SDS–IC v. Fla. Concentrates Int'l, LLC

• Decision Date: 30 January 2015
• Docket Number: No. 2D14–3551.,2D14–3551.
• Parties: SDS–IC, Appellant, v. FLORIDA CONCENTRATES INTERNATIONAL, LLC; Florida Sparkling DS, LLC; Didier Hardy; Primo Water Corporation ; Primo Products, LLC; Susan Ballantyne; and Scot Ballantyne, Appellees.
• Court: Florida District Court of Appeals

157 So.3d 389

SDS–IC, Appellant

v.FLORIDA CONCENTRATES INTERNATIONAL, LLC; Florida Sparkling DS, LLC; Didier Hardy; Primo Water Corporation ; Primo Products, LLC; Susan Ballantyne; and Scot Ballantyne, Appellees.

No. 2D14–3551.

District Court of Appeal of Florida, Second District.

Jan. 30, 2015.

Nicholas P. Mizell and Louis D. D'Agostino of Cheffy Passidomo, P.A., Naples, for Appellant.

Shelley D. Momo of Carreras & Lemoine, LLP, Atlanta, Georgia, and Robert L. Schenk of Schenk Smith LLC, Atlanta, Georgia, for Appellees Florida Concentrates International, LLC; Florida Sparkling DS, LLC; and Didier Hardy.

James E. Moon of Quintairos, Prieto, Wood & Boyer, P.A., Ft. Myers, and Robert Cousins of Quintairos, Prieto, Wood & Boyer, P.A., Fort Lauderdale, for Appellees Primo Water Corporation and Primo Products, LLC.

No appearance for remaining Appellees.

Opinion

KHOUZAM, Judge.

SDS–IC appeals an omnibus order which, in relevant part, denied SDS–IC's motion to quash attempted service of process. Because the attempted service of process was invalid, the trial court erred in denying the motion and we must reverse.

SDS–IC is an international corporation incorporated in Hong Kong, China. Florida Concentrates International, Florida Sparking DS, and Didier Hardy (Appellees) filed a complaint against SDS–IC and other defendants in September 2012. Foregoing service via the Central Authority as contemplated in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters articles 2–6, November 15, 1965, 20 U.S.T. 361 (Hague Convention), Appellees elected instead to attempt service of process on SDS–IC by delivering a copy of the summons and a copy of the complaint directly to SDS–IC's registered address in Hong Kong. In the affirmation of service filed November 26, 2012, the process server averred that she served a “true copy” of both the summons and complaint at SDS–IC's registered office on November 2. The affirmation does not indicate at what time service was accomplished, nor does it specify who was served.

After SDS–IC failed to respond to the complaint, a clerk's default was entered in July 2013. In November 2013, SDS–IC filed a motion to quash attempted service of process and to vacate the clerk's default. In the alternative, SDS–IC requested more time to respond to the complaint and to dismiss for lack of personal jurisdiction. Appellees opposed the motion, and all parties filed affidavits to support their positions. Appellees relied upon two affidavits of Patrick Ronald Paul Hamlin, an attorney at the firm that employed the process server who attempted to serve SDS–IC in this case. In the affidavits, Hamlin stated in basic terms the service requirements of Hong Kong and the Hague Convention, and Hamlin thereafter concluded that “service of process and the later Entry of Default was [sic] validly effected” under all applicable laws.

After a hearing in March 2014, the trial court entered an order on June 27, 2014, which denied the portions of the motion seeking to quash service of process and dismiss for lack of personal jurisdiction but granted the portions of the motion seeking to vacate the default and enlarge the time to respond to the complaint. SDS–IC timely appealed, raising two arguments: first, that the service of process was invalid because it complied with neither Florida law nor the Hague Convention; and second, that the complaint should be dismissed for lack of personal jurisdiction. We agree that SDS–IC was not properly served and that the service of process must be quashed. This outcome renders moot the second issue relating to personal jurisdiction.

Article 1 of the Hague Convention provides that it “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” Hague Convention, supra, at 362. Articles 2 through 6 address a scheme by which each state designates a Central Authority to receive requests for service coming from other states. Id. at 362–63.

Article 10 adds in relevant part:

Provided the State of destination does not object, the present Convention shall not interfere with ... (b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

Id. at 365. This language has been interpreted to mean that service of process under Article 10(b) is proper so long as the service laws of the state of origin are followed and the state of destination has not objected to them. See DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288 (3d Cir.1981) (concluding that in the alternative to service via the Central Authority, Article 10(b) “also allows service to be effected without utilizing the Central Authority as long as the nation receiving service has not objected to the method used. Thus, the more liberal methods provided in the Federal Rules of Civil Procedure and state long-arm rules may be used as long as the nation receiving service has not objected to them”). Article 19 of the Convention protects the same conduct but in the converse: it states that the Convention does not affect the receiving state's ability to accept service of process complying with its internal laws via methods other than those described in the Convention. See Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F.Supp.2d 1273, 1280 (S.D.Fla.1999) (“Article 19 should be broadly construed so as to permit service by any means, subject to the Federal Rules of Civil Procedure, not proscribed by the foreign country.”).

With regard to Florida law, section 48.194(1), Florida Statutes (2012), provides that “service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served,” along with the proviso that “[s]ervice of process on persons outside the United States may be required to conform to the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.” Section 48.21(1) provides that the required return-of-service form must include “the date and time when it comes to hand, the date and time when it is served, the manner of service, the name of the person on whom it was served and, if the person is served in a representative capacity, the position occupied by the person.” See also Fla. R. Civ. P. 1.070(e) (“The date and hour of service shall be endorsed on the original process and all copies of it by the person making the service.”). Section 48.21(2)...