Case of the Day: Wright v. Old Gringo
Posted on July 31, 2018
The case of the day is Wright v. Old Gringo Inc. (S.D. Cal. 2018). The plaintiff wanted to serve process on the defendant in Mexico and brought a motion to appoint a particular “vendor” as “international process server.” “Plaintiff has diligently explored all service options,” the plaintiff’s motion intoned, “and determined that the only manner in which [Defendant] may be served in a valid manner is via extra-territorial service via the [Hague Convention].”
The court denied the motion. It reasoned that the only permissible method of service in Mexico was via the Hague Service Convention’s central authority, and that an “international process server” therefore couldn’t effect service of process. This isn’t quite right, as you can serve process in Mexico via the Inter-American Convention on Letters Rogatory, too. But taking that point into consideration wouldn’t have changed the judge’s reasoning, since under the IAC and its Additional Protocol, service is also routed through the foreign state’s central authority.
I have a guess about what’s going on here, though it’s just a guess. I guess that the “vendor” told the plaintiff that it needed to be appointed as a special process server in order to send the Hague Convention paperwork to the Mexican central authority. There is something to this, because the Mexican central authority generally won’t execute requests executed, say, by the plaintiff’s attorney, even though such requests are proper under the Convention. But that doesn’t mean you have to hire an expensive “vendor” to do some sort of mumbo-jumbo for you to effect service. Just ask the clerk’s office to sign and seal the request. Then you can send the request to the Mexican central authority yourself. And while you are at it, you can ask the clerk to issue a slightly modified summons that indicates that the defendant has twenty-one calendar days to answer the complaint. Again, the Convention does not require this, but in the past at least, the Mexican central authority assisted on it. I don’t know whether it has abandoned its incorrect view of this, but unless you’re sure, better to be safe than sorry.
All this being said, if you really do want to hire and pay a vendor to do this for you in Mexico, given Mexican practice in this area, it is a good idea to get the judge to appoint the vendor as a special process server under FRCP 4(c)(3). If you do, though, you had better explain to the judge what you are trying to do: you are trying to ensure that if the vendor signs the request for service, the foreign central authority won’t reject it; you are not trying to hire someone to go to Mexico and effect personal service, which of course is not permitted.