UPDATE Oct 11: As he flagged yesterday, Kim Dotcom's US lawyer has filed a renewed motion to dismiss the US government case against Megaupload and its senior executives.
Ira Rothken's appeal argues prosecutors have violated his client's right to due process by failing to deliver its indictment for more than nine months.
The motion was filed in the Eastern District Court of Virginia, the US state where Megaupload's servers were hosted.
In a decision released yesterday (see below), US District Judge Liam O'Grady threw out an appeal to dismiss the case based on the fact an indictment had to be delivered to a US address (Megaupload is incorporated in Hong Kong, while Mr Dotcom is lives in New Zealand), but indicated delays in the case offered possible ground for appeal.
RAW DATA: Renewal of Request for Dismissal (PDF)
Dotcom lawyer fails to get US govt's Megaupload case thrown out
Oct 10: A bid to get the US government's case against Megaupload thrown out on a technicality has failed.
US District Judge Liam O'Grady has ruled there was no procedural error in prosecutors' inability to serve papers in the United States to Megaupload executives.
Kim Dotcom's lawyer, Ira Rothken, had argued US law requires a corporate criminal indictment be sent to a company's last known address in the US.
But Megaupload is incorporated Hong Kong, while its CEO, Kim Dotcom, is resident in New Zealand.
However, Judge O'Grady says prosecutors can officially indict Kim Dotcom and his co-accused Megaupload executives after they have been extradited to the US.
"To this court's knowledge, no court has ever dismissed an indictment for failure to meet Rule 4's secondary mailing requirement," the judge wrote in his ruling, made on Friday and posted online today.
He says Congress had not intended to create a loophoole that would leave foreign corporations outside the reach of US law.
Mr Dotcom's extradition hearing is scheduled for March next year.
Mr Rothken told Reuters that while the judgment went against his client, it also raises the possibility the Megaupload case could be dismissed on other grounds, including delays which have denied Mr Dotcom due process.
He intends to file a request for the case to be dismissed on those grounds.