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
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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
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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.
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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
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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
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