Case of the Day: Box v. Dallas Mexican Consulate General
Posted on September 14, 2012
The case of the day is Box v. Dallas Mexican Consulate General (5th Cir. 2012). Blake Box alleged that in 2006, Mexico’s former ambassador, Enriqué Hubbard Urrea, and its assistant consul, Hugo Juarez-Carillo, hired Box to help the Mexican consulate find new office space in Dallas. Box located a building within a three-building complex, and the parties ultimately agreed that Box and his investors would buy all three buildings and then sell one of them to the consulate. Box then formed a partnership with his investor, negotiated a deal with the seller, obtained plans, and so forth. But he later learned that the consulate had used Box’s plans to complete the transaction using a third-party investor instead of Box.
Box sued on claims of breach of contract, fraud in the inducement, breach of fiduciary duty, unjust enrichment, quantum meruit, promissory estoppel, etc. There was no question that the consulate had actual knowledge of the lawsuit. The consulate told reporters it was aware of the lawsuit. Box served the document by serving the summons and complaint, in English and Spanish, to the Mexican Central Authority. The consulate did not appear. Box’s lawyers sent the documents to the consulate’s US lawyer, which still did not spark an appearance by the consulate. Box requested and obtained a default judgment.
In 2010, the consulate moved to set aside the default judgment raising both substantive grounds concerning the court’s subject matter jurisdiction under the FSIA, which we will not consider here, and insufficient service of process. The argument was that the Mexican Central Authority had not issued a certificate of service under Article 6 of the Convention. Ordinarily, under Article 15, a default judgment cannot issue in cases where the Central Authority fails or refuses to issue an Article 6 certificate unless “every reasonable effort has been made” to obtain the certificate. The twist in this case was that the Mexican government was the defendant, and under the applicable rules of professional conduct,1 according to the court, Box’s lawyers could not communicate directly with the Mexican Central Authority to make further inquiries. Therefore, the court reasoned: “Box made ‘every reasonable effort’ when it took the only step ethically permitted by informing Mr. Alverado [the consulate’s lawyer] of the case and providing him a duplicate of all the service documents, making service proper under the Hague Convention.”
I am not sure this is right. Box’s lawyers could have asked Alverado for permission to correspond with the Mexican Central Authority about the service of process. If Alverado had said no, Box’s argument would be stronger. I understand that no one likes a defendant that ducks service of process, but I’m not sure that Box took “every reasonable effort” to obtain the Article 6 certificate. And anyway, if the consulate is deemed to be part of the Mexican state itself rather than an agency or instrumentality (which I suspect but haven’t checked), shouldn’t Box have had to try service by mail and then through the diplomatic channel as the FSIA requires? Oddly, though, Mexico seems only to have argued the Hague Convention point and not the more general FSIA point.
- The Texas rules applied. The model rule, Rule 4.2 of the Model Rules of Professional Conduct, provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”