Cardona v. Kreamer/Lac Vieux Desert Band of Chippewa Indians (7/30/10)

The Supreme Court has issued this opinion to clear up a point of confusion about service of process in Mexico.

The Lac Vieux Band filed an action in Maricopa County against Mexican nationals. Service in a foreign country, under Rule 4.2(i), must be made according to the Hague Service Convention where it applies; where it doesn’t service is basically by letters rogatory or by the foreign country’s rules, including personal or mail service if it’s legal or by other legal means permitted by the trial court. Mexico is a signatory to the Hague Convention. But the trial judge, on the Band’s ex parte motion, allowed service by a shotgun combination of mail, email, and Fedex (and then approved service despite the Band’s not receiving return receipts or delivery confirmation). The defendants, for reasons not made clear in the opinion (presumably they have assets in this country) appeared to contest jurisdiction and service. The trial court denied their Motion to Dismiss; the Court of Appeals denied special-action review; the Supreme Court accepted it on the service issue.

Parties to the Convention designate a central authority for service of process which, when requested, makes the service; in Mexico this is the Ministry of Foreign Affairs. The Convention also permits certain alternative service methods – through diplomatic channels and by direct personal service –  but allows parties to opt out of those, which Mexico did when it joined the treaty. The problem is that when Mexico filed its joinder the Dutch, with whom such things are filed, asked it for an English or French translation to send out to other countries, and the resulting English translation contains a mistake – it suggests that only direct service through diplomatic channels (rather than all direct service) is forbidden.  This opinion holds that the Spanish version, not the English, controls.

(It could be argued that the original document should have been in French or English – and that the English translation is therefore the operative version – since those are the languages recognized by the Hague treaties of which the Service Convention is a part. That may be what the Dutch were politely trying to tell the Mexicans. Our Supreme Court relied on a U.S. Supreme Court case (Todok, 1930) holding that “for a treaty ratified in French, the French text, not the English translation, controlled.” It isn’t clear why that supports using a language – Spanish – that was not the language of ratification and is not one of the treaty’s official languages rather than a language that was and is. However, the court mostly relied upon a recent law review article from which it appears to have taken the idea that since the Mexican President and Senate dealt with the matter in Spanish, and since the Mexicans had sniffed that the English translation was merely a “courtesy,” that’s that.)

The Band then argued that it was entitled to use a loophole in the treaty: it doesn’t apply when the defendant’s address is unknown. But the Supreme Court simply remanded that for determination by trial court. The purpose of the opinion was to clarify the requirements for Mexican service, not to resolve the case. In fact, the purpose of the opinion seems to have been to adopt a Minnesota law review article as the law of Arizona. The upside of doing that is that its author evidently knew a lot more about international treaties than anyone involved in this case; that is also the downside. 

(link to opinion)