Kreimerman v. Casa Veerkamp, S.A. de C.V., 93-2403

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 22 F.3d 634
• Docket Number: No. 93-2403,93-2403
• Parties: Alberto KREIMERMAN, et al., Plaintiffs-Appellants, v. CASA VEERKAMP, S.A. de C.V., et al., Defendants-Appellees.
• Decision Date: 15 June 1994

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22 F.3d 634 63 USLW 2006 Alberto KREIMERMAN, et al., Plaintiffs-Appellants,
v.
CASA VEERKAMP, S.A. de C.V., et al., Defendants-Appellees. No. 93-2403. United States Court of Appeals,
Fifth Circuit. June 15, 1994.

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Jan R. Thurman, Annette R. Lloyd, Thurman, Harrison & Steck, Arlington, TX, for appellant.

James A. Porter, Williams & Martin, Houston, TX, for Casa Veerkamp.

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 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 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

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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 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 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 facts of this case is not before us; neither does our interpretation of the Convention

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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 purpose ¹⁰--is 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 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,

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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 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...