Tag Archives | Mexico

Case of the Day: Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Cardona

By on April 24, 2013 in Hague Service Convention, Service by email

The case of the day is Lac Vieux Desert Band of Lake Superior Chippewa Indians Holdings Mexico, LLC v. Cardona (Ariz. Ct. App. 2013). The Lac Vieux Desert Band of Lake Superior Chippewa Indians loaned more than $6 million to Arturo Rojas Cardona, Juan Jose Rojas Cardona, Juegos De Entretenimiento Y Videos de Guadalupe, Entretenimiento de Meico, Atlantica de Inversiones Corporativas, and Guadalupe Recreation Holdings LLC in return for an ownership share in a casino to be built in Guadalupe. The tribe claimed that the defendants breached the contract and converted funds to their own use. The procedural history of the case is confused but ultimately unimportant for our purposes. The tribe moved for leave to make service of process by alternate means, namely, by service on the defendants’ attorneys of record by certified mail, service on all defendants by Fedex in Mexico, and service of Juan Cardona via email. The judge also deemed service on Arturo Cardona complete because he had been served by mail at his US addresses (though there was no return receipt).

The foreign defendants—not including Guadalupe Recreation Holdings, a Nevada LLC—moved to dismiss for insufficient service of process, and the judge denied the motion. On an interlocutory appeal, the Arizona Supreme Court held that the only avid method of service was service via the Mexican Ministry of Foreign Affairs, and it vacated the judge’s order denying the defendants’ motion and remanded the case. Cardona v. Kreamer, 235 P.3d 1026 (Ariz. 2010). On remand, the judge dismissed the action as to all defendants, including GRH. The tribe appealed.

On appeal, the court held that the judge had erred in dismissing the claims against GRH, which was a domestic company served with process in the United States and which in any case had not moved for dismissal on grounds of insufficient service of process. But the court affirmed the dismissal as to all of the other defendants. The court’s decision rests mostly on points of Arizona law that I will not comment on here. I note, however, that as to the service by email on Jose Cardonna, the court was in my view correct in holding that such service was impermissible in Mexico. Mexico is a party to the Hague Service Convention, and readers will recall my view that the Convention does not permit service by email when it applies.

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Case of the Day: Charleston Aluminum, LLC v. Energomex, S.A. de C.V.

By on February 5, 2013 in Hague Service Convention, MK

I love today’s case of the day, Charleston Aluminum, LLC v. Energomex, S.A. de C.V. (D.S.C. 2013), because it deals with the rarely-construed Article 3 of the Hague Service Convention. Charleston Aluminum sued Energomex, a Mexican company; the facts of the case are not apparent from the decision. Charleston filed a “motion for Hague service,” requesting that the clerk “sign and affix an apostille to Spanish language versions of the summons and complaint … and forward these documents to the appropriate Mexican Central Authority for service on Defendant.” Charleston Aluminum apparently believed that the Hague Service Convention “requires that the court effectuate service of process.”

Of course this is wrong. Article 3 of the Convention provides:

The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality.

Who is a competent person under US law to transmit a request for service of process to a foreign central authority? Here is an excerpt from § 2.3.4(b) of International Judicial Assistance (MCLE 2012):

In an action in federal court, the attorney for the plaintiff should be able to forward the request to the foreign central authority, because under Fed. R. Civ. P. 4(c)(2), the attorney is authorized to serve process. See Greene v. Le Dorze, No. CA 3-96-CV-590-R, 1998 U.S. Dist. LEXIS 4093 (N.D. Tex. Mar. 24, 1998); Marschhauser v. Travelers Indem. Co., 145 F.R.D. 605 (S.D. Fla. 1992). The United States, in its response to the Hague Conference’s 2003 questionnaire, has stated that “any court official, any attorney, or any other person or entity authorized by the rules of the court” may forward the request to the foreign central authority.

Judge Seymour, citing both Greene and Marschhauser, squarely held that an attorney is competent under Article 3. A nice, concise decision.

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Case of the Day: United States v. 200 Acres of Land

By on January 14, 2013 in Hague Service Convention

The case of the day is United States v. Real Property Known as 200 Acres of Land Near Farm to Market Road 2686, Rio Grande City, Texas (S.D. Tex. 2012). The government alleged that Carlos Alberto Oliva-Castillo, apparently also known as Carlos Ricardo Tirado Tamez, was the owner of a 200-acre parcel that he bought using proceeds from drug trafficking.

Civil forfeiture proceedings are governed by 18 USC § 895(c), which provides:

(1) The Government shall initiate a civil forfeiture action against real property by—

* * *

(C) serving notice on the property owner, along with a copy of the complaint.

(2) If the property owner cannot be served with the notice under paragraph (1) because the owner—

(A) is a fugitive;

(B) resides outside the United States and efforts at service pursuant to rule 4 of the Federal Rules of Civil Procedure are unavailing; or

(C) cannot be located despite the exercise of due diligence,

constructive service may be made in accordance with the laws of the State in which the property is located.

The government moved for a finding that it had actually or constructively served process on Tirado, who was in Mexico. The magistrate judge recommended that the motion be denied but that the government be permitted to make service under the Texas Rules of Civil Procedure’s procedure for constructive service by publication. Tirado objected to the magistrate judge’s recommendation and asserted that the government had not even attempted service under the Hague Service Convention, and thus that the provision of the statute permitted constructive service in accordance with Texas law could not be brought into play. But the judge noted that the government had made several efforts to locate and serve process on Tirado, including by a request for judicial assistance to the Mexican government under the US/Mexico MLAT, and that Tirado’s whereabouts nevertheless remained unknown. Thus the Hague Service Convention was inapplicable.

This seems right, but I am surprised the government did not seek leave to serve process by alternate means, namely by service on Tirado’s US lawyer, who had appeared in the action, under FRCP 4(f)(3). Surely that method of service is more likely to result in actual notice than service by publication.

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