Barnett et al v. Miguel et al

Filing 54

MEMORANDUM DECISION AND ORDER that pla's objection 39 permitting alternative services is granted filed by Pepe Miguel, Alfredo Miguel, Alfredo Miguel, Jr.; vacating 33 Order re denying 10 MOTION for presumed service in accordance with the Hague Convention filed by Richard Getty, Jerry Ray Barnett, and denying 17 MOTION for Presumed Service in Accordance with the Hague Convention filed by Richard Getty, Jerry Ray Barnett, denying without prejudice 43 MOTION to Dismiss filed by Pepe Miguel, Alfredo Miguel, Alfredo Miguel, Jr.. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JERRY RAY BARNETT and RICHARD
GETTY,
Plaintiffs,

Case No. 1:10-cv-00440-BLW
MEMORANDUM DECISION AND
ORDER

v.
ALFREDO MIGUEL, PEPE MIGUEL,
and ALFREDO MIGUEL, JR.,
Defendants.

Before the Court is Defendants’ Objection (Dkt. 39) to the Order by the Honorable
Larry M. Boyle (Dkt. 33) regarding Plaintiffs’ motions for presumed service (Dkts. 10,
17). Also before the Court is Defendants’ Motion to Dismiss (Dkt. 43). The Court has
determined that oral argument would not significantly assist the decisional process, and
will therefore consider the objection and motion without a hearing. Having reviewed the
record and pleadings, the Court will vacate the Order (Dkt. 33) and deny Plaintiffs’
Motions for Presumed Service. The Court will deny without prejudice, Defendants’
Motion to Dismiss, as more fully expressed below.
BACKGROUND
This case concerns business transactions between Plaintiffs Jerry Ray Barnett and
Richard Getty, and Defendants Alfredo Miguel, Pepe Miguel, and Alfredo Miguel, Jr.
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Before the transactions at issue in this case, the parties had been involved in other
business deals, including investments in the Tamarack ski area, and development of Red
Ridge, both near McCall, Idaho. Plaintiffs’ action involves investment opportunities in
the country of Mexico, with three companies: Interbrands, Concepublica, and IMU. The
case was originally filed in state court on March 18, 2010, but was removed to this Court
on August 27, 2011. Compl. Dkt. 2.
DISCUSSION
The Court has authority to review pretrial rulings by a magistrate judge under 28
U.S.C. § 636(b)(1)(A). Upon a party’s timely objection to a magistrate judge’s ruling,
the Court must “modify or set aside any part” that is contrary to law. Fed. R. Civ. P.
72(a). Defendants here timely objected to the order allowing Plaintiffs to serve
Defendants “by certified mail, by email and through its U.S. Counsel.” Order, Dkt. 33 at
7.
As acknowledged by the parties and in the Order to which Defendants now object,
“both Mexico and the United States are signatories to the Hague Convention.” Order,
Dkt. 33 at 3. Accordingly, “service of process on Defendants in Mexico must conform to
the requirements of the Hague Convention.” Id. (citing Volkswagenwerk
Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988)). “The primary means by which
service is accomplished under the Convention is through a receiving country’s
‘Central Authority.’” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). However,
MEMORANDUM DECISION AND ORDER - 2

Article 10 of the Hague Convention permits alternative service of process, including
service by mail, provided that “the State of destination does not object.” Id. (citing
Hague Convention, Art. 10). The Federal Rules of Civil Procedure also allow for
alternative service, but only if “not prohibited by international agreement.” Fed. R. Civ.
P. 4(f)(3).
In its objection, Defendants cite to a recent law review article discussing Mexico’s
objection to Article 10 of the Hague Convention. Charles B. Campbell, No Sirve: The
Invalidity of Service of Process Abroad By Mail Or Private Process Server On Parties In
Mexico Under The Hague Convention, 19 Minn. J. Int’l L. 107 (2010). The article makes
clear that Mexico’s Central Authority does not permit alternative service. Id.
Plaintiffs counter that, under Article 15 of the Hague Convention, the Court may
deem service complete even where not accomplished through Mexico’s Central
Authority, if three conditions are met: (1) the documents to be served were transmitted
by a method provided for in the Convention; (2) at least six months has elapsed since the
date the documents were transmitted; and (3) no certificate of any kind has been received
by the party attempting service, despite reasonable efforts to serve through “the
competent authorities of the State addressed.” Pl. Resp., Dkt. 45 (citing Hague
Convention, Art. 15). Plaintiffs contend that these three conditions have been satisfied
through repeated attempts over more than 6 months to submit applications through
Mexico’s Central Authority. Pl. Resp., Dkt. 45 at 3.

MEMORANDUM DECISION AND ORDER - 3

Despite Plaintiffs’ obvious frustration with the process for service through
Mexico’s Central Authority, Plaintiffs have not demonstrated that they fully complied
with the requisite process. Nor have Plaintiffs shown that six months have passed since
they transmitted documents by an approved method under the Hague Convention.
Notably, counsel for Plaintiffs acknowledges receiving letters from Mexico’s Central
Authority, with instructions to correct deficiencies in his application for service. Charney
Aff., Dkt. 12 at 2. Plaintiffs’ assertions that they have complied with all requirements,
and corrected all deficiencies are conclusory. Ultimately, Plaintiffs have not established
that presumption of service under Article 15 is warranted.
Regarding Plaintiffs’ waiver argument, the Court finds that the Magistrate Judge
properly recognized counsel’s limited appearance on behalf of Defendants. Accordingly,
the Court here will not find that Defendants’ waived service by filing a motion to dismiss.
For these reasons, the Court will not adopt the findings and conclusions from the
May 20, 2011 Order (Dkt. 33). On consideration of Defendants’ Objection (Dkt. 39), the
Court will vacate the Order (Dkt. 33) on Plaintiffs’ Motion for Presumed Service (Dkts.
10, 17) and deny that Motion. Plaintiffs are required to serve Defendants with process as
required under the Hague Convention, or demonstrate to the Court that the conditions
required for presumed service under Article 15 have been established.

MEMORANDUM DECISION AND ORDER - 4

Service having yet to be accomplished, the Court will deny without prejudice,
Defendants’ Motion to Dismiss (Dkt. 43). Upon completion of service, the Court will
allow Defendants to re-file their Motion to Dismiss.
ORDER
IT IS ORDERED THAT:
1.

Plaintiffs’ Objection (Dkt. 39) to the Order permitting alternative service is

GRANTED.
2.

The Order (Dkt. 33) is VACATED. On the Court’s de novo review of

Plaintiffs’ Motion for Presumed Service (Dkts. 10, 17), the motions are DENIED.
Plaintiffs are directed to effect service by an approved method under Article 10 of the
Hague Convention, or demonstrate that Article 15 allowing for presumed service is
satisfied, as discussed herein.
3.

Defendants’ Motion to Dismiss (Dkt. 43) is DENIED without prejudice.

Defendants will be permitted to re-file their motion when service upon Defendants has
been accomplished.

MEMORANDUM DECISION AND ORDER - 5

DATED: October 6, 2011

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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