The case of the day is Dr. Pepper Snapple Group, Inc. v. Bebidas Purificadas de Tehuacan, S.A. de C.V. (N.D. Tex. 2017). It’s another example that proves the point I’ve tried to make several times now about putting misplaced trust in “vendors” who claim to have the secret to the deeply mystical and problematic art of service of process abroad but who, in decision after decision, don’t seem to know what they’re doing. Today’s case is a trade dress infringement and unfair competition claim brought by an American soft drink company against a Mexican firm. It’s the kind of case where there could well be a need for as much speed as possible in serving process.
The action was brought on March 31. On May 12, the plaintiff moved for appointment of its “vendor” and the vendor’s agents as special process servers, apparently under FRCP 4(c)(3). Special process servers still have a role to play in jurisdictions such as Massachusetts, for example, where ordinarily only a sheriff may serve process. If you have a reason to want to use a process server other than the sheriff, and you’re in the Massachusetts Superior Court, you will have to file a motion for appointment of a special process server. But in the federal courts, there is really no need for special process servers anymore: “A court appointment will be appropriate only when a particular person is needed or that person needs to be given an authority that is not available to the ordinary process server.” Wright & Miller § 1091.
On June 20, the court denied the motion, noting that Mexico was a party to the Hague Service Convention and therefore service through the central authority is “the exclusive method of service of process.” (This is almost exactly right: a plaintiff can also serve process via the Inter-American Convention on Letters Rogatory, but in general that requires the use of the Mexican central authority, too). Five weeks wasted! (Not counting the delay between March 31 and May 12, for which the decision gives no explanation).
A week later (six weeks gone now), Dr. Pepper moved for reconsideration. In support, it pointed to an order appointing its vendor as a special process server in another court (in Wisconsin) in an unrelated case. On November 27, the judge denied the motion. Now we are eight months into the case, and apparently the plaintiff has not even made a first effort at service!
Now, because I have been at this for a long time and have a very large archive of decided cases, I think I know why this particular vendor thought it necessary to have an order appointing it as a special process server. In my post on Feliz v. MacNeill, a 2012 First Circuit case, I noted that the Irish central authority had refused to execute a request for service on which the same vendor acted as applicant without an order from the court appointing the vendor as a process server. Now, it would have been reasonable for Dr. Pepper to say to the judge that the reason it needed to have its vendor appointed as a process server is that some foreign central authorities take the view that an appointment is necessary, citing Feliz. It doesn’t appear that happened. It’s unclear whether the vendor brought the Feliz case to the attention of Dr. Pepper’s lawyer. I suspect but don’t know that the vendor told the lawyer that it needed an appointment without really understanding why, and that when the judge pushed back, the best the vendor knew to do was to offer an order appointing it in another case without having any clear understanding of what was going on. The one thing I suspect the vendor did not want to do was to suggest that someone other than the vendor might be an appropriate person to sign and transmit the request for service, because once that cat is out of the bag, what’s the point of hiring the vendor in the first place?
In a comment to my prior post on service of process and the unauthorized practice of law, I pointed out that there’s no reason in principle why a vendor couldn’t sign the request for service in light of the liberality of FRCP 4 as to who may serve process. But as Feliz shows, that is not always evident to foreign central authorities, which is why my usual practice is to have the clerk act as the applicant. In any event, deciding what to do here is not a ministerial task. Should the lawyer sign as applicant? If so, should he indicate the source of his authority on the form? Should the clerk sign? Should the vendor sign? Is appointment as a special process server actually necessary, or did the Irish central authority get it wrong five years ago? What is the Mexican central authority’s position? Should the lawyer trust these decisions to some third-party vendor, given the risk, as is apparent in this case, that eight months will pass with nothing accomplished (except, presumably, payment of the vendor’s fee)?