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Case of the Day: Cermesoni v. Maneiro

The case of the day is Cermesoni v. Maneiro (Fla. Dist. Ct. App. 2014). Carolina Cermesoni Maneiro brought divorce proceedings against her husband, Jorge Raul Cermesoni, in Buenos Aires. Both spouses were Argentine nationals living in Argentina. The husband had bank accounts at Wells Fargo and Citibank in Miami. The wife sought issuance of a letter rogatory in the divorce case requesting the US courts to issue an injunction freezing half of the funds in the accounts, which, according to the husband, amounted to about $3 million. The circuit court in Miami obliged, but for security it required the wife only to post a $100 cash bond.
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Case of the Day: Yanyac v. Cazassa

The case of the day is Yanyac v. Cazassa (Conn. Super. Ct. 2013). The plaintiff, Tiffany Yanyac, brought a divorce action against Pedro Cazassa, who resided in Brazil. She sought leave to serve him by mail.

The judge correctly recognized, apparently as a matter of first impression in the Connecticut state courts, that the Inter-American Convention on Letters Rogatory, unlike the Hague Service Convention, is not exclusive. Thus the Inter-American Convention does not bar service by mail. The judge nevertheless denied the motion on comity grounds. This is a permissible but not a necessary result. the judge cited cases for the proposition that Brazil had expressed a preference for service in its territory to be made by letter rogatory. One piece of the reasoning was a little strange: the judge focused on the desirability of ensuring that a judgment would be recognized in Brazil; but that doesn’t seem like an appropriate part of a comity analysis—it seems to me that a plaintiff proceeds at its own risk on this front—and in any case, it seems likely that in this case the US plaintiff wouldn’t have much interest in whether her divorce would be recognized in Brazil. But as I say, the result of the case was within the judge’s discretion.

Case of the Day: Landstar Global Logistics v. Robinson & Robinson

The case of the day is Landstar Global Logistics, Inc. v. Robinson & Robinson, Inc. (Cal. Ct. App. 2013). Landstar had won a judgment against Robinson in the Florida state courts. Landstar brought an action to recognize and enforce the Florida judgment in the San Diego County Superior Court. The court recognized the Forida judgment and issued a writ of execution.

Later, Wells Fargo Bank, N.A., sued Robinson and others in the San Diego Superior Court for payment of a defaulted loan. The court, at Wells Fargo’s request, appointed a receiver for Robinson. Wells Fargo also brought an action against Robinson in Mexico, and the Mexican court imposed a lien in Wells Fargo’s favor on real property held in trust for the benefit of Robinson.

Landstar, evidently aware that Wells Fargo had put itself at the head of the line by chasing Robinson’s assets in Mexico, asked the San Diego court to issue a letter rogatory under the Inter-American Convention requesting that the Mexican court recognize the California judgment liens and assign the right to receive the proceeds of the sale of the property in trust to Landstar, and also sought a restraining order enjoining Robinson from transferring its rights to the Mexican property. The lower court granted all of the relief sought, and Robinson appealed. The issuance of the letter rogatory (but not the restraining order) was stayed pending the appeal. It turned out that the restraining order was improper as a matter of California law (though leaving aside any California-specific issues, it seems proper to me to issue an order in personam restraining a judgment debtor from transferring its property anywhere in the world). So I don’t consider the restraining order further here. Instead, let’s focus on the question whether it was proper to issue a letter rogatory in the first place.

The court correctly concluded that the Inter-American Convention did not authorize the letter rogatory. Article 2 of the Convention provides:

This Convention shall apply to letters rogatory, issued in conjunction with proceedings in civil and commercial matters held before the appropriate judicial or other adjudicatory authority of one of the States Parties to this Convention, that have as their purpose:
a. The performance of procedural acts of a merely formal nature, such as service of process, summonses or subpoenas abroad;
b. The taking of evidence and the obtaining of information abroad, unless a reservation is made in this respect.

The court construed the phrase “procedural acts of a merely formal nature.” a “Procedural act” is a step “taken according to rules that prescribe the manner of conducting litigation or other judicial business, as opposed to rules that define parties’ substantive rights and obligations.” “Formal,” according to the court, here means “adhering to accepted forms, conventions, or regulations,” such as the “special or stipulated solemnities or formalities required for an act to become effective.” Thus the Convention extends to “customary or conventional steps that are taken to provide a person with a legally sufficient notice of a proceeding or of a document filed or issued in a proceeding, but that do not alter the person’s substantive rights or obligations.” The obvious conclusion: the Convention does not authorize a letter rogatory aimed at obtaining a substantive remedy such as an attachment or recognition of a California judgment liens.

Does this mean that the California court was forbidden to send a letter rogatory seeking such relief? I don’t know of any reason why the California court couldn’t send such a request, even if it is not authorized by the Convention. How a Mexican court would treat such a request is really a question of Mexican law, to which I don’t know the answer. If Mexico grants substantive relief on a foreign judgment without first recognizing the judgment, then it seems to me that Mexico is an outlier.