Case of the Day: Martinez v. Aero Caribbean

The case of the day is Martinez v. Aero Caribbean (N.D. Cal. 2014). Lorenzo Mendoza Martinez and others were the survivors of the victim of an airplane crash in Cuba. They sued Aero Caribbean, Empresa Aerocaribbean S.A., and Cubana De Aviacion S.A., which allegedly owned and operated the airplane and had their places of business in Cuba, for negligence and wrongful death.

The plaintiffs attempted service of process by registered mail to the defendants in Cuba and to Alberto Vizcaino Zamora, a Mexican lawyer who, they said, represented “Aerocarribean and its insurers.” They had no receipt indicating that the registered mail had been received. They moved for entry of a default judgment when the defendants did not appear.

Cuba is not a party to the Hague Service Convention. It is, however, a party to the Montreal Convention, and Martinez made an unusual argument: since Article 33(4) of the Montreal Convention provides that “questions of procedure shall be governed by the law of the court seized of the case,” Martinez claimed that service could be made under FRCP 4(e)(1). But the court correctly rejected this theory, because FRCP 4(e)(1) applies only to service within the United States. Service was not complete under FRCP 4(f)(2)(C)(ii), because there was no signed receipt.

The court went on to deny a motion under FRCP 4(f)(3) to serve again by registered mail on either the defendants or on Zamora; it noted in particular that it was not clear which entity Zamora represented. The decision was clearly within the court’s discretion, because prior attempts at registered mail had not, apparently, reached the defendants, so there was no real reason to think that later attempts would fare better, and because of the questions about Zamora’s relationship with the particular defendants.

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.

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