Case of the Day: Opella v. Rullan
Posted on July 13, 2011
The case of the day is Opella v. Rullan (S.D. Fla. 2011). Ray Opella sued Mauricio Alberto Rullan Diaz and Tecnologias Asociadas Internationales, S.A. de C.V., for fraud, conversion, unjust enrichment, etc. Opella served both Rullan and TAI by personal service in Mexico, performed by a Mexican notary public.
After service of process, Rullan’s lawyer, Alfonso Hernandez, moved for leave to appear pro hac vice, but the motion was denied, and Hernandez made no further effors to enter an appearance. TAI made no efforts to enter an appearance. Opella moved to enforce a settlement agreement, and the defendants did not respond. The court, after entering the defendants’ defaults, granted the motion to enforce the settlement agreement, and it directed Opella to serve its order on the defendants, who would then have to execute the settlement or else face a default judgment.
Opella moved for a default judgment, asserting that the defendants had failed to carry out the settlement. Rullan, in reply, asked the court to vacate the default and its order enforcing the settlement agreement, on the grounds that he had never been served with process and that the court therefore lacked jurisdiction.
The court held (or rather, the magistrate judge recommended, but I’ll use “the court held” for shorthand) that service via a private process server was improper if the Convention applied, because the only permissible form of service in Mexico under the Convention is service via the Central Authority. But Opella argued that because he did not know Rullan’s address at the time of service, the Convention did not apply. (Article 1 of the Convention does indeed say that the Convention does not apply when the defendant’s address is “not known”). The court, however, held that Opella had not used reasonable diligence to discover the address. Rullan’s address was publicly available, and although Opella was in contact with Rullan, he never asked him for his address. (Besides, how could Rullan’s address have been unknown if the notary public was able to make service?)
Even though TAI did not oppose the motion for default judgment, the court nevertheless refused to enter a default judgment, on essentially the same grounds as it applied to Rullan. The evidence showed that Opella must have known TAI’s address, so the Convention applied.