Opposition Brief — Casa Veerkamp, S. A. de C. V. v. Kreimerman

No. 94-569 > Euprems Cour ye]

In The UCT 344

Supreme Court of the United States —

~—

October Term, 1994

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

VEERKAMP,

Petitioners,

VS.

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

RESPONDENTS’ BRIEF IN OPPOSITION

JAN R. THURMAN

Counsel of Record

ANNETTE REGAN LOYD

THURMAN & ANDRES, P.C.

Attorneys for Respondents

1521 North Cooper Street

Suite 800

Arlington, Texas 76011

(817) 861-5500

by te (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

COUNTERSTATEMENT OF QUESTIONS PRESENTED

Whether the Inter-American Convention on Letters

Rogatory', including the Additional Protocol to the Inter-

American Convention on Letters Rogatory, provide the only

means for service of process transmitted from the United States to

residents of other countries who are parties to this Convention.

1. The Inter-American Convention on Letters Rogatory (hereinafter “the Inter-

American Convention” or “Convention”), was done at Panama City, Panama on

January 30, 1975. The Additional Protocol on the Inter-American Convention on

Letters Rogatory (hereinafter “the Additional Protocol”) was done at Montevideo,

Uruguay, on May 8, 1979. See__ U.S.T. ___, S. Treaty Doc. No. 27, 98th Cong., 2d Sess.

(1984). These treaties (Petitioners’ Appendix pp. a53-a80) were entered into force in

the United States on August 27, 1988.

i

TABLE OF CONTENTS

Page

Counterstatement of Questions Presented ............. i

PORNO «506 sk vv scnsansianeaneaseseneee ii

ND ccc ci cecsucdexdadteueneeeeneeee iil

RU ovo ccvcasesdesscsteeemanee ere 2

tg RT ee eee 2

Counterstatoment Of FactS ......cccccccccccescccces 2

Reasons for Denying the Writ ........ccscccscescces 3

I. Standards for Interpretation of Treaties ........ 3

II. Analysis of Text of Convention and Context of

LMM TIOOE | 65. 666i cakes bed widened 5

A. The Convention Expresses No Prohibition or

Intent to Prohibit Other Means of Service of

POOGMDE.. 66kin iid ssc ween desnnvexeineaks 5

B. The Additional Protocol to the Convention

Does Not Specify Exclusivity. ............ 6

C. Articles 14 and 15 of the Convention Do Not

Mandate Exclusivity of Letters Rogatory. .. 8

Ill. Comparison of the Inter-American Convention to

the Hague Evidence Convention and Contrast to

the Hague Service Convention ............... 11

il

Contents

Page

EET TEEPE Te eee ETS CCEEEEEE OT 14

TABLE OF CITATIONS

Cases Cited:

Air France v. Saks, 470 U.S. 392, 105 S. Ct. 1338, 84 L. Ed.

EES eee 3,11

Bonnano v. United States, 12 Cl. Ct. 769(1987) ........ 3

Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109 S. Ct.

a MRR DERUUD cocccccsccvessscees 3

Choctaw Nation of Indians v. United States, 318 U.S. 423

EE ee ere eee 3

Eastern Airlines v. Floyd, 499 U.S. 530, 111 S. Ct. 1489,

i ED ccc n eve earesnseccaceceee 3

Pizzabiocche v. Vinelli, 772 F. Supp. 1245 (M.D. Fla. 1991)

PECL I Ee 5

Societe Nationale Industrielle Aerospatiale v. United

States District Court for the Southern District of Iowa,

482 U.S. 522, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987)

SS SESE SE ee ee 5,6, 10, 12, 13

Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S.

243, 104S. Ct. 1776, 80 L. Ed. 2d 273 (1984) ........ 4

iv

Contents

Page

United States v. Alvarez-Machain, 504 U.S. _,, 112 S.

Ct. 2188, 119 L. Bd. 20441 (1992) ........cccccees 3

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S.

694, 108S. Ct. 2104, 100 L. Ed. 24 722 (1988) ....... 11,13

Rule Cited:

og OT POET TE OP EET eee eT TE ve Tra r er ]

Other Authorities Cited:

Restatement (2d) of the Law of Foreign Relations § 146

SUN, 4c ucas Gade cevenes Caaeeac ee beneeekeues 4

Restatement (3rd) of the Law of Foreign Relations § 325

ree eT ey Leary AER 4

No. 94-569

In The

Supreme Court of the United States

ae

October Term, 1994

CASA VEEP KAMP, S.A. DEC.V. and WALTHER VEERKAMP,

Petitioners,

vs.

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

RESPONDENTS’ BRIEF IN OPPOSITION

Alberto Kreimerman, Hermes International, Inc.”, and

Hermes Trading Company, d/b/a Hermes Music, (hereinafter

2. Hermes International, Inc. and Hermes Trading Company have no

parent or subsidiary corporations to disclose under Rule 29.1.

2

collectively “Kreimerman” or “Respondents”), responds to the

Petition for Writ of Certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinions of the District Court (Petitioners Appendix pp.

a33-a52) are not officially reported. The opinion of the Court of

Appeals for the Fifth Circuit (Petitioners’ Appendix pp. al-a32) is

reported at 22 F.3d 634.

STATEMENT OF JURISDICTION

The jurisdictional requisites are adequately set forth in the

Petition.

COUNTERSTATEMENT OF FACTS

As far as it is limited to the procedural history of the case,

Petitioners’ Statement of the Case (“Statement”, beginning at page

2 of the Petition) is accurate. However, the Statement also contains

Petitioners’ version of the law governing this case, and Petitioners’

conclusions about errors made by the Fifth Circuit Court of

Appeals, all also stated in a factual manner. In this regard the

Statement is merely argumentative and should not be considered

fact. These arguments are properly part of the Reasons for

Granting the Petition urged by the Petitioners. The Petitioners’

statement of facts is consistent with, but more limited than, the

facts set forth in the opinion of the Fifth Circuit Court of Appeals.

The facts in the appellate opinion may lead to a better

understanding of the case.

3

REASONS FOR DENYING THE WRIT

The Fifth Circuit Court of Appeals has correctly interpreted

the Inter-American Convention as only one of various methods to

serve process. While few judicial decisions discussing its

applicability have been made, it is clear from the language of the

text, as well as the insights which can be plainly drawn from the

document itself, that the Inter-American Convention does not

exclude other means for service of process.

I,

STANDARDS FOR INTERPRETATION OF TREATIES

Interpretation of a treaty is a question of law for the Court.

Bonnano v. United States, 12 Cl. Ct. 769 (1987). The starting point

in interpreting any treaty is the text itself. United States v. Alvarez-

Machain, 504 U.S. __, __, 112 S. Ct. 2188, 2193-94, 119 L. Ed. 2d

441, 451-452 (1992); Chan v. Korean Air Lines, Ltd.,490 U.S. 122,

109 S. Ct. 1676, 104 L. Ed. 2d 113 (1989). The language used by

the drafters of the treaty, as well as the context in which such

language is used, must be examined first. Eastern Airlines v. Floyd,

499 U.S. 530, 534, 111 S. Ct. 1489, 1493, 113 L. Ed. 2d 569 (1991).

If any ambiguities or difficulties in constructions are encountered,

extraneous documents, such as the treaty’s history and

negotiations, may be relevant in interpretation. Air France v. Saks,

470 U.S. 392, 397, 105 S. Ct. 1338, 84 L. Ed. 2d 289 (1985)

(quoting Choctaw Nation of Indians v. United States, 318 U.S. 423,

431-432 (1943).

There exists some authority that “treaties are more liberally

construed than contracts.” Air France at p. 396. However,

applicability of this rule is limited to circumstances involving

ambiguous or uncertain provisions. As the Fifth Circuit

recognizes, respect for the sovereign rights of the signatory or its

4

citizens dictates that treaties should be construed narrowly rather

than broadly. (Opinion, Petitioners’ Appendix p. a9). Petitioners

complain that the Fifth Circuit has incorrectly limited its

construction of the Inter-American Convention and paid “lip-

service” to the rules of interpretation, particularly those specifying

construction of provisions liberally as opposed to narrowly. In fact,

the Fifth Circuit correctly stated this Court’s rules with respect to

interpreting treaties narrowly rather than broadly.

The primary focus for the Court is to determine the intent of

the signatories to the treaty. This canon of interpretation is similar

to that of the law of contracts. Trans World Airlines, Inc. v.

Franklin Mint Corp., 466 U.S. 243, 253, 104 S. Ct. 1776, 80 L. Ed.

2d 273 (1984); see also, Restatement (2d) of the Law of Foreign

Relations § 146 (1965); Restatement (3rd) of the Law of Foreign

Relations § 325 (1986).

The Fifth Circuit specified in its opinion that it did not rely on

any specific rule of construction since the arguments heavily

favored non-exclusivity of the treaty (Opinion, footnote 19;

Petitioners’ Appendix p. a10). The plain language of the Inter-

American Convention, taken in context, mandates a determination

that it is not the exclusive means for service of process.

3. Restatement (3rd) of the Law of Foreign Relations § 325 is based on

Article 31 of the Vienna Convention on the Law of Treaties, May 22, 1969, 8

I.L.M. 4 (1969). Although the United States is not a party to this treaty, it does

recognize that its substance codifies international law of treaties.

5

II.

ANALYSIS OF TEXT OF CONVENTION AND

CONTEXT OF LANGUAGE USED

A. The Convention Expresses No Prohibition or Intent to

Prohibit Other Means of Service of Process.

The Inter-American Convention does not contain a provision

that expressly prohibits all other means of service of process in

civil or commercial cases except as specified in the treaty itself.

Article 2 of the Convention, entitled “Scope of the Convention,”

states that it “shall apply to all letters rogatory,” but it does not state

that letters rogatory are the only means for effecting service, nor

does it contain any similar language. Petitioners themselves

concede that this language alone does not preempt other means of

service of process. (Petition p. 11). The only case presently

reported which has addressed this specific issue is Pizzabiocche v.

Vinelli, 772 F. Supp. 1245 (M.D. Fla. 1991), wherein the Florida

District Court also concluded that the Inter-American Convention

did not provide the exclusive means for service of process.

The convention does not express any intent that it is intended

to preempt other means for service of process. The titles of the

Convention and the Additional Protocol are illuminating: Inter-

American Convention on Letters Rogatory and Additional

Protocol on the Inter-American Convention on Letters Rogatory

(emphasis added). The titles imply that the treaty relates solely to

letters rogatory, rather than all or other mechanisms for service of

process. In Societe Nationale Industrielle Aerospatiale v. United

States District Court for the Southern District of Iowa, 482 U.S.

522, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987), this Court held that

the Convention on the Taking of Evidence Abroad in Civil or

Commercial Matters (“the Hague Evidence Convention”) was not

the exclusive or mandatory means for obtaining documents or

6

information located in a foreign country. One of the important

factors discussed by this Court was the conspicuous lack of

expression as to any intent mandating usage of the procedures

described therein. /d. at p. 535, footnote 19.

As indicated by their titles, neither the Convention nor the

Additional Protocol discuss or refer to any other type of document

for service, except letters rogatory. What is clear from the text of

the Inter-American Convention is that once letters rogatory are

issued certain procedures relating to service, execution and return

must be followed. The Additional Protocol more particularly

discusses preparation, transmission and cost of the letters rogatory.

The notable absence of reference to other means of process from

the text of the treaty does not mean that such other process was

prohibited, but only that the Convention did not include them in the

agreement.

B. The Additional Protocol to the Convention Does Not

Specify Exclusivity.

Petitioners further argue that the text of the Preamble to the

Additional Protocol and Article 1 of the Additional Protocol

support the premise that service of process by letters rogatory

under the Convention is exclusive. Petitioners misinterpret the

effect of the Additional Protocol. Contrary to Petitioners’

argument, the Additional Protocol is limited to specific acts under

the Convention. When the United States ratified the Inter-

American Convention, express reservations were made with

respect to its assent.‘ These reservations are not at issue in the

4. The express reservations are as follows:

1. Pursuant to Article 2(b) of the Inter-American

Convention on Letters Rogatory, letters rogatory that

have as their purpose the taking of evidence shall be

(Cont'd)

7

present case, but are important in explaining the significance of the

Additional Protocol.

Petitioners rely upon Article 1 of the Additional Protocol

(Petition page 11). Article 1 was drafted by the United States, and

applies only to those acts under Article 2(a) of the Convention.

Article 1 of the Additional Protocol provides:

“This Protocol shall apply only to those

procedural acts set forth in Article 2(a) of the

Inter-American Convention on Letters

Rogatory, hereinafter referred to as “the

Convention”. For the purposes of this Protocol,

such acts shall be understood to mean

procedural acts (pleadings, motions, orders,

and subpoenas) that are served and requests for

information that are made by a judicial or other

adjudicatory authority of a State Party to a

judicial or administrative authority of another

State Party and are transmitted by a letter

rogatory from the Central Authority of the

State of origin to the Central Authority of the

State of destination.”

(Cont'd)

excluded from the rights, obligations and operation of

this Convention between the United States and any other

State Party.

2. In ratifying the Inter-American Convention on

Letters Rogatory, the United States accepts entry into

force and undertakes treaty relations only with respect to

States which have ratified or acceded to the Additional

Protocol as well as the Inter-American Convention, and

not with respect to States which have ratified or acceded

to the Inter-American Convention alone.

8

The Additional Protocol is intended to more clearly specify the

procedures to be followed if letters rogatory are to be issued for

service Oi process according to Article 2(a) of the Convention only.

The lanjuage used in this section qualifies the term “procedural

acts” to mean those that (i) are served “by a judicial or other

adjudicatory authority of a State Party to a judicial or other

adjudicatory authority of another State Party” and (ii) are

transmitted by a letter rogatory from the Central Authority of one

State Party to the Central Authority of another State Party. Other

types of service (and other types of letters rogatory) are excluded.

The Additional Protocol nowhere states or infers that the

Convention is exclusive.

C. Articles 14 and 15 of the Convention Do Not Mandate

Exclusivity of Letters Rogatory.

Petitioners place great emphasis on Articles 14 and 15 of the

Convention, asserting that these provisions allow methods other

than letters rogatory to serve process within certain exceptions and

that Respondents’ attempt to serve process did not meet the

exceptions. Article 14 and 15, which are contained in the section of

“General Provisions,” are as follows:

“Article 14

States Parties belonging to economic

integration systems may agree directly

between themselves upon special methods and

procedures more expeditious than those

provided for in this Convention. These

agreements may be extended to included other

States in the manner in which the Parties may

agree.

9

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

continuation of more favorable practices in this

regard that may be followed by these States.”

Notably, Article 14 contains permissive language such as “may

agree” for those cases where States Parties agree between

themselves for “special methods and procedures.” Further, Article

14 allows other States Parties to join in any of these types of

agreements, again using “may” to indicate such possibility. The

provisions in Article 14 were not discussed by the Fifth Circuit

because they simply are not applicable. These provisions clearly

are permissive, and clearly extend to other express agreements not

at issue here.

Article 15 provides that the Convention does not exclude

presently existing or future bilateral or multilateral agreements

relating to letters rogatory, and thereby permits alternative means

for transmitting letters rogatory. More importantly, Article 15,

expressly doe not “preclude the continuation of more favorable

practices in this regard” among the States.

Petitioners argue that the Fifth Circuit erred by giving Article

15 an overly narrow construction and making six separate

assertions why the Court of Appeals erred. On its face, this

provision simply allows States to continue any “more favorable”

practices in this regard which may already be followed by these

States. Petitioners argue that the second clause of Article 15

requires that the States parties must have previously agreed (in

bilateral or multilateral agreements) to allow these more favorable

10

acts to continue. Petitioners’ interpretation is an overly limited

reading of the section, because the section not only contemplates

present agreements, but agreements to arise in the future. “States”

therefore, as used in the second clause of Article 15 is very general

in that it includes States that may sign agreements in the future,

rather than only States which have bilateral or multilateral

agreements then in effect. Under this interpretation and omitting

the first clause, Article 15 reads as follows:

“This Convention shall not. . . preclude the

continuation of more favorable practices in this

regard that may be followed by these States.”

If the term “favorable practices in this regard” refers to all service

of process, there is no limitation to pre-existing written

agreements.

Alternatively, Respondents assert that the phrase “in this

regard” refers to no more than the practice of serving letters

rogatory. The only subject matter of both the Convention and the

Additional Protocol are letters rogatory. The use of “in this regard”

appearing in the second clause of Article 15 refers only to the

practice of transmitting “letters rogatory” which appears in the

preceding clause of Article 15.°

Petitioners finally allege that the Fifth Circuit failed to give

sufficient weight to the State Department’s comments to President

Reagan when the treaty was submitted for signature and the advice

and consent of the Senate. If these comments are to be considered,

they still do not support Petitioners’ argument because it is clear

5. Based on this Court’s interpretation of a similar provision in Article 27

of the Hague Evidence Convention, the Fifth Circuit concluded Article 15 to

affirmatively permit the States to unilaterally continue all existing practices for

all service of process. (Petition Appendix, p. al6). See Societe Nationale

Industrielle Aerospatiale, 482 U.S. at 537-538.

4

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that the State Department’s comments are directed to “practices

between states concerning letters rogatory.” This specific language

defeats Petitioners’ interpretation of the comment. However, only

if a provision is determined to be ambiguous will the rules of

construction permit analysis of legislative history. Air France v.

Saks, 470 U.S. at 397. If they are to be considered at all, the Fifth

Circuit has adequately discussed this and other non-textual

arguments. (Petition Appendix, pp. al9-a22).

Il.

COMPARISON OF THE INTER-AMERICAN

CONVENTION TO THE HAGUE EVIDENCE

CONVENTION AND CONTRAST TO THE HAGUE

SERVICE CONVENTION

Like the Hague Evidence Convention for purposes of

discovery, the Inter-American Convention cannot be interpreted to

be the sole means for service of process upon persons in Mexico or

any of the States Parties. The analysis above regarding

interpretation of the text of the treaty and how the words appear in

context, without resort to extraneous materials, establishes that the

treaty can be interpreted from the ordinary meaning of the words

used.

Petitioners assert that the Inter-American Convention should

be interpreted as this Court has interpreted the Hague Service

Convention, which is the exclusive means for serving process in

those countries which have ratified or signed that treaty. See

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699,

108 S. Ct. 2104, 2108, 100 L. Ed. 2d 722 (1988). However, marked

differences between Inter-American Convention and the Hague

Service Convention preclude such interpretation.

The Convention is entitled the “Inter-American Convention

12

on Letters Rogatory,” and is thus seif-limiting. The Hague Service

Convention officially is entitled the “Convention on the Service

Abroad of Judicial and Extrajudicial Documents in Civil or

Commercial Matters,” and the title is much broader in scope.

The Preambles to both conventions establish that their

purposes are not similar. The Preamble to the Hague Service

Convention is:

“States signatory to the present convention,

[D]esiring to create appropriate means to

ensure that judicial and _ extrajudicial

documents to be served abroad shall be brought

to the notice of the addressee in sufficient

time...

In contrast, the Preamble tc the Inter-American Convention states:

“The Governments of the Member States of the

Organization of American States, desirous of

concluding a convention on letters rogatory,

have agreed as follows:”

Comparison of the two Preambles also leads to the conclusion that

the Hague Service Convention is intended to supersede all other

means for service of process, but that the members of the

Organization of American States have merely concurred regarding

certain practices concerning the use of foreign letters rogatory

within their individual borders.

The text of the Preamble to Inter-American Convention more

closely resembles the Hague Evidence Convention, which has

been determined to be a non-exclusive means for obtaining

information and discovery in foreign countries. See Societe

Nationale Industrielle Aerospatiale, 482 U.S. at 538. The

13

Preamble to the Hague Evidence Convention states:

“The States signatory to the present

Convention, [DJesiring to facilitate the

transmission and execution of Letters of

Request and to further the accommodation of

the different methods which they use for this

purpose...”

The language in this Preamble merely indicates a desire to ease the

process for discovery, rather than mandate a particular procedure

to be used, and likewise, the Inter-American Convention merely

formalizes an agreement with respect to letters rogatory. Neither

Preamble contains the preemptory terms or language appearing in

the Hague Service Convention that were so convincing to this

Court in determining it was the exclusive means for effecting

service of process in those countries who signed the treaty. See

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. at 699.

The presence of an “escape clause” also indicates that the

Hague Evidence Convention is not exclusive. Societe Nationale

Industrielle Aerospatiale at 537. Such a clause is found in the

Convention at Article 17:

“Article 17

The State of destination may refuse to

execute a letter rogatory that is manifestly

contrary to its public policy (“ordre public”’).”

The decision of the Fifth Circuit also relies upon this clause in the

Convention (Petition Appendix, p. a18).

4

CONCLUSION

The Inter-American Convention has been properly interpreted

by the Fifth Circuit Court of Appeals which concluded that the

procedures set forth therein were not the exclusive means for

effecting service of process in Mexico and other countries which

have ratified or affirmed its provisions. The Petition for Writ of

Certiorari filed by Walther Veerkamp and Casa Veerkamp S.A. de

C.V. should be denied.

Respectfully submitted,

JAN R. THURMAN

Counsel of Record

ANNETTE REGAN LOYD

THURMAN & ANDRES, P.C.

Attorneys for Respondents

1521 North Cooper Street

Suite 800

Arlington, Texas 76011

(817) 861-5500