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21 Ekim 2021

Tatlici v. Tatlici: A Story of $740 Million Judgment in regards to Jurisdiction and International Service of Process Issues

Introduction

The United States is experiencing an explosive growth of transnational litigation— litigation involving foreign parties or foreign activity.[1] Plaintiffs bring their disputes to U.S. courts because the American forum shopping system promises them access to favourable U.S. substantive and procedural laws. The permissive approach to personal jurisdiction creates high expectations in plaintiffs to get a favourable court access decision, thus encouraging them to file transnational claims in U.S. courts.[2]

In this context, Mehmet Tatlici v. Ugur Tatlici is a recent case providing a thought-provoking ground to analyse the concept of forum shopping and how it is perceived in Turkey and the United States, together with issues pertaining to personal jurisdiction over a foreign defendant, and international service of process.

Facts and Allegations:

In Mehmet Tatlici v. Ugur Tatlici, a circuit court jury in Florida delivered a unanimous verdict awarding $740 million to Mehmet Tatlici in his claim for internet defamation and related business losses. [3] According to TopVerdict, the award entered by Judge Janis Brustares Keyser is the highest verdict in Florida and the seventh biggest in the U.S. for 2019.[4]

Though it appears to be a defamation case, the heated family dispute between the Tatlici Brothers traces back to 2009, when Mehmet Salih Tatlici, Turkey’s real estate tycoon and the stepbrothers’ father, passed away. The inheritance battle between Mehmet Tatlici and Ugur Tatlici, among others, has been known as Turkey’s largest-ever inheritance case in the history of Turkey. [5]

The stepbrothers’ dispute reached across the borders when Mehmet Tatlici filed a lawsuit in 2018 in Florida and asserted that certain websites allegedly affiliated with Ugur Tatlici caused business losses to him.[6] The case started without Ugur Tatlici being notified nor being a participant. After a year later, Judge Keyser set the case for a trial over the amount of money that Mehmet Tatlici claimed he is entitled to, and the case proceeded to the trial in the absence of Ugur Tatlici.[7]

In the trial, Jeremy D. Friedman of the Downs Law Group[8] convinced a Palm Beach County jury that the websites allegedly linked to Ugur Tatlici caused business losses, including a so-called real estate project, Coexist Project, in Istanbul, to his client Mehmet Tatlici.[9] Judge Janis Brustares Keyser entered the entire $740 million jury award on 8 January 2020.[10]

Ugur Tatlici has reopened the case to challenge the jury verdict’s validity.[11] He asserted that service of process was not effected under the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”), the Florida court lacked personal jurisdiction over him, and the $740-million verdict was obtained through fraudulent documents, perjury and fraud on the court in which Jeremy D. Friedman of the Downs Law Group was involved, backing his claims with an expert report from Elliot Zimmerman who found that websites allegedly destroying Mehmet Tatlici’s so-called Co-exist Project did not even exist at the time when the alleged business correspondences took place.[12]

Forum Shopping Re-visited: What it means in the U.S and Turkey?

There is no international law rule setting forth or limiting the jurisdiction of national courts in cases involving out-of-state or foreign defendants who do not otherwise agree to the jurisdiction of a foreign court.[13] As a result, the legislator of each state can freely determine the international jurisdiction of its courts.

Although it is expected for the plaintiff to choose a state’s court that he finds most suitable for his own benefit, in some cases, this results in the temporary or incidental contact points between the lawsuit and the state where the lawsuit is filed be deemed sufficient.[14] In this regard, forum shopping can be defined as the “practice of choosing the most favourable jurisdiction … in which a claim might be heard.” [15] The concept found its origin in Anglo-Saxon law and entails bringing the same or substantially similar action in two different jurisdictions where the methods of resolving the disputes are not the same in regards to substantial and procedural laws.[16]

Where the relationship between the case and the forum is incidental, forum shopping becomes an undesirable situation. It allows the plaintiff to control the lawsuit's outcome and abuse the right to seek a judicial remedy by choosing where to sue using the weak contact points with the case to drag the defendant to a particular jurisdiction and cause him “inconvenience and expense.”[17] Thus, forum shopping is considered an unsavoury scheming designed to achieve an unmerited goal.[18]

Turning back to the case of Mehmet Tatlici v. Ugur Tatlici, it is noteworthy that the Florida court has never discussed whether Mehmet Tatlici and Ugur Tatlici are actually citizens of or domiciled in Turkey, whether the harms alleged occurred solely in Turkey, and whether the state of Florida has any interest in resolving the dispute between the stepbrothers. In contrast, in Owens v. Turkiye Halk Bankasi A.S., a U.S. District Court Judge in New York had conditionally dismissed the pending suit, filed by judgment creditors of Iran against Halkbank of Turkey because Halkbank acquired the Iranian accounts in 2004 when it merged with Pamuk Bank. [19]

The Court based its decision upon the doctrine of forum non-conveniens (inconvenient forum), noting that the action should be brought in Turkey. The Court stated that “Defendant Halkbank is a Turkish financial institution, organized under Turkish law and headquartered in Turkey. Halkbank operates almost entirely in Turkey: only a tiny percentage of its branches are located outside of Turkey, and Halkbank has no branches or employees in the United States. A significant majority of the shares in Halkbank … are owned by the Turkey Wealth Fund…. The Turkey Wealth Fund, in turn, is controlled by the Turkish government. Halkbank is subject to other mechanisms of control by the Turkish government: the Halkbank Board of Directors is elected by the Turkish General Assembly, and the Turkish Ministry of Treasury and Finance supervises Halkbank’s operations.”[20] The court then found that the factors of convenience, fairness, and judicial economy all pointed towards the litigation being properly brought in Turkey.[21] Therefore, the court applied the doctrine of forum non-conveniens and discouraged forum shopping by the plaintiffs keen to file suit in plaintiff-friendly jurisdictions, namely, the United States.

Although the doctrines of forum shopping and forum non-conveniens have never been discussed in the case of Mehmet Tatlici v. Ugur Tatlici and the case eventually led to a $740 million verdict, the Turkish courts may refuse to recognise or enforce this judgment because Article 54(b) of the Act on Private International and Procedural Law (Act No. 5718) provides that the competent court shall in Turkey render enforcement subject to the condition that “… in condition of being contested by the defendant, the judgment must not have been given by a state court which has accepted himself competent even if there is not a real relation between the court and the subject or the parties of the lawsuit.” Thus, the genuine connection between Florida and the dispute may need to be proven in order to domesticate the judgment, among others.

Personal Jurisdiction and International Service of Process

While forum shopping involves a situation in which more than one court assumes jurisdiction over a case, the question of whether Judge Janis Brustares Keyser’s court obtained jurisdiction at all must be asked first in Mehmet Tatlici v. Ugur Tatlici.

As stated earlier, the legislator of each state can freely determine the international jurisdiction of its courts. In line with that, business activities conducted in a state may vest Florida courts with jurisdiction over the out-of-state defendant.[22] Although Judge Janis Brustares Keyser found that her court could exercise jurisdiction over Ugur Tatlici due to his alleged business activities in Florida, both the complaint and the amended complaint filed by Jeremy D. Friedman were entirely silent as to Ugur Tatlici’s place of domicile/residence and does not, indeed, allege that the so-called cause of action arose from business activities conducted in Florida.[23] The amended complaint filed by Friedman had the sole allegation that Ugur Tatlici was a citizen of the country of Turkey and “…doing business in Florida…,” However, it did not contain specific facts indicating how Ugur Tatlici allegedly was ‘doing business in Florida.’”

We may deduce that Mehmet Tatlici and his lawyer have resorted to the ‘doing business in Florida’ allegation to render Ugur Tatlici amenable to substituted service of process under Fla. Stat. 48.161, 48.181, or any other Florida Statute that authorizes substitute service of process.[24] This is because of Fla. Stat. §48.181, which authorizes substituted service on nonresidents in certain situations and provides a provision relating to “concealing whereabouts.” However, “concealing whereabouts” only relates to the Florida residents even though Ugur Tatlici was not a resident of Florida. In fact, both Ugur Tatlici and Mehmet Tatlici appear to have Turkish domiciles where they can be served. Moreover, likewise, the case with “…doing business in Florida…”, neither in the complaint nor in the amended complaint filed by Friedman is alleged that Ugur Tatlici is a resident of the state of Florida who was “concealing his whereabouts or evading service”.

Overall, it seems that Judge Janis Brustares Keyser’s court might not only be deceived by Mehmet Tatlici’s highly questionable statements about jurisdiction but also the allegation of “concealing whereabouts,” which was made probably for Ugur Tatlici not to be served and for the lawsuit to proceed in Ugur Tatlici’s absence.[25] In other words, it is highly likely that Judge Keyser’s court has no jurisdiction over Ugur Tatlici because Mehmet Tatlici through his lawyer Jeremy D. Friedman failed to plead the legal authority for his purported resort to substitute service in his complaint and amended complaint even though Florida Statutes do not provide a legal basis for substitute service of process.[26] Thus, Mehmet Tatlici’s purported substitute service seems insufficient, and it looks like Judge Janis Brustares Keyser’s court lacks jurisdiction over Ugur Tatlici.

Further, a review of a court docket reveals that the service of process may not be accomplished under the Hague Service Convention, either.[27] Typically, personal jurisdiction over a nonresident may be conferred either by service of process or by law.[28] Even if the court assumes jurisdiction under its local law, the service of process must still be effected; otherwise, it would be a violation of the due process guarantee of notice and an opportunity to be heard.[29] In this regard, the United States and Turkey are parties to the Hague Service Convention together with 78 countries. [30] The Convention becomes applicable in the cases both in the country where the serving authority is located, and the country where the service of judicial or extrajudicial documents in civil or commercial matters will be made to the addressee is a party to the Convention.[31] It is one of the international treaties that will apply preemptively under Article 26 of the Turkish Notification Law No. 7201.

It is important to note that unlike most of the signatories, Turkey made a reservation and categorically objected to the manners of service provided in Article 10. That means that service by mail directly from the United States (or any other signatory country) to Turkey under Article 10 of the Hague Convention is an improper service and does not entail a proper service of process and legal consequences arising from that. Therefore, because Under Article 5 and 19 of the Hague Service Convention set forth that service is essentially conducted via central authorities, the General Directorate of International Law and Foreign Relations Ministry of Justice should perform service of process under the Turkish Notification Law. That means that service made to the defendant other than service made via UHDIGM runs afoul the risk of violating the service procedure provided in the Hague Convention.

In the light of these explanations, if the $740-million verdict is attempted to be enforced in Turkey, the Turkish courts may refuse to enforce the judgement because Article 54(ç) of the Act on Private International and Procedural Law provides that the person against whom enforcement is requested should be duly summoned and represented before the foreign court.

Conclusion

If successful, the $740-million verdict entered in Mehmet Tatlici v. Ugur Tatlici could perhaps be the highest court decision ever domesticated in Turkey. Yet, it appears that no enforcement proceeding has been initiated thus far although it has been almost two years since the judgment was obtained. It seems that the decision suffers from questionable validity apparent on the face of the record and fraud on the court claims, but we must wait to see how the Florida court would rule on the validity of the $740-million verdict that made it to the Top Verdict’s lists.

Av. Doğukan AŞAR

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[1] See e.g., Spencer Weber Waller, A Unified Theory of Transnational Procedure, Cornell International Law Journal, V.26, No.1, Y.1993, p. 102; Harold Hongju Koh, Transnational Public Law Litigation, Yale Law Journal, V.100, Y.1991, p. 2365.

[2] Christopher A. Whytock, The Evolving Forum Shopping System, Cornell Law Review, V.96, Y.2011, p. 495.

[3] Mehmet Tatlici v. Ugur Tatlici, Case No: 39-502018CA002361XXXXMB (Palm Beach County Court, presided by Judge Janis Brustares Keyser)

[4] Top 20 Verdicts in Florida in 2019, https://topverdict.com/lists/2019/florida/top-20-verdicts (Date of Access: 15 September 2021)

[5] E.g., ‘Tatlı miras’ta şok karar!, Milliyet, (26.02.2019), https://www.milliyet.com.tr/gundem/tatli-miras-ta-sok-karar-2833530; Ne mirasmış: 8 milyarlık bir dava daha, Hürriyet, (14.10.2017), https://www.hurriyet.com.tr/ekonomi/ne-mirasmis-40609729

[6] Complaint dated 26 February 2018, Mehmet Tatlici v. Ugur Tatlici, Case No: 39-502018CA002361XXXXMB (available at https://www.mypalmbeachclerk.com/records)

[7] Notice of Special Set Jury Trial Setting on 19 December 2019, ibid.

[8] In promoting the notable cases that have been handled, the Downs Law’s website refers this case as “$740 Million Mehmet Tatlici v. Derya Tatlici – Judgement” for the reasons unknown. The Down’s Law Group, https://downslawgroup.com/about-us/ (Date of Access: 15 September 2021)

[9] Final Judgment, Mehmet Tatlici v. Ugur Tatlici, Case No: 39-502018CA002361XXXXMB (available at https://www.mypalmbeachclerk.com/records)

[10] Although the amounts are exactly the same, it must be noted the subject of this article is about the case leading to the $740 million jury verdict and should not be confused with the $740 million settlement offer where Mehmet Tatlici alleged it is his rightful share of the inheritance. See Biggest Fraud in Florida? New Dimension to $740 Million Jury Verdict in Tatlici Brothers’ Case, 23 July 2021, https://world.einnews.com/pr_news/546915342/biggest-fraud-in-florida-new-dimension-to-740-million-jury-verdict-in-tatlici-brothers-case

[11] Defendant Ugur Tatlici’s Omnibus Motion to Vacate Default and Final Judgment; To Quash Service of Process; And to Dismiss For Lack of Jurisdiction, Mehmet Tatlici v. Ugur Tatlici, Case No: 39-502018CA002361XXXXMB (available at https://www.mypalmbeachclerk.com/records)

[12] Supplement to Defendant Ugur Tatlici’s Omnibus Motion to Vacate Default and Final Judgment; to Quash Service of Process, and to Dismiss for Lack of Jurisdiction, Mehmet Tatlici v. Ugur Tatlici, Case No: 39-502018CA002361XXXXMB (available at https://www.mypalmbeachclerk.com/records)

[13] See Cemal Şanlı / Emre Esen / İnci Ataman-Figanmeşe, Milletlerarası Özel Hukuk, 8th ed., Beta, İstanbul, 2020, p.408.

[14] Ayşe Elif Ulusu Karataş,Kişilik Haklarına İlişkin Güncel Sorunlar” Kişilik Haklarının Medya ve İnternet Yoluyla İhlalinde Türk Mahkemelerinin Milletlerarası Yetkisinin AB Yetki Kuralları Çerçevesinde Değerlendirilmesi (eds. S. Aksoy Dursun & A. Genç Arıdemir), On İki Levha, 2020, p. 197; Şanlı / Esen / Ataman-Figanmeşe, op. cit, p.408.

[15] California v. Posey, 82 P.3d 755, 774 n.12 (Cal. 2004) (quoting Black's Law Dictionary 666 (7th ed. 1999)).

[16] See generally La Societe Metro Cash & Carry France v. Time Warner Cable, No. CV-03-0197400S, 2003 WL 22962857, at 3 (Conn. Super. Ct. Dec. 2, 2003). See also Gita F. Rothschild, “Forum Shopping”, Litigation, Y. 1998, Vol. 24, No. 3, p. 40 ff.; Note, Forum Shopping Reconsidered, Harvard Law Review, V. 103, Y. 1990, p.1677. (“There are numerous considerations that may motivate forum shopping such as the convenience or expense of litigating in the forum, the inconvenience and expense to the defendant; the probable or expected sympathies of a potential jury pool; local rules; permissibility of fee arrangements; and practically any other inter-jurisdictional difference.”)

[17] In re Monegasque De Reassurances, 311 F.3d 488, 498 (2d Cir. 2002); Sheldon v. PHH Corp., 135 F.3d 848, 855 (2d Cir. 1998)

[18] Richard Maloy, Forum Shopping? What's Wrong With That?, Quinnipiac Law Review, V. 24, Y.2005, p.27.

[19] James Owens et al Turkiye Halk Bankasi A.S. a/k/a Halkbank, Case No.: 1;20-CV-02648-DLC (SDNY).

[20] ibid.

[21] ibid.

[22] Fla. Stat. sec. 48.181

[23] Complaint, Mehmet Tatlici v. Ugur Tatlici, Case No: 39-502018CA002361XXXXMB (available at https://www.mypalmbeachclerk.com/records); Amended Complaint, Mehmet Tatlici v. Ugur Tatlici, Case No: 39-502018CA002361XXXXMB (available at https://www.mypalmbeachclerk.com/records)

[24] Supplement, Mehmet Tatlici v. Ugur Tatlici, Case No: 39-502018CA002361XXXXMB (available at https://www.mypalmbeachclerk.com/records)

[25] ibid.

[26] ibid.

[27] Case docket available at https://appsgp.mypalmbeachclerk.com/eCaseView/search.aspx (Date of Access: 15 September 2021)

[28] E.g. Mollica v. Roch, SJC-12517 at 1-2 (Mass. Jan. 4, 2019).

[29] Tannenbaum v. Shea, 133 So.3d 1056, 1061 (Fla. 4th DCA 2014)

[30] Status Table, HCCH, https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (Date of Access: 15 September 2021)

[31] Article 1 of the Hague Service Convention, available at https://assets.hcch.net/docs/f4520725-8cbd-4c71-b402-5aae1994d14c.pdf (Date of Access: 15 September 2021)

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