Civil Procedure--Service of Process by Mail Permitted by Article 10(a) of the Hague Service Convention--Portalp Int'l SAS v. Zuloaga, No. 2D15-1676, 2015 WL 9258496 (Fla. Dist. Ct. App. Dec. 18, 2015).

• Author: Lopez, Elsa C.

Rule 4 of the Federal Rules of Civil Procedure governs the service of a U.S. complaint and summons on a party located outside of the United States and establishes when it is proper to serve a defendant outside of a judicial district of United States. (1) Service of process for individuals outside the United States must also conform to the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention) if the individuals' respective countries participate in the treaty. (2) In Portalp International SAS v. Zuloaga (3) the Second District Court of Appeal of Florida addressed whether application of Article 10(a) of the Hague Service Convention (Article 10(a)) permits litigants to serve process by mail. (4) The Court held the Hague Service Convention allows the mailing of judicial documents for service of process. (5)

Daniel Zuloaga (Zuloaga) worked for Portalp USA, LLC (Portalp USA) in Florida as the president of the corporation. (6) He brought legal charges against his former employer, Portalp USA and its French majority shareholder, Portalp International SAS (Portalp International), for breach of contract of his employment agreement after he was terminated. (7) Subsequently, on December 9, 2014, Zuloaga sent Portalp International's summons and a complaint by Federal Express to Portalp International's office, which is located in France. (8) On December 12, 2014, Zuloaga filed a Notice of Filing Proof of Service and attached with it the print-out of Federal Express' "proof of delivery" confirmation to demonstrate the documents were successfully sent and that Portal International's corporate office had received them. (9)

As a result of the notice, Portalp International replied by entering a limited appearance and filed a Motion to Quash Service of Process because they claimed Zuloaga did not accurately comply with the requirements set forth in the Hague Service Convention. (10) On March 16, 2015, the Court heard oral argument on the Motion to Quash Service of Process and Portalp International's main argument was that the Hague Service Convention does not permit service of process and consequently the service of process was done in an incorrect manner. (11) The trial court denied the Motion to Quash Service of Process and held that Article 10(a) does allow service of process by mail and, therefore, Zuloaga's service of process was correct and lawful. (12) Portalp International appealed the trial court's decision and argued the "plain meaning of the text in Article 10(a)" does not allow for service of process by mail, but rather it permits sending judicial documents via mail only after process has been served. (13) The Court held Article 10(a) of the Hague Service Convention permitted the service by mail of summons and complaint to Portalp International in France. (14)

Service of Process is the procedure in which a defendant is legally put on notice that a civil lawsuit has been filed against them and they must respond within a specific amount of time. (15) The Hague Service Convention is a multilateral treaty created in 1965 that governs the methods for accomplishing service of process from a defendant of one sovereign state to another within another country's border. (16) As designated in its preamble, the purpose of the Hague Service Convention is to make service of process abroad easier and more efficient with the transmission of judicial documents and ensuring they are sent to the opposing party adequately and within sufficient time. (17) Article 1 of the Hague Service Convention specifies the treaty applies in civil disputes where communication of judicial documents is needed "for service abroad." (18) Article 10(a) allows a member country "to send judicial documents, by postal channels" to individuals abroad, as long as the country has not objected to the treaty. (19) The term "send" has created a controversy amongst U.S. states when interpreting the Hague Service Convention. (20)

The Vienna Convention on the Law of Treaties (the Vienna Convention) codifies universally accepted procedures for interpreting treaty law, which emphasizes treaty interpretation to begin by examining the treaty's textual language and context to understand the parties' intent. (21) Terms in a treaty provision are interpreted by examining the preamble, supplemental documents, the textual language, context, subsequent agreements, and amendments. (22) If the examination results in an ambiguous or obscure term, then the Vienna Convention specifies an analysis of the treaty's legislative history to determine the meaning of the word. (23) In the United States, courts interpret a provision or word from a treaty, following the Vienna Convention guidelines, by examining the plain meaning of the text, congressional reports, and debates. (24)

American courts have conflicted views, creating a circuit split, about whether or not "the freedom to send judicial documents" in Article 10(a) includes to "serve judicial documents." (25) After applying rules of statutory interpretation, the United States Courts of Appeals for the Fifth and Eighth Circuits and their progeny of cases have concluded that "send" in Article 10(a) only provides a method of sending succeeding documents after service of process has been completed because the terms "serve," "service," and "to effect service" are used in subsections (b) and (c) of Article 10 and other articles; but was not included in subsection (a) by inference, showing the drafters acted intentionally in omitting the term. (26) These courts, upon relying on the canon of statutory construction that a statute's language "must ordinarily be regarded as conclusive" when there is a clear expressed legislative intent, have held that Article 10(a) does not include service of a foreign defendant by mail but the term only refers to sending post service of documents. (27) Furthermore, the Fifth and Eighth Circuits concluded the drafters included other methods of effecting service through government channels, which shows they did not intend to include "the uncertainties of service by mail." (28) Conversely, in Brockmeyer v. May, (29) the United States Court of Appeals for the Ninth Circuit held service of process by registered mail was permissible in the Hague Service Convention because the word "send" located in Article 10(a) was intended to mean "serve." (30) The main reason the Ninth Circuit and other circuits, have decided service by mail to be acceptable is because they focused on and analyze the intent of the drafters, the purpose and history of the treaty, other countries' opinions regarding the dispute, commentaries, reports to Congress, and executive documents when interpreting Article 10(a). (31)

In Portalp International SAS v. Zuloaga, the Second District Court of Appeal concluded that Article 10(a) of the Hague Service Convention does allow service of process by mail. (32) The Court reiterated the standard from Brockemeyer stating that an analysis of the text and context in the treaty according to the treaty's object and purpose must be made when interpreting the parties' intent in a treaty provision. (33) It emphasized that if the text is ambiguous, then the standard to interpret a treaty is to look at "extraneous sources" to clarify the parties' intent with the object and purpose of the treaty. (34) By looking at the preamble, the Court established the object and purpose of the treaty was to simplify and facilitate service of process abroad; thus interpreting the word "send" to only apply to post service of documents would be erroneous. (35) The Court rejected the Fifth and Eighth Circuit's position that Article 10(a) interpretation relied on "through canons of statutory construction" because the principles of treaty interpretation generally avoid a narrow interpretation of treaty provision. (36) The Court reasoned that concluding service of process by mail as not permissible would result in an inconsistency with the intent and expectation of the member countries to the Hague Service Convention. (37)

The Second District Court of Appeals appropriately applied the broad view of the Hague Service Convention, which encompasses service of process by mail, because incorporating this method is consistent with the overall goal and purpose of the Hague Service Convention. (38) On its face, the narrow approach that "send" in Article 10(a) does not include direct service of process by mail seems proper, however, upon examining the history, context and purpose of treaty, and additional supporting sources; the result is indeed different. (39) Furthermore, the U.S. representative to the Convention, most treaty members, the U.S. Department of State, and the 2003 Special Commission of the Hague Service Convention have agreed that Article 10(a) should be interpreted to allow service of process by mail to be consistent with the purpose of the treaty. (40) This view simplifies the service process and effectively sends notice to foreign defendants effectively. (41) Additionally, the member countries' objection for Article 10(a) shows those signatories understood the provision to mean service by mail. (42)

The Fifth and Eighth Circuit line of cases emphasize an incorrect standard of interpretation by using a narrow canon of statutory construction, focusing mainly on the plain language that is inconsistent with the Vienna Convention, creating a result which is inconsistent with the intent and purpose of the treaty itself. (43) The Vienna Convention, as the "Treaty of Treaties," sets forth principles specific to treaty interpretation by using the plain meaning of the terms according to the "context and in light of the object and purpose" of the overall treaty. (44) Upon reading the provision within the treaty's "context and in light of the object and purpose," the term "send" appears to be unambiguous because the preamble...