In re Linda WILLHITE and Rex Willhite, Plaintiffs v. Paulo RODRIGUEZ-CERA and Juan Torres, Defendants.
No. 11SA250
Supreme Court of Colorado, En Banc.
April 23, 2012
2012 CO 29
Justice BOATRIGHT
Senter Goldfarb & Rice, L.L.C., Arthur J. Kutzer, Joel A. Palmer, Denver, Colorado, Attorneys for Defendant Paulo Rodriguez-Cera.
No Appearance by or on behalf of Linda Willhite and Juan Torres.
Justice BOATRIGHT delivered the Opinion of the Court.
¶ 1 In this original proceeding under
¶ 2 We hold that
I. Factual Background and Procedural History
¶ 3 In his personal injury complaint, Willhite alleged that Rodriguez-Cera rear-ended the vehicle Willhite was driving.1 Willhite filed suit against Rodriguez-Cera and Juan Torres, the owner of the vehicle Rodriguez-Cera was driving, for damages for the inju-
¶ 4 After learning that Rodriguez-Cera was living in Mexico, Willhite filed a motion for substituted service pursuant to
¶ 5 Six months later, Willhite filed a second renewed motion for substituted service. He reported that he undertook efforts to serve Rodriguez-Cera through the Mexican central authority, in accordance with the Hague Service Convention, but was hindered by numerous obstacles and bureaucratic challenges.2
¶ 6 The next day, Willhite served Rodriguez-Cera by substituted service on his sister, Ms. Torres-Bravo. By special appearance, Rodriguez-Cera filed a motion to quash the substituted service. He argued that
¶ 7 Willhite filed a
II. Jurisdiction
¶ 8
III. Standard of Review
¶ 9 The United States Supreme Court is the final authority on matters of federal constitutional law, and we are bound by its interpretations of international treaties. Am. Fed‘n of Labor v. Reilly, 113 Colo. 90, 96, 155 P.2d 145, 148 (1945); see also
IV. Analysis
¶ 10 This case raises questions regarding the possible methods of serving a defendant located in a foreign country. To resolve these questions in this case, which involves a defendant residing in a country that is party to the Hague Service Convention, we must examine the Hague Service Convention as well as Colorado‘s rules governing service of process.
¶ 11 The Hague Service Convention is a multilateral treaty addressing service of process in foreign countries. See 20 U.S.T. 361. Because the United States and Mexico are both parties to the Convention, it is of potential applicability to this case. See id. (United States); Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 2117 U.N.T.S. 318 (accession of Mexico entered into force June 1, 2000). We therefore begin by reviewing the scope of the Hague Service Convention. The United States Supreme Court has held that the Convention is implicated when the laws of the forum state require the transmittal of documents abroad in order to effectuate service. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988).
¶ 12
A. The Scope of the Hague Service Convention
¶ 13 The Hague Service Convention is a multilateral treaty formulated in 1964 by the Tenth Session of the Hague Conference of Private International Law. See Volkswagenwerk, 486 U.S. at 698 (describing the history of the treaty). It revised parts of the Hague Conventions on Civil Procedure of 1905 and 1954. The revision was intended “to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit.” Id. To this end, the Convention requires each country to establish a central authority to receive requests for service of documents from litigants in other countries. 20 U.S.T. 361. Upon request, that central authority must serve the document in accordance with the internal law of its country, or by a method designated by the requester if it is compatible with the internal law. Id. A country may consent to other methods of service within its boundaries other than by request to the central authority. Id. Mexico has objected to all alternative methods of service and only consents to requests to its central authority. 2117 U.N.T.S. 318. Accordingly, service via Mexico‘s central authority is the exclusive means of serving a defendant within Mexico if service is effectuated in Mexico.
¶ 14 Article 1 of the Hague Service Convention dictates that it “shall apply in all cases where there is occasion to transmit a judicial or extrajudicial document for service abroad.” 20 U.S.T. at 361. In Volkswagenwerk, the United States Supreme Court considered whether substituted service within the United States was compatible with the Hague Service Convention. 486 U.S. at 696. To determine the scope of the Convention, the Supreme Court construed the phrases “occasion to transmit” and “for service abroad.” Id. at 700. The Court noted that “[t]he Convention does not specify the circumstances in which there is ‘occasion to transmit’ a complaint ‘for service abroad‘” but “the term ‘service of process’ has a well-established technical meaning,” which the Court described as “a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action.” Id. Because the Convention did not prescribe a standard by which to measure the legal sufficiency of the delivery of documents, the Supreme Court referred to the law of the forum state for that standard. Id.
¶ 15 The Court concluded that, if the forum state “defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies.” Id. However, after reviewing the negotiating history of the Convention, the Court distinguished the mere “delivery” of documents abroad from the transmission of documents “for service abroad.” Id. at 700-01. The Court found that the Convention applies “only when there is both transmission of a document ... and service upon the person for whom it is intended.” Id. at 701. Thus, “the only transmittal to which the Convention applies is a transmittal abroad that is required as a necessary part of service.” Id. at 707.
B. C.R.C.P. 4(d) Does Not Mandate Service Abroad
¶ 16 We begin with
Process served in a foreign country shall be according to any internationally agreed means reasonably calculated to give notice, the law of the foreign country, or as directed by the foreign authority or the court if not otherwise prohibited by international agreement.
Notably, the Rule uses the phrase “in a foreign country” and does not use the phrase “on a defendant located in a foreign country.” We conclude that, by its plain language, Rule 4(d) applies only to service that occurs in a foreign country and does not apply to service that occurs in the United States, even if the defendant upon whom service is effectuated is located abroad at the time.
¶ 17
¶ 18 Finally, Rule 4(d) describes four methods of effecting service in a foreign country: (1) service in accordance with any internationally agreed means reasonably calculated to give notice; (2) service in accordance with the law of the foreign country; (3) service as directed by the foreign authority if not otherwise prohibited by international agreement; or (4) service as directed by the court if not otherwise prohibited by international agreement. Nothing in Rule 4(d) suggests that one of these methods is preferred over another. In fact, the use of the disjunctive “or” reflects a choice of equally acceptable alternatives. See Webster‘s Third New International Dictionary 1585 (2002) (defining “or” as indicating “a choice between alternative things, states, or courses“); see also Denver Horse Imp. Co. v. Schafer, 58 Colo. 376, 384, 147 P. 367, 370 (1915) (relying on Webster to define “or” as “[a] co-ordinating particle that marks an alternative—as you may read or may write, that is, you may do one of the things at your pleasure, but not both—[and that] often connects a series of words or positions, presenting a choice of either“). Thus, while service “according to any internationally agreed means” is one alternative, service “according to the law of the foreign country,” and service “as directed by the foreign authority or the court, if not otherwise prohibited by international agreement,” are equally acceptable methods of service.
¶ 19 In defining the four exclusivе means of effecting service in a foreign country,
C. C.R.C.P. 4(f) is a Valid Alternative to Service Abroad
¶ 20
¶ 21
In the event that a party attempting service of process by personal service under section (e) is unable to accomplish service, ... the party may file a motion supported by an affidavit of the person attempting
service, for an order for substituted service. The motion shall state (1) the efforts made to obtain personal service and the reason that personal service could not be obtained, (2) the identity of the person to whom the party wishes to deliver the process, and (3) the address, or last known address of the workplace and residence, if known, of the party upon whom service is to be effected. If the court is satisfied that due diligence has been used to attempt personal service under section (e), that further attempts to obtain service under section (e) would be to no avail, and that the person to whom delivery of the process is appropriate under the circumstances and reasonably calculated to give actual notice to the party upon whom service is to be effective, it shall (1) authorize delivery to be made to the person deemed appropriate for service, and
(2) order the process to be mailed to the address(es) of the party to be served by substituted service, as set forth in the motion, on or before the date of delivery. Service shall be complete on the date of delivery to the person deemed appropriate for service.
¶ 22 Because substituted service is an alternative to personal service, a plaintiff must first attempt personal service before recurring to the court for an order for substituted service. Whether a plaintiff may attempt personal service on a defendant who is located abroad is a case-specific inquiry. If that defendant comes to the United States, there may be an opportunity for personal service within the United States in accordаnce with
D. C.R.C.P. 4(f) Does Not Implicate the Hague Service Convention
¶ 23 In ordering substituted service,
¶ 24 By its plain language,
¶ 25 Service also must be valid and complete under the Due Process Clause. See Volkswagenwerk, 486 U.S. at 707. This requires “notice reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
¶ 26 A due process guarantee is built in to the concept of substituted service in Colorado. Before authorizing substituted service, a Colorado court must consider
¶ 27 Rodriguez-Cera suggests that allowing substituted service under
¶ 28 Because
¶ 29 We now consider whether Willhite could avail himself of substituted service under
V. Application
¶ 30 Willhite initially attempted to serve Rodriguez-Cera personally at his last known address in Colorado. While attempting personal service, he learned that Rodriguez-Cera was residing in Mexico. At that point, Willhite could no longer attempt to serve Rodriguez-Cera pursuant to
VI. Conclusion
¶ 31 For the foregoing reasons, we make the rule absolute and remand to the trial court for further proceedings consistent with this opinion.
Justice COATS dissents, and Justice EID joins in the dissent.
Justice EID dissents, and Justice COATS joins in the dissent.
Justice COATS, dissenting.
¶ 32 I agree with Justice Eid that the mailing requirement of our own Rule 4(f) is, in and of itself, sufficient to make the Hague Convention applicable, and I share her concern that the majority rationale risks abrogating that requirement of our substituted service rule altogether. Even if the mailing requirement were not so express, however, I question whether Rule 4(f) would constitute an adequate substitute, as contemplated by the Supreme Court, for the transmittal of documents abroad.
¶ 33 I do not disagree that in Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988), the United States Supreme Court construed the Hague Convention to apply only when the home state defines the applicable method of serving process as not requiring transmittal of documents abroad; and further, that it found the Convention inapplicable in that case, where it went unchallenged that an
¶ 34 Although Colorado has a similar long-arm statute, see
¶ 35 Since service by mail or publication alone in a case of this nature would clearly be inadequate, unless the plaintiffs can establish both that they have been unable, despite their due diligence, to effect personal service and that any further attempts to do so would
¶ 36 I understand the majority to hold precisely that. I am reluctant to join this expansive interpretation of Volkswagenwerk, in part because it so obviously circumvents a specific compromise of the Convention, to leave the choice of accepting alternate methods of service to each contracting country; but even more impоrtantly, because it renders nugatory any binding effect of an international treaty. There is no suggestion here, as in some cases, that the signatory country refuses to comply with its treaty obligations. See, e.g., Nuance Commc‘ns, Inc. v. Abbyy Software House, 626 F.3d 1222, 1239 (Fed.Cir.2010) (acknowledging Advisory Committee Note to
¶ 37 Finally, I appreciate the fact that the majority does not actually sanction substitute service in this case, see maj. op. at ¶ 30 n. 8, but merely disapproves the district court‘s determination that it was barred from considering such substitute service and remands for further consideration. In reaching even this result, however, the majority accepts the intermediate proposition that in light of Rule 4(f), personal service in Mexico is not required, and therefore the Hague Convention does not apply. Because I believe Rule 4(f) does not provide a complete or equivalent substitute for personal service in a foreign signatory country, and instead merely provides a last resort alternative when personal service, as otherwise required, cannot be successfully еffected, I would agree with the conclusion of the district court that the Hague Convention applies in this situation and must be complied with.
¶ 38 Because I would therefore discharge the rule, I respectfully dissent.
I am authorized to state that Justice EID joins in this dissent.
Justice EID, dissenting.
¶ 39 I join Justice Coats’ dissent. I write separately to address the majority‘s conclusion that “mailing [to the defendant] is not required to complete service” under Rule 4(f), and that therefore the Hague Convention does not apply to this case. Maj. op. at ¶ 24. Under the plain language of Rule 4(f)(2), the court “shall ... order the process to be mailed to the address(es) of [the defendant] ... on or before the date of delivery” of process to the substitute party.
¶ 40 When a defendant‘s address is known,1 Rule 4(f)(2) requires the plaintiff to mail the process to the defendant. Specifically, if the court finds substituted service is appropriate, the court “shall ... order the process to be mailed” to the defendant.
¶ 41 The majority makes two arguments that service is complete without the mailing. First, it argues that the rule‘s statement that service is “complete on the date of delivery to the [substituted person]” shows the mailing is unnecessary. Maj. op. at ¶ 24. But the rule requires that the mailing to the defendant occur “on or before the date of delivery.”
¶ 42 Second, the majority argues that the rule only requires mailing when the address is known. Thus, when the defendant‘s address is unknown, service must be complete when the process is delivered to the substituted person. Consequently, the majority concludes, service is complete when the process is delivered to the substituted person, even when the defendant‘s address is known. Maj. op. at ¶ 24. But this is a leap of logic that goes too far. Simply because there may be circumstances under which a defendant‘s address is not known does not excuse the rule‘s requirement that mailing occur when the address is known.2 Such a conclusion violates the plain language of the rule.
¶ 43 We have narrowly construed rules allowing substituted service. See, e.g., ents” cite=“unknown” court=“unknown” type=“short“>Re-ents. Defendant Paulo is now living under his parents’ care, so Defendant Paulo‘s counsel is virtually assured of contacting Defendant Paulo through his parents.“).
¶ 44 As applied here, Rule 4(f)(2) requires the plaintiffs to mail the process to the defendant, who is located abroad, “on or before” the date the process is delivered to the substituted party. The rule therefore requires “the transmittal of documents abroad,” and the Hague Service Convention applies. Volkswagenwerk, 486 U.S. at 700.
¶ 45 When confronted with similar state mailing procedures, a host of federal courts have come to the same conclusion. See, e.g., Vega Glen v. Club Méditerranée S.A., 359 F.Supp.2d 1352, 1355-56 (S.D.Fla.2005) (Florida statutes allowed substituted service through the secretary of state, but also required the mailing of process to the defendant, which triggered the Hague Service Convention); In re Hayes Lemmerz Intern., Inc., 271 F.Supp.2d 1007, 1030-33 (E.D.Mich. 2003) (Delaware statute allowed service on the resident agent of a nonresident company, but also required process to be mailed to the company, which triggered the Hague Service Convention); Davies v. Jobs & Adverts Online, Gmbh, 94 F.Supp.2d 719, 721-22 (E.D.Va.2000) (Virginia statutes allowed substituted service on state clerk for foreign corporations transacting business in-state, but the clerk was required to mail the pro-
¶ 46 The underlying justification for today‘s decision appears to be that it is difficult to comply with the Hague Convention in this сase. Maj. op. at ¶ 5 n. 2 (cataloging the “obstacles and bureaucratic challenges” facing the plaintiffs in attempting service of process in Mexico in accordance with the Hague Convention). But significantly, the majority‘s interpretation of the language of Rule 4(f) applies to both domestic and international service. As a result, the effect of the majority‘s decision is to read the mailing requirement entirely out of Rule 4(f). Because such diminishment of the mailing requirement is inconsistent with the rule‘s plain language, I respectfully dissent.
I am authorized to state that Justice COATS joins in this dissent.
Justice BOATRIGHT