I have a very interesting Hague Service Convention case to report today: Willhite v. Rodriguez-Cera (Colo. 2012). Rex Willhite sued Paulo Rodriguez-Cera, a driver who he alleged rear-ended his car, in the state court in Colorado. Willhite also sued the owner of the car Rodriguez-Cera was driving, Juan Torres. Willhite could not locate Rodriguez-Cera at first in order to serve the summons on him, but his process server learned that Rodriguez-Cera was living in Mexico, and that he was in regular contact with his sister, who lived in Colorado and who was married to Torres. In discovery, Rodriguez-Cera’s sister testified that he was living with their parents in a small town in Chihuahua and that he was in regular telephone contact with her. But she could not provide an address for her parents’ home, asserting that “the homes in that small town did not have numbers.”

Willhite tried to serve the summons on Rodriguez-Cera via the Mexican Central authority, but he was unsuccessful. His assertions about what happened are interesting in light of our previous coverage of trouble with the implementation of the Service Convention in Mexico:

According to Willhite, he was hindered by the Mexican central authority’s refusal to communicate with Fed Ex; Mexico’s requirement that all documents be translated by a translator licensed in Mexico and the delay and high fees associated with those translations; the need for a Mexican court with jurisdiction where the Mexican national resides to approve service by the Mexican central authority; and a shortage of local counsel available to seek approval from that court due to drug wars and violence against attorneys in the area.

Willhite then moved for leave to make substitute service on Rodriguez-Cera’s sister under Rule 4(f) of the Colorado Rules of Civil Procedure. I don’t want to get into the Colorado-specific details other than to say that when the court grants a motion for substituted service, the documents are to be served on the substituted person and mailed to the defendant himself, but the service is complete when the documents are delivered to the substituted person. In other words, the mailing to the defendant is not essential to the service, though it is required by the rule.

The motion judge quashed the service, holding that Willhite was required to serve Rodriguez-Cera via the Hague Service Convention. Willhite appealed.

The court, in an opinion by Justice Boatright, assumed that the Convention applied (i.e., because of doubts about whether Rodriguez-Cera’s street address, the court did not take the easy way out and hold the Convention simply inapplicable on the grounds that the defendant’s address was unknown). It held that under Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988), the Hague Service Convention applies only if the transmittal is a “transmittal abroad that is required as a necessary part of service.” This is, more or less, the same point that Pennsylvania lawyer Christopher L. Voltz made in an article that I reviewed on November 7, 2011. I pooh-poohed his idea then, but now that it has been adopted by a state supreme court I guess I had better stop pooh-poohing!

The case led to two dissents. Justice Coats’s dissent is not crystal-clear to me, but the basic point seems to be that even leaving aside the requirement in the Colorado rule of service by mail, Volkswagen should not be read so broadly as to permit a state to permit substituted service as opposed to personal service, because substituted service is an inferior and less reliable type of service than the personal service on an agent or subsidiary approved in Volkswagen. I think Justice Coats is pretty much just wrong. He is more or less rejecting what I think most authorities, including the Hague Conference, in its Practical Handbook, and the Supreme Court in Volkswagen take to be the rule: the Convention is not mandatory and that the law of the forum, rather than the Convention itself, determines when a document has to be transmitted for service abroad.

The more interesting dissent, I think, is Justice Eid’s. She argued that service under Rule 4(f) was not complete until mailing. Of course, I can express no strong view on this point of Colorado law. But I think Justice Eid is right to try to read the rule in this way. It’s pretty well established that under statutes providing for service of process on a Secretary of State, and under which the Secretary mails the documents on to the defendant, the mailing must comply with the Convention. Even if they can, states party to the Convention should not create special means of service under which, because the mailing is not essential to the service, it need not comply with the Convention.

Let’s leave aside the question of the validity of the service for a moment and assume that the mailing was not necessary to complete the service and that Rodriguez-Cera was not entitled to have the service quashed or the case dismissed. I would still argue that the mailing has to comply with the Hague Service Convention, because, contrary to the court’s reading of dicta in Volkswagen the Convention applies whenever judicial documents are transmitted abroad, and these papers were plainly judicial documents, even if they were not formal process. Think for a moment about an ordinary civil litigation. We serve summonses on defendants under Rule 4, and then once a case is begun, we serve the other papers on the defendant under Rule 5. In my view, Article 1 of the Convention clearly shows that it applies to both kinds of service:

The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.

If we read the words “transmit” and “service” so narrowly as to refer only to formal service of process, then how can we make sense of the word “extrajudicial”? Moreover, the Convention uses the term “writ of summons” when it intends to limit a provision to such documents (see, e.g., Article 15). All in all, I agree with the broad definition of “judicial document” suggested in the Practical Handbook:

Judicial documents include writs of summons, the defendant’s reply, decisions and judgments delivered by a member of a judicial authority, as well as summons for witnesses and expert witnesses abroad, and requests for discovery of evidence sent to the parties even if these are orders delivered as part of evidentiary proceedings.

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Characterization as a judicial document does not depend on the level of the ruling; a relief of default, an appeal statement or an appeal to a supreme court on a point of law are equally to be served in accordance with the Convention. In this respect, the ruling of a Texas judge that only the writ of summons, but not subsequent communications during the trial—and in particular the statement of appeal, is within the scope of Article 1 of the Convention, is clearly erroneous.