The case of the day is Puigbo v. Medex Trading, LLC (Fla. Dist. Ct. App. 2014). Medex sued Juan Andres Puigbo for fraud. Puigbo was in Venezuela. Medex transmitted the document to the Venezuelan central authority, which, after attempting personal service, served the documents on Puigbo by publication, as provided in Article 223 of the Civil Procedure Code of Venezuela. The Venezuelan court entered an order approving the service. Puigbo moved to dismiss, arguing that under Florida law, personal service was required.
The relevant Florida statute, § 48.193(3), provides that persons outside of Florida may be served “as provided in § 48.194.” Section 48.194, in turn, provides:
Except as otherwise provided herein, service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made. Service of process on persons outside the United States may be required to conform to the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
This is a poorly worded statute, I think. “May be required to conform?” What does that mean? Does it mean that Florida law is incorporating all methods of service authorized by the Service Convention? On its face, the Florida statute seems to require personal service. A better approach is the approach of FRCP 4, which authorizes service “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” This makes it clear that the law of the forum is incorporating the methods of service authorized by the Convention. The Florida statute lacks such clarity, and so I think Puigbo had a point.
However, the Florida court saved the statute by reading it, permissibly I suppose, to incorporate the Convention’s methods of service, or at least the central authority mechanism provided in Articles 5 and 6. The Florida courts should be careful not to take this too far—it would be wrong, I think, to apply the reasoning of the decision to methods of service that in my view are permitted but not affirmatively authorized by the Convention, e.g., service by postal channels under Article 10(a). In those cases, the law of the forum has to affirmatively authorize the method of service.
One last twist to consider. It’s not clear from the decision whether the reason for service by publication was that Puigbo’s Venezuelan address was unknown. If it was, then the Convention does not apply, in which case it’s not clear how to apply Florida’s statute. In short, the Florida legislature should take a look at the statute with an eye to modernizing it.