Case of the Day: Zions First National Bank v. Moto Diesel Mexicana

The case of the day is Zions First Nat’l Bank v. Moto Diesel Mexicana, S.A. de C.V. (E.D. Mich. 2011). According to the complaint, MDM, a Mexican firm, wrote several checks to another Mexican firm, Casa de Cambio Majapara S.A. The checks, which totaled more than $2 million, were drawn on Comerica Bank, in Detroit. Majapara deposited the checks into its account at Zions Bank, which sent them to Comerica Bank for collection but meanwhile gave Majapara provisional credit for the full amount. Majapara withdrew the entire amount, and Comerica then returned the checks to Zions Bank unpaid, because there were insufficient funds in MDM’s account. Majapara then filed for bankruptcy, and Zions Bank sued MDM, as a holder in due course of the checks.

The court appointed APS International as special process server. APS transmitted English and Spanish copies of the papers to the Mexican Central Authority. The Central Authority forwarded the documents to the appropriate Mexican court, which in turn authorized a process server to serve the documents. Central Authority provided a certificate of service stating that process had been served in accordance with Mexican law, and Zions Bank filed the certificate.

The court rejected MDM’s claims that service was defective because the Mexican court that authorized service lacked jurisdiction or because it was unclear from the summons whether MDM had 20 business days or 20 calendar days to answer. As we have seen in several other cases, the court held that the certificate of the Mexican central authority was prima facie evidence that service had been made in accordance with Mexico’s internal law. Although a defendant can rebut the prima facie showing by proving lack of notice or prejudice, MDM could do neither.

There are two interesting features of this case. First, all of the cases on the prima facie effect of the Central Authority’s certificate have led me to wonder whether the certificate is merely prima facie evidence of compliance with the foreign state’s local law, or whether it is, in reality, conclusive. It seems to me highly unlikely that a US court would quarrel with a foreign central authority’s assertion that service complied with the central authority’s local law. Lack of notice really goes to the question whether the service comported with due process of law, which is a US constitutional concern that must necessarily override technical issues of service. But I can’t really imagine a case where a defendant had actual notice of a case, sufficient to comport with due process, and where a defendant nevertheless could overcome the foreign central authority’s certification of service.

Second—and this is not intended as a knock on APS International—what is the purpose of hiring a special process server in a Hague Convention case? Sure, sometimes you need to hire a certified translator, but the Convention’s requirements for transmitting the documents to be served to the foreign central authority are simple enough that I am not sure why it makes sense to bring in a service provider. I’d be curious to know what APS did that Zions Bank’s lawyers couldn’t easily do themselves.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

5 thoughts on “Case of the Day: Zions First National Bank v. Moto Diesel Mexicana

  1. The reason a private process service firm would be hired is we understand the complications involved in Hague service. For example, in Mexico, the Central Authority also requires Letters Rogatory to accompany the Request for Service Abroad form. Further, Mexico requires specific wording on the forms – wording that would not be known to a law firm doing it themselves.
    I am the CEO of Process Service Network, LLC in Winnetka, CA and have specialized in international service of process since 1978.

    1. Nelson, thank you for commenting! I take your point about unusual requirements in particular countries. Though I have generally consulted with local counsel in cases of difficulty, I agree that there is a place for firms with specialized knowledge of particular twists in particular countries.

      I’m curious: what is the special wording that Mexico requires?

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