- Kathryn Mayorga has changed her legal course against Cristiano Ronaldo. We explain why she did so–and how the difficulties in officially serving a person who lives overseas have complicated matters.
The allegation that Juventus star Cristiano Ronaldo raped a woman in a penthouse at the Palms Casino Resort in June 2009 has become a controversy for a U.S. federal court to resolve. It is also a controversy where Ronaldo residing outside of the United States has provided him a strategic advantage.
Much was made of reports that detailed the dismissal of Kathryn Mayorga's lawsuit against Ronaldo in a Nevada state court. There was perhaps some confusion presented by those reports that circulated on Wednesday–the same day Ronaldo's hat trick sent Portugal to the final of the UEFA Nations League–but a closer look reveals a federal case that was opened in January and a police investigation that remains active.
Here's a closer look at what it all means:
Multiple courts and multiple legal claims
Last September, Mayorga, a Nevada resident, filed a complaint in Clark County (Nevada) District Court. Four months later, she filed a nearly identical complaint in the U.S. District Court for the District of Nevada. Both complaints were drafted by Mayorga’s attorney, Leslie Stovall, and both plead 11 claims against Ronaldo. The claims include battery, abuse, defamation and negligence.
We have previously detailed the case and its numerous elements. The abridged version: Mayorga, 35, asserts that Ronaldo raped her when she was 25 years old. She contends that after she met Ronaldo at the Rain Nightclub in the Palms, he invited her to his penthouse suite, where it's alleged that he committed anal rape.
Mayorga later received medical treatment and she also reported the incident to the Las Vegas Metropolitan Police Department (LVMPD) but, as she tells it, the police were unhelpful and encouraged her to move on. Upon the advice of an attorney, Mayorga soon thereafter signed a financial settlement with Ronaldo. In the settlement, Ronaldo agreed to pay Mayorga $375,000 while she agreed to contractually relinquished any legal claims she had against Ronaldo and delete any relevant electronic and written evidence that might incriminate or embarrass him.
Mayorga is now suing Ronaldo under the premise that, although she signed a settlement agreement, there were two critical defects with the settlement that render it void and unenforceable. First, she insists that she lacked the legal capacity to sign the contract. While she was an adult and thus of sufficient age to sign a contract, she was emotionally traumatized by the alleged rape. She also relied on the advice of an attorney whom she describes as inexperienced and incompetent. Mayorga therefore charges that she was not in a position to offer a legally-binding consent—meaning that even if she consented to the settlement in a transactional or ministerial sense, the consent lacked legal effect. Second, Mayorga argues that Ronaldo failed to live up to his end of the settlement’s bargain. One condition in the settlement mandated that Ronaldo personally read a letter from Mayorga. Evidence suggests he might have failed to do so.
Ronaldo’s attorneys are armed with several defenses to Mayorga’s claims. Ronaldo, who has not been charged with a crime but is now the target of a re-opened LVMPD investigation, vehemently denies that he raped Mayorga. Further, to the extent that Mayorga’s case is built on the premise that she received bad advice from an attorney she chose to hire, the most appropriate vehicle to remedy that harm would be for her to sue that attorney for malpractice. Stated differently, Ronaldo is not responsible for the advice offered by Mayorga’s attorney.
The litigation moves to federal court
As reported by Bloomberg on Tuesday, Mayorga voluntarily withdrew her state court lawsuit last month. On May 8, Judge Adrianna Escobar entered a dismissal pursuant to Rule 41 of the Nevada Rules of Civil Procedure (NRCP). This dismissal was entered into the court docket on May 15, thereby effectively ending the case.
In many instances, a voluntary dismissal signals that the plaintiff and defendant have reached a settlement. In that situation, the plaintiff and defendant notify the presiding judge that they have resolved their grievance out of court and no longer wish to avail themselves of the legal system. Absent unusual circumstances, the judge will accept the settlement and then dismiss the lawsuit, usually “with prejudice.” The phrase “with prejudice” in the context of a dismissal does not mean bigotry or discrimination. It simply refers to whether the case can be refiled. A dismissal with prejudice involves a case that can’t be re-filed. When parties settle, they normally agree to drop the case for good. If, later on, one side doesn’t live up to its end of the bargain, the other can sue for breach of contract, among other claims.
Mayorga’s situation is entirely different. Mayorga has voluntarily dropped the case in state court not because she has reached a settlement with Ronaldo but because she has elected to pursue the litigation in federal court. Under Rule 41 of the NRCP, a voluntary dismissal is “without prejudice” unless otherwise stipulated by the judge. Here, Judge Escobar did not indicate that the dismissal was with prejudice. This means Mayorga preserves the right to re-file her case in state court.
Mayorga has a different judge in her federal court. U.S. District Judge Jennifer Dorsey, who has presided over MMA fighter Mark Hunt’s drug test-related litigation against the UFC and Brock Lesnar, is presiding.
Litigating in federal court to extend the timeline for serving Ronaldo
Although neither Mayorga nor her attorney, Stovall, has openly explained the desire to litigate in federal court over state court, there is one certain reason and several possible additional ones.
The most important reason: Mayorga and Stovall were running out of time to serve notice on Ronaldo. This point is covered in detail in a Der Spiegel article published on Wednesday.
In the most basic sense, Mayorga must notify Ronaldo that he has been sued. Mayorga’s lawsuit has of course been covered extensively by media and, logically, Ronaldo must be aware of the lawsuit because he publicly disputes the claim of rape. It’s not as if the whole world but Ronaldo knows that he has been sued.
That type of analysis, however, is not the legal test for notice. If Ronaldo does not receive the complaint (a formal pleading of claims often colloquially called a lawsuit) and a summons (official notice that a case has been filed against him) from Mayorga or her representative, then he has not technically been served notice. If that remains the situation, the lawsuit will be dismissed for failure to notify the defendant.
Thus far, Mayorga has been unable to serve notice on Ronaldo, who apparently has not been in a location where he could be served with papers. Mayorga was running out of time to serve notice on Ronaldo with respect to her state court lawsuit. Under Rule 4 of the NRCP, a defendant must be served with a summons and complaint within 120 days after a complaint has been filed. Mayorga’s state court complaint was electronically filed in September, meaning Ronaldo needed to be served by January or the complaint is dismissed. A Nevada judge can extend the 120 days.
Rather than take the chance, Mayorga sued in federal court, thereby beginning an additional timeline (under Rule 4 of the Federal Rules of Civil Procedure, there are 90 days to serve a federal complaint—otherwise it is dismissed).
Complicating matters is the fact that the rules for serving Ronaldo are different because he is outside of the U.S. and in countries that use different rules for serving complaints and summons. While in the U.S. notice can in certain situations be served “constructively”—meaning by virtue of the fact that it is in the public record—many other countries require “actual” notice, meaning the actual papers or their equivalent.
To that point, the U.S. and Italy are both signatories to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. Drafted in 1964 and ratified by the U.S in 1967, the Hauge Convention contemplates shared rules to ensure that defendants do not hide from lawsuits. At the same time, the Hauge Convention ensures that defendants in foreign jurisdictions be provided actual and timely notification consistent with principles accepted by countries who signed onto the convention.
Ronaldo resides in a home in Turin, Italy. His address is mentioned in a federal court document filed by Mayorga’s attorney and obtained by Planet Futbol. They know where he lives but still haven’t served him with the complaint and summons. In a court filing in April, Mayorga noted that the convention doesn’t “require nor impose an obligatory time frame for service completion” and “experience has shown that [service] can take an average of six months” to be completed and sometimes “can take longer.” Mayorga hopes that Judge Dorsey will permit her ample time to serve papers on Ronaldo before the lawsuit is dismissed.
Other possible advantages for Mayorga to sue Ronaldo in federal court
While the most essential reason for Mayorga to sue Ronaldo in federal court is to buy her litigation more time, there might be supplemental reasons.
First, federal cases are much more insulated from public influence. Federal judges are nominated by the President of the United States and, if they are confirmed by the U.S. Senate, receive a lifetime appointment. Federal judges cannot be removed from office other than for impeachment, a seldomly used legislative process for certain categories of federal officials who commit corrupt acts (since 1990, only one federal judge—G. Thomas Porteous—has been impeached by the U.S. House of Representatives and convicted by the U.S. Senate, while another, Samuel Kent, resigned after being impeached by the U.S. House of Representatives). With their extraordinary job security, federal judges are independent from other branches of the government and from society at large.
In contrast, while the 50 states use different systems for determining membership on their judiciary, Nevada uses a system that includes elections. To illustrate, Judge Escobar’s elected term ends in January 2021. There are advantages and disadvantages to elections for judges. Some advocates highlight that elected judges are much more accountable to the people than judges with lifetime appointments. A possible disadvantage, however, is that elected judges in high-profile trials might be sensitive to the public following those trials with great interest. By litigating in federal court, Mayorga need not worry about that possibility.
Second, federal trials are much more private. No cameras are allowed in federal court. States vary on whether cameras are allowed, but Nevada permits cameras with the judge’s permission. If Mayorga prefers a trial where her testimony would not be televised, then federal court would be the better option. Of course, Ronaldo—who earns tens of millions a dollar a year in endorsements and has a $1 billion lifetime endorsement deal with Nike—would probably prefer to not testify on television, so federal court might be advantageous to him too.
Third, federal litigation can also move at a faster rate in part because federals judges have substantial power to compel both sides to quickly share information. Rule 26 of the Federal Rules of Civil Procedure is designed to “accelerate the exchange” of information between the plaintiff and defendant. The rule compels both sides to swiftly provide each other with relevant contact information, notice of witnesses and disclosure of general topics that will be raised in the litigation. Prior to a trial, federal judges also require that witnesses from both sides answer questions under oath and turn over emails, texts and other correspondences that they might prefer to keep confidential. The judge applies pressure on both sides to keep the case moving and to encourage them to settle out of court: the two sides know that they can’t drag a federal case forever and that if they aren’t prepared to reach a deal, they’ll need to comply with pretrial discovery requests that they might view as invasive and unfair.
The timeliness feature of a federal trial may be appealing to Mayorga and Stovall for at least a couple of reasons. First, Ronaldo and Mayorga are playing by different sets of rules for purposes of litigation. Ronaldo is reportedly worth about $450 million. He could indefinitely fund an army of criminal defense attorneys. Mayorga is presumably in a different financial situation. It’s not clear if she is paying Stovall on an hourly rate or if she and Stovall have a continency fee arrangement (where Stovall would only be paid if Mayorga is awarded damages or agrees to a settlement—in either, Stovall would likely receive between 28% and 33% of the proceeds). Either way, neither Mayorga nor Stovall has unlimited resources to pursue Ronaldo in Europe and elsewhere abroad. As a practical matter, they might need a litigation timeline that doesn’t extend for many years and doesn’t necessitate numerous filings in other countries’ courts and complicated international legal procedures. If Mayorga and Stovall believe that the state court process would be ineffective at forcing Ronaldo to comply with requests, the federal court process is designed to be more effective in that space.
Lastly, suing Ronaldo through federal court might assist Mayorga and Stovall with respect to gaining the cooperation of foreign legal bodies. The simple fact is neither a Nevada state court nor a U.S. federal court can compel Ronaldo to cooperate with civil litigation requests while he is out of the country. As I recently discussed regarding the LVMPD issuing a search warrant to obtain a DNA sample from Ronaldo, neither the LVMPD nor any U.S. court has jurisdiction to execute a warrant in a foreign country. An Italian court or related tribunal would need to authorize it. Any such warrant would thus need to comply with applicable Italian law for government searches and seizures. Mayorga and Stovall might anticipate that they will achieve greater success in working with Italian courts by litigating through federal court—which might seem more authoritative to foreign bodies than state courts.
As the litigation plays out, expect that Ronaldo will continue to stay away from the United States. He is subject to an ongoing criminal investigation by the LVMPD and his appearance in any U.S. state would make it easier for Mayorga to serve him with court papers.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Associate Dean of UNH Franklin Pierce School of Law.