyers said in a filing on Wednesday. The move to get the court to dismiss the criminal case against theHong Kong based file-sharing site comes a day after a court inAuckland ruled that Megaupload founder, Kim Dotcom , should be allowed access to documents that contain evidenceagainst him, held by prosecutors in the U.S. and New Zealand. Dotcom and colleagues, and two companies including Megaupload, wereindicted by a grand jury in the Eastern District of Virginia onJan. Volvo Vcads
5, and charged with engaging in a racketeering conspiracy,conspiring to commit copyright infringement and money laundering,and two substantive counts of criminal copyright infringement,according to the U.S. Department of Justice. Dotcom and colleaguesFinn Batato, Mathias Ortmann and Bram van der Kolk were arrested inAuckland by New Zealand authorities, who executed provisionalarrest warrants requested by the U.S. The U.S. has filed in Auckland for the extradition of Dotcom andthree other colleagues, which comes up for hearing on Aug. China DVD Remote Controls
6. Although the government obtained warrants from the federal court inVirginia for the arrest of Dotcom and six others, it did not obtainan arrest warrant nor request a summons for Megaupload, accordingto a proposed motion before the U.S. District Court for the EasternDistrict of Virginia, Alexandria division. Counsels for Megaupload filed Wednesday for leave to enter alimited and special appearance on behalf of Megaupload to file themotion. The counsels have also asked leave to enter a motion torelease assets of the defendants frozen by the U.S. China Copying Machines
to pay fortheir defense. “It is thus apparent that on January 5, 2012, the Government sawfit to indict Megaupload, seize all its assets, and force thecompany into extinction without serving–or even attempting toserve–the company in any way, shape or form,” Megaupload’s lawyershave said in the proposed motion to the court. Megaupload’s argument turns around rule 4 of the Federal Rule ofCriminal Procedure which is said to pose a hurdle to serving acorporation that resides on foreign soil as it requires that “asummons is served on an organization by delivering a copy to anofficer, to a managing or general agent, or to another agentappointed or legally authorized to receive service of process.” The second part of the rule also requires that a copy of thesummons “must also be mailed to the organization’s last knownaddress within the district or to its principal place of businesselsewhere in the United States.” To date, the government has not served a summons on any officer oragent of Megaupload, according to the proposed motion, asMegaupload does not have any officers or authorized agents forservice of process in the U.S., according to the motion. As Megaupload does not have an office in the U.S., nor has it hadone previously, the service of a criminal summons on Megaupload istherefore impossible, which forecloses the government fromprosecuting Megaupload, the counsels have argued in the filing. Even if Dotcom is extradited to the U.S., the government cannotproperly serve Megaupload, because the second part of rule 4 willstill not be satisfied.
The court should dismiss the indictment against Megaupload toprevent any further injustice, according to the filing. U.S.officials were not immediately available for comment. John Ribeiro covers outsourcing and general technology breakingnews from India for The IDG News Service . Follow John on Twitter at @Johnribeiro . John’s e-mail address is email@example.com.