Cardona v. Kreamer – 7/30/2010

August 13, 2010

Arizona Supreme Court Holds That Service of Foreign Judicial Documents in Mexico Must Be Made Through Mexico’s Ministry of Foreign Affairs Pursuant to the Hague Service Convention.

In 2008, the Lac Vieux Desert Band of Lake Superior Chippewa Indians (“Tribe”) brought claims against various defendants including six defendants in Mexico (collectively, the “Six Defendants”).  The tribe moved for alternative service on the Six Defendants, and the trial court ordered service by email, mail, and federal express delivery.  The tribe complied with the order.  The Six Defendants made a limited appearance and moved to dismiss for insufficiency of process.  The trial court denied the motion, finding that the service by email, mail, and federal express delivery was proper.  The Court of Appeals declined special action jurisdiction, but the Arizona Supreme Court granted review, explaining that the method of service on persons and business entities in Mexico is an issue of statewide importance.

In a unanimous opinion, the Arizona Supreme Court vacated and remanded.  The Court explained that service of process in a foreign country is governed by Ariz. R. Civ. P. 4.2 and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention”).  Rule 4.2(i)(1) and 4.2(k) allow service outside the United States on individuals and corporations by internationally-agreed means, such as those authorized by the Hague Service Convention.  The Hague Service Convention, which both the United States and Mexico have ratified, requires each contracting state to establish a central authority that receives requests for service from abroad, effectuates service, and provides applicants with certificates of service.  Articles 8 and 10 of the Convention also allow alternative service through a state’s diplomatic or consular agents, or by directly serving persons abroad via postal channels or personal service, under certain conditions.  A contracting state, however, may object to the alternative means of service proposed by Articles 8 and 10. 

Decisively, Mexico objected to these alternative means of service in its instrument of accession to the Hague Service Convention.  Accordingly, the Court held that service under the Convention may only be made through Mexico’s central authority – its Ministry of Foreign Affairs.  Because the Tribe did not attempt service through Mexico’s Ministry of Foreign Affairs, its service was insufficient.

The Court refused to consider the Tribe’s arguments that the Convention did not apply under the specific facts of the case or that service was proper on one of the Six Defendants, explaining that these arguments should be considered in the first instance by the trial court on remand.  

Justice Bales authored the unanimous opinion.