United States Court of Appeals,
Fifth Circuit.
No. 93-2403.
Alberto KREIMERMAN, et al., Plaintiffs-Appellants,
v.
CASA VEERKAMP, S.A. de C.V., et al., Defendants-Appellees.
June 15, 1994.
Appeal from the United States District Court for the Southern District of Texas.
Before KING and WIENER, Circuit Judges, and ROSENTHAL,* District Judge.
WIENER, Circuit Judge.
Plaintiffs-Appellants Alberto Kreimerman, Hermes
International, Inc. and Hermes Trading Company d/b/a Hermes Music
(collectively "Kreimerman et al.") sued Defendants-Appellees Casa
Veerkamp, S.A. de C.V., Walter Veerkamp, Electronica Solida
Mexicana, S.A., and Jorge R. Mendez (collectively "Veerkamp et
al.")1 for libel, civil conspiracy, and slander. Kreimerman et al.
served process on the defendants, all of whom are residents of
Mexico, by direct mail through the Texas Secretary of State under
the Texas Long-Arm Statute,2 but the district court quashed this
service, holding that the Inter-American Convention on Letters
* District Judge of the Southern District of Texas, sitting by designation. 1 Electronica Solida Mexicana, S.A. and Jorge R. Mendez have not appeared and are not parties to this appeal. 2 Tex.Civ.Prac. & Rem.Code § 17.041, et seq.
1 Rogatory (the Convention),3 a multi-national treaty designed to
facilitate service of letters rogatory among the signatory nations,
was the exclusive means of effecting service on the defendants.
After Kreimerman et al. tried long and hard—but unsuccessfully—to
accomplish service on the defendants through the use of letters
rogatory pursuant to the Convention, they appealed the district
court's decision to quash their service on the defendants under the
Texas Long-Arm Statute, arguing—inter alia—that the Convention does
not preempt other methods of service. They also appealed that
court's refusal to grant a third extension of time within which
service could be accomplished pursuant to the Convention.
I
FACTS AND PROCEEDINGS
Alberto Kreimerman is the sole owner and stockholder of Hermes
Music and Hermes International, Inc., which sell numerous music
related products. Both companies have their principal places of
business in Hidalgo County, Texas, where Kreimerman resides.
Walter Veerkamp, who resides in Mexico, D.F. (Mexico City), in the
United States of Mexico (Mexico), is the owner of Casa Veerkamp,
S.A. de C.V., which also sells music related products and which has
its principal place of business in Mexico.
Kreimerman et al. sued Veerkamp et al. in Texas state court
3 Inter-American Convention on Letters Rogatory (hereinafter "the Convention"), January 30, 1975, S. TREATY DOC. No. 27, 98th Cong., 2d Sess. (1984).
2 for libel, civil conspiracy, and slander,4 serving process on all
defendants through the Texas Secretary of State under the Texas
Long-Arm Statute. Veerkamp et al. removed the case to the United
States District Court for the Southern District of Texas, Houston
Division. They also moved to dismiss the action for lack of
jurisdiction and improper service. Kreimerman et al. responded to
Veerkamp et al.'s motion and requested that the case be remanded to
state court or, alternatively, that it be transferred to the
McAllen Division of the Southern District of Texas, which was the
proper venue division for the case.5 The court denied all motions
except the motion to quash service, which it granted on the ground
that the Convention established the exclusive means of serving
process on defendants residing in a signatory State.
Following the court's decision to quash service under the
long-arm statute, Kreimerman et al. moved to extend the time to
serve all defendants and requested the district court to issue four
letters rogatory for service of process under the terms of the
Convention. The letters were issued and forwarded to Mexico by
Kreimerman et al.'s American counsel to be served on the
defendants. Kreimerman et al. retained Mexican counsel in Ciudad
Juarez (on the Mexican side of the Rio Grande River, across from El
4 Kreimerman claimed that he was defamed when Veerkamp sent copies of an article from a Mexican political magazine and explanatory cover letters to some of Kreimerman's suppliers. The article (and the accompanying cover letters) apparently accused Kreimerman of being involved in drug trafficking, gun running, and money laundering. 5 We address the issue of removal to the wrong division later.
3 Paso, Texas) to receive the letters and assist with such service.
This counsel in turn hired another Mexican attorney, whose firm had
offices in Mexico City, where the letters rogatory had to be filed.
During the ensuing months, Kreimerman et al.'s Mexican counsel
reported that the letters had been received and filed with the
Federal District Court of Mexico, but that they had not yet been
served, apparently because of the limited personnel available to
serve process in international cases. As his time to effect
service ran out, Kreimerman et al. requested a second extension of
time to serve the defendants, and this request was granted too.
Prior to the expiration of the third deadline, Kreimerman et
al.'s counsel in Mexico represented that service of the letters
rogatory had been effected, but that there would be a delay in
processing the returns. Kreimerman et al. wrote to the court,
notifying it that service had been effected, but that additional
time was needed to obtain properly certified copies. Only after
Veerkamp et al. subsequently moved for sanctions against Kreimerman
et al.'s counsel for misrepresenting that service had been
effected, did Kreimerman et al. learn that service had not in fact
been effected. Apparently, the lawyer in Mexico City had
continually misrepresented the true situation.
Kreimerman et al. again moved (for the third time) for
additional time to complete service of letters rogatory in Mexico.
The magistrate judge conducted an evidentiary hearing in which
Kreimerman et al.'s motion to extend time for service and Veerkamp
et al.'s motion to dismiss the action and issue sanctions were
4 reviewed. At the hearing, the magistrate judge denied Kreimerman
et al.'s motion for a third extension, concluding that they would
not be prejudiced by a dismissal because the applicable statute of
limitations had been tolled while the suit was pending.6 The
magistrate judge also found that sanctions were not appropriate,
but recommended that Kreimerman et al.'s case be dismissed without
prejudice, thereby permitting them to refile later.
Kreimerman et al. filed written objections to the magistrate
judge's recommendations, but the district court adopted them and
dismissed the case before the timely-filed written objections were
received by the court. Kreimerman et al. then moved for
reconsideration but their motion was denied.7 This appeal
followed.
II
ANALYSIS
A. Preemption
The central question in this case is whether the Convention
preempts all other conceivable means for effecting service on
defendants who reside in Mexico. To the best of our knowledge,
this question is res nova in this and all other United States
courts of appeals. Significantly, the question whether service
under the Texas Long-Arm Statute was validly accomplished under the
6 These statutes of limitations presumably related to Kreimerman et al.'s actions against Veerkamp et al. under Texas law for libel, civil conspiracy, and slander. 7 Kreimerman et al. also made a motion to reinstate the motion for reconsideration, or—if you will—to reconsider the motion for reconsideration.
5 facts of this case is not before us; neither does our
interpretation of the Convention turn on the existence vel non of
alternative methods of service that comport with notions of comity
and other requirements of domestic and international law. Here, we
simply need to determine whether the language, history, and purpose
of the Convention indicate that it was devised to supplant all
other means of effecting service on a defendant residing in a
signatory nation other than the forum nation.
1. Standards For Construing the Convention
In construing a treaty—as in construing a statute—we begin
with the language or text.8 The text of a treaty must be
"interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in
light of its object and purpose."9 Only when the language of a
treaty—read in the context of its structure and purpose10—is
8 United States v. Alvarez-Machain, 504 U.S. ----, ---- - --- -, 112 S.Ct. 2188, 2193-94, 119 L.Ed.2d 441, 451-52 (1992); Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S.Ct. 2104, 2108, 100 L.Ed.2d 722 (1988); Air France v. Saks, 470 U.S. 392, 397, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985); Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134-35, 109 S.Ct. 1676, 1683-84, 104 L.Ed.2d 113 (1989). 9 Vienna Convention on the Law of Treaties, May 22, 1969, art. 31(1), 8 I.L.M. 4 (1969) (hereinafter "Vienna Convention"); accord Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 2377, 72 L.Ed.2d 765 (1982) (clear import and obvious meaning of treaty language control). Although the United States is not a party to the Vienna Convention, it regards the substantive provisions of the Vienna Convention as codifying the international law of treaties. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, Part III, introductory note (1986). 10 Although several cases specify that the language of a treaty must be read "in context," see, e.g., Eastern Airlines,
6 ambiguous may we resort to extraneous information like the history
of the treaty, the content of negotiations concerning the treaty,
and the practical construction adopted by the contracting parties.11
We have no dispensation "to alter, amend, or add to any treaty, by
inserting any clause, whether small or great, important or
trivial...."12 Indeed, any such effort on our part "would be ...
an usurpation of power, and not an exercise of judicial function."13
Neither may we supply a casus omissus, for we have no authority to
rewrite a treaty.14 These canons of interpretation, however, do not
Inc. v. Floyd, 499 U.S. 530, 534, 111 S.Ct. 1489, 1493, 113 L.Ed.2d 569 (1991); Schlunk, 486 U.S. at 699, 108 S.Ct. at 2108, these cases do not define the word "context." As the language of a treaty—again, read in context—is regularly contrasted with information extraneous to the treaty (like the travaux preparatoires ), see, e.g., Eastern Airlines, Inc., 499 U.S. at 535, 111 S.Ct. at 1493; Chan, 490 U.S. at 134, 109 S.Ct. at 1683-84, we can infer that the context of a treaty consists of insights drawn from the treaty document itself. Article 31(2) of the Vienna Convention confirms this inference, for it defines the context of a treaty as the text "including its preamble and annexes," as well as contemporaneous instruments and agreements made by the parties to the treaty "in connection with the conclusion of treaty." Emphasis added. Obviously, inferences drawn from a treaty's structural organization (e.g., the titles of its articles and parts) are also part of the contextual analysis of a treaty. Such contextual analysis can and should inform our understanding the literal language of a treaty provision. Thus, when a court speaks of interpreting the language of a treaty in the context of its structure and purpose, it means construing the literal language of the treaty in light of its structural organization and its purpose—as reflected in the preamble and other parts of the treaty. 11 Eastern Airlines, Inc., 499 U.S. at 535, 111 S.Ct. at 1493; Chan, 490 U.S. at 135, 109 S.Ct. at 1684. 12 Chan, 490 U.S. at 135, 109 S.Ct. at 1684 (quoting The Amiable Isabella, 19 U.S. (6 Wheat.) 32, 5 L.Ed. 191 (1821)). 13 Id. 14 Id.
7 indicate which of several competing interpretations we should favor
in close cases.
Courts commonly declare that treaties are more "liberally
construed" than contracts.15 This does not mean, however, that
treaty provisions are construed broadly. Rather, this "liberal"
approach to treaty interpretation merely reflects—as indicated
above—the willingness of courts, when interpreting difficult or
ambiguous treaty provisions, to "look beyond the written words to
the history of the treaty, the negotiations, and the practical
construction adopted by the parties."16 Indeed, existing
precedents—though sparse—suggest that treaty provisions should be
construed narrowly rather than broadly.17 As treaties establish
restrictions or limitations on the exercise of sovereign rights by
signatory States, courts should interpret treaty provisions
narrowly—for fear of waiving sovereign rights that the government
or people of the State never intended to cede.18 Ambiguous
15 See, e.g., Air France v. Saks, 470 U.S. 392, 396, 105 S.Ct. 1338, 1341, 84 L.Ed.2d 289 (1985); Eastern Airlines, Inc., 499 U.S. at 535, 111 S.Ct. at 1493. 16 Eastern Airlines, Inc., 499 U.S. at 535, 111 S.Ct. at 1493 (citations omitted). 17 See, e.g., The Case of S.S. Lotus (France v. Turkey), [1927] P.C.I.J. Ser. A, No 10 at 18-19; In re Extradition of Demjanjuk, 612 F.Supp. 544, 555 (N.D.Ohio 1985) (citing the S.S. Lotus case for the proposition that the jurisdiction [to adjudicate] of sovereign States is unbounded unless explicitly prohibited). 18 As "[t]he rules of law binding upon States ... emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law ... [r]estrictions upon the independence of States cannot therefore be presumed." The Case of S.S. Lotus (France v. Turkey), [1927]
8 provisions of a treaty should thus be interpreted to derogate
minimally from the sovereign power of the State, which is the
quintessential and most legitimate entity in international law.19
2. Discussion
The parties advance both textual (and contextual)20 and
non-textual (or extraneous) arguments in support of their
respective interpretations of the Convention. Although the
district court was persuaded that Kreimerman et al.'s attempt to
serve process under the Texas Long-Arm Statute contravened the
Convention, that court did not reveal which arguments it found
especially telling. The absence of the trial court's reasons are
inconsequential here, though, as the interpretation of treaty
provisions is a question of law, freeing us to review the district
court's conclusion de novo.21 We consider the parties textual and
non-textual arguments in turn.
a. Textual Arguments
P.C.I.J. Ser. A, No 10 at 18-19 (emphasis added); In re Extradition of Demjanjuk, 612 F.Supp. 544, 555 (N.D.Ohio 1985) (citing the S.S. Lotus case for the proposition that the jurisdiction [to adjudicate] of sovereign States is unbounded unless explicitly prohibited); see also The Case of S.S. Wimbleton, [1923] P.C.I.J. Ser. A, No. 1, at 25 (indicating that international treaties place restrictions on the exercise of the sovereign rights of signatory States). 19 In this case, however, it turns out that the arguments weigh rather more heavily on one side than the other. Thus, we need not rely on any canon of interpretation to determine the outcome in this case: It is simply not that close. 20 See supra footnote 10. 21 Sioux Tribe v. United States, 205 Ct.Cl. 148, 500 F.2d 458, 462 (1974); Cayuga Indian Nation of New York v. Cuomo, 758 F.Supp. 107, 111 (N.D.N.Y.1991).
9 The only federal court to have reached the issue in a
published opinion concluded that the Convention is not the
exclusive means of serving process on defendants residing in a
signatory State.22 In so concluding, that court emphasized that the
Convention does not expressly prohibit other means of service: The
Convention "states that it shall apply to letters rogatory ... [but
it] does not state that letters rogatory are the only means of
serving process in the signatory countries."23
This is a telling dichotomy. The Convention does indeed
merely state that it "shall apply to letters rogatory,"24 rather
than to any and all means of serving process. In contrast, the
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."25 Similarly, the
official title of the Convention is the Inter-American Convention
on Letters Rogatory, whereas the official title of the Hague
Service Convention is the Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial
Matters.26 As rogatory letters (or letters of request) are—by
22 Pizzabiocche v. Vinelli, 772 F.Supp. 1245, 1249 (M.D.Fla.1991). 23 Id. 24 The Convention, ART. 2. 25 Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, art. 1, 20 U.S.T. 361, T.I.A.S. No. 6638 (hereinafter "Hague Service Convention") (emphasis added). 26 Id. (emphasis added).
10 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,27 the
Convention's scope appears to be limited to regulating that one
procedural mechanism. In contrast, the scope of the Hague Service
Convention is much broader, applying as it does to all service
abroad upon defendants residing within signatory States.
This facial difference in scope is reinforced by a comparison
of the preambles of the two agreements. The Convention's preamble
is rather modest: "The Governments of the Member States ...
desirous of concluding a convention on letters rogatory, have
agreed as follows...."28 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...."29
Neither does the Convention contain a clear statement of
preemptive intent. Yet the Supreme Court found the absence of such
a "plain statement of a pre-emptive intent" significant in deciding
that the Hague Evidence Convention did not preempt other methods of
27 See, e.g., Fed.R.Civ.P. 4(f) & 28(b) (in which letters rogatory are listed as but one of several possible means of effecting service upon or deposing foreign residents). 28 The Convention, preamble. 29 The Hague Service Convention, preamble (emphasis added).
11 discovery.30
Thus, nothing in the language of the Convention expressly
reflects an intention to supplant all alternative methods of
service. Rather, the Convention appears solely to govern the
delivery of letters rogatory among the signatory States.
Veerkamp et al. also point to mandatory language found in the
Convention and insists that similar language led the Supreme Court
in Volkswagenwerk Aktiengesellschaft v. Schlunk to conclude that
the Hague Service Convention preempted other methods of service.31
The significance of such mandatory language, however, depends on
the context in which it is used. In the Convention, 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.32 In contrast—as noted above—the Hague Service Convention
applies "in all cases ... where there is occasion to transmit a
30 Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 539, 107 S.Ct. 2542, 2553, 96 L.Ed.2d 461 (1987). 31 See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S.Ct. 2104, 2108, 100 L.Ed.2d 722 (1988) (noting the mandatory language of art. 1). 32 For example, the Convention indicates that it "shall apply to letters rogatory," Convention, art. 2, that execution of such letters by the receiving state "shall not imply ultimate recognition of the [sending authority's] jurisdiction," Id. art 9, and that "[l]etters rogatory shall be executed in accordance with the laws ... of the State of destination." Id. art. 10.
12 judicial ... document abroad."33 It was precisely this mandatory
language—not mandatory language in general, but mandatory language
specifically addressing the scope of the Hague Service
Convention—that the Supreme Court found so persuasive in Schlunk.34
Veerkamp et al. also argue that article 15 of the Convention
33 Hague Service Convention, art. 1. 34 486 U.S. at 699, 108 S.Ct. at 2108. Interestingly enough, the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (hereinafter "Hague Evidence Convention"), March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, also contains mandatory language, yet the Supreme Court concluded that the Hague Evidence Convention does not preempt other methods of discovery previously employed by common-law courts. Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987). For example, the Hague Evidence Convention indicates that a contracting State must designate a Central Authority for receipt of letters of request. Hague Evidence Convention, art. 2. Here we find mandatory language; yet that language tells us nothing about whether the treaty is preemptive or not.
Indeed, it is common for treaty regimes to have mandatory language that tells signatories what they must do to execute particular provisions of the treaties. But again, such language tells us nothing about the scope of the treaties themselves. Analogously, mandatory language to the effect that "no one may smoke in the doctor's waiting room," indicates nothing about when we must wait in the waiting room. It gives us a rule for what we must do once there, but it does not tell us when we must be there. In this case, Veerkamp et al. are essentially arguing that mandatory language indicating what we must or must not do once in the waiting room (once the Convention is triggered) informs us when we must wait in that room (when the Convention is triggered). Such a contention is logically insupportable. In summary, the context in which mandatory language is used determines the relevance of such language to the inquiry at hand. Simply noting that a treaty contains mandatory language is unavailing. Because the mandatory language in the Hague Evidence Convention has nothing to do with the scope of the treaty, the Court evidently perceived that the language is not probative of whether the treaty preempts other methods of discovery. See generally 482 U.S. 522, 107 S.Ct. 2542.
13 demonstrates that the Convention was intended to preempt other
methods of service. 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."35 The first clause clearly
permits contracting States to maintain alternative treaty-based
procedures for transmitting letters rogatory. The second clause,
however, is more difficult.
Veerkamp et al. interpret this second clause to permit
contracting States to continue other more favorable service
practices when those practices are agreed upon by all effected
States. In other words, Veerkamp et al. construe this clause to
prohibit continuation of unilateral service practices by
contracting States. There is modest support for this construction
in the State Department's comments on article 15 of the Convention,
which declare that article 15 "authorizes the continuance of
practices between states concerning letters rogatory which may be
less restrictive than those prescribed by the Convention."36 There
is, however, more to be said against this construction than in its
favor.
The second clause of article 15 can reasonably be read as
affirmative permission for signatory states to continue "more
35 The Convention, art. 15. 36 Treaty Doc. 98-27, p. viii (emphasis added).
14 favorable practices" even if those practices are exercised
unilaterally.37 Article 15 simply states that the Convention does
not "preclude continuation of more favorable practices by
[contracting] States." This article indicates nothing about
whether those practices must be assented to by other signatory
nations. Neither do the State Department's comments necessarily
support the position—held by Veerkamp et al.—that pre-existing
State practices may be continued only if assented to by other
States; for the word "between" may simply mean "among the
contracting States," rather than "agreed upon by the contracting
States" as Veerkamp et al. suggest.
Moreover, even if article 15 does not affirmatively permit
continuance of unilateral state practices, there is still a
palpable leap of logic in asserting that article 15's express
authorization of certain mutually-accepted practices implicitly
forbids others not so expressly authorized. Ironically, this same
leap of logic is mirrored in the larger question at issue here, as
Veerkamp et al. can just as easily argue—and do so argue—that the
very existence of the Convention on Letters Rogatory implies the
proscription of other practices not permitted by the Convention.
As discussed later, however, the Supreme Court does not accept this
37 Interpreting article 15 to permit continuance of unilateral service of process practices by individual contracting States is not at all far-fetched. Indeed, the Hague Evidence Convention has a provision that does exactly that—permit continuance of unilaterally-adopted procedures for discovery of evidence. See The Hague Evidence Convention, art. 27; Societe Nationale Industrielle Aerospatiale, 482 U.S. at 537-38, 107 S.Ct. at 2552-53.
15 argument with respect to other conventions, and Veerkamp et al.
provide us with no good reason to accept the argument here either:
Their leap of logic remains just that —a leap.
Significantly, even if Veerkamp et al.'s assertion that
article 15 does not authorize the continuation of
unilaterally-exercised State practices were correct, it would not
help them. As the language of article 15 appears to address only
those treaties and State practices that pertain to letters
rogatory, the article has nothing to say about other procedures for
service of process. The expression "practices in this regard"
found in article 15 can only mean "practices in regard to letters
rogatory."
The State Department's comments on article 15 also support
this construction, for they state expressly that article 15 permits
"the continuance of practices between states concerning letters
rogatory."38 As this case involves the question whether methods of
service other than letters rogatory are preempted by the
Convention, reliance on article 15 is misplaced: That article
simply has nothing to say about any methods of serving process
other than letters rogatory.
Kreimerman et al., for their part, point to article 17 of the
Convention, which permits a "State of destination [to] refuse to
execute a letter rogatory that is manifestly contrary to its public
policy."39 Interpreting a somewhat similar escape clause in the
38 Treaty Doc. 98-27, viii (emphasis added). 39 The Convention, art. 17.
16 Hague Evidence Convention,40 the Supreme Court proclaimed its
unwillingness, "[i]n the absence of explicit textual support, ...
to accept the hypothesis that the common-law contracting states
abjured recourse to all pre-existing discovery procedures at the
same time that they accepted the possibility that a contracting
party could unilaterally abrogate even the Convention's
procedures."41 The same could be said in this case: In the absence
of explicit textual support we should be similarly chary before
accepting that the United States abjured recourse to all other
methods of service when other contracting States can unilaterally
refuse to execute letters rogatory that are contrary to their
public policies.
Thus, the text of the Convention strongly indicates, not that
the Convention 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.
b. Non-Textual or Extraneous Arguments
Veerkamp et al. also advance several non-textual arguments in
support of their assertion that the Convention preempts other
methods of service. First, they point to President Reagan's Letter
of Transmittal to the Senate, and the State Department's Letter of
Submittal to the President, both of which opine that the Convention
40 Hague Evidence Convention, art. 23 (which allows a contracting party to withhold its consent to the convention's procedures for pretrial discovery). 41 Societe Nationale Industrielle Aerospatiale, 482 U.S. at 537, 107 S.Ct. at 2552.
17 and Additional Protocol "establish a treaty-based system of
judicial assistance analogous to that which exists" among the
States that are parties to the Hague Service Convention.42 But we
do not see how this helps the defendants. "Analogous" means
"similar in certain respects,"43 or "bearing some resemblance or
likeness that permits one to draw an analogy."44 Inherent in these
definitions is the connotation that analogous things are also
"dissimilar" or "unlike" in certain respects, for if they were not
they would be identical, or at least essentially identical, and not
merely analogous. Thus, even taken literally, these statements
merely beg the question "similar in what way." More likely,
President Reagan and the State Department were simply referring to
the most similar, already-existing treaty—the Hague Service
Convention—without intending to make any legal judgments about the
relative scopes of the two conventions.
Veerkamp et al. are also rather selective in drawing from
these extrinsic sources. For example, they are careful not to
refer us to the portion of the President's Letter of Transmittal in
which he indicates, not that United States courts must resort to
Convention procedures [mandatory], but that the courts "will be
able to avail themselves of" such procedures (permissive).45
42 Treaty Doc. 98-27, p. i, iii (emphasis added). 43 Oxford American Dictionary 28 (Oxford Univ. Press, Avon Books 1986). 44 Black's Law Dictionary 84 (6th Ed.1990). 45 Treaty Doc. 98-27, p. i (emphasis added).
18 Neither do they note President Reagan's opinion that "the purpose
of the Convention is [merely] to facilitate service ... of
documents."46 Similarly, Veerkamp et al. fail to call our attention
to the State Department's assertion that "[t]he Convention,
together with the Additional Protocol, establishes a mechanism [not
the mechanism] for service of process" among the contracting
States.47 In view of the importance that the Supreme Court places
on such permissive language,48 Veerkamp et al.'s selective use of
these extrinsic sources is understandable, albeit not altogether
forthcoming. Taken as a whole, references to these extrinsic
sources do not strengthen Veerkamp et al.'s position: Indeed,
their net effect is to weaken it.
Veerkamp et al. also suggest that Kreimerman et al.'s
construction of the Convention—which makes resort to the Convention
procedures optional rather than mandatory—renders the Convention
inefficacious: Contracting States could simply choose to disregard
Convention procedures when they proved inconvenient. The Supreme
Court, however, has rejected this argument in a variety of
46 Id. The Supreme Court attached considerable importance to precisely this sort of permissive language in holding that the Hague Evidence Convention did not preempt other pre-existing methods of discovery. Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 534, 107 S.Ct. 2542, 2550, 96 L.Ed.2d 461 (1987) (noting that the preamble to the convention stated that its purpose was to facilitate the transmission and execution of letters of request).
47 Id. at iv (emphasis added). 48 See generally Societe Nationale Industrielle Aerospatiale, 482 U.S. 522, 107 S.Ct. 2542.
19 contexts. In Societe Nationale Industrielle Aerospatiale, for
example, the Court concluded that it is enough that the Hague
Evidence Convention "procedures are available whenever they will
facilitate the gathering of evidence by the means authorized in the
Convention."49 Similarly, in United States v. Alvarez-Machain, the
Supreme Court concluded that the 1978 Extradition Treaty between
the United States and Mexico was not the exclusive means for the
United States to gain custody over suspects residing in Mexico.50
In so concluding, the Court rejected the argument—advanced by the
dissent—that the purposes of the extradition treaty "would be
utterly frustrated" if other means of gaining custody over foreign
suspects were permitted.51 The Supreme Court has thus clearly
rejected the argument that a treaty must be construed to preempt
alternative, nontreaty-based procedures if the treaty is not to be
rendered nugatory.
In Schlunk, the Supreme Court explained why the argument is
unconvincing,52 pointing out—albeit in a different context—that
"nothing ... prevents compliance with the Convention even when the
internal law of the forum does not so require."53 The Court also
49 Id. at 541, 107 S.Ct. at 2554. 50 United States v. Alvarez-Machain, 504 U.S. ----, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992). 51 Alvarez-Machain, 504 U.S. at ----, 112 S.Ct. at 2198, 119 L.Ed.2d at 458. 52 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 706, 108 S.Ct. 2104, 2111, 100 L.Ed.2d 722 (1988). 53 Id., 486 U.S. at 706, 108 S.Ct. at 2111.
20 observed that "[t]he Convention provides simple and certain means
by which to serve process on a foreign national."54
These same observations apply perforce to this case. The
Convention provides plaintiffs with a "safe harbor"—a dependable
mechanism—but not necessarily the only lawful mechanism—by which
they may effect service on defendants residing in another signatory
nation. Plaintiffs who elect not to avail themselves of the
Convention machinery assume the risk that other legal principles,
like the principle of international comity, might hinder their
establishment of jurisdiction over the defendants. Finally, Such
plaintiffs may also discover that their failure to employ the
Convention's safe harbor procedures makes enforcement of their
judgments abroad more difficult or even impossible.55
When we thus consider all the arguments advanced by the
parties—both textual and non-textual—we conclude that the
Convention does not preempt other methods of service. This
conclusion does not, however, guarantee the availability or
efficacy of other methods of service, and we do not today decide
which other methods of service—if any—would be supportable or
efficacious under applicable domestic and international law.
3. The Texas Long-Arm Statute
Veerkamp et al. urge that considerations of comity require
that we respect the traditional civil law requirement—apparently
practiced in Mexico—that legal documents be served by a government
54 Id. 55 Id.
21 official or through other official channels. Veerkamp et al. would
have us affirm on other grounds the district court's decision to
quash service: specifically, by declaring that such service
violates principles of comity. Ignoring for a moment the failure
by Veerkamp et al. to introduce any evidence concerning the laws of
Mexico or any precedents explaining how principles of comity might
apply here, this argument misconstrues the core issue of this case.
Although the parties apparently agree that Kreimerman et al.
properly employed the machinery of the Texas Long-Arm Statute, they
do not address—in their submissions to us or to the district
court—whether service of process under the Texas Long-Arm Statute
on defendants residing in Mexico contravenes notions of comity, the
procedural requirements of Fed.R.Civ.P. 4, or any other applicable
domestic or international laws.56 Neither did the district court
reach such issues: Its inquiry ended when it held—incorrectly, we
conclude—that the Convention preempted all other methods of service
56 The content of Federal Rule of Civil Procedure 4(f), formerly largely contained in Fed.R.Civ.P. 4(i), seems especially relevant to this analysis. But again, the parties did not discuss whether Kreimerman's attempt to serve Veerkamp under the Texas Long-Arm Statute comports with Rule 4(f).
Rule 4(f), rather than the former Rule 4(i), is the provision that the district court must analyze on remand because the 1993 amendments to the federal Rules of Civil Procedure took effect on December 1, 1993, and govern "all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings in civil cases then pending." Order of the Supreme Court of the United States Adopting and Amending Rules, April 22, 1993; see also Burt v. Ware, 14 F.3d 256, 258 (5th Cir.1994) (indicating that amendments to the Federal Rules of Appellate Procedure should be given retroactive application to the maximum extent possible).
22 on defendants residing in another signatory nation. Whether
Kreimerman et al.'s attempt to serve process under the Texas Long-
Arm Statute contravened any other law besides the Convention is
thus not before us. Such considerations are for the district court
on remand.57
B. Other Issues
Kreimerman et al. also raise several other issues, none of
which warrants extensive treatment at this juncture.
1. Removal to the Wrong Division
A defendant who wants to remove a civil action from a state
court to a federal district court must "file in the district court
of the United States for the district and division within which
such action is pending a notice of removal...."58 In this case, the
parties agree that the action should have been removed, not to the
Houston Division, but to the McAllen Division of the Southern
District of Texas. Relying on this error, Kreimerman et al. moved
the district court to remand the case to state court, or,
alternatively, to transfer the case to the McAllen Division. The
court, however, denied the motion. Kreimerman et al. now insist
that the court's denial constituted reversible error.
Citing King v. Gulf Oil Co.,59 Veerkamp et al. suggest that we
57 We leave it to the district court's discretion whether to hold additional hearings on these questions. 58 28 U.S.C. § 1446(a). 59 581 F.2d 1184, 1187 (5th Cir.1978) (reversal for failure to follow Fed.R.Civ.Pro. is warranted only if prejudice is demonstrated).
23 simply dismiss this defect in removal by invoking harmless error.60
As removal statutes are strictly construed against removal,61
though, we decline to take such a dismissive approach. Some courts
have held that removal of a case to the wrong division of the right
district nevertheless creates a jurisdictional defect, leaving the
district court with no power to adjudicate the case and no choice
but to remand.62 Other courts have held that removal to the wrong
division is procedural, not jurisdictional.63 We agree with the
later perspective.
Although Veerkamp et al. removed this case to the wrong
division, there is no doubt that the district court had subject
matter jurisdiction under 28 U.S.C. § 1332, given the parties'
diversity of citizenship.64 The existence of such jurisdiction
makes this case much more akin to an improper venue situation than
to one in which there is an actual jurisdictional defect.65 The
district court thus should have transferred the case to the McAllen
division under the authority of 28 U.S.C. § 1406(a), which—in the
interest of justice—allows a case to be transferred "to any
60 Veerkamp et al. refer, of course, to 28 U.S.C. § 2111. 61 Brown v. Demco, Inc., 792 F.2d 478, 482 (5th Cir.1986); Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir.1979). 62 See, e.g., Scarmardo v. Mooring, 89 F.Supp. 936, 937 (S.D.Tex.1950). 63 Cook v. Shell Chemical Co., 730 F.Supp. 1381, 1382 (M.D.La.1990). 64 Id.; accord Mortensen v. Wheel Horse Prods., Inc., 772 F.Supp. 85, 89 (N.D.N.Y.1991). 65 Mortensen, 772 F.Supp. at 89; Cook, 730 F.Supp. at 1382.
24 district or division in which it could have been brought."66 As we
are remanding the case to the district court anyway, we need not
decide whether the court's refusal to transfer the case constituted
reversible error: We simply remand the case to the Houston
Division with directions to transfer the case to the McAllen
Division under 28 U.S.C. § 1406(a).
2. Motion to Extend
Kreimerman et al. also complain that the magistrate judge
erred in rejecting their third motion to extend the time within
which to accomplish service of process. A district court, however,
has broad discretion to dismiss an action for ineffective service
of process,67 so we review such a decision only for abuse of
discretion.68 Additionally, when the time to effect service has
expired, the party attempting service has the burden of
demonstrating "good cause" for failure to serve the opposing
party.69
In this case, Kreimerman et al. did not move to extend
service for the third time until more than a month after the
expiration of the twice previously extended deadline for effecting
service. Therefore, they had the burden of demonstrating that
66 28 U.S.C. § 1406(a); Mortensen, 772 F.Supp. at 89; Cook, 730 F.Supp. at 1382. 67 George v. United States Dep't of Labor, 788 F.2d 1115, 1116 (5th Cir.1986). 68 System Signs Supplies v. United States Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir.1990). 69 Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir.1985).
25 there was good cause for their failure to effect service.
Attempting to satisfy that burden, Kreimerman et al. insist that
their failure was through no fault of their own. We acknowledge
that available evidence suggests that service of process takes
considerably longer to accomplish in Mexico than it does in the
United States.70 We also realize that the Mexican attorney who was
"helping" Kreimerman et al. serve process on the defendants
apparently misrepresented even to Kreimerman that service had been
accomplished. Unfortunately for Kreimerman et al., however, action
or inaction that fall into the categories of inadvertence, mistake,
or ignorance of counsel do not constitute excusable neglect.71
Kreimerman et al. selected and reposed their trust in the
Mexican counsel, who in turn selected and worked with the other
lawyer in Mexico City, who ultimately proved to be unreliable or
dishonest, or both. That is at least vicariously Kreimerman et
al.'s fault. Moreover, when Kreimerman et al. made their third
motion to extend the time for service, they had already been given
sixteen (16) months in which to serve the defendants, and the
magistrate judge found that there was no reason to believe that
service would have been effected in the near future. The
translation of legal documents into Spanish, for example, took six
70 If it is true that it takes considerably longer to effect service of process in Mexico than in the United States, then this is yet another reason to hold that the Convention does not foreclose other methods of service: If the machinery provided by the Convention does not work very well, we should be loathe to condemn United States residents to use such an ineffective apparatus. 71 McGinnis v. Shalala, 2 F.3d 548, 551 (5th Cir.1993).
26 months, and Kreimerman et al.'s Mexican counsel suggested that
those translations were still inadequate. Even if we were to
assume that the misrepresentations by the Mexican counsel
constituted good cause for failing to effect service, we would
conclude that Kreimerman et al. did not show good cause for failure
to take any action during the eight months preceding those
misrepresentations. Neither did Kreimerman et al. explain why the
whole process was not further along after nearly two years. Under
these facts, we cannot say that the district court abused its
discretion.
3. Adoption of Magistrate Judge's Recommendations
Kreimerman et al. also suggest that the district court did not
make a de novo review of the magistrate judge's Memorandum and
Recommendations. They complain that the district court erred in
adopting the magistrate judge's recommendations before they had
filed their written objections. Kreimerman et al. assert, in
essence, that because the district court did not wait for them to
file their objections, and because the court did not clarify the
magistrate judge's ruling with respect to the tolling of the
applicable statute of limitations (and other rulings), we cannot be
certain that the district court made a proper de novo review.
We grant that a district court must make a de novo review
whenever a magistrate judge recommends dismissal.72 Indeed, even
when no objections are made to the magistrate judge's memorandum
72 Longmire v. Guste, 921 F.2d 620, 623 (5th Cir.1991); United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989).
27 and recommendations, the district court is obligated to undertake
an independent review of the case.73 In this instance, however,
Kreimerman et al. do little more than speculate that the district
court may not have made a de novo review of the instant case. They
advance neither evidence nor specific factual allegations in
support of their prayer for reversal. Under these sparse
circumstances, we are most reluctant to find that the district
court failed to engage in a proper review.74
Neither are we troubled by the district court's adoption of
the magistrate judge's recommendations prior to the court's receipt
of Kreimerman et al.'s timely-filed written objections. Kreimerman
et al. cite no cases which hold that a district court's failure to
wait until objections are filed before adopting a magistrate
judge's recommendations constitutes reversible error.75 Moreover,
even if the district court had erred in its attempt to follow the
Federal Rules of Civil Procedure, we would not be forced to reverse
in the absence of prejudice.76 Additionally, Kreimerman et al.'s
two motions for reconsideration gave the district court opportunity
73 Equitable Life Assur. Soc. v. Mangel Stores Corp., 691 F.Supp. 987, 989 (E.D.La.1988). 74 Longmire, 921 F.2d at 623. 75 Kreimerman does cite Nalty v. Nalty Tree Farm, 654 F.Supp. 1315 (D.Ala.1987), but that case merely established the method for computing the time period for filing objections: it says nothing about whether a district court must wait for those objections to be filed before adopting a magistrate's recommendations. 76 See, e.g., King v. Gulf Oil Co., 581 F.2d 1184, 1187 (5th Cir.1978) (court failed to hold hearing on class certification).
28 to consider—yet again—their objections. We discern no reason to
believe that the district court did not do its job properly.
III
CONCLUSION
After analyzing all the arguments advanced by each side, we
conclude that the Convention does not preempt every other
conceivable method of serving process on defendants residing in
other signatory states. This conclusion does not necessarily imply
the existence and availability of other methods of service that
would be supportable and effective under domestic and international
law. We simply hold that the Inter-American Convention on Letters
Rogatory does not foreclose other methods of service among parties
residing in different signatory nations, if otherwise proper and
efficacious. We therefore remand the case to the district court
with instructions to consider whether the only other method of
service of process attempted by the plaintiffs—service under the
Texas Long-Arm Statute—comports with principles of comity,
Fed.R.Civ.P. 4 (especially 4(f)), and any other applicable legal
principles of domestic or international law. Because the case was
originally remanded to the wrong division of the United States
District Court for the Southern District of Texas, however, we
remand the case to the Houston Division with directions to transfer
it to the McAllen Division, pursuant to 28 U.S.C. § 1406(a). The
McAllen Division will then determine whether Kreimerman et al.'s
attempt to serve the defendants under the Texas Long-Arm Statute
contravened any applicable laws or legal principles.
29 In connection with our instructions to the McAllen Division of
the United States District Court for the Southern District of
Texas, we emphasize that nothing in this opinion should be
construed as authorizing Kreimerman et al. to institute any new or
additional efforts to serve the defendants: The district court
need only determine whether Kreimerman et al.'s previous efforts to
serve process under the Texas Long-Arm Statute were consistent with
applicable legal principles—international and domestic.
Therefore, the judgment of the district court is AFFIRMED in
part, REVERSED in part, and REMANDED to the Houston Division of the
United States District Court for the Southern District of Texas,
with instructions to transfer the case under 28 U.S.C. § 1406(a) to
the McAllen Division for further proceedings consistent with this
opinion.