Case of the Day: Vitro Packaging v. Dubiel
Posted on December 15, 2017
The case of the day is Vitro Packaging de Mexico, S.A. de C.V. v. Dubiel (Tex. App. 2017). John Dubiel Jr. sued Vitro Mexico, alleging that he was "injured in a grocery store when soft drink bottles exploded and glass shards hit his eye." He served process in Vitro, a Mexican firm, by serving the summons on Kevin Jackson, alleged to be Vitro's registered agent, in Plano, Texas. Vitro filed a special appearance to argue that it was not subject to the court's jurisdiction. It argued that the service was not in accordance with the Hague Service Convention, and that the Convention "preempted Texas laws and rules and provided the exclusive means for service of process." It's not the main point of this post, but it's worth noting that Vitro's argument was that the Convention is mandatory. But under Volkswagen, we know that that's just wrong: the law of the forum, not the Convention, determines when there is occasion to transmit a judicial document abroad for service.
Vitro argued that Jackson was not its agent, and it submitted an affidavit from Jackson in support of that argument. But Dubiel argued that the service was proper under a Texas statute that permits service of process on the person in charge of any business in which a nonresident engages in the state, when the claim arises out of that business. On the other hand, the statute requires that once service is made on the appropriate person in Texas, it must be mailed to the foreign business, and Vitro was right to argue that that mailing would have to comply with the Hague Service Convention (in my opinion, at least, since the Convention applies to transmission of any judicial document, whether or not the document is process in the strict sense).
The court ended with a procedural point: it's improper under Texas law to raises issues about the sufficiency of service of process by way of a special appearance. We don't need to delve into this anachronistic procedural mess, because in federal courts and in many state courts the distinction between general and special appearances no longer exists and Rule 12 governs the procedure and timing for raising defenses that go to process, jurisdiction, and other matters in bar.