Paola A. Alvardo-Fernandez v. Matthew Mazoff
151 So. 3d 8
Fla. Dist. Ct. App.2014Background
- Plaintiff (Mazoff) sued Defendant (Alvarado-Fernandez), a Colombian citizen, for personal injuries after a car accident involving a rental car; multiple amended complaints were filed between 2009 and 2012.
- Plaintiff attempted service in Colombia repeatedly (including international first-class mail and registered mail) without reaching Defendant; Defendant provided incorrect contact information to the rental company and police.
- Plaintiff ultimately effected substituted service by serving the Florida Secretary of State under Fla. Stat. § 48.161 and mailed process by registered mail to Defendant’s last known address (receipt unclaimed); affidavit of compliance was filed six days late.
- Defendant moved to dismiss for insufficient service and lack of personal jurisdiction, arguing noncompliance with the Inter‑American Service Convention (IASC) and the Hague Service Convention, failure to follow substituted-service statutes, late affidavit, and Rule 1.070(j) grounds.
- The trial court denied dismissal (made no factual findings); the Fourth District affirmed, reviewing service and jurisdiction de novo and finding Plaintiff’s methods and diligence sufficient under the circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability and effect of international service treaties | Hague not applicable (Colombia not party until Nov 1, 2013); IASC need not be strictly followed; U.S./Florida law controls | Plaintiff failed to comply with treaty procedures (IASC/Hague) so service invalid | IASC is not self‑executing and not exclusive; Hague would preempt state law only after it applied (post‑Nov 2013), so treaty noncompliance did not mandate dismissal |
| Validity of substituted service under Fla. statutes (§§ 48.161, 48.171, 48.181) | Substituted service via Secretary of State plus attempted registered mail was proper given Defendant’s concealment and foreign location | Plaintiff failed to file return receipt and strictly comply with statutory formalities | Substituted service valid here; strict filing of return receipt excused where defendant evaded service and plaintiff demonstrated due diligence |
| Due diligence in locating and serving Defendant | Multiple searches, two hired attorneys, discovery from Alamo, use of social media, repeated attempts and court extensions show diligence | Plaintiff did not exhaust treaty methods or perfect statutory formalities | Plaintiff exercised due diligence appropriate to circumstances; efforts were sufficient to invoke substituted service statutes |
| Timeliness (late affidavit) and Rule 1.070(j) dismissal for inactivity | Late affidavit was a clerical mistake; court should accept late filing or extend time; case activity (extensions, discovery, appeals) shows pursuit of claim | Untimely affidavit and long delay warrant dismissal under Rule 1.070(j) | Trial court did not abuse discretion: accepted late affidavit for good cause and properly denied dismissal under Rule 1.070(j) given extraordinary circumstances and ongoing activity |
Key Cases Cited
- Medellin v. Texas, 552 U.S. 491 (U.S. 2008) (distinguishes self‑executing vs non‑self‑executing treaties)
- Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (U.S. 1988) (Hague Convention preempts inconsistent state methods where it applies)
- Kreimerman v. Casa Veerkamp, S.A., 22 F.3d 634 (5th Cir. 1994) (IASC does not foreclose alternative service methods)
- Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986) (forum law may guide service where treaties do not control)
- Wiggam v. Bamford, 562 So. 2d 389 (Fla. 4th DCA 1990) (due diligence standard for substitute service)
- Robb v. Picarelli, 319 So. 2d 645 (Fla. 3d DCA 1975) (filing of postal receipt may be excused where defendant evades service)