Hagueness

Inversiones Papaluchi v. Superior Court, No. B285092 (D2d5 Feb. 27, 2018)

For some random reason, cases arising from helicopters crashes in South America seem to loom large in the jurisprudence of personal jurisdiction and service of process. This is another one.

In this case, some U.S. Manufacturers are the defendants in a case arising from a crash in Columbia in 2011. Manufacturers cross-claimed against a Columbian entity in 2014. In late 2016, Manufactures learned that it had gone defunct, but that two other entities—Petitioners on the writ in this case—had been formed out of its assets. In early 2017, Manufacturers amended their cross complaint to swap in the New Colombian Entities for Does. After the trial court granted an extension of the standard three year limit for service, see Code Civ. Proc. § 583.250(b), Manufacturers filed a proof of service attesting to service on the New Columbians after the three year window, but before the extended date. The New Columbians claimed services was insufficient and untimely, and took a writ when the trial court wouldn’t quash service.

There’s two problems with what happened in the trial court. 

First, the three-year limit in § 583.250 is mandatory and not subject to a discretionary court-granted extension “except as expressly provided by statute.” The only exceptions are for stipulations or for acts of the defendant that more or less constitute a general appearance. But the fact of the dissolution and asset transfer, while perhaps sketchy, isn’t sufficient on its own to extend the three year limit.

And second, even if the purported service was timely, it wasn’t good service under the Hague Convention, which a plaintiff is required to comply with under § 413.10(c). Manufacturers served the New Columbians by sending them the complaint and process by FedEx to their registered addresses in Columbia. Under the U.S. Supreme Court’s recent decision in Water Splash, Inc. v. Menon, --- U.S. ---, 137 S. Ct. 1504, 1507 (2017), service of process by mail in a foreign country is sufficient if (a) the country of the defendant’s domicile hasn’t objected to the Hague’s mail service protocol; and (b) mail service is permitted under the law of the forum. Here, on (b), California law permits certain kinds of mail service. See §§ 415.30 (service by mail with acknowledgement by defendant); 415.40 (service by mail with return receipt.) But it does not permit service by FedEx. 

Nor were Manufacturers’ efforts to serve by email sufficient. The Hague permits service by other means to the extent it’s permitted under domestic law. According to Manufacturers’, Columbia permits email service. But the provisions they point to require the sender to obtain an acknowledgement of receipt and to file it with the court. Manufacturers never obtained an acknowledgement, so they certainly didn’t file one on the trial court’s docket.

Writ granted.