Case of the Day: Barriere v. Cap Juluca
Posted on March 20, 2014
The case of the day is Barriere v. Cap Juluca Leading Hotels of the World (S.D. Fla. 2014). Cap Juluca is an Anguilla corporation that manages a resort in Anguilla. Barriere, a Texas resident, alleged that she slipped and fell on wet tiles while she was staying at the resort and was seriously injured. She effected service of process on Cap Juluca by FedEx, with a signed receipt. Cap Juluca moved to quash the service. Anguilla is a UK overseas territory, and the UK has extended application of the Hague Service Convention to Anguilla.
The judge denied the motion to quash. The UK has not objected to service by postal channels. The great weight of authority includes private courier services such as FedEx within the postal channel. The judge expressly and correctly rejected cases holding that Article 10(a) permits service by mail only of documents other than the summons, noting in particular the State Department’s disagreement with the Eighth Circuit’s contrary holding in Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir. 1989).
I would have no hesitation in calling this case correctly decided, except that, as I noted in my post on Moskovitz v. La Suisse, there’s a pretty good argument that service by mail under the Convention is proper only with a motion under FRCP 4(f)(3) for leave to make service by alternative means. As discussed in the prior post, FRCP 4(f)(2)(C)(ii) does authorize service by mail, but only “if there is no internationally agreed means, or if an international agreement allows but does not specify other means,” which seems to me to be manifestly untrue when the Convention applies. Some courts, such as the Second Circuit, hold that Article 10(a) affirmatively authorizes service by mail, such that no further authority in the Federal Rules of Civil Procedure is necessary; but other decisions, which I think are better reasoned, hold the contrary. Still, although Barriere should have sought leave first, the gist of the decision is right—the Convention does not bar service by FedEx in Anguilla.