Alvarado-Fernandez v. Mazoff

• Decision Date: 08 October 2014
• Docket Number: No. 4D14–503.,4D14–503.
• Citation: 151 So.3d 8
• Parties: Paola A. ALVARADO–FERNANDEZ, Appellant, v. Matthew MAZOFF, Appellee.
• Court: Florida District Court of Appeals

151 So.3d 8

Paola A. ALVARADO–FERNANDEZ, Appellant

v.Matthew MAZOFF, Appellee.

No. 4D14–503.

District Court of Appeal of Florida, Fourth District.

Oct. 8, 2014.

Doreen E. Lasch and Daniel J. Santaniello of Luks, Santaniello, Petrillo & Jones, P.A., Fort Lauderdale, for appellant.

Julie H. Littky–Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky–Rubin, LLP, West Palm Beach, and Andrew J. Weinstein of Weinstein Law Firm, Coral Springs, for appellee.

Opinion

KLINGENSMITH, J.

AppelleeMatthew Mazoff(“Plaintiff”) filed suit against appellantPaola Alvarado–Fernandez(“Defendant”), a Colombian citizen, for personal injuries sustained when Plaintiff's car was struck by a vehicle driven by Defendant and rented from Alamo.¹Defendant moved to dismiss the case, alleging that (1)Plaintiff failed to strictly comply with two treaties in effect between Colombia and the United States when attempting to serve process on Defendant; (2) in the alternative, Plaintiff failed to comply with the substituted service statutes; (3)Plaintiff late-filed his affidavit of compliance; and (4)Florida Rule of Civil Procedure 1.070(j) bars the continuance of this case.For the reasons set forth herein, we affirm the trial court's denial of Defendant's motion to dismiss.

Facts

Plaintiff initially filed an affidavit of compliance shortly after commencing suit in which he stated that the Secretary of State accepted service of process on behalf of Defendant, and that he attempted to serve a copy of the summons and complaint upon Defendant via “USPS First Class Mail International” to her last known address.That mailing never reached Defendant.After this original attempt at service, Plaintiff amended his complaint and tried again to serve Defendant, but was also unsuccessful.After filing a second amended complaint, another unsuccessful attempt at service was made.Plaintiff filed his latest pleading, a Third Amended Complaint, in July 2012.Since that time, Plaintiff secured eight extensions of time from the court to attempt successful service of process.

Plaintiff ultimately effected substitute service of the Third Amended Complaint on Defendant by serving the Secretary of State in accordance with the provisions of section 48.161, Florida Statutes(2013).Plaintiff also mailed a copy of the summons and complaint to Defendant via registered mail to her last known address, which went unclaimed.

Defendant moved for dismissal of the case² pursuant to Florida Rule of Civil Procedure 1.070(j), alleging insufficient service of process and lack of personal jurisdiction on various grounds.³In the motion, Defendant asserted that Plaintiff failed to comply with two treaties to which both the United States and Colombia are signatories, the Inter–American Service Convention on Letters Rogatory and Additional Protocol (the “IASC”)⁴ and the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Convention”)⁵ both of which mandate strict procedures for obtaining service of process over individuals in Colombia.

After allowing Plaintiff's counsel the opportunity to submit case law for the court's review following the hearing, the trial court ultimately denied Defendant's motion to dismiss but made no findings of fact in its order.

Treaties generally

The effect that international legal agreements entered into by the United States have upon domestic law are dependent upon the nature of the agreement; namely, whether the agreement is self-executing or non-self-executing.

International treaties are considered “self-executing” if they have the force of law without the need for subsequent legislative action.See, e.g., Medellin v. Texas,552 U.S. 491, 575 n. 2, 128 S.Ct. 1346, 170 L.Ed.2d 190(2008)(“What we mean by ‘self-executing’ is that the treaty has automatic domestic effect as federal law upon ratification.”);Cook v. United States,288 U.S. 102, 119, 53 S.Ct. 305, 77 L.Ed. 641(1933)(“For in a strict sense the [t]reaty was self-executing, in that no legislation was necessary to authorize executive action pursuant to its provisions.”).

Treaties that are not considered self-executing are understood to require implementing legislation to provide legal authority to carry out the functions and obligations contemplated by the agreement, or to make them enforceable in court by private parties.See, e.g., Medellin,552 U.S. at 505, 128 S.Ct. 1346(“In sum, while treaties may comprise international commitments ... they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.”)(internal citations and quotations omitted).In fact, some courts have held that as a general rule non-self-executing treaties do not confer any judicially enforceable rights whatsoever.⁶

The Hague Convention

The Hague Convention became effective in the United States on February 10, 1969.The intention of the signatory nations to the Hague Convention was to provide a simpler way for parties to serve process abroad.

As a ratified treaty, the Hague Convention is of equal dignity with acts of Congress and enjoys the constitutional status of “supreme Law of the Land.”U.S. Const. art. VI, cl. 2;Frolova v. Union of Soviet Socialist Republics,761 F.2d 370, 373(7th Cir.1985).The Convention states 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, art. 1(emphasis added).Therefore, the United States Supreme Court has held the Hague Convention is a self-executing treaty,⁷ and thus preempts inconsistent methods of service prescribed by state law in all cases to which it applies; namely, all civil or commercial matters “where there is occasion to transmit a judicial or extrajudicial document for service abroad.”SeeVolkswagenwerk Aktiengesellschaft v. Schlunk,486 U.S. 694, 698–99, 108 S.Ct. 2104, 100 L.Ed.2d 722(1988).

To help simplify the process, the Hague Convention provides several methods to accomplish service, and the principal method for service under the Hague Convention is through the designated Central Authority.Hague Conventionarts. 2–6, 8–11, 19.However, the Hague Convention is expressly inapplicable in cases where the location of the person to be served is unknown.⁸

Colombia was not a party to the Hague Convention during the time in question.Although Colombia acceded to the Hague Convention and became a signatory to it on April 10, 2013, it did not enter into force until November 1, 2013,⁹ following the events of this case.

The IASC

The IASC was signed on January 30, 1975, and amended by the Additional Protocol thereto on May 8, 1979.¹⁰Both the United States and Colombia are signatories to the Convention.¹¹

The IASC sets forth procedures for obtaining service of process over individuals in the signatory nations, stating that:

This Convention shall apply to letters rogatory, issued in conjunction with proceedings in civil and commercial matters held before the appropriate judicial or other adjudicatory authority of one of the States Parties to this Convention, that have as their purpose:

a. The performance of procedural acts of a merely formal nature, such as service of process, summonses or subpoenas abroad;

Section II, article 2, at 1.¹²The IASC provides that each party state designate a Central Authority to perform the functions assigned to it in the treaty, similar to the provision contained in the Hague Convention.Id. at 16.The IASC further provides that “[l]etters rogatory shall be executed in accordance with the laws and procedural rules of the State of destination.”

Application of the IASC to Florida courts

Florida courts may accept any particular method of service, so long as it does not contradict any self-executing international agreement or implementing statutes, or as long as such method is not expressly prohibited by the law of the foreign state.SeeTracFone Wireless, Inc. v. Distelec Distribuciones Electronicas, S.A. de DV,268 F.R.D. 687, 690–91(S.D.Fla.2010)(holding that alternative methods for service in Honduras were available because such methods were not expressly prohibited by the foreign state's law, even if not expressly authorized under it);Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries,353 F.3d 916, 923–24(11th Cir.2003)(service of process on defendant improper if served in a manner expressly prohibited by foreign state's law).

While compliance with the provisions of the Hague Convention may be mandatory, parties are not required to use all of the alternatives set forth in the IASC to the exclusion of any others.Several U.S. courts have held that the IASC is neither the exclusive nor mandatory channel for transmission of service of process between signatories.SeePaiz v. Castellanos,No. 06–Civ–22046, 2006 WL 2578807, at *1(S.D.Fla.Aug. 28, 2006)(collecting cases applying the IASC).As such, the IASC does not foreclose service by means outside the scope of its terms.Thus it is permissible to serve a defendant utilizing methods other than strict compliance with the IASC.Kreimerman v. Casa Veerkamp, S.A.,22 F.3d 634, 647(5th Cir.1994)(noting that nothing in the language of the IASC expressly reflects an intention to supplant all alternative methods of service; “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.”), cert. denied,513 U.S. 1016, 115 S.Ct. 577, 130 L.Ed.2d 492(1994);Jon D. Derrevere, P.A. v. Mirabella Found., No. 6:10–cv–925–Orl–28DAB, 2011 WL 1983352, at *2(M.D.Fla.Apr. 26, 2011)(“Other courts have found that the Inter–American Convention's provisions regarding service of process are neither mandatory nor exclusive.”);Paiz,2006...