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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 1016

## Text

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
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ND ccc ci cecsucdexdadteueneeeeneeee iil
RU ovo ccvcasesdesscsteeemanee ere 2
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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.

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0526%3A2. Public record. Not legal advice.