I say all the time that we’re not building rockets here. But we are building a JetSki of sorts, and a sputtering JetSki means you’re not going to finish your jungle tour in time to make it back for the foam party at Señor Frog’s. Serving process in Mexico is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.
You’ve got three ways to go:
- Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
- Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
- If you’re feeling froggy & would like to handle the whole thing yourself, keep reading. This lays out the framework you’ll need.
Some background is in order, if you’re so inclined, before we cut to the chase.
- The roadmap to the overall process—the recipe to our Secret Sauce.
- The structure of the Convention itself is discussed in this four-part series.
- And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. You have to file a Hague Evidence Request. Dramatically different from serving a summons or notice.
Now, for the chase scene. And now that you’ve had your James Bond fix, here’s how service of process is done in Mexico:
Article 5 Service
- Translate the documents. Mexico’s declaration to Article 5(3) requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.*
- Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney. If it is not, make sure that the person signing is commissioned by the court. [Update– July, 2018: it seems that the Mexican Central Authority has begun rejecting Hague requests on two rather baseless points: (1) because requests aren’t sent in triplicate, and (2) because the requests aren’t signed by the issuing court. Both of these assertions are counter to Article 3 of the Convention… we’re working to get the problem resolved.]
- Send to the Central Authority.
- Sit tight. It may take a while—likely 9 months, perhaps a year, from submission to return of proof. The judge is just going to have to accept that fact, because there is no appropriate alternative…
Article 10 alternative methods
Seriously—that’s all there is to it in Mexico, but don’t get excited. Sure, the method is straightforward and simple, but actually making it happen is anything but smooth. The real problem with service in Mexico is that it takes an interminably long time, and in many cases, local authorities are decidedly less than motivated to act against large local entities, so service on the local factory boss may not happen at all.
Mexico’s declarations and Central Authority information can be found here.
Bonus practice tip #1: if the idea is strategically sound, ask the defendant to waive service. Note that I didn’t say accept— I said waive. There’s a very important difference.
Bonus practice tip #2: if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
* The Mexican Central Authority hands service requests off to courts in the communities where defendants are located, and the judges execute requests according to local practice. Until very recently, those judges enforced a rule that required all translations submitted to their courts be performed by court-certified perito translators. Such translators are few and far between—a very tight guild monopoly—driving up the cost of translation despite the position of the Hague Conference that no such requirement was appropriate under the Service Convention. Apparently, the Central Authority now communicates to judges that lack of a court-certified perito translation is not sufficient grounds for rejecting a request. This does not mean, however, that the rejection would not be issued anyway, in which case the Central Authority would bounce the request to the judge again… back & forth until an understanding is reached. All the while, the U.S. lawyer and his/her client sit and wait.
[Author’s Note: My only visit to Mexico was on a spring break trip to Cancun in the late 1990s… and I was the chaperone. By that time in my life, foam parties and booze cruises were not my thing, but I did get to climb the pyramid at Chichén Itzá and eat the best fish tacos anywhere in the solar system. It took a fair amount of begging to get to see real Mexican life, because it cannot be found in the resort areas.]