Kreimerman v. Casa Veerkamp, S.A. de C.V.

United States Court of Appeals,

Fifth Circuit.

No. 93-2403.

Alberto KREIMERMAN, et al., Plaintiffs-Appellants,

v.

CASA VEERKAMP, S.A. de C.V., et al., Defendants-Appellees.

June 15, 1994.

Appeal from the United States District Court for the Southern
District of Texas.

Before KING and WIENER, Circuit Judges, and ROSENTHAL,* District
Judge.

WIENER, Circuit Judge.

Plaintiffs-Appellants Alberto Kreimerman, Hermes

International, Inc. and Hermes Trading Company d/b/a Hermes Music

(collectively "Kreimerman et al.") sued Defendants-Appellees Casa

Veerkamp, S.A. de C.V., Walter Veerkamp, Electronica Solida

Mexicana, S.A., and Jorge R. Mendez (collectively "Veerkamp et

al.")1 for libel, civil conspiracy, and slander. Kreimerman et al.

served process on the defendants, all of whom are residents of

Mexico, by direct mail through the Texas Secretary of State under

the Texas Long-Arm Statute,2 but the district court quashed this

service, holding that the Inter-American Convention on Letters

*
District Judge of the Southern District of Texas, sitting
by designation.
1
Electronica Solida Mexicana, S.A. and Jorge R. Mendez have
not appeared and are not parties to this appeal.
2
Tex.Civ.Prac. & Rem.Code § 17.041, et seq.

1
Rogatory (the Convention),3 a multi-national treaty designed to

facilitate service of letters rogatory among the signatory nations,

was the exclusive means of effecting service on the defendants.

After Kreimerman et al. tried long and hard—but unsuccessfully—to

accomplish service on the defendants through the use of letters

rogatory pursuant to the Convention, they appealed the district

court's decision to quash their service on the defendants under the

Texas Long-Arm Statute, arguing—inter alia—that the Convention does

not preempt other methods of service. They also appealed that

court's refusal to grant a third extension of time within which

service could be accomplished pursuant to the Convention.

I

FACTS AND PROCEEDINGS

Alberto Kreimerman is the sole owner and stockholder of Hermes

Music and Hermes International, Inc., which sell numerous music

related products. Both companies have their principal places of

business in Hidalgo County, Texas, where Kreimerman resides.

Walter Veerkamp, who resides in Mexico, D.F. (Mexico City), in the

United States of Mexico (Mexico), is the owner of Casa Veerkamp,

S.A. de C.V., which also sells music related products and which has

its principal place of business in Mexico.

Kreimerman et al. sued Veerkamp et al. in Texas state court

3
Inter-American Convention on Letters Rogatory (hereinafter
"the Convention"), January 30, 1975, S. TREATY DOC. No. 27, 98th
Cong., 2d Sess. (1984).

2
for libel, civil conspiracy, and slander,4 serving process on all

defendants through the Texas Secretary of State under the Texas

Long-Arm Statute. Veerkamp et al. removed the case to the United

States District Court for the Southern District of Texas, Houston

Division. They also moved to dismiss the action for lack of

jurisdiction and improper service. Kreimerman et al. responded to

Veerkamp et al.'s motion and requested that the case be remanded to

state court or, alternatively, that it be transferred to the

McAllen Division of the Southern District of Texas, which was the

proper venue division for the case.5 The court denied all motions

except the motion to quash service, which it granted on the ground

that the Convention established the exclusive means of serving

process on defendants residing in a signatory State.

Following the court's decision to quash service under the

long-arm statute, Kreimerman et al. moved to extend the time to

serve all defendants and requested the district court to issue four

letters rogatory for service of process under the terms of the

Convention. The letters were issued and forwarded to Mexico by

Kreimerman et al.'s American counsel to be served on the

defendants. Kreimerman et al. retained Mexican counsel in Ciudad

Juarez (on the Mexican side of the Rio Grande River, across from El

4
Kreimerman claimed that he was defamed when Veerkamp sent
copies of an article from a Mexican political magazine and
explanatory cover letters to some of Kreimerman's suppliers. The
article (and the accompanying cover letters) apparently accused
Kreimerman of being involved in drug trafficking, gun running,
and money laundering.
5
We address the issue of removal to the wrong division
later.

3
Paso, Texas) to receive the letters and assist with such service.

This counsel in turn hired another Mexican attorney, whose firm had

offices in Mexico City, where the letters rogatory had to be filed.

During the ensuing months, Kreimerman et al.'s Mexican counsel

reported that the letters had been received and filed with the

Federal District Court of Mexico, but that they had not yet been

served, apparently because of the limited personnel available to

serve process in international cases. As his time to effect

service ran out, Kreimerman et al. requested a second extension of

time to serve the defendants, and this request was granted too.

Prior to the expiration of the third deadline, Kreimerman et

al.'s counsel in Mexico represented that service of the letters

rogatory had been effected, but that there would be a delay in

processing the returns. Kreimerman et al. wrote to the court,

notifying it that service had been effected, but that additional

time was needed to obtain properly certified copies. Only after

Veerkamp et al. subsequently moved for sanctions against Kreimerman

et al.'s counsel for misrepresenting that service had been

effected, did Kreimerman et al. learn that service had not in fact

been effected. Apparently, the lawyer in Mexico City had

continually misrepresented the true situation.

Kreimerman et al. again moved (for the third time) for

additional time to complete service of letters rogatory in Mexico.

The magistrate judge conducted an evidentiary hearing in which

Kreimerman et al.'s motion to extend time for service and Veerkamp

et al.'s motion to dismiss the action and issue sanctions were

4
reviewed. At the hearing, the magistrate judge denied Kreimerman

et al.'s motion for a third extension, concluding that they would

not be prejudiced by a dismissal because the applicable statute of

limitations had been tolled while the suit was pending.6 The

magistrate judge also found that sanctions were not appropriate,

but recommended that Kreimerman et al.'s case be dismissed without

prejudice, thereby permitting them to refile later.

Kreimerman et al. filed written objections to the magistrate

judge's recommendations, but the district court adopted them and

dismissed the case before the timely-filed written objections were

received by the court. Kreimerman et al. then moved for

reconsideration but their motion was denied.7 This appeal

followed.

II

ANALYSIS

A. Preemption

The central question in this case is whether the Convention

preempts all other conceivable means for effecting service on

defendants who reside in Mexico. To the best of our knowledge,

this question is res nova in this and all other United States

courts of appeals. Significantly, the question whether service

under the Texas Long-Arm Statute was validly accomplished under the

6
These statutes of limitations presumably related to
Kreimerman et al.'s actions against Veerkamp et al. under Texas
law for libel, civil conspiracy, and slander.
7
Kreimerman et al. also made a motion to reinstate the
motion for reconsideration, or—if you will—to reconsider the
motion for reconsideration.

5
facts of this case is not before us; neither does our

interpretation of the Convention turn on the existence vel non of

alternative methods of service that comport with notions of comity

and other requirements of domestic and international law. Here, we

simply need to determine whether the language, history, and purpose

of the Convention indicate that it was devised to supplant all

other means of effecting service on a defendant residing in a

signatory nation other than the forum nation.

1. Standards For Construing the Convention

In construing a treaty—as in construing a statute—we begin

with the language or text.8 The text of a treaty must be

"interpreted in good faith in accordance with the ordinary meaning

to be given to the terms of the treaty in their context and in

light of its object and purpose."9 Only when the language of a

treaty—read in the context of its structure and purpose10—is

8
United States v. Alvarez-Machain, 504 U.S. ----, ---- - ---
-, 112 S.Ct. 2188, 2193-94, 119 L.Ed.2d 441, 451-52 (1992);
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699,
108 S.Ct. 2104, 2108, 100 L.Ed.2d 722 (1988); Air France v.
Saks, 470 U.S. 392, 397, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289
(1985); Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134-35,
109 S.Ct. 1676, 1683-84, 104 L.Ed.2d 113 (1989).
9
Vienna Convention on the Law of Treaties, May 22, 1969,
art. 31(1), 8 I.L.M. 4 (1969) (hereinafter "Vienna Convention");
accord Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176,
180, 102 S.Ct. 2374, 2377, 72 L.Ed.2d 765 (1982) (clear import
and obvious meaning of treaty language control). Although the
United States is not a party to the Vienna Convention, it regards
the substantive provisions of the Vienna Convention as codifying
the international law of treaties. See RESTATEMENT (THIRD) OF
THE FOREIGN RELATIONS LAW OF THE UNITED STATES, Part III,
introductory note (1986).
10
Although several cases specify that the language of a
treaty must be read "in context," see, e.g., Eastern Airlines,

6
ambiguous may we resort to extraneous information like the history

of the treaty, the content of negotiations concerning the treaty,

and the practical construction adopted by the contracting parties.11

We have no dispensation "to alter, amend, or add to any treaty, by

inserting any clause, whether small or great, important or

trivial...."12 Indeed, any such effort on our part "would be ...

an usurpation of power, and not an exercise of judicial function."13

Neither may we supply a casus omissus, for we have no authority to

rewrite a treaty.14 These canons of interpretation, however, do not

Inc. v. Floyd, 499 U.S. 530, 534, 111 S.Ct. 1489, 1493, 113
L.Ed.2d 569 (1991); Schlunk, 486 U.S. at 699, 108 S.Ct. at 2108,
these cases do not define the word "context." As the language of
a treaty—again, read in context—is regularly contrasted with
information extraneous to the treaty (like the travaux
preparatoires ), see, e.g., Eastern Airlines, Inc., 499 U.S. at
535, 111 S.Ct. at 1493; Chan, 490 U.S. at 134, 109 S.Ct. at
1683-84, we can infer that the context of a treaty consists of
insights drawn from the treaty document itself. Article 31(2) of
the Vienna Convention confirms this inference, for it defines the
context of a treaty as the text "including its preamble and
annexes," as well as contemporaneous instruments and agreements
made by the parties to the treaty "in connection with the
conclusion of treaty." Emphasis added. Obviously, inferences
drawn from a treaty's structural organization (e.g., the titles
of its articles and parts) are also part of the contextual
analysis of a treaty. Such contextual analysis can and should
inform our understanding the literal language of a treaty
provision. Thus, when a court speaks of interpreting the
language of a treaty in the context of its structure and purpose,
it means construing the literal language of the treaty in light
of its structural organization and its purpose—as reflected in
the preamble and other parts of the treaty.
11
Eastern Airlines, Inc., 499 U.S. at 535, 111 S.Ct. at
1493; Chan, 490 U.S. at 135, 109 S.Ct. at 1684.
12
Chan, 490 U.S. at 135, 109 S.Ct. at 1684 (quoting The
Amiable Isabella, 19 U.S. (6 Wheat.) 32, 5 L.Ed. 191 (1821)).
13
Id.
14
Id.

7
indicate which of several competing interpretations we should favor

in close cases.

Courts commonly declare that treaties are more "liberally

construed" than contracts.15 This does not mean, however, that

treaty provisions are construed broadly. Rather, this "liberal"

approach to treaty interpretation merely reflects—as indicated

above—the willingness of courts, when interpreting difficult or

ambiguous treaty provisions, to "look beyond the written words to

the history of the treaty, the negotiations, and the practical

construction adopted by the parties."16 Indeed, existing

precedents—though sparse—suggest that treaty provisions should be

construed narrowly rather than broadly.17 As treaties establish

restrictions or limitations on the exercise of sovereign rights by

signatory States, courts should interpret treaty provisions

narrowly—for fear of waiving sovereign rights that the government

or people of the State never intended to cede.18 Ambiguous

15
See, e.g., Air France v. Saks, 470 U.S. 392, 396, 105
S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985); Eastern Airlines, Inc.,
499 U.S. at 535, 111 S.Ct. at 1493.
16
Eastern Airlines, Inc., 499 U.S. at 535, 111 S.Ct. at 1493
(citations omitted).
17
See, e.g., The Case of S.S. Lotus (France v. Turkey),
[1927] P.C.I.J. Ser. A, No 10 at 18-19; In re Extradition of
Demjanjuk, 612 F.Supp. 544, 555 (N.D.Ohio 1985) (citing the S.S.
Lotus case for the proposition that the jurisdiction [to
adjudicate] of sovereign States is unbounded unless explicitly
prohibited).
18
As "[t]he rules of law binding upon States ... emanate
from their own free will as expressed in conventions or by usages
generally accepted as expressing principles of law ...
[r]estrictions upon the independence of States cannot therefore
be presumed." The Case of S.S. Lotus (France v. Turkey), [1927]

8
provisions of a treaty should thus be interpreted to derogate

minimally from the sovereign power of the State, which is the

quintessential and most legitimate entity in international law.19

2. Discussion

The parties advance both textual (and contextual)20 and

non-textual (or extraneous) arguments in support of their

respective interpretations of the Convention. Although the

district court was persuaded that Kreimerman et al.'s attempt to

serve process under the Texas Long-Arm Statute contravened the

Convention, that court did not reveal which arguments it found

especially telling. The absence of the trial court's reasons are

inconsequential here, though, as the interpretation of treaty

provisions is a question of law, freeing us to review the district

court's conclusion de novo.21 We consider the parties textual and

non-textual arguments in turn.

a. Textual Arguments

P.C.I.J. Ser. A, No 10 at 18-19 (emphasis added); In re
Extradition of Demjanjuk, 612 F.Supp. 544, 555 (N.D.Ohio 1985)
(citing the S.S. Lotus case for the proposition that the
jurisdiction [to adjudicate] of sovereign States is unbounded
unless explicitly prohibited); see also The Case of S.S.
Wimbleton, [1923] P.C.I.J. Ser. A, No. 1, at 25 (indicating that
international treaties place restrictions on the exercise of the
sovereign rights of signatory States).
19
In this case, however, it turns out that the arguments
weigh rather more heavily on one side than the other. Thus, we
need not rely on any canon of interpretation to determine the
outcome in this case: It is simply not that close.
20
See supra footnote 10.
21
Sioux Tribe v. United States, 205 Ct.Cl. 148, 500 F.2d
458, 462 (1974); Cayuga Indian Nation of New York v. Cuomo, 758
F.Supp. 107, 111 (N.D.N.Y.1991).

9
 The only federal court to have reached the issue in a

published opinion concluded that the Convention is not the

exclusive means of serving process on defendants residing in a

signatory State.22 In so concluding, that court emphasized that the

Convention does not expressly prohibit other means of service: The

Convention "states that it shall apply to letters rogatory ... [but

it] does not state that letters rogatory are the only means of

serving process in the signatory countries."23

This is a telling dichotomy. The Convention does indeed

merely state that it "shall apply to letters rogatory,"24 rather

than to any and all means of serving process. In contrast, the

Hague Service Convention—by its own terms—"appl[ies] in all cases,

in civil or commercial matters, where there is occasion to transmit

a judicial ... document for service abroad."25 Similarly, the

official title of the Convention is the Inter-American Convention

on Letters Rogatory, whereas the official title of the Hague

Service Convention is the Convention on the Service Abroad of

Judicial and Extrajudicial Documents in Civil or Commercial

Matters.26 As rogatory letters (or letters of request) are—by

22
Pizzabiocche v. Vinelli, 772 F.Supp. 1245, 1249
(M.D.Fla.1991).
23
Id.
24
The Convention, ART. 2.
25
Convention on Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters, Nov. 15, 1965, art. 1,
20 U.S.T. 361, T.I.A.S. No. 6638 (hereinafter "Hague Service
Convention") (emphasis added).
26
Id. (emphasis added).

10
definition—merely one of many procedural mechanisms by which a

court in one country may request authorities in another country to

assist the initiating court in its administration of justice,27 the

Convention's scope appears to be limited to regulating that one

procedural mechanism. In contrast, the scope of the Hague Service

Convention is much broader, applying as it does to all service

abroad upon defendants residing within signatory States.

This facial difference in scope is reinforced by a comparison

of the preambles of the two agreements. The Convention's preamble

is rather modest: "The Governments of the Member States ...

desirous of concluding a convention on letters rogatory, have

agreed as follows...."28 The language of the Hague Service

Convention is more peremptory: "Desiring to create appropriate

means to ensure that judicial and extrajudicial documents to be

served abroad shall be brought to the notice of the addressee in

sufficient time...."29

Neither does the Convention contain a clear statement of

preemptive intent. Yet the Supreme Court found the absence of such

a "plain statement of a pre-emptive intent" significant in deciding

that the Hague Evidence Convention did not preempt other methods of

27
See, e.g., Fed.R.Civ.P. 4(f) & 28(b) (in which letters
rogatory are listed as but one of several possible means of
effecting service upon or deposing foreign residents).
28
The Convention, preamble.
29
The Hague Service Convention, preamble (emphasis added).

11
discovery.30

Thus, nothing in the language of the Convention expressly

reflects an intention to supplant all alternative methods of

service. Rather, the Convention appears solely to govern the

delivery of letters rogatory among the signatory States.

Veerkamp et al. also point to mandatory language found in the

Convention and insists that similar language led the Supreme Court

in Volkswagenwerk Aktiengesellschaft v. Schlunk to conclude that

the Hague Service Convention preempted other methods of service.31

The significance of such mandatory language, however, depends on

the context in which it is used. In the Convention, all of the

mandatory language refers to what must be done with respect to

letters rogatory; none of it remotely indicates that the

procedures outlined in the Convention must be followed by the

signatory nations for anything other than the processing of letters

rogatory.32 In contrast—as noted above—the Hague Service Convention

applies "in all cases ... where there is occasion to transmit a

30
Societe Nationale Industrielle Aerospatiale v. United
States District Court, 482 U.S. 522, 539, 107 S.Ct. 2542, 2553,
96 L.Ed.2d 461 (1987).
31
See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S.
694, 699, 108 S.Ct. 2104, 2108, 100 L.Ed.2d 722 (1988) (noting
the mandatory language of art. 1).
32
For example, the Convention indicates that it "shall apply
to letters rogatory," Convention, art. 2, that execution of such
letters by the receiving state "shall not imply ultimate
recognition of the [sending authority's] jurisdiction," Id. art
9, and that "[l]etters rogatory shall be executed in accordance
with the laws ... of the State of destination." Id. art. 10.

12
judicial ... document abroad."33 It was precisely this mandatory

language—not mandatory language in general, but mandatory language

specifically addressing the scope of the Hague Service

Convention—that the Supreme Court found so persuasive in Schlunk.34

Veerkamp et al. also argue that article 15 of the Convention

33
Hague Service Convention, art. 1.
34
486 U.S. at 699, 108 S.Ct. at 2108. Interestingly enough,
the Convention on the Taking of Evidence Abroad in Civil or
Commercial Matters (hereinafter "Hague Evidence Convention"),
March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, also contains
mandatory language, yet the Supreme Court concluded that the
Hague Evidence Convention does not preempt other methods of
discovery previously employed by common-law courts. Societe
Nationale Industrielle Aerospatiale v. United States District
Court, 482 U.S. 522, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987). For
example, the Hague Evidence Convention indicates that a
contracting State must designate a Central Authority for receipt
of letters of request. Hague Evidence Convention, art. 2. Here
we find mandatory language; yet that language tells us nothing
about whether the treaty is preemptive or not.

Indeed, it is common for treaty regimes to have
mandatory language that tells signatories what they must do
to execute particular provisions of the treaties. But
again, such language tells us nothing about the scope of the
treaties themselves. Analogously, mandatory language to the
effect that "no one may smoke in the doctor's waiting room,"
indicates nothing about when we must wait in the waiting
room. It gives us a rule for what we must do once there,
but it does not tell us when we must be there. In this
case, Veerkamp et al. are essentially arguing that mandatory
language indicating what we must or must not do once in the
waiting room (once the Convention is triggered) informs us
when we must wait in that room (when the Convention is
triggered). Such a contention is logically insupportable.
In summary, the context in which mandatory language is used
determines the relevance of such language to the inquiry at
hand. Simply noting that a treaty contains mandatory
language is unavailing. Because the mandatory language in
the Hague Evidence Convention has nothing to do with the
scope of the treaty, the Court evidently perceived that the
language is not probative of whether the treaty preempts
other methods of discovery. See generally 482 U.S. 522, 107
S.Ct. 2542.

13
demonstrates that the Convention was intended to preempt other

methods of service. Article 15 provides that "[t]his convention

shall [1] not limit any provisions regarding letters rogatory in

bilateral or multilateral agreements that may have been signed or

may be signed in the future by the States Parties or [2] preclude

the continuation of more favorable practices in this regard that

may be followed by these States."35 The first clause clearly

permits contracting States to maintain alternative treaty-based

procedures for transmitting letters rogatory. The second clause,

however, is more difficult.

Veerkamp et al. interpret this second clause to permit

contracting States to continue other more favorable service

practices when those practices are agreed upon by all effected

States. In other words, Veerkamp et al. construe this clause to

prohibit continuation of unilateral service practices by

contracting States. There is modest support for this construction

in the State Department's comments on article 15 of the Convention,

which declare that article 15 "authorizes the continuance of

practices between states concerning letters rogatory which may be

less restrictive than those prescribed by the Convention."36 There

is, however, more to be said against this construction than in its

favor.

The second clause of article 15 can reasonably be read as

affirmative permission for signatory states to continue "more

35
The Convention, art. 15.
36
Treaty Doc. 98-27, p. viii (emphasis added).

14
favorable practices" even if those practices are exercised

unilaterally.37 Article 15 simply states that the Convention does

not "preclude continuation of more favorable practices by

[contracting] States." This article indicates nothing about

whether those practices must be assented to by other signatory

nations. Neither do the State Department's comments necessarily

support the position—held by Veerkamp et al.—that pre-existing

State practices may be continued only if assented to by other

States; for the word "between" may simply mean "among the

contracting States," rather than "agreed upon by the contracting

States" as Veerkamp et al. suggest.

Moreover, even if article 15 does not affirmatively permit

continuance of unilateral state practices, there is still a

palpable leap of logic in asserting that article 15's express

authorization of certain mutually-accepted practices implicitly

forbids others not so expressly authorized. Ironically, this same

leap of logic is mirrored in the larger question at issue here, as

Veerkamp et al. can just as easily argue—and do so argue—that the

very existence of the Convention on Letters Rogatory implies the

proscription of other practices not permitted by the Convention.

As discussed later, however, the Supreme Court does not accept this

37
Interpreting article 15 to permit continuance of
unilateral service of process practices by individual contracting
States is not at all far-fetched. Indeed, the Hague Evidence
Convention has a provision that does exactly that—permit
continuance of unilaterally-adopted procedures for discovery of
evidence. See The Hague Evidence Convention, art. 27; Societe
Nationale Industrielle Aerospatiale, 482 U.S. at 537-38, 107
S.Ct. at 2552-53.

15
argument with respect to other conventions, and Veerkamp et al.

provide us with no good reason to accept the argument here either:

Their leap of logic remains just that —a leap.

Significantly, even if Veerkamp et al.'s assertion that

article 15 does not authorize the continuation of

unilaterally-exercised State practices were correct, it would not

help them. As the language of article 15 appears to address only

those treaties and State practices that pertain to letters

rogatory, the article has nothing to say about other procedures for

service of process. The expression "practices in this regard"

found in article 15 can only mean "practices in regard to letters

rogatory."

The State Department's comments on article 15 also support

this construction, for they state expressly that article 15 permits

"the continuance of practices between states concerning letters

rogatory."38 As this case involves the question whether methods of

service other than letters rogatory are preempted by the

Convention, reliance on article 15 is misplaced: That article

simply has nothing to say about any methods of serving process

other than letters rogatory.

Kreimerman et al., for their part, point to article 17 of the

Convention, which permits a "State of destination [to] refuse to

execute a letter rogatory that is manifestly contrary to its public

policy."39 Interpreting a somewhat similar escape clause in the

38
Treaty Doc. 98-27, viii (emphasis added).
39
The Convention, art. 17.

16
Hague Evidence Convention,40 the Supreme Court proclaimed its

unwillingness, "[i]n the absence of explicit textual support, ...

to accept the hypothesis that the common-law contracting states

abjured recourse to all pre-existing discovery procedures at the

same time that they accepted the possibility that a contracting

party could unilaterally abrogate even the Convention's

procedures."41 The same could be said in this case: In the absence

of explicit textual support we should be similarly chary before

accepting that the United States abjured recourse to all other

methods of service when other contracting States can unilaterally

refuse to execute letters rogatory that are contrary to their

public policies.

Thus, the text of the Convention strongly indicates, not that

the Convention preempts other conceivable methods of service, but

that it merely provides a mechanism for transmitting and delivering

letters rogatory when and if parties elect to use that mechanism.

b. Non-Textual or Extraneous Arguments

Veerkamp et al. also advance several non-textual arguments in

support of their assertion that the Convention preempts other

methods of service. First, they point to President Reagan's Letter

of Transmittal to the Senate, and the State Department's Letter of

Submittal to the President, both of which opine that the Convention

40
Hague Evidence Convention, art. 23 (which allows a
contracting party to withhold its consent to the convention's
procedures for pretrial discovery).
41
Societe Nationale Industrielle Aerospatiale, 482 U.S. at
537, 107 S.Ct. at 2552.

17
and Additional Protocol "establish a treaty-based system of

judicial assistance analogous to that which exists" among the

States that are parties to the Hague Service Convention.42 But we

do not see how this helps the defendants. "Analogous" means

"similar in certain respects,"43 or "bearing some resemblance or

likeness that permits one to draw an analogy."44 Inherent in these

definitions is the connotation that analogous things are also

"dissimilar" or "unlike" in certain respects, for if they were not

they would be identical, or at least essentially identical, and not

merely analogous. Thus, even taken literally, these statements

merely beg the question "similar in what way." More likely,

President Reagan and the State Department were simply referring to

the most similar, already-existing treaty—the Hague Service

Convention—without intending to make any legal judgments about the

relative scopes of the two conventions.

Veerkamp et al. are also rather selective in drawing from

these extrinsic sources. For example, they are careful not to

refer us to the portion of the President's Letter of Transmittal in

which he indicates, not that United States courts must resort to

Convention procedures [mandatory], but that the courts "will be

able to avail themselves of" such procedures (permissive).45

42
Treaty Doc. 98-27, p. i, iii (emphasis added).
43
Oxford American Dictionary 28 (Oxford Univ. Press, Avon
Books 1986).
44
Black's Law Dictionary 84 (6th Ed.1990).
45
Treaty Doc. 98-27, p. i (emphasis added).

18
Neither do they note President Reagan's opinion that "the purpose

of the Convention is [merely] to facilitate service ... of

documents."46 Similarly, Veerkamp et al. fail to call our attention

to the State Department's assertion that "[t]he Convention,

together with the Additional Protocol, establishes a mechanism [not

the mechanism] for service of process" among the contracting

States.47 In view of the importance that the Supreme Court places

on such permissive language,48 Veerkamp et al.'s selective use of

these extrinsic sources is understandable, albeit not altogether

forthcoming. Taken as a whole, references to these extrinsic

sources do not strengthen Veerkamp et al.'s position: Indeed,

their net effect is to weaken it.

Veerkamp et al. also suggest that Kreimerman et al.'s

construction of the Convention—which makes resort to the Convention

procedures optional rather than mandatory—renders the Convention

inefficacious: Contracting States could simply choose to disregard

Convention procedures when they proved inconvenient. The Supreme

Court, however, has rejected this argument in a variety of

46
Id. The Supreme Court attached considerable importance to
precisely this sort of permissive language in holding that the
Hague Evidence Convention did not preempt other pre-existing
methods of discovery. Societe Nationale Industrielle
Aerospatiale v. United States District Court, 482 U.S. 522, 534,
107 S.Ct. 2542, 2550, 96 L.Ed.2d 461 (1987) (noting that the
preamble to the convention stated that its purpose was to
facilitate the transmission and execution of letters of request).

47
Id. at iv (emphasis added).
48
See generally Societe Nationale Industrielle Aerospatiale,
482 U.S. 522, 107 S.Ct. 2542.

19
contexts. In Societe Nationale Industrielle Aerospatiale, for

example, the Court concluded that it is enough that the Hague

Evidence Convention "procedures are available whenever they will

facilitate the gathering of evidence by the means authorized in the

Convention."49 Similarly, in United States v. Alvarez-Machain, the

Supreme Court concluded that the 1978 Extradition Treaty between

the United States and Mexico was not the exclusive means for the

United States to gain custody over suspects residing in Mexico.50

In so concluding, the Court rejected the argument—advanced by the

dissent—that the purposes of the extradition treaty "would be

utterly frustrated" if other means of gaining custody over foreign

suspects were permitted.51 The Supreme Court has thus clearly

rejected the argument that a treaty must be construed to preempt

alternative, nontreaty-based procedures if the treaty is not to be

rendered nugatory.

In Schlunk, the Supreme Court explained why the argument is

unconvincing,52 pointing out—albeit in a different context—that

"nothing ... prevents compliance with the Convention even when the

internal law of the forum does not so require."53 The Court also

49
Id. at 541, 107 S.Ct. at 2554.
50
United States v. Alvarez-Machain, 504 U.S. ----, 112 S.Ct.
2188, 119 L.Ed.2d 441 (1992).
51
Alvarez-Machain, 504 U.S. at ----, 112 S.Ct. at 2198, 119
L.Ed.2d at 458.
52
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S.
694, 706, 108 S.Ct. 2104, 2111, 100 L.Ed.2d 722 (1988).
53
Id., 486 U.S. at 706, 108 S.Ct. at 2111.

20
observed that "[t]he Convention provides simple and certain means

by which to serve process on a foreign national."54

These same observations apply perforce to this case. The

Convention provides plaintiffs with a "safe harbor"—a dependable

mechanism—but not necessarily the only lawful mechanism—by which

they may effect service on defendants residing in another signatory

nation. Plaintiffs who elect not to avail themselves of the

Convention machinery assume the risk that other legal principles,

like the principle of international comity, might hinder their

establishment of jurisdiction over the defendants. Finally, Such

plaintiffs may also discover that their failure to employ the

Convention's safe harbor procedures makes enforcement of their

judgments abroad more difficult or even impossible.55

When we thus consider all the arguments advanced by the

parties—both textual and non-textual—we conclude that the

Convention does not preempt other methods of service. This

conclusion does not, however, guarantee the availability or

efficacy of other methods of service, and we do not today decide

which other methods of service—if any—would be supportable or

efficacious under applicable domestic and international law.

3. The Texas Long-Arm Statute

Veerkamp et al. urge that considerations of comity require

that we respect the traditional civil law requirement—apparently

practiced in Mexico—that legal documents be served by a government

54
Id.
55
Id.

21
official or through other official channels. Veerkamp et al. would

have us affirm on other grounds the district court's decision to

quash service: specifically, by declaring that such service

violates principles of comity. Ignoring for a moment the failure

by Veerkamp et al. to introduce any evidence concerning the laws of

Mexico or any precedents explaining how principles of comity might

apply here, this argument misconstrues the core issue of this case.

Although the parties apparently agree that Kreimerman et al.

properly employed the machinery of the Texas Long-Arm Statute, they

do not address—in their submissions to us or to the district

court—whether service of process under the Texas Long-Arm Statute

on defendants residing in Mexico contravenes notions of comity, the

procedural requirements of Fed.R.Civ.P. 4, or any other applicable

domestic or international laws.56 Neither did the district court

reach such issues: Its inquiry ended when it held—incorrectly, we

conclude—that the Convention preempted all other methods of service

56
The content of Federal Rule of Civil Procedure 4(f),
formerly largely contained in Fed.R.Civ.P. 4(i), seems especially
relevant to this analysis. But again, the parties did not
discuss whether Kreimerman's attempt to serve Veerkamp under the
Texas Long-Arm Statute comports with Rule 4(f).

Rule 4(f), rather than the former Rule 4(i), is the
provision that the district court must analyze on remand
because the 1993 amendments to the federal Rules of Civil
Procedure took effect on December 1, 1993, and govern "all
proceedings in civil cases thereafter commenced and, insofar
as just and practicable, all proceedings in civil cases then
pending." Order of the Supreme Court of the United States
Adopting and Amending Rules, April 22, 1993; see also Burt
v. Ware, 14 F.3d 256, 258 (5th Cir.1994) (indicating that
amendments to the Federal Rules of Appellate Procedure
should be given retroactive application to the maximum
extent possible).

22
on defendants residing in another signatory nation. Whether

Kreimerman et al.'s attempt to serve process under the Texas Long-

Arm Statute contravened any other law besides the Convention is

thus not before us. Such considerations are for the district court

on remand.57

B. Other Issues

Kreimerman et al. also raise several other issues, none of

which warrants extensive treatment at this juncture.

1. Removal to the Wrong Division

A defendant who wants to remove a civil action from a state

court to a federal district court must "file in the district court

of the United States for the district and division within which

such action is pending a notice of removal...."58 In this case, the

parties agree that the action should have been removed, not to the

Houston Division, but to the McAllen Division of the Southern

District of Texas. Relying on this error, Kreimerman et al. moved

the district court to remand the case to state court, or,

alternatively, to transfer the case to the McAllen Division. The

court, however, denied the motion. Kreimerman et al. now insist

that the court's denial constituted reversible error.

Citing King v. Gulf Oil Co.,59 Veerkamp et al. suggest that we

57
We leave it to the district court's discretion whether to
hold additional hearings on these questions.
58
28 U.S.C. § 1446(a).
59
581 F.2d 1184, 1187 (5th Cir.1978) (reversal for failure
to follow Fed.R.Civ.Pro. is warranted only if prejudice is
demonstrated).

23
simply dismiss this defect in removal by invoking harmless error.60

As removal statutes are strictly construed against removal,61

though, we decline to take such a dismissive approach. Some courts

have held that removal of a case to the wrong division of the right

district nevertheless creates a jurisdictional defect, leaving the

district court with no power to adjudicate the case and no choice

but to remand.62 Other courts have held that removal to the wrong

division is procedural, not jurisdictional.63 We agree with the

later perspective.

Although Veerkamp et al. removed this case to the wrong

division, there is no doubt that the district court had subject

matter jurisdiction under 28 U.S.C. § 1332, given the parties'

diversity of citizenship.64 The existence of such jurisdiction

makes this case much more akin to an improper venue situation than

to one in which there is an actual jurisdictional defect.65 The

district court thus should have transferred the case to the McAllen

division under the authority of 28 U.S.C. § 1406(a), which—in the

interest of justice—allows a case to be transferred "to any

60
Veerkamp et al. refer, of course, to 28 U.S.C. § 2111.
61
Brown v. Demco, Inc., 792 F.2d 478, 482 (5th Cir.1986);
Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir.1979).
62
See, e.g., Scarmardo v. Mooring, 89 F.Supp. 936, 937
(S.D.Tex.1950).
63
Cook v. Shell Chemical Co., 730 F.Supp. 1381, 1382
(M.D.La.1990).
64
Id.; accord Mortensen v. Wheel Horse Prods., Inc., 772
F.Supp. 85, 89 (N.D.N.Y.1991).
65
Mortensen, 772 F.Supp. at 89; Cook, 730 F.Supp. at 1382.

24
district or division in which it could have been brought."66 As we

are remanding the case to the district court anyway, we need not

decide whether the court's refusal to transfer the case constituted

reversible error: We simply remand the case to the Houston

Division with directions to transfer the case to the McAllen

Division under 28 U.S.C. § 1406(a).

2. Motion to Extend

Kreimerman et al. also complain that the magistrate judge

erred in rejecting their third motion to extend the time within

which to accomplish service of process. A district court, however,

has broad discretion to dismiss an action for ineffective service

of process,67 so we review such a decision only for abuse of

discretion.68 Additionally, when the time to effect service has

expired, the party attempting service has the burden of

demonstrating "good cause" for failure to serve the opposing

party.69

In this case, Kreimerman et al. did not move to extend

service for the third time until more than a month after the

expiration of the twice previously extended deadline for effecting

service. Therefore, they had the burden of demonstrating that

66
28 U.S.C. § 1406(a); Mortensen, 772 F.Supp. at 89; Cook,
730 F.Supp. at 1382.
67
George v. United States Dep't of Labor, 788 F.2d 1115,
1116 (5th Cir.1986).
68
System Signs Supplies v. United States Dep't of Justice,
903 F.2d 1011, 1013 (5th Cir.1990).
69
Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304,
1305 (5th Cir.1985).

25
there was good cause for their failure to effect service.

Attempting to satisfy that burden, Kreimerman et al. insist that

their failure was through no fault of their own. We acknowledge

that available evidence suggests that service of process takes

considerably longer to accomplish in Mexico than it does in the

United States.70 We also realize that the Mexican attorney who was

"helping" Kreimerman et al. serve process on the defendants

apparently misrepresented even to Kreimerman that service had been

accomplished. Unfortunately for Kreimerman et al., however, action

or inaction that fall into the categories of inadvertence, mistake,

or ignorance of counsel do not constitute excusable neglect.71

Kreimerman et al. selected and reposed their trust in the

Mexican counsel, who in turn selected and worked with the other

lawyer in Mexico City, who ultimately proved to be unreliable or

dishonest, or both. That is at least vicariously Kreimerman et

al.'s fault. Moreover, when Kreimerman et al. made their third

motion to extend the time for service, they had already been given

sixteen (16) months in which to serve the defendants, and the

magistrate judge found that there was no reason to believe that

service would have been effected in the near future. The

translation of legal documents into Spanish, for example, took six

70
If it is true that it takes considerably longer to effect
service of process in Mexico than in the United States, then this
is yet another reason to hold that the Convention does not
foreclose other methods of service: If the machinery provided by
the Convention does not work very well, we should be loathe to
condemn United States residents to use such an ineffective
apparatus.
71
McGinnis v. Shalala, 2 F.3d 548, 551 (5th Cir.1993).

26
months, and Kreimerman et al.'s Mexican counsel suggested that

those translations were still inadequate. Even if we were to

assume that the misrepresentations by the Mexican counsel

constituted good cause for failing to effect service, we would

conclude that Kreimerman et al. did not show good cause for failure

to take any action during the eight months preceding those

misrepresentations. Neither did Kreimerman et al. explain why the

whole process was not further along after nearly two years. Under

these facts, we cannot say that the district court abused its

discretion.

3. Adoption of Magistrate Judge's Recommendations

Kreimerman et al. also suggest that the district court did not

make a de novo review of the magistrate judge's Memorandum and

Recommendations. They complain that the district court erred in

adopting the magistrate judge's recommendations before they had

filed their written objections. Kreimerman et al. assert, in

essence, that because the district court did not wait for them to

file their objections, and because the court did not clarify the

magistrate judge's ruling with respect to the tolling of the

applicable statute of limitations (and other rulings), we cannot be

certain that the district court made a proper de novo review.

We grant that a district court must make a de novo review

whenever a magistrate judge recommends dismissal.72 Indeed, even

when no objections are made to the magistrate judge's memorandum

72
Longmire v. Guste, 921 F.2d 620, 623 (5th Cir.1991);
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert.
denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989).

27
and recommendations, the district court is obligated to undertake

an independent review of the case.73 In this instance, however,

Kreimerman et al. do little more than speculate that the district

court may not have made a de novo review of the instant case. They

advance neither evidence nor specific factual allegations in

support of their prayer for reversal. Under these sparse

circumstances, we are most reluctant to find that the district

court failed to engage in a proper review.74

Neither are we troubled by the district court's adoption of

the magistrate judge's recommendations prior to the court's receipt

of Kreimerman et al.'s timely-filed written objections. Kreimerman

et al. cite no cases which hold that a district court's failure to

wait until objections are filed before adopting a magistrate

judge's recommendations constitutes reversible error.75 Moreover,

even if the district court had erred in its attempt to follow the

Federal Rules of Civil Procedure, we would not be forced to reverse

in the absence of prejudice.76 Additionally, Kreimerman et al.'s

two motions for reconsideration gave the district court opportunity

73
Equitable Life Assur. Soc. v. Mangel Stores Corp., 691
F.Supp. 987, 989 (E.D.La.1988).
74
Longmire, 921 F.2d at 623.
75
Kreimerman does cite Nalty v. Nalty Tree Farm, 654 F.Supp.
1315 (D.Ala.1987), but that case merely established the method
for computing the time period for filing objections: it says
nothing about whether a district court must wait for those
objections to be filed before adopting a magistrate's
recommendations.
76
See, e.g., King v. Gulf Oil Co., 581 F.2d 1184, 1187 (5th
Cir.1978) (court failed to hold hearing on class certification).

28
to consider—yet again—their objections. We discern no reason to

believe that the district court did not do its job properly.

III

CONCLUSION

After analyzing all the arguments advanced by each side, we

conclude that the Convention does not preempt every other

conceivable method of serving process on defendants residing in

other signatory states. This conclusion does not necessarily imply

the existence and availability of other methods of service that

would be supportable and effective under domestic and international

law. We simply hold that the Inter-American Convention on Letters

Rogatory does not foreclose other methods of service among parties

residing in different signatory nations, if otherwise proper and

efficacious. We therefore remand the case to the district court

with instructions to consider whether the only other method of

service of process attempted by the plaintiffs—service under the

Texas Long-Arm Statute—comports with principles of comity,

Fed.R.Civ.P. 4 (especially 4(f)), and any other applicable legal

principles of domestic or international law. Because the case was

originally remanded to the wrong division of the United States

District Court for the Southern District of Texas, however, we

remand the case to the Houston Division with directions to transfer

it to the McAllen Division, pursuant to 28 U.S.C. § 1406(a). The

McAllen Division will then determine whether Kreimerman et al.'s

attempt to serve the defendants under the Texas Long-Arm Statute

contravened any applicable laws or legal principles.

29
 In connection with our instructions to the McAllen Division of

the United States District Court for the Southern District of

Texas, we emphasize that nothing in this opinion should be

construed as authorizing Kreimerman et al. to institute any new or

additional efforts to serve the defendants: The district court

need only determine whether Kreimerman et al.'s previous efforts to

serve process under the Texas Long-Arm Statute were consistent with

applicable legal principles—international and domestic.

Therefore, the judgment of the district court is AFFIRMED in

part, REVERSED in part, and REMANDED to the Houston Division of the

United States District Court for the Southern District of Texas,

with instructions to transfer the case under 28 U.S.C. § 1406(a) to

the McAllen Division for further proceedings consistent with this

opinion.

30