Case of the Day: Zamora v. JP Morgan Chase Bank

The case of the day is Zamora v. JP Morgan Chase Bank, NA (S.D.N.Y. 2017). Daniel Zamora sued Dilia Margarita Baez and Jairo Enrique Sanchez for defrauding investors. The two were residents of Colombia. Zamora effected service by having a Colombian lawyer affix the documents to the defendants’ homes, and by certified mail. It appears the certified mail was sent by the Colombian lawyer, not by the American lawyer let alone by the clerk. The case was before the court on a motion for default judgments.

The judge correctly noted that Colombia is a party to the Hague Service Convention and that it has not objected to the alternate methods of service in Article 10(a). And the court accepted that the Colombian lawyer was a competent person under Colombian law for purposes of Article 10(c), just as is an English solicitor. I’ll assume that’s correct.

The problem with the decision is that, despite the Supreme Court’s recent guidance, the judge’s decision seems to suppose that Article 10 does not just permit, but affirmatively authorizes, service by mail or service by delivery by a competent person of the state of delivery. In fact, Article 10 only permits these methods of service, and it’s necessary to ask whether the methods are authorized by the law of the forum. The judge didn’t do any analysis of FRCP 4, and to the extent FRCP 4 in some cases incorporates the foreign country’s methods of service, the judge didn’t do any analysis of Colombian law beyond observing that the Colombian lawyer was a competent person for Article 10(c) purposes.

I’d like to refer back to a 2014 post that draws out a possible implication of the Supreme Court’s recent reminder that the Convention permits but does not affirmatively authorize the methods of service outlined in Article 10. FRCP 4(f)(1) provides for service by the means “authorized” by the Convention, which I take to mean service via the central authority mechanism. That’s not relevant here. FRCP 4(f)(2) provides for service by various other means, including service by mail, but only “if there is no internationally agreed means, or if an international agreement allows but does not specify other means.” Isn’t it clear that there are “internationally agreed means” here, and isn’t it clear that the language about agreements that “allow but do not specify” other means is meant to deal with non-exclusive conventions such as the Inter-American Convention? The Hague Service Convention does not allow any means that it does not “specify”—that’s what we mean when we say the Convention is exclusive.

This is a little bit of a pickle. In practice, I think courts seem to allow service by mail under the Convention, in the absence of an Article 10(a) objection, if the service by mail comports with FRCP 4(f)(2)(C)(ii), without worrying too much about the “allows but does not specify” language. Perhaps the rule should be amended to make this result more clearly correct. There might be other solutions to this problem, too—perhaps a gloss on what it means to say that the Convention is exclusive.

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