Tiffany Yanyac v. Pedro Cazassa (2013)

FACTS

The plaintiff, Tiffany Yanyac, moves the court to permit service by mail to the defendant, Pedro Cazassa, at his residence in Brazil.   The plaintiff seeks dissolution of marriage.   Brazil is not a party to the Hague Convention on Service of Process, but is a party to the Inter–American Convention on Letters of Rogatory and Additional Protocol (IAC).   The United States is also a member of the IAC. The plaintiff seeks to effectuate service by mail upon the defendant in Brazil.

DISCUSSION

The issue of service under the Inter–American Convention on Letters of Rogatory and Additional Protocol (IAC) has not been addressed in Connecticut courts.   The issue has, however, been addressed in other jurisdictions.

Courts have predominantly found that under the IAC, other methods of service may be used in order to effectuate service upon a foreign individual notwithstanding the fact that both the United States and the foreign country are signatories to the IAC. Paiz v. Castellanos, United States District Court, Docket No. 06 CV 22046 (S.D.Fla. Aug. 28, 2006);  Mayatextil v. Liztex U.S.A., Inc., United States District Court, Docket No. 92 CV 04528 (S.D.N.Y. May 19, 1994);  Pizzabiocche v. Vinelli, 772 F.Sup. 1245 (M.D.Fla.1991);  Skanchy v. Calcados Ortope SA, 952 P.2d 1071 (Utah Sup.Ct.1998);  Laino v. Cuprum, 235 A.D.2d 25, 663 N.Y.S.2d 275 (2d Dept 1977).

Specifically in Kreimerman v. Veerkamp, 22 F.3d 634 (5th Cir.1994), the United States Court of Appeals addressed the precise issue of whether the IAC preempts all other conceivable means of effecting service upon foreign defendants.   The court analyzed the language, history, and purpose of IAC in determining whether the IAC was devised to supplant all other means of effecting service on a defendant residing in a signatory nation other than the forum nation.

The court also directly compared the language set forth in the IAC with the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention), the latter of which has been known to restrict methods of service of process.   The court stated:  “The [IAC] does indeed ․ state that it shall apply to letters rogatory, rather than to any and all means of serving process ․ Similarly, the official title of the [IAC] is the Inter–American Convention on Letters Rogatory ․ As rogatory letters (or letters of request) are—by definition—merely one of many procedural mechanisms by which a court in one country may request authorities in another country to assist the initiating court in its administration of justice, the [IAC'S] scope appears to be limited to regulating that one procedural mechanism.”  (Emphasis in original;  internal quotation marks omitted.)   Id., 639–40.

The court compared this to the Hague Convention and explained that the scope of the Hague Convention is much broader, applying as it does to all service abroad upon defendants residing within signatory States ․ [T]he 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.”  (Emphasis in original.)  Id., 639–40.

In addition, the court compared the preamble text of each and noted:  “The [IAC's] preamble is rather modest:  The Governments of the Member States ․ desirous of concluding a convention on letters rogatory, have agreed as follows ․ The language of the Hague Service Convention is more peremptory:  Desiring 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.”  (Emphasis in original;  internal quotation marks omitted.)  Id., 640.

The court went on to address the language in articles two, nine, ten, and fifteen of the IAC and ultimately held:  “[T]he text of the [IAC] strongly indicates, not that the [IAC] preempts other conceivable methods of service, but that it merely provides a mechanism for transmitting and delivering letters rogatory when and if parties elect to use that mechanism.” ¹  Id., 642.

Regardless of these few cases that have allowed alternative service, it is important to note, that the split in authority is not in regard to whether the IAC allows for other methods of service.   Instead, the disagreement centers on whether the court's analysis concludes at the general proposition that other methods of service are allowed, whether the court should apply the procedural laws of the jurisdiction in which it sits, or whether the court should continue to delve into either a comity analysis or a longarm analysis.²

Based on the position that the IAC does not prevent other methods of effecting service, some courts have then referred to either federal law or state law, depending on the jurisdiction, in determining whether to allow alternative modes of service.

In the federal context, there is currently a split as to whether the court should allow alternative means of service pursuant to Fed.R.Civ.P. 4(f)(3), or whether the court should defer to foreign law pursuant to Fed.R.Civ.P. 4(2)(A), which would require the court to apply principles of comity.   In regard to the former, courts have allowed alternative service pursuant to Rule 4(f)(3) ³ as long as such service satisfies due process and does not violate any international agreement.⁴

Specifically in the context of Brazilian defendants, courts have allowed alternative modes of service under this rule.  Russel Brands, LLC v. GVD International Trading, 282 F.R.D. 21 (2012) (court allows service by personal in-hand service on defendant's Massachusetts attorney, service by email upon defendant's Virginia attorney, and service via federal express at Defendant's Brazilian address);  Liberty Media Holdings, LLC v. Vinigay.com, United States District Court, Docket No. CV 11 0280 (D.Ariz. Mar. 3, 2011) (court determined that service by email would reasonably satisfy the requirements of due process and that the IAC did not supplant all alternative means of service);  Lyman Morse Boatbuilding Co., Inc. v. Lee, United States District Court, Docket No. 10 CV 337 (D.Me. Jan. 6, 2011) (ordered service in hand upon the defendant's local attorneys and by certified next-day mail on the defendant's attorney abroad).   It is worth noting, however, that this interpretation of Fed.R.Civ.P. 4(f)(3) has since been criticized.⁵

Other federal courts have, on the other hand, have gone on to address whether principles of comity warrant attention to a foreign nation's law under Fed.R.Civ.P. 4(2)(A).   Courts have addressed whether following the procedures authorized in the IAC is nevertheless preferable for reasons of international comity, which is mainly concerned with maintaining amicable working relationships between nations and mutual respect for the laws of foreign countries.  Tucker v. Interarms, 186 F.R.D. 450, 452–53 (1999).

Fed.R.Civ.P. 4(f)(2)(A) states in relevant part:  “[I]f there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:  (A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction.”  (Emphasis added.)   Particularly in regard to service of foreign process in Brazil, courts have established:  “Brazilian law requires that service of process by a foreign party upon a party domiciled in Brazil must be made by means of letters rogatory.” ⁶  Alpha Omega Technology v. PGM–Comercio E Participacoes Ltd., supra, United States District Court, Docket No. 93 CV 6257.

As stated, the doctrine of international comity teaches that, when possible, foreign law should be given effect in domestic courts, since recognition fosters international cooperation and encourages reciprocity.   Given this principle and the language set forth in Fed.R.Civ.P. 4(f)(2)(A), courts have found that by giving effect to Brazil's apparent preference that letters rogatory be used to effectuate service of process, “[t]he interests of both forums are advanced—the foreign [state] because its laws and policies have been vindicated;  the domestic country because international cooperation and ties have been strengthened.   The rule of law is also encouraged, which benefits all nations.”  (Internal quotation marks omitted.)  Tucker v. Interarms, 186 F.R.D. 450 (N.D.Ohio 1999).

The approach of using letters rogatory also serves as a “safe harbor,” because by following the procedure outlined in the IAC, it is far more likely that the plaintiff will be able to enforce a judgment abroad.  Id. Several courts have considered this approach and have invalidated service on the basis of Brazilian law, as well as other foreign law.   J.B. Custom, Inc. v. Rossi, United States District Court, Docket No. 1:10 CV 326 (N.D.Ind. June 6, 2011) (court found service of process by certified mail upon Brazilian defendant domiciled in Brazil to be ineffective);  Lake Charles Cane LaCassine Mill LLC v. SMAR International Corp., United States District Court, Docket No. 07 CV 00667 (W.D.La. June 8, 2007) (court distinguished Kreimerman and dismissed service effect in Brazil in violation of Brazilian law on basis of comity);  Lord v. Living Bridges, United States District Court, Docket No. 97 CV 06355 (E.D.Pa. July 22, 1999) (violation of Mexican law conceded, no showing of alternative service made).

Similar to the manner in which federal courts have referred to their federal rules of civil procedure, state courts have also referred to their procedural laws and have found that as long as service is properly effected in accordance with state law, the court retains personal jurisdiction over the foreign defendant.  Morgenthau v. Avion Resources Ltd., 11 N.Y.3d 383, 898 N.E.2d 929 (2008);  DeTorres v. Arocera, 155 Misc.2d 52, 56–57, 587 N.Y.S.2d 495 (N.Y.Sup.Ct.1992) (court found plaintiff failed to comply with IAC in effecting service by letter rogatory in Uruguay, where Uruguayan law required authorization of an Uruguayan court).

For example, in Morgenthau v. Avion Resources Ltd., the New York court of appeals referred to the state's civil practice law and rules (CPLR), specifically CPLR 313, which states:  “A person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory possession or country in which service is made or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction.”

In regard to this statute, the court in Morgenthau stated that “[a]bsent in the plain text is any requirement to fulfill a foreign locale's service of process requirements in order to effectuate service in a New York action upon a defendant in another country.”  Morgenthau v. Avion Resources Ltd., supra, 898 N.E.2d 933.   Thus, the court found that “service may be made without the state ․ in the same manner as service is made within the state.”  (Internal quotation marks omitted.)  Id.

The court refused to apply comity principles and explained:  “Neither do principles of comity compel a different result.   The doctrine of comity refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states ․ Whether to apply the doctrine lies in the sound discretion of the court ․ We have typically analyzed the doctrine in the context of enforcement in New York of judgments issued by foreign countries under CPLR article 53 ․ While we have, on occasion, addressed comity principles in cases where a party to New York litigation is asking a New York court to give effect to the laws of another jurisdiction ․ we have never applied the doctrine to import the laws of a foreign country into a New York lawsuit—and we decline to do so in this case.   Thus, we need not apply comity principles to service of process issues where the CPLR's requirements of service upon foreign defendants are fulfilled.”  (Citations omitted.)  Id.

In the present case, the plaintiff seeks to commence this action in the state of Connecticut.   Similar to the manner in which other jurisdictions have referred to the procedural laws of their jurisdiction, it is worth looking at Connecticut law regarding service of process.

Connecticut General Statutes § 52–59d states:  “(a) Notwithstanding any provision of the general statutes relating to service of process, civil process shall not be served outside of the United States of America in violation of any applicable treaty or convention, including without limitation, the Hague Convention on Service of Process Abroad. (b) If service of process cannot be made under the applicable treaty or convention within sixty days, the Superior Court may, upon application, order service of process upon such terms as the court deems reasonably calculated to give the defendant actual notice of the proceedings in sufficient time to enable the defendant to defend.”

Although this statute has mostly been seen in the context of the Hague Convention, the language of the statute shows that the applicability of § 52–59d is not limited solely to the Hague Convention.   Therefore, it is arguable that the IAC may be included as one of the conventions to which § 52–59d applies.

Because § 52–59d allows the individual to request an alternative method of service after the sixty days, the court may then determine other means.   Thus, given the fact that 1) both the U.S. and Brazil are signatories of the IAC;  2) Brazilian law provides for service by letters of rogatory;  3) the trend in federal courts is to apply principles of comity;  and 4) Connecticut's state law provides for adherence to applicable treaties and conventions other than the Hague Convention, it follows that the more appropriate method of effecting service at this time is to follow the procedure set forth in IAC.

Although the plaintiff argues that effecting service pursuant to the IAC would be time consuming, courts have found such an argument to be unpersuasive.   J.B. Custom, Inc. v. Rossi, supra, United States District Court, Docket No. 1:10 CV 326.   As one court expressed:  “[E]ven if I were to presume that it remains difficult to obtain service in Brazil via letters rogatory ․ I will not override the laws a sovereign state like Brazil just because they are perceived to be slow or difficult.   Any questions about the ways in which Brazil processes letters rogatory or complies with the [IAC] are ultimately diplomatic issues for the executive branch.   For me to impose by fiat a rule allowing service on Brazilians in a manner that Brazil has apparently resisted for decades would be to side-step the State department and its role in negotiating with the sovereign state of Brazil.”  Id.

Moreover, unlike CPLR 313, § 52–59d specifically refers to and recognizes foreign treaties and conventions in the context of service of process.   Thus, the proper method, given Connecticut state law and principles of comity, is to effectuate service in accordance with the IAC. If service cannot be effected in the given time frame, then Connecticut courts may, pursuant to 52–59d, provide for alternative means of service upon request.   Nevertheless, it is worth noting that if alternative methods of service are subsequently provided for at the request of the plaintiff, the plaintiff bears the risk of being unable to enforce the judgment in Brazil.

CONCLUSION

For the foregoing reasons, the plaintiff's motion is denied.

GOULD, J.

FOOTNOTES

FN1. “In the [IAC], 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.”   Kreimerman v. Veerkamp, supra, 22 F.3d 640.   For example, article two of the IAC indicates that it “shall apply to letters rogatory,” article nine stated that execution of such letters by the receiving state “shall not imply ultimate recognition of the [sending authority's] jurisdiction,” and article ten states that “[l]etters rogatory shall be executed in accordance with the laws ․ of the State of destination.”   Id., 640 n.32 Article fifteen states in relevant part:  Article 15 provides that “[t]his convention shall [1] 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 [2] preclude the continuation of more favorable practices in this regard that may be followed by these States.”   The court explained that the first clause clearly permits contracting states to maintain alternative treaty-based procedures for transmitting letters Rogatory, and that the second clause of article 15 “can reasonably be read as affirmative permission for signatory states to continue more favorable practices even if those practices are exercised unilaterally ” and there is no indication as to whether those practices must be assented to by other signatory nations.”  (Emphasis in original;  internal quotation marks omitted.)  Id., 641..  FN1. “In the [IAC], 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.”   Kreimerman v. Veerkamp, supra, 22 F.3d 640.   For example, article two of the IAC indicates that it “shall apply to letters rogatory,” article nine stated that execution of such letters by the receiving state “shall not imply ultimate recognition of the [sending authority's] jurisdiction,” and article ten states that “[l]etters rogatory shall be executed in accordance with the laws ․ of the State of destination.”   Id., 640 n.32 Article fifteen states in relevant part:  Article 15 provides that “[t]his convention shall [1] 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 [2] preclude the continuation of more favorable practices in this regard that may be followed by these States.”   The court explained that the first clause clearly permits contracting states to maintain alternative treaty-based procedures for transmitting letters Rogatory, and that the second clause of article 15 “can reasonably be read as affirmative permission for signatory states to continue more favorable practices even if those practices are exercised unilaterally ” and there is no indication as to whether those practices must be assented to by other signatory nations.”  (Emphasis in original;  internal quotation marks omitted.)  Id., 641.

FN2. The court in Kreimerman, for example, did not delve into either additional analysis and limited itself to the legal issue involving the scope and possible exclusivity of the IAC. One of the reasons the Kreimerman court did not determine whether service under the state's longarm statute violated principles of comity is because the defendants did not “introduce any evidence concerning the laws of Mexico or any precedents explaining how principles of comity might apply.”  Kreimerman v. Veerkamp, supra, 22 F.3d 640..  FN2. The court in Kreimerman, for example, did not delve into either additional analysis and limited itself to the legal issue involving the scope and possible exclusivity of the IAC. One of the reasons the Kreimerman court did not determine whether service under the state's longarm statute violated principles of comity is because the defendants did not “introduce any evidence concerning the laws of Mexico or any precedents explaining how principles of comity might apply.”  Kreimerman v. Veerkamp, supra, 22 F.3d 640.

FN3. Fed.R.Civ.P. 4(f) provides that an individual in a foreign country can be served in one of the following ways “(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;  (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:  (A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;  (B) as the foreign authority directs in response to a letter rogatory or letter of request;  or (C) unless prohibited by the foreign country's law, by:  (i) delivering a copy of the summons and of the complaint to the individual personally;  or (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt, or (3) by other means not prohibited by international agreement, as the court orders.”.  FN3. Fed.R.Civ.P. 4(f) provides that an individual in a foreign country can be served in one of the following ways “(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;  (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:  (A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;  (B) as the foreign authority directs in response to a letter rogatory or letter of request;  or (C) unless prohibited by the foreign country's law, by:  (i) delivering a copy of the summons and of the complaint to the individual personally;  or (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt, or (3) by other means not prohibited by international agreement, as the court orders.”

FN4. In order to satisfy due process, a method of service must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”  (Internal quotation marks omitted.)  Russel Brands, LLC v. GVD International Trading, 282 F.R.D 21 (2012)..  FN4. In order to satisfy due process, a method of service must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”  (Internal quotation marks omitted.)  Russel Brands, LLC v. GVD International Trading, 282 F.R.D 21 (2012).

FN5. In Prewitt Enterprises, Inc. v. Organization of Petroleum Exporting Countries, 353 F.3d 916, 927 (11th Cir.2003), the court addressed the use of rule (f)(3) and commented:  “Paragraph (3) authorizes the court to approve other methods of service not prohibited by international agreements ․ Inasmuch as our Constitution requires that reasonable notice be given, an earnest effort should be made to devise a method of communication that is consistent with due process and minimizes offense to foreign law.”  (Emphasis in original;  internal quotation marks omitted.)   The court ultimately faced the issue in context of Austrian law and held that, since Austrian law prescribed a specific method of serving the defendant, ordering a different method of service under Fed.R.Civ.P. 4(f)(3) “would constitute a substantial affront to Austrian law” and thus “the district court did not abuse its discretion in denying [plaintiff's] motion to authorize alternative means of service.”  Prewitt Enterprises, Inc. v. Organization of Petroleum Exporting Countries, supra, 927–28 See also J.B. Custom, Inc. v. Rossi, United States District Court, Docket No 1:10 CV 326 (N.D.Ind. June 6, 2011)..  FN5. In Prewitt Enterprises, Inc. v. Organization of Petroleum Exporting Countries, 353 F.3d 916, 927 (11th Cir.2003), the court addressed the use of rule (f)(3) and commented:  “Paragraph (3) authorizes the court to approve other methods of service not prohibited by international agreements ․ Inasmuch as our Constitution requires that reasonable notice be given, an earnest effort should be made to devise a method of communication that is consistent with due process and minimizes offense to foreign law.”  (Emphasis in original;  internal quotation marks omitted.)   The court ultimately faced the issue in context of Austrian law and held that, since Austrian law prescribed a specific method of serving the defendant, ordering a different method of service under Fed.R.Civ.P. 4(f)(3) “would constitute a substantial affront to Austrian law” and thus “the district court did not abuse its discretion in denying [plaintiff's] motion to authorize alternative means of service.”  Prewitt Enterprises, Inc. v. Organization of Petroleum Exporting Countries, supra, 927–28 See also J.B. Custom, Inc. v. Rossi, United States District Court, Docket No 1:10 CV 326 (N.D.Ind. June 6, 2011).

FN6. As one court found:  “This conclusion is further supported by the Brazil chapter in the book ‘International Civil Procedure,’ which states:  When foreign courts seek service in Brazil, a rogatory letter is remitted by the foreign court to the Ministry of Foreign Affairs, which forwards the rogatory letter to the Brazilian Supreme Court ․ The chapter goes on to make a similar pronouncement in discussing the enforcement of foreign judgments in Brazil:  Service of foreign process to a Brazilian-domiciled defendant whose address is known is deemed to be proper if effected on him personally or on his legally authorized representative.   The service of notice shall be requested by the foreign court by means of letters rogatory and is subject to approval of the Supreme Court.   Letters Rogatory must follow the exequater proceedings by which the Supreme Court authorizes the performance of the acts requested by the foreign court, such as service of process, taking of witness testimony, or production of documentary evidence.   Therefore, notices served by publication, mail or by diplomatic representatives of a foreign country, even if authorized by the laws of such country, do not constitute a valid form of service for the purpose of confirming and enforcing a foreign judgment in Brazil ․ This reading of Brazilian law is further confirmed by the State Department's website concerning service of process in Brazil.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  J.B. Custom, Inc. v. Rossi, supra, United States District Court, Docket No. 1:10, citing International Civil Procedure 100 (Shelby R. Grubbs ed., 2003)..  FN6. As one court found:  “This conclusion is further supported by the Brazil chapter in the book ‘International Civil Procedure,’ which states:  When foreign courts seek service in Brazil, a rogatory letter is remitted by the foreign court to the Ministry of Foreign Affairs, which forwards the rogatory letter to the Brazilian Supreme Court ․ The chapter goes on to make a similar pronouncement in discussing the enforcement of foreign judgments in Brazil:  Service of foreign process to a Brazilian-domiciled defendant whose address is known is deemed to be proper if effected on him personally or on his legally authorized representative.   The service of notice shall be requested by the foreign court by means of letters rogatory and is subject to approval of the Supreme Court.   Letters Rogatory must follow the exequater proceedings by which the Supreme Court authorizes the performance of the acts requested by the foreign court, such as service of process, taking of witness testimony, or production of documentary evidence.   Therefore, notices served by publication, mail or by diplomatic representatives of a foreign country, even if authorized by the laws of such country, do not constitute a valid form of service for the purpose of confirming and enforcing a foreign judgment in Brazil ․ This reading of Brazilian law is further confirmed by the State Department's website concerning service of process in Brazil.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  J.B. Custom, Inc. v. Rossi, supra, United States District Court, Docket No. 1:10, citing International Civil Procedure 100 (Shelby R. Grubbs ed., 2003).

Gould, Mark T., J.