# Petition for Writ of Certiorari — Casa Veerkamp, S. A. de C. V. v. Kreimerman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 1016

## Text

Supreme Court, U.S.
\ FILE D
\

“94 569 SEP 13 19%

No OEEICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1994
¢

CASA VEERKAMP, S.A. DE C.V.
and WALTHER VEERKAMP,

Petitioners,
V.

ALBERTO KREIMERMAN, HERMES INTERNATIONAL,
INC. AND HERMES TRADING COMPANY
D/B/A HERMES MUSIC,

Respondents.

«

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI
¢

James A. PortTER
Counsel of Record

Grecory M. Kocu

Porter & Kocn, L.L.P.

770 South Post Oak Lane,
Suite 500

Houston, Texas 77056

(713) 961-5095

Counsel for Petitioners
September 1994

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

iy

QUESTION PRESENTED

Whether the Inter-American Convention on Letters
Rogatory is the mandatory and exclusive means for ser-
vice of process from the courts of one signatory country,
such as the United States, on a resident/citizen of one of
the other fourteen signatory countries, absent some other
agreement.

il

TABLE OF CONTENTS

Page

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A. The Inter-American Convention.............. 3
B. Froceedings Deiow. «2... 60c css cecscvsvcssees 5
REASONS FOR GRANTING THE PETITION....... 8

I. The Court of Appeals’ Interpretation of the
Inter-American Convention is Erroneous
Given the Language, Context and Rules of
Constenctiait. «566k siaswcniceesseussena vee 9

II. The Court of Appeals Erred in Its Analysis of
The Inter-American Convention vis a vis The
Hague Service and Evidence Conventions... 17

III. The Available Treaty Documents and General
Principles of Comity Support an Interpreta-
tion of the Inter-American Convention as

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TABLE OF AUTHORITIES

Page
Cases
Air France v. Saks, 470 U.S. 382, 105 S.Ct. 1338
ee eae has kd ab 4 od bg nine @ 20.4006 9
Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 111
EE ee 7
In re: Extradition of Demjanjuk, 612 F.Supp. 544
EE ES ee 7
Societé Nationale v. U. S. Dist. Court, S.D. Iowa, 482
a San, Or SA. 2942 (1967)...... 18, 19, 20, 21, 22
Sumitomo Shoji America, Inc. v. Arigliano, 457 U.S.
SG 9
The Case of S. S. Wimbleton, [1923] P.C.L.J. Ser. A.,
ee Cais em kab acnndadsecnssvces 7
The Case of S.S. Lotus (France v. Turkey), [1927]
i cae kv rence cccccsecscescas 7
Trans World Airlines v. Franklin Mint Corp., 466 U.S.
ES | Sr 9
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486
ee ae | 9
TREATIES, STATUTES AND RULES:
Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial
Matters, 20 U.S.T. 361, T.I.A.S. 6638.............. passim

Convention on the Taking of Evidence Abroad in
Civil or Commercial Matters, 23 U.S.T. 2555,
Sue a aS Whine ccencsacccncess

passim

iV

TABLE OF AUTHORITIES - Continued

Page
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yk oe Be er re rer rrr es rere ert 3
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Pe. er ee is RE wn Sos has CA ee ae Chea es 5
Inter-American Convention of Letters Rogatory,
with Additional Protocol and annex, ___ U.S.T.
___, S. Treaty Doc. No. 27, 98th Cong., 2d Sess.
fo A Per rerr yee sv rro srr Tr eee ree errr re passim
yen. Coe. Peac. de Rem. Come © 87.081. «sc. vsesn a y
MISCELLANEOUS:
et TTT Te eee ee TERT C TE 22
R. Doak Bishop, International Litigation in Texas, 36
i at ee OR ee re a eee 22
Restatement (Second) of Contracts § 203 (1982)...... 16

Pg Perry ee Pe rey rer iz, 13-28, 22

a
In The

Supreme Court of the United States

October Term, 1994
*

CASA VEERKAMP, S.A. DE C.V.
and WALTHER VEERKAMP,

Petitioners,

ALBERTO KREIMERMAN, HERMES INTERNATIONAL,
INC. AND HERMES TRADING COMPANY
D/B/A HERMES MUSIC,

Respondents.
*

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
8

PETITION FOR A WRIT OF CERTIORARI
+

Casa Veerkamp, S.A. de C.V.! (“Casa Veerkamp”) and
Walther Veerkamp (hereinafter collectively “Veerkamp”
or “Petitioners”), respectfully petition for a writ of cer-
tiorari to review the judgment of the United States Court
of Appeals for the Fifth Circuit in this case.

+

! Casa Veerkamp, S.A. de C.V. has no parent or subsidiary
corporations to disclose under Rule 29.1.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, a1-
a32) is reported at 22 F.3d 634. The opinions of the district
court (App., infra, a33-a52) are unreported.

4

JURISDICTION

The court of appeals entered its judgment on June 15,
1994 (App., infra, al). The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).

+

TREATY INVOLVED

Inter-American Convention of Letters Rogatory, done
at Panama City, January 30, 1975, with additional Proto-
col and annex, done at Monte Video, May 8, 1979, entered
into force for the United States on July 28, 1988. ____ U.S. T.
__, S. Treaty Doc. No. 27, 98th Cong., 2d Sess. (1984)
(hereinafter referred to as the “Inter-American Conven-
tion” or “Convention”). (App., infra, a53-a80).

+

STATEMENT

Respondents sued Petitioners in the 139th Judicial
District Court of Hidalgo County, Texas. Respondents
requested service of process upon the Petitioners by certi-
fied mail in Mexico City through the Texas Secretary of
State pursuant to the Texas Long-Arm Statute (Tex. Civ.
Prac. & Rem. Code § 17.041). The Petitioners, citizens and
residents of the United States of Mexico, removed the

case to the federal district court under 28 U.S.C. § 1441 on
the basis of diversity of citizenship pursuant to 28 U.S.C.
§ 1332. The Petitioners then moved to dismiss, inter alia,
on the basis that the method of service and the docu-
ments served failed to comply with the Inter-American
Convention. The district court quashed service on this
basis. (App. infra, a33-a34). After the Respondents failed
to perfect service under the Convention on Petitioners
within the following year, the district court dismissed the
case. (App. infra, a43-a48). The court of appeals reversed
after interpreting the Inter-American Convention as pro-
viding only a permissible, non-exclusive means for ser-
vice of process on the citizen of a signatory country and
remanded to the district court. (App., infra, al-a32).

A. The Inter-American Convention

This case involves the construction of the Inter-Amer-
ican Convention on Letters Rogatory? and whether such
treaty provides the exclusive means for service of process
by citizens of one signatory country on the resident/
citizens of another, absent any other agreement. The
Inter-American Convention on Letters Rogatory is a
multi-national treaty done in 1975 and designed to facili-
tate service of judicial documents in foreign countries
which are signatories to the treaty. An Additional Proto-
col was added to the treaty in 1979 at the request of the
United States to strengthen and facilitate international

2 The signatories to the Convention are Argentina, Chile,
Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mex-
ico, Panama, Paraguay, Peru, Spain, United States, Uruguay and
Venezuela.

cooperation in judicial procedures provided for in the
Inter-American Convention. At the time that President
Reagan transmitted the Inter-American Convention to the
Senate for advice and consent in 1984, only one member
of the Organization of American States, other than the
United States, was a signatory to the analogous Hague
Convention on the Service Abroad of Judicial and Extra-
judicial Documents in Civil or Commercial Matters
(“Hague Service Convention”). See, Treaty Doc. 98-27, p.
III. 20 U.S.T. 361, T.1.A.S. 6638. With the advice and con-
sent of the Senate, the United States became a party to the
Inter-American Convention and Additional Protocol on
July 28, 1988. Mexico is also a signatory nation to the
Convention and Additional Protocol.

The Inter-American Convention and the Protocol
contain 37 articles and, like the Hague Service Conven-
tion, sets forth a comprehensive procedure for the service
of process. It requires that each signatory country estab-
lish a central authority to receive requests for the service
of documents from other signatory countries. (App. infra,
a54, art. 4 and a62, art. 2). Once a central authority
receives the request in proper form, it must transmit the
document to the appropriate local authority for service of
the documents in accordance with applicable local law.
(App. infra, a65, art. 4). The local authority must then
attest to its execution and the central authority must
certify the execution of the document in accordance with
a prescribed form. (App. infra, a65, art. 4). As demon-
strated below, the Inter-American Convention on Letters
Rogatory mandates by its language, context and structure
that letters rogatory are the exclusive means for service of

process by residents of one signatory country on the
residents of another.

B. Proceedings Below

On November 4, 1991, Alberto Kreimerman, Hermes
International, Inc., and Hermes Trading Company d/b/a
Hermes Music (hereinafter collectively “Kreimerman” or
“Respondents”) filed an original petition against Peti-
tioners, Electronica Solida Mexicana, S.A. and Jorge R.
Mendez, alleging claims for libel, slander and civil con-
spiracy in the 139th Judicial District Court of Hidalgo
County, Texas and requested service of process by certi-
fied mail upon all the defendants through the Texas Sec-
retary of State pursuant to the Texas Long-Arm Statute.
Tex. Civ. Prac. & Rem. Code § 17.041. The Respondents all
reside and/or are domiciled in Hidalgo County, Texas.
All the defendants reside in and/or are domiciled in the
United States of Mexico. By December 23, 1991, the Texas
Secretary of State had issued certificates confirming that
the petition and citation were mailed to Casa Veerkamp
and Walther Veerkamp, and that mail receipts had been
signed by their agents.

On December 23, 1991, Veerkamp filed a Notice of
Removal to the Southern District of Texas. Electronica
Solida Mexicana, S.A. and Jorge R. Mendez did not
appear. On December 30, 1991, Veerkamp filed a motion
to dismiss pursuant to Fed. R. Civ. Proc. 12(b). Veer-
kamp’s motion urged the court, inter alia, to quash service
on the basis that the Inter-American Convention is the
exclusive means for service in this instance and that
Kreimerman’s service under the Texas Long-Arm Statute

did not comply. On January 21, 1992, Plaintiffs filed a
Motion to Remand and a Response to Defendants’ Motion
to Dismiss. By order entered on February 6, 1992, the
Court denied all parties’ motions, except it granted Veer-
kamp’s motion to quash service and required that service
be made pursuant to the Inter-American Convention.
(App., infra, a33-a34). After one year had passed from the
court’s order quashing service and hearing evidence that
nothing official had been done in Mexico to cause the
letters rogatory to be served, the magistrate of the district
court recommended on March 29, 1993 that the case be
dismissed and the district court did so on April 3, 1993.
(App., infra, a35-a48).

On May 20, 1993, Respondents timely perfected their
appeal to the United States Court of Appeals for the Fifth
Circuit. On June 15, 1994, the court of appeals issued its
opinion affirming the district court in part, reversing in
part, and remanding the case to the United States District
Court for the Southern District of Texas, on the question
of whether service was proper pursuant to the Texas
Long-Arm Statute and if so, to proceed with the case on
the merits. (App., infra, al-a32). The court of appeals
overruled the district court and held that the Inter-Ameri-
can Convention did not preempt all means for affecting
service other than letters rogatory. (App., infra, a6-a24).

The court of appeals acknowledged that the question
before it relating to the Inter-American Convention is res
nova in the Fifth Circuit and all other United States Court
of Appeals. (App., infra, a6). The court of appeals also
acknowledged some of the rules of construction that this
Court has announced apply to treaty construction and
applied some of these rules while it chose to ignore

a. _ |

others. (App., infra, a7-al10). While these omissions are
discussed below, the most critical errors are its failure to
apply general rules of construction and its failure to
follow this Court’s rule of liberal construction of treaties.
(App., infra, a7-al0). The court of appeals does not
acknowledge a rule of construction that requires a docu-
ment be interpreted so as to give effect to all provisions.
The court of appeals does acknowledge a part of a rule of
this Court that “treaties are more liberally construed than
contracts.” (App., infra, a9-a10), citing Eastern Airlines,
Inc. v. Floyd, 499 U.S. 530, 535, 111 S.Ct. 1489, 1493 (1991)
(citations omitted). In spite of the lip service paid to this
Court’s rule of liberal construction of treaties, the court of
appeals actually ignores the rule’s plain meaning and
relies on inferior authority to interpret the rule to hold
that treaty provisions should be construed narrowly
instead of liberally. (App., infra, a9, n. 17 & 18), citing, The
Case of S.S. Lotus (France v. Turkey), [1927] P.C.I.J. Ser. A.,
No. 10 at 18-19; In re: Extradition of Demjanjuk, 612 F.Supp.
544, 555 (N.D. Ohio 1985); The Case of S. S. Wimbleton,
[1923] P.C.I.J. Ser. A., No. 1, at 25. These errors fore-
shadow the court of appeals’ holding with respect to the
Convention.

At the heart of the court’s analysis is its conclusion
that the Inter-American Convention contains no plain
statement of preemptive intent which it says this Court
found critical in finding that the Hague Convention on
the Taking of Evidence Abroad in Civil or Commercial
Matters (“Hague Evidence Convention”) did not preempt
other methods of discovery. (App., infra, all-al4); 23
U.S.T. 2555, T.1.A.S. No. 7444. However, the court of
appeals’ analysis is flawed because it failed to analyze the

i

context of the Hague Evidence Convention in which this
Court found the absence of such a preemptive statement
so crucial. In addition, it also failed to compare and
contrast the context of the Hague Evidence Convention to
the context of the Inter-American Convention. (App.,
infra, at all-a18). As shown below, in the Inter-American
Convention, these factors support preemption.

Based on its erroneous analysis, the court of appeals
concluded by finding that the Inter-American Convention
was merely a safe harbor providing a simple and certain
means but not the exclusive means by which a party may
serve process on a foreign national in a signatory country.
(App., infra, a22).

REASONS FOR GRANTING THE PETITION

Although the Inter-American Convention was
entered into by the United States in July of 1988 this is the
first court of appeals’ opinion on this treaty and it is
wrong. Given this country’s rapidly increasing trade with
Mexico since the ratification of the North American Free
Trade Agreement, it is timely for this Court to determine
if the Inter-American Convention must be utilized for
service between the two countries, as well as the thirteen
other signatory countries. This is an important question
of federal law which has not been, but should be settled
by this Court.

I. The Court of Appeals’ Interpretation of the Inter-
American Convention is Erroneous Given the Lan-
guage, Context and Rules of Construction.

This Court’s rules of treaty construction which
require that the Inter-American Convention be found to
be mandatory are as follows. The role of the court in
treaty interpretation is limited to ascertaining and enforc-
ing the intent of the treaty parties. Sumitomo Shoji Amer-
ica, Inc. v. Arigliano, 457 U.S. 176, 102 S.Ct. 2374, 2377
(1982). In interpreting an international treaty, it is in the
nature of a contract between nations. Trans World Airlines
v. Franklin Mint Corp., 466 U.S. 243, 253, 104 S.Ct. 1776,
1783 (1984). The analysis therefore begins with the words
of the treaty and the context in which the written words
are used. Air France v. Saks, 470 U.S. 382, 397, 105 S.Ct.
1338, 1341 (1985). Treaties are construed more liberally
than private agreements, however, and a court may look
beyond the written word to the treaty’s history, to the
negotiations and the practical construction adopted by
the parties may also be relevant. Id. 470 U.S. at 396, 105
S.Ct. at 1341. Other general rules of construction may be
brought to bear on difficult or ambiguous passages. Volks-
wagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700,
108 S.Ct. 2104, 2108 (1988).

The words and context of the Inter-American Con-
vention and Additional Protocol with the application of
rules of construction establish that it preempts all other
means of service of process absent some other agreement.
This is in spite of the fact that there is not a provision in
the Convention that expressly states that all other means
of service in civil or commercial cases are prohibited or
preempted by the Convention. Rather Article 2 states that

0

10

the Convention is applicable in civil and commercial
cases in the states parties and only provides for one
method of service of process, letters rogatory. (App., infra,
a53). The Convention imposes on the states parties the
obligation to execute service on its subjects. (App., infra,
a54-a56, art. 5 & 10; a65, art. 4). The Convention excepts
from its application methods and procedures for service
other than letters rogatory, only when such procedures
have been agreed to directly between the states parties,
themselves. (App., infra, a57-a58, art. 14 & 15). However,
there is no exception in the Convention that allows one of
the states parties to continue its own means and methods
of service unilaterally. The additional protocol and the
treaty history that is available, further demonstrate the
intent of the states parties to the Convention to prohibit
means of service other than letters rogatory. Each of these
points is discussed in detail below.

Article 2, “SCOPE OF THE CONVENTION”
expressly provides as follows:

Article 2

This Convention shall apply to letters rogatory,
issued in conjunction with proceedings in civil
and commercial matters held before the appro-
priate 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 pro-
cess, summonses or subpoenas abroad;
(App., infra, a53).

Thus by agreeing to the Convention, the signatory states
parties are agreeing that the terms of the Convention

11

shall apply to letters rogatory used for service of process
in civil and commercial matters. Petitioners do not sug-
gest that this language by itself preempts other means of
service of process, but it is important that it does not
recognize, permit or otherwise allow any other method of
service of process.

The Preamble to the Additional Protocol to the Con-
vention which was proposed by the United States, adds
support to the preemptive interpretation of-the Conven-
tion. The Preamble states it was entered into for the
purpose of strengthening and facilitating international
cooperation in judicial procedures as provided in the
Inter-American Convention and to provide for the more
effective service of judicial documents. (App., infra, a62).
In addition, the Scope of the Protocol is set forth in
Article 1 and it clarifies that the Protocol itself applies
only to the performance of procedural acts of a merely
formal nature, such as service of process, summonses or
subpoenas abroad, again demonstrating the intent to
limit the preemptive impact of the Convention. (App.,
infra, a62). The Additional Protocol is not limited to these
acts only when they are accomplished by letters rogatory,
but rather provides that these acts can be accomplished
only by means of letters rogatory. (App., infra, a62-a70).
The Additional Protocol thus supports the intended
exclusivity of such means of service.

The only exceptions for methods of service of process
other than letters rogatory are set forth in Articles 14 and
15 of the Convention. These Articles permit the use of
other means and methods only when the states parties
have agreed to such other means and methods between
themselves. (App., infra, a57-a58). The Convention does

12

not contain an exception that allows one of the states
parties to unilaterally impose methods of service on
others. Articles 14 & 15 provide as follows:

VI. GENERAL PROVISIONS
Article 14

States Parties belonging to economic inte-
gration systems may agree directly between
themselves upon special methods and pro-
cedures more expeditious that those provided
for in this Convention. These agreements may
be extended to include other States in the man-
ner in which the parties may agree.

Article 15

This Convention shall not limit any provi-
sions regarding letters rogatory in bilateral or
multilateral agreements that may have been
signed or may be signed in the future by the
States Parties or preclude the continuation of
more favorable practices in this regard that may
be followed by these States.

(App., infra, a57-a58).

The court of appeals completely ignored Article 14 in its
analysis. (App., infra, all-a18). Article 14 is an exception
that expressly allows more expeditious procedures only
when agreed to by the States Parties that belong to eco-
nomic integration systems.* (App., infra, a57-a58). The

3 The Department of State suggests that Article 14 applies
only to special methods and procedures relating to letters roga-
tory, however, nothing in the language of Article 14 suggests
such a limitation. Treaty Doc. 98-27, p. VIII.

13

provision does not recognize or permit the continuation
of methods and procedures used unilaterally by one of
the states parties. Indeed Article 14’s relative position as
the first article under the heading of general provisions,
dictates that it be read broadly. This Court’s rules govern-
ing treaty construction also dictates that it be read liber-
ally. Simply put, the words of this Article provide one
exception to the general applicability of the Inter-Ameri-
can Convention for more expeditious procedures agreed
to by members of economic integration systems.

Article 15 which follows Article 14 in the General
Provisions excepts from the reach of the Convention less
restrictive service provisions agreed to between states
parties in bilateral or multilateral agreements. (App.,
infra, a58). This Article provides that more favorable ser-
vice practices that may have been agreed to or practiced
by states parties to bilateral or multilateral agreements
are not preempted by the Convention and may continue.
(App., infra, a58). Again the Article does not provide that
unilateral practices may continue. (App., infra, a58).
Moreover, the Department of State’s comment on Article
15 in its report on the Convention to President Reagan
states:

Article 15 permits Contracting States either to
continue in force agreements with less restric-
tive provisions, or to enter into such agreements
in the future. It further authorizes the continu-
ance of practices between states concerning let-
ters rogatory which may be less restrictive than
those prescribed by the Convention. For exam-
ple, service by mail or by a private process-

14

server may continue to be employed if autho-
rized by the law of the State of destination.
Treaty Doc. 98-27, p- VIII.

The court of appeals did not ignore Article 15 in its
analysis as it did Article 14. However, while it recognizes
that it is “difficult” to dispose of this provision, the court
does so by dismissing the Department of State’s comment
as “modest support” and engages in an unreasonably
narrow construction of the second clause of Article 15 to
find that it permits unilateral practices of countries to
continue. (App., infra, a15-a17). This analysis by the court
of appeals is strained and erroneous.

First, the court does not properly divide the clauses.
(App., infra, a15). The second clause of Article 15 reads
“This convention shall not ... preclude the continuation
of more favorable practices by these States.” (App., infra,
a58). Second, the court of appeals ignores the context of
Article 15 that it addresses bilateral and multilateral
agreements, just as Article 14 addressed economic inte-
gration systems. (App., infra, a15-a17, a58). By ignoring
the context of Article 15, the court of appeals interprets
this clause on a stand-alone basis and concludes that this
clause indicates nothing about whether these practices
must be agreed by the parties, when in fact the subject of
the Article is bilateral and multilateral agreements. (App.,
infra, a15-a17, a58). Third, the court of appeals deletes the
words “these States” from the clause and substitutes
“contracting States” to interpret the clause to permit
more favorable unilateral practices of any contracting
state. (App., infra, a15-a16). If the drafters had intended
to refer to all countries to the Convention, as suggested
by the court of appeals, they would have used the term

| ameeneinmeaiin

15

“States Parties” which is used throughout the Conven-
tion, rather than “these States.” (App., infra, a53-a61). The
term “these States” is used in this clause to refer back to
States Parties that have signed or may sign bilateral or
multilateral agreements in the first clause and to permit
more favorable practices that may be followed by these
states in such agreements. (App., infra, a58). Fourth, the
court of appeals erroneously interprets “practices in this
regard” to refer to practices relating to letters rogatory.
(App., infra, al6-a17). This again ignores the context of
Article 15 and would render the second clause redundant
with the first clause as the first clause already permits
provisions relating to letters rogatory in agreements.
(App., infra, a58). Literally and certainly when read liber-
ally, this second clause is meant to broadly permit the
continuation of practices that have been followed by
states parties that are also parties to bilateral and multi-
lateral agreements. Moreover, given that the first clause
permits less restrictive provisions with respect to letters
rogatory, the purpose of the second clause is to permit
service of process by means in addition to letters roga-
tory.

As demonstrated the court of appeals’ disregard of
Article 14 and its unreasonable attempts to dispose of
Article 15, does not adhere to applicable rules of treaty
construction and is erroneous. The purpose of Articles 14
and 15 is to clearly provide exceptions from the Conven-
tion’s required use of letters rogatory.

The court of appeals concluded that the Convention
is merely a “safe harbor” - a dependable mechanism -
but not necessarily the only lawful mechanism - by
which they may effect service on defendants residing in

16

another signatory nation. (App., infra, a22). This inter-
pretation by the court of appeals means that there is no
need for exceptions to the Inter-American Convention
because all other means and methods of service that were
available prior to the Convention would continue to be
available after ratification of the Convention. The court of
appeals’ interpretation means that Articles 14 and 15
have no effect. Under the court of appeals’ interpretation,
members of economic integration systems would con-
tinue to have available all “methods and procedures more
expeditious than those provided for in the Convention”
without Article 14. Under the court of appeals’ interpreta-
tion, parties to bilateral and multilateral agreements
would be able to use all provisions relating to letters
rogatory or other more favorable practices that may be
contained in their agreements without Article 15. This
construction of the Convention by the court of appeals
ignores and in fact violates a general rule of construction.

The general rule of construction that the court of
appeals’ interpretation violates is set forth in the Restate-
ment of Contracts as follows:

§ 203. Standards of Preference in Interpretation.

In the interpretation of a promise or agreement
or a term thereof, the following standards of
preference are generally applicable;

(a) an interpretation which gives a reason-
able lawful, and effective meaning to all the
terms is preferred to an interpretation which
leaves a part unreasonable, unlawful, or of no
effect;

Restatement (Second) of Contracts § 203 (1982).

-: me IO 5

17

The court of appeals’ interpretation renders Articles 14
and 15 as having no effect and, thus, is a violation of this
general rule of construction. The Inter-American Conven-
tion does not expressly state that all other methods of
service are preempted by the Convention. (App., infra,
a53-a70). Rather the Convention sets forth the procedures
for the permissible means of service, i.e., letters rogatory,
and then excepts other means and methods of service that
have been agreed to by the states parties either as a result
of economic integration systems or bilateral or multi-
lateral agreements. (App., infra, a53-a70). This construc-
tion is not a leap of logic as the court of appeals states,
but rather is the proper construction of the Convention
based on a fundamental general rule of construction that
this Court has said is applicable to treaties as contracts
between nations.

II. The Court of Appeals Erred in Its Analysis of The
Inter-American Convention vis a vis The Hague
Service and Evidence Conventions

Application of the same analysis to this Convention
that this Court applied to the Hague Service Convention
and the Hague Evidence Convention to determine if they
were mandatory or permissive, demonstrates that the
Inter-American Convention, like the Hague Service Con-
vention, is mandatory.

Article I of the Hague Service Convention provides:

The present convention shall apply in all cases,
in civil or commercial matters, where there is

18

occasion to transmit a judicial or extrajudicial
document for service.

20 U.S.T. 361, 362, T.1.A.S. No. 6638.

Based on the strength of this language, the Conven-
tion has been interpreted as being mandatory. Societé
Nationale v. U. S.-Dist. Court, S.D. Iowa, 482 U.S. 522, 534,
n.15, 107 S.Ct. 2542, 2550 n.15 (1987).

The Hague Evidence Convention, however, has been
held to be applicable only on a case-by-case basis. Id., 482
U.S. at 540-41, 107 S.Ct. at 2553. This Court reached this
conclusion only after a complete review of the Conven-
tion. The preamble of the Evidence Convention states as
its purpose: “to facilitate the transmission and execution
of letters of request” and to “improve mutual judicial
cooperation in civil or commercial matters.” 23 U.S.T. at
2557, T.LA.S. No. 7444. However, this Court did not stop
its analysis at this language in the preamble. Nor did this
Court find or even suggest that because the Hague Evi-
dence Convention only referred to and applied to “Let-
ters of Request” that other means of taking evidence were
not precluded. 482 U.S. at 534, 107 S.Ct. at 2550; Compare
App., infra, all-a12. Before reaching its conclusion, this
Court also looked at the context of the Evidence Conven-
tion and the language used throughout the Evidence
Convention, finding that the word “may” was used
throughout rather than the mandatory “shall.” 482 U.S. at
535. 107 S.Ct. at 2551. In addition, this Court considered
that Article 23 of the Evidence Convention allows a signa-
tory country to declare that it will not execute a letter of
request in aid of pretrial discovery in a common law

19

country. 482 U.S. at 536-538, 107 S.Ct. at 2551-2552. Per-
haps most persuasive to this Court was the fact that
Article 27 of the Evidence Convention expressly provided
that the Convention shall not prevent a contracting state
from “permitting by internal law or practice, methods of
taking evidence other than those provided for in this
Convention.” 482 U.S. at 538, 107 S.Ct. at 2552-53. Finally,
this Court also stated that the interpretation of the Evi-
dence Convention as exclusive would allow the courts of
another country to regulate pretrial discovery in a case
pending in another country. 482 U.S. at 539-40, 107 S.Ct.
at 2553. It was based on this language and context of the
Hague Evidence Convention that this Court held that
such convention was permissive.

Article 2 of the Inter-American Convention is very
similar to Article I of the Hague Service Convention. Both
use the mandatory word “shall” and apply in commercial
and civil cases for service of process abroad. The differ-
ences between the two are explained by the fact that
letters rogatory is the exclusive means for service under
the Inter-American Convention, while the Hague Service
Convention permits various means of service. (App. infra,
a53). 20 U.S.T. 361, T.I.A.S. No. 6638. The main difference
is that the word “all” is not used in the Inter-American
Convention, but it is used in the Hague Service Conven-
tion. However, “all” would be superfluous in the context
of Article 2 of the Inter-American Convention, as it
assumes that in any case where service abroad is sought,

a letter rogatory will issue.

20

In contrast, unlike the Hague Evidence Convent
mandatory language is used throughout the Inter-Am
can Convention. For example, Article 5 requires that
ters rogatory shall be executed by the receiving coun
(App., infra, a54-a55). The Hague Evidence Conveni
provides that it “may” be done. 482 U.S. at 535, 107 S
at 2551. In addition, the Inter-American Convention,
the Hague Service Convention, provides only a very 1
row exception to the mandatory obligations it imposes
a state of destination to serve a letter rogatory. The Ha
Service Convention which has been interpreted as m
datory does contain an exception that allows a signat
state to refuse to honor a request for service in instar
where compliance would infringe upon the state of de
nation’s “sovereignty or security”. 20 U.S.T. 361, 364,
13, T.L.A.S. No. 6638. The Inter-American Convent
likewise provides a narrow exception that a state of de
nation may refuse to execute a letter rogatory whic!
“manifestly contrary to its public policy.” (App., ir
a58, art. 17). Thus, throughout the Inter-American C
vention it mandates that states parties shall perform
procedures, rather than providing that they may be dx

The court of appeals does purport to look at
context of the Inter-American Convention in dismiss
the Petitioners’ preceding arguments concerning mar
tory language. The court of appeals dismisses the ex.
ination of the language stating that in the Conventior
the mandatory language refers to what must be d
with respect to letters rogatory, but none of it indic
that the Convention’s procedures exclude other mean
service. (App., infra, all-al4). However, this misses
point. In Societé Nationale, supra, this Court reviewed

21

procedures under the Hague Evidence Convention and
found: (i) a judicial authority in one contracting state may
forward a letter of request; and (ii) diplomatic officers,
consular agents, and commissioners may take evidence.
482 U.S. at 535, 107 S.Ct. at 2551. This Court found that
the absence of any command that a signatory state must
use the Hague Evidence Convention procedures conspic-
uous and supported this Court’s conclusion that such
Convention was permissive. Id. By comparison the Inter-
American Convention mandates that states parties follow
the procedures set forth subject to the two exceptions
discussed above. Thus, the court of appeals’ disposal of
this argument fails to properly apply the precedent of this
Court and ignores the mandatory provisions of the Con-
vention.

Ill. The Available Treaty Documents and General
Principles of Comity Support an Interpretation of
the Inter-American Convention as Mandatory.

The fact that the Inter-American Convention applies
exclusively to service of process between signatory states
is also supported by the documents relating to its consent
and ratification by the United States Senate.* President
Reagan, in his letter of transmittal to the Senate, stated
that the Inter-American Convention would create a level
of international cooperation among the Organization of
American States analogous to that among the signatories
to the Hague Service Convention. Treaty Doc. 98-27, p. I.

4 No documents relating to the negotiation of the Conven-
tion or Additional Protocol have been published. -

22

Likewise, both the Department of State in its report su
mitted to the President and the Senate Committee —
Foreign Relations in its report to the Senate, equate t
Inter-American Convention to the Hague Service Co
vention. Treaty Doc. 98-27, p. III; Exec. Rept. 99-2
Nowhere in any of these materials is it noted by t
Executive or Legislative Branch of the government tk
the Inter-American Convention is unlike the Hague Ss
vice Convention because its provisions for service |
Letters Rogatory are permissive and not mandatory. }
comments indicate that internal laws or practices of t
state of transmission, such as service by mail, can co
tinue in the absence of an agreement. There is such la
guage in treaty documents of the Hague Eviden
Convention. See, 482 U.S. at 535 n. 19, 107 S.Ct. at 2551
19. While there is express language that the Convention
mandatory, the Executive and Legislative Branches of t
federal government gave no indication that the Inte
American Convention would not be the exclusive meth«
for service with signatory countries.

In agreeing to enter into the Inter-American Conve
tion, the United States recognized the right of forei;
governments, including the government of Mexico,
agree to this method of service within their borders, at
to reject all others. Mexico, like the United States, is
sovereign state; it would be unfair to ignore her reserv
tions to the Convention as to service of her citize
within Mexico. See, 482 U.S. at 543-44, n.27, 107 S.Ct.
2555-56, n.27. In a civil law nation such as Mexico, it
traditionally required that legal documents be served |
a government official or through some other official cha
nel. R. Doak Bishop, International Litigation in Texas,

' — WD or 4

a

23

Baylor L. Rev. 131 n.12-17 (1984). Therefore private par-
ties, without intervention of the state, are unable to per-
form such acts. Id. In fact, an attempt at service without
the intervention of the Mexican government, may consti-
tute the performance of an illegal act. Id. Given these
restrictions, the principles of sovereignty and comity dic-
tate that the provisions of the Convention be applied in
this situation.

CONCLUSION

For these reasons, including the United States’ obli-
gations under the Inter-American Convention, this peti-
tion for a writ of certiorari should be granted.

Respectfully submitted,

James A. Porter,
Counsel of Record

Grecory M. Kocu

Porter & Kocn, L.L.P.

770 South Post Oak Lane,
Suite 500

Houston, Texas 77056

(713) 961-5095 (Tele.)

(713) 961-4747 (Fax)

Counsel for Petitioners

APPENDIX A

al

Alberto KREIMERMAN, et al.,
Plaintiffs-Appellants,

Vz.

CASA VEERKAMP, S.A. de C.V,,
et al., Defendants-Appellees.

No. 93-2403.

United States Court of Appeals,
Fifth Circuit.

June 15, 1994.

Appeal was taken from order of the United States
District Court for the Southern District of Texas, Kenneth
M. Hoyt, J. quashing service on Mexican defendants
under Texas long-arm statute. The Court of Appeals,
Wiener, Circuit Judge, held that (1) Inter-American Con-
vention on Letter Rogatory did not preempt all other
conceivable means for effecting service on defendant who
resided in Mexico; (2) removal of action to wrong divi-
sion of right district create procedural, rather than juris-
dictional defect and could be remedied by transferring
case to correct division; and (3) district court did not
abuse its discretion in refusing to extend time to effect
service.

Affirmed in part, reversed in part, and remanded
with instructions.

Jan R. Thurman, Annette R. Lloyd, Thurman, Har-
rison & Steck, Arlington, TX, for appellant.

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

a2

Appeal from the United States District Court for th
Southern District of Texas.

Before KING and WIENER, Circuit Judges, an
ROSENTHAL,” District Judge.

WIENER, Circuit Judge.

Plaintiffs-Appellants Alberto Kreimerman, Herme
International, Inc. and Hermes Trading Company d/b/
Hermes Music (collectively “Kreimerman et al.”) suec
Defendants-Appellees Casa Veerkamp, S.A. de C.V. Wal
ter Veerkamp, Electronica Solida Mexicana, S.A., anc
Jorge R. Mendez (collectively “Veerkamp et al.”)! fo:
libel, civil conspiracy, and slander. Kreimerman et al
served process on the defendants, all of whom are resi:
dents of Mexico, by direct mail through the Texas Secre.
tary 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 Conven-
tion),* a multi-national treaty designed to facilitate ser-
vice of letters rogatory among the signatory nations, was
the exclusive means of effecting service on the defen-
dants. After Kreimerman et al. tried long and hard - but
unsuccessfully — to accomplish service on the defendants

“District Judge of the Southern District of Texas, sitting by des-
ignation.

' Electronica Solida Mexicana, S.A. and Jorge R. Mendez
have not appeared and are not parties to this appeal.

* Tex.Civ.Prac. & Rem.Code § 17.041, et seq.
3 Inter-American Convention on Letters Rogatory (here-

inafter “the Convention”), January 30, 1975, S. TREATY DOC.
No. 27, 98th Cong., 2d Sess. (1984).

felt a Eien a tei ala, Sane

a3

through the use of letters rogatory pursuant to the Con-
vention, 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 Conven-
tion does not preempt other methods of service. They
also appealed that court’s refusal to grant a third exten-
sion of time within which service could be accomplished
pursuant to the Convention.

I
FACTS AND PROCEEDINGS

Alberto Kreimerman is the sole owner and stock-
holder of Hermes Music and Hermes International, Inc.,
which sell numerous music related products. Both com-
panies have their principal places of business in Hidalgo
County, Texas, where Kreimerman resides. Walter Vee-
rkamp, 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, conspiracy, and slander,4 serving process on
all defendants through the Texas Secretary of State under the

4 Kreimerman claimed that he was defamed when Veer-
kamp sent copies of an article from a Mexican political maga-
zine and explanatory cover letters to some of Kreimerman’s
suppliers. The article (and the accompanying cover letters)
apparently accused Kreimerman of being involved in drug traf-
ficking, gun running, and money laundering.

a4

Texas Long-Arm Statute. Veerkamp et al. removed the ca:
to the United States District Court for the Southern Distri
of Texas, Houston Division. They also moved to dismiss tl
action for lack of jurisdiction and improper servic
Kreimerman et al. responded to Veerkamp et al.’s motic
and requested that the case be remanded to state court
alternatively, that it be transferred to the McAllen Division |
the Southern District of Texas, which was the proper vent
division for the case.5 The court denied all motions excey
the motion to quash service, which it granted on the groun
that the Convention established the exclusive means «
serving process on defendants residing in a signatory Stat

Following the court’s decision to quash service und«
the long-arm statute, Kreimerman et al. moved to exten
the time to serve all defendants and requested the distri
court to issue four letters rogatory for service of proces
under the terms of the Convention. The letters wet
issued and forwarded to Mexico by Kreimerman et al.
American counsel to be served on the defendants. Kre
merman et al. retained Mexican counsel in Ciudad Juare
(on the Mexican side of the Rio Grande River, across fror
El Paso, Texas) to receive the letters and assist with suc
service. This counsel in turn hired another Mexican atto’
ney, whose firm had offices in Mexico City, where th
letters rogatory had to be filed. During the ensuin
months, Kreimerman et al.’s Mexican counsel reporte
that the letters had been received and filed with th
Federal District Court of Mexico, but that they had nc

° We address the issue of removal to the wrong divisio
later.

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a5

yet been served, apparently because of the limited per-
sonnel 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 defen-
dants, and this request was granted too.

Prior to the expiration of the third deadline, Kreimer-
man 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. sub-
sequently 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.® The
magistrate judge also found that sanctions were not

6 These statutes of limitations presumably related to Krei-
merman et al.’s actions against Veerkamp et al. under Texas law
for libel, civil conspiracy, and slander.

a6

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 mag-
istrate judge’s recommendations, but the district court
adopted them and dismissed the case before the timely-
filed written objections were received by the court. Krei-
merman et al. then moved for reconsideration but their
motion was denied.” This appeal followed.

IT
ANALYSIS
A. Preemption

The central quéstion in this case is whether the Con-
vention preempts all other conceivable means for effect-
ing 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. Signifi-
cantly, 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 inter-
pretation of the Convention 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

7 Kreimerman et al. also made a motion to reinstate the
motion for reconsideration, or - if you will - to reconsider the
motion for reconsideration.

me ee Le ee Le ee eee Teter. Y —

a7

whether the language, history, and purpose of the Con-
vention 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.® 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.”?
Only when the language of a treaty — read in the context
of its structure and purpose!® - is ambiguous may we

8 United States v. Alvarez-Machain, 504 U.S. __, __, 112
S.Ct. 2188, 2193-94, 119 L.Ed.2d 441, 451-52 (1992); Volkswagen-
werk Aktiengesellschaft v. Schlunk, 486, U.S. 694, 699, 108 S.Ct.
2104, 2108, 100 L.Ed.2d 722 (1988); Air France v. Saks, 470 U.S.
392, 397, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985); Chan v.
Korean Air Lines, Ltd., 490 U.S. 122, 134-35, 109 S.Ct. 1676,
1683-84, 104 L.Ed.2d 113 (1989).

9 Vienna Convention on the Law of Treaties, May 22, 1969,
art. 31(1), 8 I.L.M. 4 (1969) (hereinafter “Vienna Convention”);
accord Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176,
180, 102 S.Ct. 2374, 2377, 72 L.Ed.2d 765 (1982) (clear import and
obvious meaning of treaty language control). Although the
United States is not a party to the Vienna Convention, it regards
the substantive provisions of the Vienna Convention as codify-
ing the international law of treaties. See RESTATEMENT
(THIRD) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES, Part III, introductory note (1986).

10 Although several cases specify that the language of a
treaty must be read “in context,” see, e.g., Eastern Airlines, Inc. v.
Floyd, 499 U.S. 530, 534, 111 S.Ct. 1489, 1493, 113 L.Ed.2d 569

a8

resort to extraneous information like the history of |
treaty, the content of negotiations concerning the treé
and the practical construction adopted by the contract
parties.'' We have no dispensation “to alter, amend,
add to any treaty, by inserting any clause, whether sm
or great, important or trivial... . “!? Indeed, any su
effort on our part “would be . . . an usurpation of pow
and not an exercise of judicial function.”!5 Neither m
we supply a casus omissus, for we have no authority

(1991); Schlunk, 486 U.S. at 699, 108 S.Ct. at 2108, these cases
not define the word “context.” As the language of a treat:
again, read in context - is regularly contrasted with informat
extraneous to the treaty (like the travaux preparatoires), see, e
Eastern Airlines, Inc., 499 U.S. at 535, 111 S.Ct. at 1493; Chan, :
U.S. at 134, 109 S.Ct. at 1683-84, we can infer that the context ¢
treaty consists of insights drawn from the treaty docums
itself. Article 31(2) of the Vienna Convention confirms this inf
ence, for it defines the context of a treaty as the text “includ
its preamble and annexes,” as well as contemporaneous inst
ments and agreements made by the parties to the treaty |
connection with the conclusion of treaty.” Emphasis add:
Obviously, inferences drawn form a treaty’s structural organi
tion (e.g., the titles of its articles and parts) are also part of |
contextual analysis of a treaty. Such contextual analysis can a
should inform our understanding the literal language of a tre:
provision. Thus, when a court speaks of interpreting the |:
guage of a treaty in the context of its structure and purpose
means construing the literal language of the treaty in light of
structural organization and its purpose - as reflected in |
preamble and other parts of the treaty.

11 Eastern Airlines, Inc., 499 U.S. at 535, 111 S.Ct. at 14
Chan, 490 U.S. at 135, 109 S.Ct. at 1684.

'2 Chan, 490 U.S. at 135, 109 S.Ct. at 1684 (quoting ‘
Amiable Isabella, 19 U.S. (6 Wheat.) 32, 5 L.Ed. 191 (1821)).

3 Id.

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a9

rewrite a treaty.!4 These canons of interpretation, how-
ever, do not indicate which of several competing inter-
pretations we should favor in close cases.

Courts commonly declare the treaties are more “lib-
erally construed” than contracts.'5 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, to “look beyond the written words to the
history of the treaty, the negotiations, and the practical
construction adopted by the parties.”!© Indeed, existing
precedents — though sparse — suggest that treaty provi-
sions should be construed narrowly rather than broadly. '”
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.'® Ambiguous provi-
sions of a treaty should thus be interpreted to derogate

14 Id.

IS See, e.g., Air France v. Saks, 470 U.S. 392, 396, 105 S.Ct.
1338, 1341, 84 L.Ed.2d 289 (1985); Eastern Airlines, Inc., 499 U.S.
at 535, 111 S.Ct. at 1493.

16 Eastern Airlines, Inc., 499 U.S. at 535, 111 S.Ct. at 1493
(citations omitted).

\7 See, e.g., The Case of S.S. Lotus (France v. Turkey), [1927]
P.C.L.J. Ser. A, No. 10 at 18-19; In re Extradition of Demjanjuk, 612
F.Supp. 544, 555 (N.D.Ohio 1985) (citing the S.S. Lotus case for
the proposition that the jurisdiction [to adjudicate] of sovereign
States is unbounded unless explicitly prohibited).

18 As “[t]he rules of law binding upon States . . . emanate
from their own free will as expressed in conventions or by

al0

minimally from the sovereign power of the State, which is
the quintessential and most legitimate entity in interna-
tional law.!9 ;

2. Discussion

The parties advance both textual (and contextual)”
and non-textual (or extraneous) arguments in support o!
their respective interpretations of the Convention.
Although the district court was persuaded that Kreimer-
man et al.’s attempt to serve process under the Texas
Long-Arm Statute contravened the Convention, that
court did not reveal with arguments it found especially
telling. The absence of the trial court’s reasons are incon-
sequential here, though, as the interpretation of treaty
provisions is a question of law, freeing us to review the

usages generally accepted as expressing principles of
law ... [rJestrictions upon the independence of States canno:
therefore be presumed.” The Case of S.S. Lotus (France v. Turkey),
[1927] P.C.I.J. Ser. A, No. 10 at 18-19 (emphasis added); In re
Extradition of Demjanjuk, 612 F.Supp. 544, 555 (N.D.Ohio 1985)
(citing the S.S. Lotus case for the proposition that the jurisdic-
tion [to adjudicate] of sovereign States is unbounded unless
explicitly prohibited); see also The Case of S.S. Wimbleton, [1923
P.C.1.J. Ser. A, No. 1, at 25 (indicating that international treaties
place restrictions on the exercise of the sovereign rights of sig-
natory States).

19 In this case, however, it turns out that the arguments
weigh rather more heavily on one side than the other. Thus, we
need noi reiy on any canon of interpretation to determine the
outcome in this case: It is simply not that close.

20 See supra footnote 10.

all

district court’s conclusion de novo.2! We consider the par-
ties textual and non-textual arguments in turn.

a. Textual Arguments

The only federal court to have reached the issue in a
published opinion concluded that the Convention is not
the exclusive means of serving process on defendants
residing in a signatory State.22 In so concluding, that
court emphasized that the Convention does not expressly
prohibit other means of service: The Convention “states
that it shall apply to letters rogatory . . . [but it] does not
state that letters rogatory are the only means.of serving
process in the signatory countries.”?>

This is a telling dichotomy. The Convention does
indeed merely state that it “shall apply to letters roga-
tory,”*4 rather than to any and all means of serving pro-
cess. In contrast, the Hague Service Convention - by its
own terms - “appl{ies] in all cases, in civil or commercial
matters, where there is occasion to transmit a judicial . . .
document for service abroad.”?5 Similarly, the official title of

21 Sioux Tribe v. United States, 205 Ct.Cl. 148, 500 F.2d 458,
462 (1974); Cayuga Indian Nation of New York v. Cuomo, 758
F.Supp. 107, 111 (N.D.N.Y.1991).

22 Pizzabiocche v. Vinelli, 772 F.Supp. 1245, 1249 (M.D.Fal.1991).

23 Id.

24 The Convention, arr. 2.

25 Convention on Service Abroad of Judicial and Extrajudi-
cial Documents in Civil or Commercial Matters, Nov. 15, 1965,
art. 1, 20 U.S.T. 361, T.1.A.S. No. 6638 (hereinafter “Hague Ser-
vice Convention”) (emphasis added).

al2

the Convention is the Inter-American Convention on Le
ters Rogatory, whereas the official title of the Hague Se
vice Convention is the Convention on the Service Abros
of Judicial and Extrajudicial Documents in Civil or Comme
cial Matters.26 As rogatory letters (or letters of reques
are — by definition - merely one of many procedur
mechanisms by which a court in one country may reque
authorities in another country to assist the initiating cou
in its administration of justice,?” the Convention’s scor
appears to be limited to regulating that one procedur.
mechanism. In contrast, the scope of the Hague Servic
Convention is much broader, applying as it does to a
service abroad upon defendants residing within signato
States.

This facial difference in scope is reinforced by
comparison of the preambles of the two agreements. Th
Convention’s preamble is rather modest: “The Gover
ments of the Member States . . . desirous of concluding
convention on letters rogatory, have agreed as fo
lows. ... “28 The language of the Hague Service Conver
tion is more peremptory: “Desiring to create appropriat
means to ensure that judicial and extrajudicial documen
to be served abroad shall be brought to the notice of th
addressee in sufficient time. .. . ”29

26 Id. (emphasis added).

27 See, e.g., Fed.R.Civ.P. 4(f) & 28(b) (in which letters rog:
tory are listed as but one of several possible means of effectin
service upon or deposing foreign residents).

28-The Convention, preamble.

29 The Hague Service Convention, preamble (emphas
added).

al3

Neither does the Convention contain a clear statement
of preemptive intent. Yet the Supreme Court found the
absence of such a “plain statement of a pre-emptive intent”
significant in deciding that the Hague Evidence Convention
did not preempt other methods of discovery.°°

Thus, nothing in the language of the Convention
expressly reflects an intention to supplant all alternative
methods of service. Rather, the Convention appears
solely to govern the delivery of letters rogatory among
the signatory States.

Veerkamp et al. also point to mandatory language found
in the Convention and insists that similar language led the
Supreme Court in Volkswagenwerk Aktiengesellschaft v. Schlunk
to conclude that the Hague Service Convention preempted
other methods of service.3! The significance of such manda-
tory language, however, depends on the context in which it
is used. In the Convention, all of the mandatory language
refers to what must be done with respect to letters rogatory;
none of it remotely indicates that the procedures outlined in
the Convention must be followed by the signatory nations
for anything other than the processing of letters rogatory.°?

30 Societe Nationale Industrielle Aerospatiale v. United States
District Court, 482 U.S. 522, 539, 107 S.Ct. 2542, 2553, 96 L.Ed.2d
461 (1987).

31 See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S.
694, 699, 108 S.Ct. 2104, 2108, 100 L.Ed.2d 722 (1988) (noting the
mandatory language of art. 1).

32 For example, the Convention indicates that it “shall
apply to letters rogatory,” Convention, art. 2, that execution of
such letters by the receiving state “shall not imply ultimate
recognition of the [sending authority’s] jurisdiction,” Id. art 9,
and that “[l]etters rogatory shall be executed in accordance with

al4

In contrast — as noted above — the Hague Service Conventio1
applies “in all cases . . . where there is occasion to transmit.
judicial . .. document abroad.”>5 It was precisely this manda
tory language - not mandatory language in general, bu
mandatory language specifically addressing the scope of thi
Hague Service Convention - that the Supreme Court founc
sO persuasive in Schlunk.34

the laws . . . of the State of destination.” Id. art. 10.
33 Hague Service Convention, art. 1.

34 486 U.S. at 699, 108 S.Ct. at 2108. Interestingly enough th
Convention on the Taking of Evidence Abroad in Civil or Com
mercial Matters (hereinafter “Hague Evidence Convention”)
March 18, 1970, 23 U.S.T. 2555, T.1.A.S. No. 7444, also contain:
mandatory language, yet the Supreme Court concluded that th
Hague Evidence Convention does not preempt other methods o
discovery previously employed by common-law courts. Societ
Nationale Industrielle Aerospatiale v. United States District Court
482 U.S. 522, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987). For example
the Hague Evidence Convention indicates that a contracting
State must designate a Central Authority for receipt of letters o
request. Hague Evidence Convention, art. 2. Here we find man.
datory language, yet that language tells us nothing abou
whether the treaty is preemptive or not.

Indeed, it is common for treaty regimes to have mandatory
language that tells signatories what they must do to execute
particular provisions of the treaties. But again, such language
tells us nothing about the scope of the treaties themselves
Analogously, mandatory language to the effect that “no one
may smoke in the doctor’s waiting room,” indicates nothing
about when we must wait in the waiting room. It gives us a rule
for what we must do once there, but it does not tell us when we
must be there. In this case, Veerkamp et al. are essentially argu-
ing that mandatory language indicating what we must or mus‘
not do once in the waiting room (once the Convention is trig-
gered) informs us when we must wait in that room (when the
Convention is triggered). Such a contention is logically insup-
portabie. In summary, the context in which mandatory language

al5

Veerkamp et al. also argues that article 15 of the
Convention demonstrates that the Convention was
intended to preempt other methods of service. Article i5
provides that “[t]his convention shall [1] not limit any
provisions regarding letters rogatory in bilateral or multi-
lateral agreements that may have been signed or may be
signed in the future by the States Parties or [2] preclude
the continuation of more favorable practices in this
regard that may be followed by these States.”°° The first .
clause clearly permits contracting States to maintain
alternative treaty-based procedures for transmitting letters
rogatory. The second clause, however, is more difficult.

Veerkamp et al. interpret this second clause to permit
contracting States to continue other more favorable ser-
vice practices when those practices are agreed upon by all
effected States. In other words, Veerkamp et al. construe
this clause to prohibit continuation of unilateral service
practices by contracting States. There is modest support
for this construction in the State Department’s comments
on article 15 “authorizes the continuance of practices
between states concerning letters rogatory which may be less
restrictive than those prescribed by the Convention.”%

is used determines the relevance of such language to the inquiry
at hand. Simply noting that a treaty contains mandatory lan-
guage is unavailing. Because the mandatory language in the
Hague Evidence Convention has nothing to do with the scope of
the treaty, the Court evidently perceived that the language is not
probative of whether the treaty preempts other methods of
discovery. See generally 482 U.S. 522, 107 S.Ct. 2542.

35 The Convention, art. 15.
36 Treaty Doc. 98-27, p. viii (emphasis added).

al6

There is, however, more to be said against this construc-
tion than in its favor.

The second clause of article 15 can reasonably be
read as affirmative permission for signatory states to con-
tinue “more favorable practices” even if those practices
are exercised unilaterally.°”7 Article 15 simply states that
the Convention does not “preclude continuation of more
favorable practices by [contracting] States.” This article
indicates nothing about whether those practices must be
assented to by other signatory nations. Neither do the
State Department’s comments necessarily support the
position — held by Veerkamp et al. — that pre-existing
State practices may be continued only if assented to by
other States; for the word “between” may simply mean
“among the contracting States,” rather than “agreed upon
by the contracting States” as Veerkamp et al. suggest.

Moreover, even if article 15 does not affirmatively
permit continuance of unilateral state practices, there is
still a palpable leap of logic in asserting that article 15’s
express authorization of certain mutually-accepted prac-
tices implicitly forbids others not so expressly autho-
rized. Ironically, this same leap of logic is mirrored in the
larger question at issue here, as Veerkamp et al. can just
as easily argue — and do so argue - that the very existence

37 Interpreting article 15 to permit continuance of unilateral
service of process practices by individuai contracting States is
not at all far fetched. Indeed, the Hague Evidence Convention
has a provision that does exactly that — permit continuance of
unilaterally-adopted procedures for discovery of evidence. See
‘ The Hague Evidence Convention art. 27; Societe Nationale Indus-
trielle Aerospatiale, 482 U.S. at 537-38, 107 S.Ct. at 2552-53.

al7

of the Convention on Letters Rogatory implies the pro-
scription of other practices not permitted by the Conven-
tion. As discussed later, however, the Supreme Court
does not accept this argument with respect to other con-
ventions, and Veerkamp et al. provide [sic] us with no
good reason to accept the argument here either: Their
leap of logic remains just that - a leap.

Significantly, even if Veerkamp et al.’s assertion that
article 15 does not authorize the continuation of uni-
laterally-exercised State practices were correct, it would
not help them. As the language of article 15 appears to
address only those treaties and State practices that per-
tain to letters rogatory, the article has nothing to say about
other procedures for service of process. The expression
“practices in this regard” found in article 15 can only
mean “practices in regard to letters rogatory.”

The State Department’s comments on article 15 also
support this construction, for they state expressly that
article 15 permits “the continuance of practices between
states concerning letters rogatory.”38 As this case involves
the question whether methods of service other than letters
rogatory are preempted by the Convention, reliance on
article 15 is misplaced: That article simply has nothing to
say about any methods of serving process other than
letters rogatory.

Kreimerman et al., for their part, point to article 17 of
the Convention, which permits a “State of destination [to]

38 Treaty Doc. 98-27, viii (emphasis added).

al8

refuse to execute a letter rogatory that is manifestly con-
trary to its public policy.”°9 Interpreting a somewhat sim-
ilar escape clause in the Hague Evidence Convention,*°
the Supreme Court proclaimed its unwillingness, “[i]n
the absence of explicit textual support, . . . to accept the
hypothesis that the common-law contracting states
abjured recourse to all pre-existing discovery procedures
at the same time that they accepted the possibility that a
contracting party could unilaterally abrogate even the
Convention’s procedures.”4! The same could be said in
this case: In the absence of explicit textual support we
should be similarly chary before accepting that the
United States abjured recourse to all other methods of
service when other contracting States can unilaterally
refuse to execute letters rogatory that are contrary to their
public policies.

Thus, the text of the Convention strongly indicates,
not that the Convention preempts other conceivable
methods of service, but that it merely provides a mecha-
nism for transmitting and delivering letters rogatory
when and if parties elect to use that mechanism.

39 The Convention art. 17.

40 Hague Evidence Convention, art. 23 (which allows a con-
tracting party to withhold its consent to the convention’s pro-
cedures for pretrial discovery).

41 Societe Nationale Industrielle Aerospatiale, 482 U.S. at 537,
107 S.Ct. at 2552.

al9

b. Non-Textual or Extraneous Arguments

Veerkamp et al. also advance several non-textual
arguments in support of their assertion that the Conven-
tion preempts other methods of service. First, they point
to President Reagan’s Letter of Transmittal to the Senate,
and the State Department’s Letter of Submittal to the
President, both of which opine that the Convention and
Additional Protocol “establish a treaty-based system of
judicial assistance analogous to that which exists” among
the States that are parties to the Hague Service Conven-
tion.4* But we do not see how this helps the defendants.
“Analogous” means “similar in certain respects,”43 or
“bearing some resemblance or likeness that permits one
to draw an analogy.” Inherent in these definitions is the
connotation that analogous things are also “dissimilar” or
“unlike” in certain respects, for if they were not they
would be identical, or at least essentially identical, and
not merely analogous. Thus, even taken literally, these
statements merely beg the question “similar in what
way.” More likely, President Reagan and the State Depart-
ment were simply referring to the most similar, already-
existing treaty — the Hague Service Convention - without
intending to make any legal judgments about the relative
scopes of the two conventions.

42 Treaty Doc. 98-27, p. i, iii (emphasis added).

43 Oxford American Dictionary 28 (Oxford Univ Press, Avon
Books 1986).

44 Black’s Law Dictionary 84 (6th Ed. 1990).

a20

Veerkamp et al. are also rather selective in drawing
from these extrinsic sources. For example, they are care-
ful not to refer us to the portion of the President’s Letter
of Transmittal in which he indicates, not that United
States courts must resort to Convention procedures [man-
datory], but that the courts “will be able to avail them-
selves of” such procedures (permissive).45 Neither do
they note President Reagan’s opinion that “the purpose
of the Convention is [merely] to facilitate service . . . of
documents.”46 Similarly, Veerkamp et al. fail to call our
attention to the State Department’s assertion that “[t]he
Convention, together with the Additional Protocol, estab-
lishes a mechanism [not the mechanism] for service of
process” among the contracting States.47 In view of the
importance that the Supreme Court places on such per-
missive language,4® Veerkamp et al.’s selective use of
these extrinsic sources is understandable, albeit not alto-
gether forthcoming. Taken as a whole, references to these
extrinsic sources do not strengthen Veerkamp et al.’s
position: Indeed, their net effect is to weaken it.

45 Treaty Doc. 98-27, p. i (emphasis added).

46 Id. The Supreme Court attached considerable importance
to precisely this sort of permissive language in holding that the
Hague Evidence Convention did not preempt other pre-existing
methods of discovery. Societe Nationale Industrielle Aerospatiale v.
United States District Court, 482 U.S. 522, 534, 107 S.Ct. 2542,
2550, 96 L.Ed.2d 461 (1987) (noting that the preamble to the
convention stated that its purpose was to facilitate the transmis-
sion and execution of letters of request).

47 Id. at iv (emphasis added).

48 See generally Societe Nationale Industrielle Aerospatiale, 482
U.S. 522, 107 S.Ct. 2542.

a21

Veerkamp et al. also suggest that Kreimerman et al.’s
construction of the Convention —- which makes resort to
the Convention procedures optional rather than manda-
tory — renders the Convention inefficacious: Contracting
States could simply choose to disregard Convention pro-
cedures when they proved inconvenient. The Supreme
Court, however, has rejected this argument in a variety of
contexts. In Societe Nationale Industrielle Aerospatiale, for
example, the Court concluded that it is enough that the
Hague Evidence Convention “procedures are available
whenever they will facilitate the gathering of evidence by
the means authorized in the Convention.”49-Similarly, in
United States v. Alvarez-Machain, the Supreme Court con-
cluded that the 1978 Extradition Treaty between the
United States and Mexico was not the exclusive means for
the United States to gain custody over suspects residing
in Mexico.5° In so concluding, the Court rejected the
argument — advanced by the dissent — that the purposes
of the extradition treaty “would be utterly frustrated” if
other means of gaining custody over foreign suspects
were permitted.5! The Supreme Court has thus clearly
rejected the argument that a treaty must be construed to
preempt alternative, nontreaty-based procedures if the
treaty is not to be rendered nugatory.

49 Id. at 541, 107 S.Ct. at 2554.

50 Llnited States v. Alvarez-Machain, 504 U.S. __, 112 S.Ct.
2188, 119 L.Ed.2d 441 (1992).

51 Alvarez-Machain, 504 U.S. at __, 112 S.Ct. at 2198, 119
L.Ed.2d at 458.

a22

In Schlunk, the Supreme Court explained why the
argument is unconvincing,>? pointing out - albeit in a
different context — that “nothing . . . prevents compliance
with the Convention even when the internal law of the
forum does not so require.”53 The Court also observed
that “[t]he Convention provides simple and certain
means by which to serve process on a foreign national.”

These same observations apply perforce to this case.
The Convention provides plaintiffs with a “safe harbor” -
a dependable mechanism — but not necessarily the only
lawful mechanism - by which they may effect service on
defendants residing in another signatory nation. Plaintiffs
who elect not to avail themselves of the Convention
machinery assume the risk that other legal principles, like
the principle of international comity, might hinder their
establishment of jurisdiction over the defendants. Finally,
such plaintiffs may also discover that their failure to
employ the Convention’s safe harbor procedures makes
enforcement of their judgments abroad more difficult or
even impossible.°>

When we thus consider all the arguments advanced
by the parties — both textual and non-textual - we con-
clude that the Convention does not preempt other
methods of service. This conclusion does not, however,
guarantee the availability or efficacy of other methods of

52 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694,
706, 108 S.Ct. 2104, 2111, 100 L.Ed.2d 722 (1988).

53 Id., 486 U.S. at 706, 108 S.Ct. at 2111.
o4 Id.

55 Id.

ted

oe

Te

ia. eae.

a23

service, and we do not today decide which other methods
of service — if any —- would be supportable or efficacious
under applicable domestic and international law.

3. The Texas Long-Arm Statute

Veerkamp et al. urge that considerations of comity
require that we respect the traditional civil law require-
ment — apparently practiced in Mexico — that legal docu-
ments be served by a government official or through
other official channels. Veerkamp et al. would have us
affirm on other grounds the district court’s decision to
quash service: specifically, by declaring that such service
violates principles of comity. Ignoring for a moment the
failure by Veerkamp et al. to introduce any evidence
concerning the laws of Mexico or any precedents explain-
ing how principles of comity might apply here, this argu-
ment misconstrues the core issue of this case.

Although the parties apparently agree that Kreimer-
man et al. properly employed the machinery of the Texas
Long-Arm Statute, they do not address - in their submis-
sions to us or to the district court - whether service of
process under the Texas Long-Arm Statute on defendants
residing in Mexico contravenes notions of comity, the
procedural requirements of Fed.R.Civ.P. 4, or any other
applicable domestic or international laws.5¢ Neither did

56 The content of Federal Rule of Civil Procedure 4(f), for-
merly largely contained in Fed.R.Civ.P. 4(i), seems especially
relevant to this analysis. But again, the parties did not discuss
whether Kreimerman’s attempt to serve Veerkamp under the
Texas Long-Arm Statute comports with Rule 4(f).

a24

the district court reach such issues: Its inquiry ended
when it held — incorrectly, we conclude - that the Con-
vention preempted all other methods of service on defen-
dants residing in another signatory nation. Whether
Kreimerman et al.’s attempt to serve process under the
Texas Long-Arm Statute contravened any other law
besides the Convention is thus not before us. Such con-
siderations are for the district court on remand.°”

B. Other Issues

Kreimerman et al. also raise several other issues,
none of which warrants extensive treatment at this junc-
ture.

1. Removal to the Wrong Division

A defendant who wants to remove a civil action from
a state court to a federal district court must “file in the
———district court of the United States for the district and

Rule 4(f), rather than the former Rule 4(i), is the provision
that the district court must analyze on remand because the 1993
amendments to the federal Rules of Civil Procedure took effect
on December 1, 1993, and govern “all proceedings in civil cases
thereafter commenced and, insofar as just and practicable, all
proceedings in civil cases then pending.” Order of the Supreme
Court of the United States Adopting and Amending Rules, April
22, 1993; see also Burt v. Ware, 14 F.3d 256, 258 (5th Cir. 1994)
(indicating that amendments to the Federal Rules of Appellate
Procedure should be given retroactive application to the maxi-
mum extent possible).

57 We leave it to the district court’s discretion whether to
hold additional hearings on these questions.

a25

division within which such action is pending a notice of
removal... . “58 In this case, the parties agree that the
action should have been removed, not to the Houston
Division, but to the McAllen Division of the Southern
District of Texas. Relying on-this error, Kreimerman et al.
moved the district court to remand the case to state court,
or, alternatively, to transfer the case to the McAllen Divi-
sion. The court, however, denied the motion. Kreimerman
et al. now insist that the court’s denial constituted revers-
ible error.

Citing King v. Gulf Oil Co.,59 Veerkamp et al. suggest
that we simply dismiss this defect in removal by invoking
harmless error.°° As removal statutes are strictly con-
strued against removal,°! though, we decline to take such
a dismissive approach. Some courts have held that
removal of a case to the wrong division of the right
district nevertheless creates a jurisdictional defect, leav-
ing the district court with no power to adjudicate the case
and no choice but to remand.®? Other courts have held
that removal to the wrong division is procedural, not
jurisdictional.®? We agree with the later perspective.

58 28 U.S.C. § 1446(a).

59 581 F.2d 1184, 1187 (5th Cir. 1978) (reversal for failure to
follow Fed.R.Civ.Pro. is warranted only if prejudice is demon-
strated.

60 Veerkamp et al. refer, of course, to 28 U.S.C. § 2111.

61 Brown v. Demco, Inc., 792 F.2d 478, 482 (5th Cir. 1986);
Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir. 1979).

62 See e.g., Scarmardo v. Mooring, 89 F.Supp. 936, 937
(S.D.Tex. 1950).

63 Cook v. Shell Chemical Co., 730 F.Supp. 1381, 1382 (M.D.La.
1990).

a26

Although Veerkamp et al. removed this case to the
wrong division, there is not doubt that the district court
had subject matter jurisdiction under 28 U.S.C. § 1332,
given the parties’ diversity of citizenship.*+ The existence
of such jurisdiction makes this case much more akin to an
improper venue situation than to one in which there is an
actual jurisdictional defect.¢5 The district court thus
should have transferred the case to the McAllen division
under the authority of 28 U.S.C. § 1406(a), which - in the
interest of justice — allows a case to be transferred “to any
district or division in which it could have been
brought.”© As we are remanding the case to the district
court anyway, we need not decide whether the court’s
refusal to transfer the case constituted reversible error:
We simply remand the case to the Houston Division with
directions to transfer the case to the McAllen Division
under 28 U.S.C. § 1406(a).

2. Motion to Extend

Kreimerman et al. also complain that the magistrate
judge erred in rejecting their third motion to extend the
time within which to accomplish service of process. A
district court, however, has broad discretion to dismiss an

64 Id.; accord Mortensen v. Wheel Horse Prods., Inc., 772
F.Supp. 85, 89 (N.D.N.Y. 1991).

6° Mortensen, 772 F.Supp. at 89; Cook, 730 F.Supp. at 1382.

66 28 U.S.C. § 1406(a); Mortensen, 772 F.Supp. at 89; Cook,
730 F.Supp. at 1382.

= eae

Ri PLA he Ts

La ants Ac NE Sakis

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a27

action for ineffective service of process,*” so we review
such a decision only for abuse of discretion.®* Addi-
tionally, when the time to effect service has expired, the
party attempting service has the burden of demonstrating
“good cause” for failure to serve the opposing party.®°

In this case, Kreimerman et al. did not move to
extend service for the third time until more than a month
after the expiration of the twice previously extended
deadline for effecting service. Therefore, they had the
burden of demonstrating that there was good cause for
their failure to effect service. Attempting to satisfy that
burden, Kreimerman et al. insist that their failure was
through no fault of their own. We acknowledge that
available evidence suggests that service of process takes
considerably longer to accomplish in Mexico than it does
in the United States.7° We also realize that the Mexican
attorney who was “helping” Kreimerman et al. serve
process on the defendants apparently misrepresented
even to Kreimerman that service had been accomplished.

67 George v. United States Dep't of Labor, 788 F.2d 1115, 1116
(5th Cir. 1986).

68 System Signs Supplies v. United States Dep't of Justice, 903
F.2d 1011, 1013 (5th Cir. 1990).

69 Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304,
1305 (5th Cir. 1985).

70 If it is true that it takes considerably longer to effect
service of process in Mexico than in the United States, then this
is yet another reason to hold that the Convention does not
foreclose other methods of service. If the machinery provided
by the Convention does not work very well, we should be loathe
to condemn United States residents to use such an ineffective
apparatus.

a28

Unfortunately for Kreimerman et al., however, action or
inaction that fall into the categories of inadvertence, mis-
take, or ignorance of counsel do not constitute excusable
neglect.”!

Kreimerman et al. selected and reposed their trust in
the Mexican counsel, who in turn selected and worked
with the other lawyer in Mexico City, who ultimately
proved to be unreliable or dishonest, or both. That is at
least vicariously Kreimerman et al.’s fault. Moreover,
when Kreimerman et al. made their third motion to
extend the time for service, they had already been given
sixteen (16) months in which to serve the defendants, and
the magistrate judge found that there was no reason to
believe that service would have been effected in the near
future. The translation of legal documents into Spanish,
for example, took six months, and Kreimerman et al.'s
Mexican counsel suggested that those translations were
still inadequate. Even if we were to assume that the
misrepresentations by the Mexican counsel constituted
good cause for failing to effect service, we would con-
clude that Kreimerman et al. did not show good cause for
failure to take any action during the eight months preced-
ing those misrepresentations. Neither did Kreimerman et
al. explain why the whole process was not further along
after nearly two years. Under these facts, we cannot say
that the district court abused its discretion.

71 McGinnis v. Shalala, 2 F.3d 548, 551 (5th Cir. 1993).

a
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7

a29

3. Adoption of Magistrate Judge’s Recommendations

Kreimerman et al. also suggest that the district court
did not make a de novo review of the magistrate judge’s
Memorandum and Recommendations. They complain
that the district court erred in adopting the magistrate
judge’s recommendations before they had filed their writ-
ten objections. Kreimerman et al. assert, in essence, that
because the district court did not wait for them to file
their objections, and because the court did not clarify the
magistrate judge’s ruling with respect to the tolling of the
applicable statute of limitations (and other rulings), we
cannot be certain that the district court made a proper de
novo review.

We grant that a district court must make a de novo
review whenever a party objects to the magistrate judge’s
recommending dismissal.”? In this instance, however,
Kreimerman et al. do little more than speculate that the
district court may not have made a de novo review of the
instant case. They advance neither evidence nor specific
factual allegations in support of their prayer for reversal.
Under these sparse circumstances, we are most reluctant
to find that the district court failed to engage ina proper
review.”

Neither are we troubled by the district court’s adop-
tion of the magistrate judge’s recommendations prior to
the court’s receipt of Kreimerman et al.’s timely-filed

72 Longmire v. Guste, 921 F.2d 620, 623 (5th Cir. 1991); United
States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.); cert. denied, 492
U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989).

73 Longmire, 921 F.2d at 623.

a30

written objections. Kreimerman et al. cite no cases which
hold that a district court’s failure to wait until objections
are filed before adopting a magistrate judge’s recommen-
dations constitutes reversible error.”* Moreover, even if
the district court had erred in its attempt to follow the
Federal Rules of Civil Procedure, we would not be forced
to reverse in the absence of prejudice.7> Additionally,
Kreimerman et al.’s two motions for reconsideration gave
the district court opportunity to consider — yet again -
their objections. We discern no reason to believe that the
district court did not do its job properly.

II]
CONCLUSION

After analyzing all the arguments advanced by each
side, we conclude that the Convention does not preempt
every other conceivable method of serving process on
defendants residing in other signatory states. This conclu-
sion does not necessarily imply the existence and avail-
ability of other methods of service that would be
supportable and effective under domestic and interna-
tional law. We simply hold that the Inter-American Con-
vention on Letters Rogatory does not foreclose other ™

74 Kreimerman does cite Nalty v. Nalty Tree Farm, 654
F.Supp. 1315 (D.Ala. 1987), but that case merely established the
method for computing the time period for filing objections: it
says nothing about whether a district court must wait for those
objections to be filed before adopting a magistrate’s recommen-
dations.

75 See, e.g., King v. Gulf Oi! Co., 581 F.2d 1184, 1187 (5€h Cir.
1978) (court failed to hold hearing on class certification).

a31

methods of service among parties residing in different
signatory nations, if otherwise proper and efficacious. We
therefore remand the case to the district court with
instructions to consider whether the only other method of
service of process attempted by the plaintiffs -— service
under the Texas Long-Arm Statute — comports with prin-
ciples of comity. Fed.R.Civ.P. 4 (especially 4(f)), and any
other applicable legal principles of domestic or interna-
tional law. Because the case was originally remanded to
the wrong division of the United States District Court for
the Southern District of Texas, however, we remand the
case to the Houston Division with directions to transfer it
to the McAllen Division, pursuant to 28 U.S.C. § 1406(a).
The McAllen Division will then determine whether Krei-
merman et al.’s attempt to serve the defendants under the
Texas Long-Arm Statute contravened any applicable laws
or legal principles.

In connection with our instructions to the McAllen
Division of the United States District Court for the South-
ern District of Texas, we emphasize that nothing in this
opinion should be construed as authorizing Kreimerman
et al. to institute any new or additional efforts to serve
the defendants: The district court need only determine
whether Kreimerman et al.’s previous efforts to serve
process under the Texas Long-Arm Statute were consis-
tent with applicable legal principles — international and
domestic.

Therefore, the judgment of the district court is
AFFIRMED in part, REVERSED in part, and REMANDED
to the Houston Division of the United States District
Court for the Southern District of Texas, with instructions
to transfer the case under 28 U.S.C. § 1406(a) to the

a32

McAllen Division for further proceedings consistent with
this opinion.

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APPENDIX B

a33

(SEAL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ALBERTO KREIMERMAN,
HERMES INTERNATIONAL,
INC. AND HERMES TRADING
COMPANY D/B/A HERMES
MUSIC,

Plaintiffs,

CIVIL ACTION
NO. H-91-3770

VS.

CASA VEERKAMP, S.A. DE
©. V. WALTHER VEERKAMP,
ELECTRONICA SOLIDA
MEXICANA, S.A. AND
JORGE R. MENDEZ,

Defendants.

MMMM MMMM MM WM WM WM WM WM

ORDER

(Filed Feb. 6, 1992)

| The defendant’s motion to dismiss (instrument #4) is
i DENIED without prejudice. However, the service of pro-
cess is insufficient and, it is QUASHED.

The plaintiff’s motion to remand (instrument #7) is
DENIED. The plaintiff’s claims of a defective removal
based on the fact that the case was removed to a Division
of the District outside the Division where the plaintiff

a34

initiated the case is without merit and does not defeat
removal.

The plaintiff's motion to transfer is DENIED without
prejudice. No basis is expressed for the transfer of this
case that sounds in federal jurisprudence.

It is so ORDERED.

Signed this 5th day of February, 1992.

/s/ Kenneth M. Hoyt
KENNETH M. HOYT
UNITED STATES DISTRICT
JUDGE

a35

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ALBERTO KREIMERMAN,
HERMES INTERNATIONAL,
INC. AND HERMES TRADING
COMPANY d/b/a HERMES
MUSIC
ee CIVIL ACTION
Plaintiffs NO. H-91-3770
bess (Filed

CASA VEERKAMP, S.A. DE
C.V. WALTHER VEERKAMP,
ELECTRONICA SOLIDA
MEXICANA, S.A. AND
JORGE R. MENDEZ

Defendants

March 29, 1993)

MMMM MMMMmMmMmMmMmMmM Mm

MEMORANDUM AND RECOMMENDATIONS

This is an action brought by Alberto Kreimerman,
Hermes International, Inc. and Hermes Trading Company
d/b/a Hermes Music (“Kreimerman, et al.”) against Casa
Veerkamp, S.A. De C.V., Walther Veerkamp, Electronica
Solida Mexicana, S.A. and Jorge R. Mendez (“Veerkamp,
et al.”) alleging libel, civil conspiracy, and slander.

Procedural Background

This action was originally filed on November 4, 1991,
in the 139th Judicial District Court of Hidalgo County,
Texas, Cause Number C481991C, and removed to this
court as a diversity action on December 23, 1991.

a36

Factual Background

Alberto Kreimerman (“Kreimerman”) is a resident of
Hidalgo County, Texas. Hermes International, Inc.
(“Hermes International”) and Hermes Trading Company,
d/b/a Hermes Music Company (“Hermes Music”) are
Texas corporations whose principal places of business are
in Hidalgo County, Texas. Walther Veerkamp (“Veer-
kamp”) and Jorge R. Mendez (“Mendez”) are residents of
the United Mexican States. Casa Veerkamp, S.A. De C.V.
(“Veerkamp, S.A.”) and Electronica Solida Mexicana
(“ESM”), are Mexican corporations whose principal
places of business are located in the United Mexican
States.

Plaintiffs Kreimerman, et al. and Defendants Veer-
kamp, et al. are competitors in the business of selling
amateur and professional music products, including
instruments, amplifiers, speakers, speaker systems,
microphones, and other sound. system equipment.

A. Libel

Kreimerman, as the sole owner and stockholder of
Hermes Music and Hermes International, alleges that on
or about October 31, 1990, ESM, acting by and through its
general manager, Mendez, sent written correspondence to
two (2) known music products companies, the JBL Com-
pany and the Peavey Company, and to several unknown
music products companies. The correspondence con-
tained photocopies of articles published on or about
October 22 and October 28, 1990, by the Seminario Queh-
aces Politico En Mexico, a political magazine circulated in

a37

the United Mexican States. Kreimerman, et al. allege that
the articles were defamatory in that they falsely accused
Kreimerman and his companies of illegal activities which
included drug trafficking and money laundering. In addi-
tion, Kreimerman, et al. allege that the correspondence
sent by ESM and Mendez contained written statements
which specifically referred to the accusations stated in the
Seminario Quehaces Politico En Mexico articles. It is the
position of Kreimerman, et al. that the correspondence
was intended to interrupt and diminish the business rela-
tionships of Hermes and Hermes International.

Kreimerman, et al. also allege that on or about
November 15, 1990, Veerkamp, S.A., acting by and
through Veerkamp, sent photocopies of the aforemen-
tioned Seminario Quehaces Politico En Mexico articles and a
summary translation of the articles into the English lan-
guage to the JBL and Zildjian music product companies,
and to other unknown music products companies. Addi-
tionally, Veerkamp, et al. allege that there were written
statements which referred to the statements contained in

4 the articles.

H B. Slander

Next, Kreimerman, et al. allege that Veerkamp, acting
alone and on behalf of Veerkamp, S.A. and Mendez,
acting alone and on behalf of ESM, had conversations
with officers, managers, representatives, and salesmen of
several music products manufacturing companies located
within and outside of the United States. The conversa-

tions allegedly referred to Kreimerman and his com--
panies’ involvement in drug smuggling activities, “gun

Ht eae SE piety!

a38

running,” and money laundering; and within the conver-
sations Veerkamp, et al. allegedly stated that Kreimer-
man’s businesses would soon fail as a result of a
forthcoming criminal prosecution.

C. Civil Conspiracy

In their final claim, Kreimerman, et al. allege that the
actions of ESM, Mendez, Veerkamp, S.A., and Veerkamp
were undertaken pursuant to a common plan designed to
injure the reputation and business relationships of Krei-
merman, Hermes Music, and Hermes International.

Plaintiffs’ Failure to Effect Service of Process

Defendants Veerkamp, et al. have filed the instant
motion to dismiss and for sanctions seeking to dismiss
this action due to Plaintiffs Kreimerman, et al.’s failure to
serve process on any of the Defendants more than one (1)
year after this action was originally filed in Hidalgo
County, Texas. In response to the motion to dismiss,
Kreimerman, et al. argue that their failure to effect service
of process is not the result of willful neglect and that in
the absence of such neglect, they are entitled to maintain
this action. The Court disagrees.

Kreimerman, et al.’s efforts to serve process on Veer-
kamp, et al. began in November, 1991, while this action
was pending before the 139th Judicial District Court of
Hidalgo County, Texas, when Kreimerman, et al.
attempted to provide Veerkamp, et al. with notice of this
action by serving the Texas Secretary of State, pursuant to
Tex. Civ. Proc. & Rem. Code Section 17.041, et seq. (“The

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a39

Texas Long-Arm Statute”). However, this attempted ser-
vice violated the Inter-American Convention on Letters
Rogatory, a multi-national treaty designed to facilitate
service of judicial documents in foreign countries which
are signatories to the treaty, and this Court, on February
5, 1992, quashed Veerkamp, et al. attempted service of
process.

To effect service of process on a foreign individual or
corporation, a party may request that the foreign govern-
ment serve the foreign party, pursuant to Rule 4 (i)(1),
Fed. R. Civ. Proc., which reads in part:

[w]hen the federal or state law. . . . authorizes
service upon a party not an inhabitant of or
found within the state in which the district court
is held, and service is to be affected upon the
party in a foreign country, it is also sufficient if
service of the summons and complaint is made:
(B) as directed by the foreign authority in
response to a letter rogatory, when service in
either case is reasonably calculated to give
actual notice.

In accordance with Rule 4, the Court on June 18, 1992
granted Kreimerman, et al.’s motion for entry of Letters
Rogatory for service of process. Despite the Court’s grant
of Veerkamp, et al.’s motion for Letters Rogatory and two
(2) motions to extend time to serve process upon Krei-
merman, et al., to date, Kreimerman et al. have yet to
complete service of process upon Veerkamp, et al.

In support of their first motion to extend time to
serve Veerkamp, et al., Kreimerman, et al. stated that
additional time was necessary to complete the Letters
Rogatory process and that service of process could be

a40

completed by October 31, 1992. In support of their second
motion to extend time to serve Defendants, Kreimerman,
et al. stated additional time was necessary in that they
had retained counsel in the United Mexican States, Sergio
Mauricio Cisneros (“Cisneros”), who had advised Krei-
merman, et al. that because there were only three (3)
bailiffs in Mexico City who were authorized to serve
process for foreign judicial proceedings, and because of
the volume of summonses and processes to be served,
that service of process could not be completed prior to
December 15, 1992. With yet an additional justification,
on March 11, 1993, Kreimerman, et al. requested a third
extension of time to serve Kreimerman, et al. stating that
it has become necessary to retain new counsel in Mexico
City due to misrepresentations made by former counsel
who had been hired to complete the Letters Rogatory
process and effect service of process.

More specifically, Cisneros, an attorney licensed to
practice law in the United Mexican States, was hired, in
April 1992, by counsel for Kreimerman, et al., Jan R.
Thurman (“Thurman”), an attorney licensed to practice
law in Texas, but not in the United Mexican States, for the
sole purpose of effecting service of process on Veerkamp,
et al. in accordance with the laws of the United Mexican
States. Thurman selected Cisneros based upon Cisneros’
reputation as an excellent lawyer and because of the
excellent reputation of the law firm with which Cisneros
was employed, Bryan, Gonzalez Vargas and Gonzalez
Baz, located in Ciudad Juarez in the United Mexican
States, bordering El Paso, Texas. When Cisneros was
hired by Thurman, Cisneros’ principal office was located
in Ciudad Juarez, approximately one thousand miles

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a41

(1,000) outside of Mexico City, but his firm had offices
throughout the United Mexican States including Mexico
City where Kreimerman, et al. were located. Because
service of process was to be-completed in Mexico City,
Cisneros chose to hire an associate of his, Ocatavio
Alvarez (Alvarez”), an attorney licensed in the United
Mexican States, who lived in Mexico City.

To initiate the proper service on Veerkamp, et al., this
Court, in June 1992, issued the appropriate Letters Roga-
tory to Thurman who then mailed the Letters Rogatory to
Cisneros. Thereafter, on July 15, 1992, Thurman received
a letter from Cisneros indicating that the Letters Rogatory
had been filed with the Federal District of the Republic of
Mexico.

On October 1 and October 12, 1992, Thurman sent
letters to Cisneros inquiring as to the status of the pro-
cessing of the Letters Rogatory. On October 15, 1992,
Cisneros responded by letter stating that the “legalization
procedure” had taken a long time, and that because only
three (3) bailiffs had been available in Mexico City to
serve foreign processes, additional time should be
requested of this Court to effect service of process.

On October 28, 1992, via telephone, Cisneros advised
Thurman that service of process had been scheduled to
occur during the week of November 23, 1992, and should
be completed no later than December 15, 1992. Approx-
imately one (1) month later, on November 30, 1992, Cis-
neros, again via telephone, contacted Thurman to advise
him that service of process had been effected during the
week of November 23, 1992, but that he, Cisneros, had

a42

not yet received the original Letters Rogatory from the
Federal District of the United Mexican States.

On December 11, 1992, and on January 13, 1993,
Thurman urged Cisneros to return the original Letters
Rogatory. On January 20, 1993, Cisneros again advised
Thurman that service of process had been completed and
that he would soon be visiting Mexico City and during
such visit he would secure the original Letters Rogatory.
On February 4, 1993, Cisneros advised Thurman that an
additional two (2) or three (3) weeks would be necessary
to allow Mexican officials to execute and approve the
Letters Rogatory.

On February 9, 1993, counsel for Veerkamp, et al.,
James A. Porter (“Porter”), sent a letter to Thurman and
to the Court stating that neither Veerkamp nor Veerkamp,
S.A. had been served with process. To determine the
veracity of Porter’s statement that service had not been
effected, Thurman contacted Cisneros on February 16,
1993, and the following day, February 17, 1993, Cisneros
advised Thurman that service of process had not been
effected by Cisneros’ associate in Mexico City, Alvarez.

Applicable Law

It is axiomatic that service upon domestic individuals
or corporations must be completed within 120 days after
filing of the complaint. See Rule 4(j), Fed. R. Civ. Proc.;
Carimi v. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344,
23 Fed. R. Serv. 3d 16 (5th Cir. 1992); Systems Signs Sup-
plies v. U.S. Department of Justice, D.C., 903 F.2d 1011, 16
Fed. R. Serv. 3d 1207 (5th Cir. 1990); McDonald v. U.S., 898
F.2d 466, 16 Fed. R. Serv. 3d 247 (5th Cir. 1990). Rule 4(j),

a43

Fed. R. Civ. Proc. permits the Court to extend the time
limit for service of process beyond 120 days upon a
showing of good cause. However, Rule 4(j), Fed. R. Civ.
Proc., specifically states that subdivision (j) shall not be
_applicable to service of process in a foreign country,
therefore excepting service of process in a foreign country
from the 120 day time limit and removing the require-
ment that good cause be shown to permit an extension of
the time limit for service. Lucas v. Natoli, 936 F.2d 432 (9th
Cir. 1991); Montalbano v. Easco Hand Tools, Inc., 766 F.2d
737 (2nd Cir. 1985). It is the opinion of this Court that
because of the ‘unique circumstances that arise when
effecting service in a foreign country, that Congress in
drafting the Rule 4(j), Fed. R. Civ. Proc., intended that the
Court have wide discretion in enlarging the time limit for
service of process in a foreign country. Guided by fairness
to the parties and the restrictions imposed by Rule 1, Fed.
R. Civ. Proc., that all civil suits be resolved in a speedy
and inexpensive manner, this Court has granted Kreimer-
man, et al. two (2) motions to extend time to permit
service of process which have afforded Kreimerman, et al.
more than sixteen (16) months to effect service of process.

In recommending that this action be dismissed with-
out prejudice, the Court finds it significant that there is
no evidence that Veerkamp has been attempting to evade
service of process. In fact, it is undisputed that Veerkamp,
S.A., a family-owned company, has been located in Mex-
ico City for fifty (50) years or more. Despite this fact
however, and despite the time extensions granted by the
Court, Kreimerman, et al. have been unable to effect
service of process on Veerkamp, et al. Furthermore, the
Court has considered whether service of process would

A

a44

occur in the near future, and has concluded that there is
no proof that should the Court grant yet another thirty
(30) day extension to the Plaintiffs, that service of process
would definitely be effected within the next thirty (30)
days.

RECOMMENDATIONS

Thus, for the foregoing reasons, it is

RECOMMENDED that the Casa Veerkamp, S.A. De
C.V., Walther Veerkamp, Electronica Solida Mexicana,
S.A. and Jorge R. Mendez’s Motion to Dismiss and for
Sanctions (#25) be granted and that this action be dis-
missed without any prejudice to its refiling.

The Clerk will file this instrument and transmit a
copy to each party or counsel. Failure to file written
objections to the proposed findings and recommenda-
tions contained in this report within ten (10) days after
the date of filing shall bar an aggrieved party from
attacking the factual findings on appeal.

ENTERED at Houston, Texas, this the 26th day of
March, 1993.

/s/ Calvin Botley
Calvin Botley
United States Magistrate
Judge

Of GA RTE LP ey Ley AR

Ne a ee SR an el nol RUE eye

a45

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ALBERTO KREIMERMAN,
HERMES INTERNATIONAL,
INC. AND HERMES TRADING
COMPANY d/b/a HERMES
MUSIC

— CIVIL ACTION
Plaintiffs NO. H-91-3770
Vs. ;

CASA VEERKAMP, S.A. DE
C.V. WALTHER VEERKAMP,
ELECTRONICA SOLIDA
MEXICANA, S.A. AND
JORGE R. MENDEZ

Defendants

MMMM MmMmMmMmMmMmMmMmMmM Mm

ORDER
(Filed March 29, 1993)

Pending before the Court is Alberto Kreimerman,
Hermes International, Inc., and Hermes Trading Com-
pany d/b/a Hermes Music’s Motion to Extend Time to
Service Process (#26). After reviewing the pleadings and
the applicable law, and for the reasons set forth in this
Court’s Memorandum and Recommendations entered
this day, it is

ORDERED that Alberto Kreimerman, Hermes Inter-
national, Inc., and Hermes Trading Company d/b/a
Hermes Music’s Motion to Extend Time to Serve Process
(#26) is denied.

a46

The Clerk shall enter this Order and provide all
parties with a true copy.

ENTERED at Houston, ‘Texas, this the 26th day of
March, 1993.

/s/ Calvin Botley
Calvin Botley
United States Magistrate
Judge

a47

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ALBERTO KREIMERMAN, g
ET AL §
lee § CIVIL ACTION
ae § NO. H-91-3770
VS. §
CASA VEERKAMP, S.A. DE §
C V. ET AL :
Defendants §

ORDER
(Filed April 9, 1993)

For the reasons set forth in the United States Magis-
trate Judge’s Memorandum and Recommendations,
signed on March 26, 1993, it is

ORDERED that said Recommendations be and the
same are hereby adopted as the Court’s Memorandum
and Order. It is therefore

ORDERED, ADJUDGED and DECREED that Defen-
dants’ Motions to Dismiss and for Sanctions are
GRANTED, and that this action is dismissed without
prejudice.

The Clerk shall enter this Order and provide all
parties with a true copy.

a48

Done at Houston, Texas, this the 9th day of April,
1993.

/s/ Kenneth M. Hoyt
KENNETH M. HOYT
UNITED STATES
DISTRICT JUDGE

a49

(Seal) |

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ALBERTO KREIMERMAN, §
HERMES INTERNATIONAL, §
INC. AND HERMES TRADING §
COMPANY D/B/A HERMES §
MUSIC, §
a §

seer § CIVIL ACTION

VS. § NO. H-91-3770
CASA VEERKAMP, S.A. DEC. §
V. WALTHER VEERKAMP, S
ELECTRONICA SOLIDA §
MEXICANA, S.A. AND JORGE §
R. MENDEZ, :
Defendants. §

ORDER

(Filed April 26, 1993)

On this day, the motion for reconsideration filed by
the plaintiffs, Alberto Kreimerman, Hermes International,
Inc. and Hermes Trading Company d/b/a Hermes Music
was heard. The Court finds that the motion should be
Denied.

a50

It is therefore ORDERED that the motion for recon-
sideration is DENIED.

Signed this 23rd day of April, 1993.

/s/ Kenneth M. Hoyt
KENNETH M. HOYT
UNITED STATES
DISTRICT JUDGE

a51

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ALBERTO KREIMERMAN,
HERMES INTERNATIONAL,
INC. AND HERMES TRADING
COMPANY d/b/a HERMES
MUSIC

Plaintiffs
VS.
CASA VEERKAMP, S.A. DE C.
V. WALTHER VEERKAMP,
ELECTRONICA SOLIDA

MEXICANA, S.A. AND JORGE
R. MENDEZ

Defendants

ORDER

MMMM MmMmMmMmMmMmMmMmMm MM

CIVIL ACTION
NO. H-91-3770

(Filed May 26, 1993)

Pending before the Court is Plaintiffs’ Motion to
Reinstate Plaintiffs’ Motion for Reconsideration (#39).

In their motion Plaintiffs’ urge the Court to recon-
sider its order denying Plaintiffs’ Motion for Reconsidera-
tion (#36) arguing that the Court should reinstate the
motion for reconsideration to allow additional argument.
After careful review of the motion to reinstate and the

applicable law, it is

ORDERED that Plaintiffs’ Motion to Reinstate Plain-
tiffs’ Motion for Reconsideration (#39) is denied.

a52

The Clerk shall enter this Order and provide a copy
to all parties.

ENTERED at Houston, Texas, this the 25th day of
May, 1993.

/s/ Kenneth M. Hoyt
KENNETH M. HOYT
UNITED STATES
DISTRICT JUDGE

APPENDIX C

a53

INTER-AMERICAN CONVENTION ON
LETTERS ROGATORY

The Governments of the Member States of the Orga-
nization of American States, desirous of concluding a
convention on letters rogatory, have agreed as follows:

I. USE OF TERMS
Article 1

For the purposes of this Convention the terms
“exhortos” and “cartas rogatorias” are synonymous in the
Spanish text. The terms “letters rogatory”, “commissions
rogatoires”, and “cartas rogatérias” used in the English,
French and Portuguese texts, respectively, cover both

“exhortos” and “cartas rogatorias”.

II. SCOPE OF THE CONVENTION
Article 2

This Convention shall apply to letters rogatory,
issued in conjunction with proceedings in civil and com-
mercial matters held before the appropriate judicial of
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 pro-
cess, summonses or subpoenas abroad;

b. The taking of evidence and the obtaining of
information abroad, unless a reservation is
made in this respect.

a54

Article 3

This Convention shall not apply to letters rogatory relat-
ing to procedural acts other than those specified in the
preceding article; and in particular it shall not apply to
acts involving measures of compulsion.

Ill. TRANSMISSION OF LETTERS ROGATORY
Article 4

Letters rogatory may be transmitted to the authority
to which they are addressed by the interested parties,
through judicial channels, diplomatic or consular agents,
or the Central Authority of the State of origin or of the
State of destination, as the case may be.

Each State Party shall inform the General Secretariat
of the Organization of American States of the Central
Authority competent to receive and distribute letters
rogatory.

IV. REQUIREMENTS FOR EXECUTION
Article 5

Letters rogatory shall be executed in the States Par-
ties provided they meet the following requirements:

a. The letter rogatory is legalized, except as
provided for in Articles 6 and 7 of this Con-
vention. The letter rogatory shall be pre-
sumed to the duly legalized in the State of
origin when legalized by the competent con-
sular or diplomatic agent;

a55

b. The letter rogatory and the appended docu-
mentation are duly translated into the offi-
cial language of the State of destination.

Article 6

Whenever letters rogatory are transmitted through
consular or diplomatic channels or through the Central
Authority, legalization shall not be required.

Article 7

Courts in border areas of the States Parties may
directly execute the letters rogatory contemplated in this
Convention and such letters shall not require legalization.

Article 8

Letters rogatory shall be accompanied by the follow-
ing documents to be delivered to the person on whom
process, summons or subpoena is being served:

a. An authenticated copy of the complaint with
its supporting documents, and of other
exhibits or rulings that serve as the basis for
the measure requested;

b. Written information identifying the judicial
or other adjudicatory authority issuing the
letter, indicating the time-limits allowed the
person affected to act upon the request, and
warning of the consequences of failure to do
SO;

c. Where appropriate, information on the exis-
tence and address of the court-appointed

a56

defense counsel or of competent legal-aid
societies in the State of origin.

Article 9

Execution of letters rogatory shall not imply ultimate
recognition of the jurisdiction of the judicial or other
adjudicatory authority issuing the letter rogatory or a
commitment to recognize the validity of the judgment it
may render or to execute it.

V. EXECUTION
Article 10

Letters rogatory shall be executed in accordance with
the laws and procedural rules of the State of destination.

At the request of the judicial or other adjudicatory
authority issuing the letter rogatory, the authority of the
State of destination may execute the letter through a

~~ special procedure, or accept the observance of additional

formalities in performing the act requested, provided this
procedure or the observance of those formalities is not
contrary to the law of the State of destination.

Article 11

The authority of the State of destination shall have
jurisdiction to determine any issue arising as a result of
the execution of the measure requested in the letter roga-
tory.

Should such authority find that it lacks jurisdiction to
execute the letter rogatory, it shall ex officio forward the

a57

documents and antecedents of the case to the authority of
the State which has jurisdiction.

Article 12

The costs and other expenses involved in the process-
ing and execution of letters rogatory shall be borne by the
interested parties.

The State of destination may, in its discretion, execute
a letter rogatory that does not indicate the person to be
held responsible for costs and other expenses when
incurred. The identity of the person empowered to repre-
sent the applicant for legal purposes may be indicated in
the letter rogatory or in the documents relating to its
execution.

The effects of a declaration in forma pauperis shall be
regulated by the law of the State of destination.

Article 13

Consular or diplomatic agents of the States Parties *o
this Convention may perform the acts referred to in Arti-
cle 2 in the State in which they are accredited, provided
the performance of such acts is not contrary to the laws of
that State. In so doing, they shall not perform any acts
involving measures of compulsion.

VI. GENERAL PROVISIONS
| Article 14

States Parties belonging to economic integration sys-
tems may agree directly between themselves upon special

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methods and procedures more expeditious than those
provided for in this Convention. These agreements may
be extended to include other States in the manner in
which the parties may agree.

Article 15

This Convention shall not limit any provisions
regarding letters rogatory in bilateral or multilateral
agreements that may have been signed or may be signed
in the future by the States Parties or preclude the continu-
ation of more favorable practices in this regard that may
_be followed by these States.

Article 16

The States Parties to this Convention may declare
that its provisions cover the execution of letters rogatory
in criminal, labor, and “contentious-administrative”
cases, as well as in arbitrations and other matters within
the jurisdiction of special courts. Such declarations shall
be transmitted to the General Secretariat of the Organiza-
tion of American States.

Article 17

The State of destination may-refuse to execute a letter
rogatory that is manifestly contrary to its public policy
(“ordre public”).

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Article 18

The States Parties shall inform the General Secretariat
of the Organization of American States of the require-
ments stipulated in their laws for the legalization and the
translation of letters rogatory.

Vil. FINAL PROVISIONS
Article 19

This Convention shall be open for signature by the
Memb: r States of the Organization of American States.

Article 20

This Convention is subject to ratification. The instru-
ments of ratification shall be deposited with the General
Secretariat of the Organization of American States.

Article 21

This Convention shall remain open for accession by
any other State. The instrument of accession shall be
deposited with the General Secretariat of the Organiza-
tion of American States.

Article 22

This Convention shall enter into force on the thirtieth
day following the date of deposit of the second instru-
ment of ratification.

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For each State ratifying or acceding to the Conven-
tion after the deposit of the second instrument of ratifica-
tion, the Convention shall enter into force on the thirtieth
day after deposit by such State of its instrument of rat-
ification or accession.

Article 23

If a State Party has two or more territorial units in
which different systems of law apply in relation to the
matters dealt with in this Convention, it may, at the time
of signature, ratification or accession, declare that this
Convention shall extend to all its territorial units or only
to one or more of them.

Such declaration may be modified by subsequent
declarations, which shall expressly indicate the territorial
unit or units to which the Convention applies. Such sub-
sequent declarations shall be transmitted to the General
Secretariat of the Organization of American States, and
shall become effective thirty days after the date of their
receipt. .

Article 24

Thus Convention shall remain in force indefinitely,
but any of the States Parties may denounce it. The instru-
ment of denunciation shall be deposited with the General
Secretariat of the Organization of American States. After
one year from the date of deposit of the instrument of
denunciation, the Convention shall no longer be in effect
for the denouncing State, but shall remain in effect for the
other States Parties.

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Article 25

The original instrument of this Convention, the
English, French, Portuguese and Spanish texts of which
are equally authentic, shall be deposited with the General
Secretariat of the Organization of American States. The
Secretariat shall notify the Member States of the Organi-
zation of American States and the States that have
acceded to the Convention of the signatures, deposits of
instruments of ratification, accession, and denunciation
as well as of reservations, if any. It shall also transmit the
information mentioned in the second paragraph of Arti-
cle 4 and in Article 18 and the declarations referred to in
Art

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0526%3A1. Public record. Not legal advice.