Cardona v. Kreamer

SUPREME COURT OF ARIZONA
En Banc

ARTURO ROJAS CARDONA, JUAN JOSE ) Arizona Supreme Court
ROJAS CARDONA, JUEGOS DE ) No. CV-10-0017-PR
ENTRETENIMIENTO Y VIDEOS DE )
GUADALUPE, S. DE R.L. DE C.V., ) Court of Appeals
ENTRETENIMIENTO DE MEXICO, S.A. ) Division One
DE C.V., ATLANTICA DE ) No. 1 CA-SA 09-0281
INVERSIONES CORPORATIVAS, S.A. )
DE C.V., AND GUADALUPE ) Maricopa County
RECREATION HOLDINGS, L.L.C., ) Superior Court
) No. CV2008-090935
Petitioners, )
)
v. )
) O P I N I O N
THE HONORABLE JOSEPH KREAMER, )
JUDGE OF THE SUPERIOR COURT OF )
THE STATE OF ARIZONA, in and for )
the County of Maricopa, )
)
Respondent Judge, )
)
LAC VIEUX DESERT BAND OF LAKE )
SUPERIOR CHIPPEWA INDIANS )
HOLDINGS MEXICO, LLC, a )
Corporate Enterprise of the Lac )
Vieux Desert Band of Lake )
Superior Chippewa Indians, a )
federally recognized Indian )
Tribe; and LAC VIEUX DESERT BAND )
OF LAKE SUPERIOR CHIPPEWA )
INDIANS, a federally recognized )
Indian Tribe, )
)
Real Parties in Interest. )
)
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Joseph Kreamer, Judge

VACATED AND REMANDED
________________________________________________________________
 Order of the Court of Appeals, Division One
Filed Dec. 17, 2009
________________________________________________________________

ALVAREZ & GILBERT, PLLC Scottsdale
By John T. Gilbert
Randy A. McCaskill

And

HYMEL DAVIS & PETERSEN, LLC Baton Rouge, LA
By Michael Reese Davis
Attorneys for Arturo Rojas Cardona, Juan Jose Rojas
Cardona, Juegos de Entretenimiento y Videos de Guadalupe,
S. de R.L. de C.V., Entretenimiento de Mexico, S.A. de C.V.,
Atlantica de Inversiones Corporativas, S.A. de C.V., and
Guadalupe Recreation Holdings, L.L.C.

ROSETTE & ASSOCIATES, PC Chandler
By Robert A. Rosette
Saba Bazzazieh
Little Fawn Boland San Francisco, CA
Attorneys for Lac Vieux Desert Band of Lake Superior
Chippewa Indians Holdings Mexico, LLC, and Lac Vieux
Desert Band of Lake Superior Chippewa Indians
________________________________________________________________

B A L E S, Justice

¶1 This case involves an attempt to serve process on

persons and business entities in Mexico via postal channels and

email. We hold that such service is incompatible with Mexico’s

accession to the Convention on the Service Abroad of Judicial

and Extrajudicial Documents in Civil or Commercial Matters (the

“Hague Service Convention”), which provides that service of

foreign judicial documents in Mexico must be made through

Mexico’s Ministry of Foreign Affairs.

2
 I.

¶2 In 2008, the Lac Vieux Desert Band of Lake Superior

Chippewa Indians and a holding company created by the Tribe

(collectively, the “Tribe”) filed an action in the Maricopa

County Superior Court against Arturo and Juan Jose Rojas Cardona

and four corporate entities (collectively, the “Six

Defendants”). The Tribe also sued several other defendants that

are not relevant to this opinion. The lawsuit concerns the

Tribe’s investment in a casino project in Guadalupe, Mexico.

¶3 The Tribe moved ex parte for alternative service on

the Six Defendants. The superior court, although later

observing that each proposed method of service was likely

insufficient standing alone, approved the “cobbling together” of

service by the following means: (1) certified mail to the Six

Defendants’ attorneys of record at their domestic addresses; (2)

email to Juan Jose Rojas Cardona at two addresses; (3) Federal

Express delivery to the Six Defendants with return receipt

requested at an address in Mexico where the parties had

previously met; and (4) mail to Arturo Rojas Cardona at his last

known domestic addresses.

¶4 The Tribe complied with the order but did not receive

delivery confirmation at the Mexican address. The Tribe also

did not receive a return receipt for the mailings sent

domestically to Arturo Rojas Cardona, but the superior court

3
deemed service by these mailings to be complete. Cf. Ariz. R.

Civ. P. 4.2(c) (allowing service by mail outside Arizona but

requiring a signed and returned receipt). The Six Defendants

made a limited appearance and moved to dismiss for insufficiency

of service of process, arguing that the alternative process

violated the Hague Service Convention and Arizona Rule of Civil

Procedure 4.2. Denying the motion, the superior court concluded

that the Hague Service Convention did not prohibit the

alternative methods of service it previously ordered. The court

of appeals declined special action jurisdiction.

¶5 Because the proper method of service on persons and

business entities in Mexico is an issue of statewide importance,

we granted review to consider whether the Hague Service

Convention allows service there by the means approved by the

superior court.1 We have jurisdiction under Article 6, Section

5(3) of Arizona’s constitution and Arizona Revised Statutes

(“A.R.S.”) section 12-120.24 (2003).

II.

¶6 Service of process in a foreign country is governed by

Arizona Rule of Civil Procedure 4.2 and the Hague Service

1
We declined to review the superior court’s rulings on
motions to dismiss for lack of personal jurisdiction and subject
matter jurisdiction. Of the Six Defendants, one corporation
(Juegos de Entretenimiento y Videos de Monterrey) is not a
Petitioner here. The Petitioners are the other Six Defendants
and Guadalupe Recreation Holdings, L.L.C.

4
Convention. Rule 4.2(i)(1) generally provides that service may

be effected outside the United States on individuals by any

internationally agreed means reasonably calculated to give

notice, such as the means authorized by the Convention. A court

may also direct service “by other means not prohibited by

international agreement.” Ariz. R. Civ. P. 4.2(i)(3). Rule

4.2(k) contains similar provisions for service abroad on

corporations or partnerships and other unincorporated

associations. Thus, if the Convention applies, its provisions

determine whether the superior court properly ordered

alternative service.

¶7 The Convention is a multilateral treaty formulated in

1964 by the Tenth Session of the Hague Conference of Private

International Law. See Volkswagenwerk Aktiengesellschaft v.

Schlunk, 486 U.S. 694, 698 (1988). The United States ratified

the Convention without reservation in 1967. Id.; Hague Service

Convention, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163.

Although Mexico was not an original signatory, it acceded to the

Convention in 1999 by depositing an instrument of accession with

the Ministry of Foreign Affairs of the Netherlands. See Hague

Service Convention at art. 28; Accession (with Declarations) of

Mexico to the Hague Service Convention, 2117 U.N.T.S. 318

(2000).

¶8 The Convention seeks “to provide a simpler way to

5
serve process abroad, to assure that defendants sued in foreign

jurisdictions . . . receive actual and timely notice of suit,

and to facilitate proof of service abroad.” Schlunk, 486 U.S.

at 698. Broad in scope, the Convention applies “in all cases,

in civil or commercial matters, where there is occasion to

transmit a judicial or extrajudicial document for service

abroad.” Hague Service Convention at art. 1. The Convention

does not apply, however, “where the address of the person to be

served with the document is not known.” Id.

¶9 The Convention requires each contracting state to

establish a central authority to “receive requests for service

coming from other contracting [s]tates.” Id. at art. 2. Once a

central authority receives a request for service that complies

with the Convention, it must “itself serve the document” or

“arrange to have it served by an appropriate agency.” Id. at

arts. 3, 5. The central authority then provides the applicant

with a certificate identifying how the document was served or

the reasons that prevented service. Id. at art. 6. Through

these procedures, “[t]he Convention provides simple and certain

means by which to serve process on a foreign national.”

Schlunk, 486 U.S. at 706. Complying with the Convention may

also facilitate subsequent efforts by parties to enforce their

judgments abroad. Id.

¶10 The Convention also contemplates certain alternative

6
means of service under Article 8, which allows service through a

state’s diplomatic or consular agents, and Article 10, which

allows judicial documents to be sent directly to persons abroad

via postal channels or by personal service “through the judicial

officers, officials, or other competent persons of the [s]tate

of destination.” Hague Service Convention at arts. 8, 10.

Significantly, the Convention permits a contracting state to

object to the alternative means of transmission provided in

Article 8 (except as concerns service on a national of the state

in which the documents originate) and Article 10. Id.; see also

id. at art. 21 (allowing each contracting state to inform the

Dutch Ministry of Foreign Affairs of any “opposition to the use

of methods of transmission pursuant to articles 8 and 10”).

¶11 Mexico has objected to these alternative methods of

service. Its instrument of accession, which includes

declarations clarifying Mexico’s position with respect to

various articles of the Convention, opposes service to persons

in Mexican territory under Articles 8 and 10. Accession (with

Declarations) of Mexico, 2117 U.N.T.S. at 319 ¶¶ IV, V. Thus,

service through Mexico’s central authority, its Ministry of

Foreign Affairs, is the exclusive means by which service may be

accomplished in Mexico. See Restatement (Third) of Foreign

Relations Law § 471 cmt. e (1987) (“[F]or states that have

objected to all of the alternative methods, service through the

7
Central Authority is in effect the exclusive means.”).2

¶12 Some confusion has nevertheless arisen regarding

Mexico’s reservations against the use of alternative service.

When Mexico deposited its instrument of accession, the Dutch

Ministry requested either an English or French translation of

Mexico’s Spanish declarations for distribution to the other

contracting states. 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, 121 n.69 (2010). Mexico

provided the Ministry with an English “courtesy translation”

that mistranslated Mexico’s objection to Article 10 as: “[T]he

United Mexican States are opposed to the direct service of

documents through diplomatic or consular agents to persons in

Mexican territory according to the procedures described in sub-

paragraphs a), b) and c).” English Courtesy Translation of

Accession (with Declarations) of Mexico to the Hague Service

Convention, 2117 U.N.T.S. 318, 321 ¶ V (2000) (emphasis added).

¶13 This mistranslation, which erroneously inserts the

modifier “through diplomatic or consular agents” into the

2
Mexico’s accession to the Convention does recognize that,
after its Ministry of Foreign Affairs forwards documents to an
appropriate Mexican judicial authority, the judicial authority
may use simplified procedures to effect service in certain
circumstances. See Accession (with Declarations) of Mexico,
2117 U.N.T.S. at 319 ¶ V.

8
original Spanish version, has caused some U.S. courts and

agencies to conclude that Mexico objects to alternative methods

of service only when attempted through diplomatic or consular

agents. See, e.g., UNITE Nat’l Ret. Fund v. Ariela, Inc., 643

F. Supp. 2d 328, 333-34 (S.D.N.Y. 2008) (relying on “courtesy

translation” and concluding that because Mexico’s Article 10

declaration “restricts its objection to service through

‘diplomatic or consular agents,’” Mexico’s declaration “does not

expressly prohibit or object to service via postal channels”);

U.S. Dep’t of State, Circular: International Judicial Assistance

Mexico (advising that service may be accomplished in Mexico by

international registered mail because “no provision in Mexic[an]

law specifically prohibit[s]” such service).3

¶14 The English “courtesy translation” was not Mexico’s

instrument of accession, but was submitted so that the Dutch

Ministry could transmit a depositary notification of Mexico’s

accession to the other contracting states. Campbell, supra, at

120-21. Mexico’s President signed, and its Senate ratified, the

instrument of accession in Spanish, making these Spanish

3
Available at http://web.archive.org/web/20080328041048/http
://travel.state.gov/law/info/judicial/judicial_677.html (last
visited July 21, 2010); revised October 2009 to state “[w]hile
cases have been reported where U.S. courts have accepted
alternative methods of service, Mexico’s accession to the Hague
Service Convention indicates that service through the Mexico
Central Authority is the exclusive method available.” Available
at http://travel.state.gov/law/judicial/judicial_677.html (last
visited July 21, 2010).

9
declarations evidence of Mexico’s intent to disallow alternative

service. Id. at 120-21, 126-27 & n.87; see also Schlunk, 486

U.S. at 700 (noting that to ascertain the meaning of treaties,

courts “may look beyond the written words to the history of the

treaty, the negotiations, and the practical construction adopted

by the parties”). We also note that the reference to service

“through diplomatic or consular agents” in the English “courtesy

translation” of Mexico’s objections to Article 10 is somewhat

anomalous on its face, inasmuch as Article 10, unlike Article 8,

does not concern service through diplomatic or consular

officials.

¶15 The original Spanish declaration, not the English

“courtesy translation,” expresses the intent and determines the

terms of Mexico’s accession to the Convention. Cf. Todok v.

Union State Bank, 281 U.S. 449, 454 (1930) (stating that for a

treaty ratified in French, the French text, not the English

translation, controlled). Compliance with the Convention, as

acceded to by Mexico, is “mandatory in all cases to which it

applies.” Schlunk, 486 U.S. at 699, 705 (“By virtue of the

Supremacy Clause, U.S. Const., Art. VI, the Convention pre-empts

inconsistent methods of service prescribed by state law.”); see

also Kadota v. Hosogai, 125 Ariz. 131, 134, 608 P.2d 68, 71

(App. 1980) (“Arizona cannot attempt to exercise jurisdiction

under a rule promulgated by its courts if that rule would

10
violate an international treaty.”).

¶16 Mexico’s blanket objection to any alternative methods

of service under Articles 8 and 10 renders service through its

Ministry of Foreign Affairs the exclusive means available under

the Convention. When the Convention applies, alternative

service in Mexico through postal channels and email is

prohibited, and the superior court erred in ruling otherwise.

We recognize that this error may have resulted from the

combination of the English mistranslation of Mexico’s

declarations and the U.S. State Department circular, not revised

until after the superior court’s ruling, which mistakenly

indicated that service may be effected in Mexico by registered

mail.

¶17 The Tribe acknowledges that it has not attempted

service through Mexico’s Ministry of Foreign Affairs but

contends that it has nonetheless validly effected service. The

Tribe first argues that the Convention does not apply because

Mexican addresses for the Six Defendants are not known.

Moreover, noting that the Convention does not determine the

validity of service on foreign defendants within the United

States, see Schlunk, 468 U.S. at 707, the Tribe contends that

service was validly effected domestically on either Arturo Rojas

Cardona or the attorneys for the Six Defendants, and these

persons were authorized to receive service of process on behalf

11
of the other defendants. We do not reach these arguments, which

may be considered in the first instance by the superior court on

remand.

III.

¶18 For the foregoing reasons, we vacate the superior

court’s order denying the Six Defendants’ motion to dismiss for

insufficiency of service of process and remand for further

proceedings consistent with this opinion.

_____________________________________
W. Scott Bales, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

_____________________________________
A. John Pelander, Justice

12