Compass Bank v. Katz
Compass Bank v. Katz
Opinion of the Court
MEMORANDUM AND ORDER
Pending before the Court is Plaintiff Compass Bank’s “Motion for Substituted Service on Defendants,” Max Loren Katz and Kathleen Frances Katz. (Dkt. No. 5.) Therein, Plaintiff represents that, on April 30, 2012, it attempted service on Defendants at their “last known business address” in California, which “was a private postal center where Defendants maintained a box.” (Dkt. No. 5, ¶ 4.) The owner of the postal center informed Plaintiffs process server that Defendants were residing in Mexico. (Id.) Approximately thirty days later, Plaintiff also attempted to serve Defendants at their last known residential address, also in California. (Dkt. No. 5, ¶ 5.) The current residents at that address maintained that Defendants were no longer residing there and left no forwarding information. (Id.)
Currently, Plaintiff believes that Defendants “are located in Tijuana, Mexico,” but contends that their “whereabouts ... are unknown.” (Dkt. No. 5, ¶ 9.) Pursuant to Federal Rule of Civil Procedure 4(f)(3),
I. DISCUSSION
Federal Rule of Civil Procedure 4(f) governs service on individuals in a foreign country,
(1) 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; 2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: ...; or 3) by other means not prohibited by international agreement, as the court orders.
Fed.R.Civ.P. 4(f). Significantly, Plaintiff asks the Court to permit service pursuant to Rule 4(f)(3), which allows a party to use
A. The Hague Convention is Applicable
The United States and Mexico are both signatories to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 [hereinafter Hague Convention], See Hague Conference on Private International Law, Status Table, http://www. hceh.net/index_en.php? act=conventions. status&cid=17 (last visited Sept. 23, 2012) (listing the contracting states to the Hague Convention). The Hague Convention is a multinational treaty, formed for the purpose of creating an “appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time,” thereby simplifying and expediting international service of process. Nuovo Pignone, SpA v. STORM AN ASIA M/V, 310 F.3d 374, 383 (5th Cir. 2002). As a ratified treaty, compliance with the Hague Convention is mandatory in all cases to which it applies. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). However, Article 1 of the Hague Convention clearly dictates that the Convention “shall not apply where the address of the person to be served with the document is not known.” 20 U.S.T. 362, Art. 1.
As indicated above, Plaintiffs contend that, though Defendants are presumably in Tijuana, Mexico, their “whereabouts ... are unknown.” (See Dkt. No. 5, ¶ 9.) Consequently, Plaintiffs argue that the Hague Convention is not applicable. (1&¶ 11) Notably, there appears to be no binding authority in the Fifth Circuit that clearly establishes a standard for determining when an address is “known” versus when an address is “unknown” within the meaning of the Hague Convention. Nonetheless, various federal district courts have dealt with this issue.
In deciding whether defendants’ addresses are “unknown,” courts have repeatedly looked to the efforts plaintiffs have put forth in attempting to discover said addresses. See Opella v. Rullan, No. 10-21134-CIV, 2011 WL 2600707, at *5 (S.D.Fla. June 29, 2011) (“[A]n address is not ‘known’ within Article I of the [Hague] Convention only when it is unknown to the plaintiff after the plaintiff exercised reasonable diligence in attempting to discover that address.”). Compare RPost Holdings, Inc. v. Kagan,
For the purposes of the Hague Convention, Plaintiffs contention that Defendants’ address is “unknown” is problematic, given the case law cited above. In these eases, either (1) the district court required a party to exercise reasonable diligence in attempting to discover a defendant’s address in the foreign country, or (2) a party demonstrated reasonable efforts in attempting to discover the defendant’s address in the foreign country, before the court made a finding that those addresses were “unknown.” In other words, the standard set out (either directly or indirectly) seems to require, at the least, that a plaintiff put forth reasonable diligence in attempting to discover defendant’s address, before finding the party can circumvent the methods for service of process authorized by the Hague Convention.
Here, while Plaintiff has used some diligence in locating Defendants, the Court is not convinced that it should allow Plaintiff to use an alternative method of service, pursuant to Rule 4(f)(3). Significantly, Defendants maintain an active website for their Baja Real Estate Group business, which identifies a physical address in Rosarito Beach, Mexico, along with a post office box address in Chula Vista, California. At the August 3rd hearing, Plaintiff admitted that it was aware of the physical business address in Rosarito
In addition, the underlying suit in this matter revolves around a loan Plaintiff made to Defendants to purchase a vacation home in Rosarito, Mexico. (Dkt. No. 1, ¶ 6.) During the August 3rd Hearing, when questioned by the Court, Plaintiff stated that there was uncertainty as to whether Defendants were living in the house financed by the bank. (Aug. 3rd Hr’g at 1:34 p.m.) Plaintiff acknowledged that it had done internet searches and found that Defendants were advertising their vacation home as rental property through their Baja Real Estate Group business. (Id.) Plaintiff also attempted to send international mail, return receipt requested, to the Rosarito vacation home. Although Plaintiff received no signed receipt, the mail was not returned as undeliverable either. (Id.)
Notably, Plaintiff has not otherwise attempted to serve Defendants at the Rosarito vacation home. (See id.) While the Court realizes that Defendants might not be living at the vacation home they are seemingly renting to the public, one court has previously suggested that service through the Hague Convention is warranted even when service at a particular address might be ineffective, because the authorities or other persons at that address might have information regarding defendants’ whereabouts. See Blumedia Inc. v. Sordid Ones BV, No. 10-cv-01158-MSK-KLM, 2011 WL 42296, at *4 (D.Colo. Jan. 6, 2011) (“Even if Defendants are not in fact located at [the address] ... or the address proves to be false, authorities in the Netherlands may have information about Defendants that can be used to effect traditional service.”).
The evidence therefore suggests that at least two addresses for Defendants are readily available, and Plaintiff has made no attempt to serve Defendants at either of these addresses. Accordingly, the exception provided by the Hague Convention — when a defendant’s address is not known — is inapplicable to the present case, and the methods of service prescribed by the Hague Convention are controlling.
B. Mexico Does Not Allow Service By Email
The Hague Convention sets forth the permissible methods of effecting service abroad. Nuovo Pignone, 310 F.3d at 383. The primary method of service authorized by the Hague Convention requires service through a member state’s “Central Authority.” See 20 U.S.T. 362, Arts. 2-7. The Central Authority of each member state may then execute service pursuant to its own internal laws, or according to a particular method requested by the requesting state. Id. The Hague Convention also provides various exceptions to this method of service, pursuant to Articles 8, 9, and 10, including the option “to send judicial documents, by postal channels, directly to persons abroad....” 20 U.S.T. 362, Art. 10(a).
However, Article 10 expressly makes service via these postal channels contingent on the “State of destination” not objecting. Id. As previous courts have noted, when Mexico acceded to the Hague Convention, it filed its declarations objecting to all alterna
II. CONCLUSION
Because service under Rule 4(f)(3) cannot be in contravention of any international agreement, the Court must obey the dictates of the Hague Convention. Moreover, because Plaintiff has not shown that Defendants’ address is “unknown,” the Hague Convention’s specified methods of service apply. Mexico has indicated that service through its Central Authority is the sole permissible method of service on persons in Mexico. As such, Plaintiffs request to serve Defendants via email under Rule 4(f)(3) is DENIED.
IT IS SO ORDERED.
. Plaintiff initially requests substituted service on Defendants "pursuant to Tex.R. Civ. P. 109a.” (Dkt. No. 5, at 1). Plaintiff thereafter requests substituted service pursuant to Rule 4(f)(3). (Id. at 4.) Texas Rule of Civil Procedure 109a allows a court to prescribe a method of substituted service that is "as likely as publication to give defendant actual notice,” "[w]henever citation by publication is authorized.” Tex.R. Civ. P. 109a. However, service by publication has yet to be authorized in this matter and thus the Court finds Rule 109a inapplicable. As such, the Court will only consider Plaintiff's request for service by email under Rule 4(f)(3).
. The provisions of Rule 4(f) are not triggered by the citizenship of the individual being served, but rather by the place in which service is effected. Stars’ Desert Inn Hotel & Country Club, Inc. v. Hwang, 105 F.3d 521, 524 (9th Cir. 1997).
. Plaintiff has cited to RPost Holdings, 2012 WL 194388, as authority for the proposition that the Hague Convention does not apply where the address of the person to be served is unknown, in its Motion for Substituted Service (Dkt. No. 5, ¶11). However, RPost Holdings on its face seems to require a greater level of due diligence than Plaintiff has here exhibited, before authorizing substituted service. Plaintiff also cites to Velasco v. Ayala, 312 S.W.3d 783 (Tex.App-Houston [14th Dist.] 2009, no pet.) for support, arguing that "[t]he Hague Convention does not apply when the defendant is a resident of Texas or the residence of the defendant is unknown.” (Dkt. No. 5, Vll.) Yet, in Velasco, the court reiterated that service of process on a defendant in Mexico is governed by the Hague Convention, and that substituted service should not be granted "with respect to a person whose name and address are known or [are] very easily ascertainable. ...” Velasco, 312 S.W.3d at 796 (emphasis added) (quoting another source).
. As the Plaintiff notes in its motion, a plaintiff should never seek alternative service under Rule 4(f)(3) merely to "expedite the process and avoid additional costs of service.” Baker Hughes Inc. v. Homa, No. H-ll-3757, 2012 WL 1551727, at *17 (S.D.Tex. Apr. 30, 2012). Rather, a plaintiff must demonstrate why "the facts and circumstances of the present case necessitate [] the district court's intervention.” Id. (emphasis added) (quoting another source).
. Although there are courts within several circuits, including the Fifth, that have previously interpreted Article 10(a) to prohibit service by mail, because it uses the term "send” as opposed to "serve” or "service,” Lafarge Corp. v. M/V Macedonia Hellas, No. Civ.A. 99-2648, 2000 WL 687708, at *10-11 (E.D.La. May 24, 2000), a 2003 Special Commission on the operation of the Hague Service Convention made explicit that the term “send” in Article 10(a) “is to be understood as meaning 'service’ through postal channels.” See Mitchell v. Vollcswagen Group of America, Inc., 753 F.Supp.2d 1264, 1270 (N.D.Ga. 2010); Charles B. Campbell, No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico Under the Hague Service Convention, 19 Minn. J. Int’l. L. 107, 119 (2010).
. There had been some discrepancy among courts as to whether Mexico objected outright to Article 10, or whether Mexico was opposed only to the service of documents through diplomatic or consular agents, under subsection (b) and (c) of Article 10. See Mitchell, 753 F.Supp.2d at 1270-71 (comparing previous courts' and governmental websites’ interpretations of Mexico's declarations). The confusion arose from erroneous “courtesy translations” of Mexico's declarations from the original Spanish text into English. Televisa, 2009 WL 1025971, at *3. However, it is now undisputed that Mexico has objected to all alternative methods of service under Article 10. Mitchell, 753 F.Supp.2d at 1271; Televisa, 2009 WL 1025971, at *3.
Reference
- Full Case Name
- COMPASS BANK v. Max Loren KATZ and Kathleen Frances Katz
- Cited By
- 23 cases
- Status
- Published