Case Update: Request for alternative service using FedEx to a Defendant located in a treaty partner under the Hague Service Convention
The Supreme Court of New York, Warren County, in Sweet-Martinez v. Martinez, (2020 NY Slip Op 20195) authorized alternative service by Federal Express to a Defendant for an uncontested divorce proceeding (without children). The Defendant had previously been removed and returned to Mexico. Plaintiff had communicated with her Husband in Mexico, and had, what she believed to be his residential address in Mexico. She sent paperwork to this address by postal mail, but the Defendant did not acknowledge receipt nor file any responsive pleadings in the divorce case.
The Supreme Court acknowledged that the U.S. and Mexico are treaty partners under the Hague Service Convention, and inquired as to what steps Sweet-Martinez had taken to ensure service was effectuated pursuant to this treaty. She indicated that, on June 12, 2020 (less than 2 months prior to this court's opinion), she had prepared and submitted, by postal mail, a request for service to the Mexican Central Authority, and had not yet received a response. (As a quick note, the Mexican Central Authority indicates that service will take between 2 - 6 months through the Central Authority). Plaintiff's attorney understood Mexico to not have objected to service through postal channels under Article 10 of the treaty. Plaintiff, with no response from either her Husband or the Mexican Central Authority, filed her request for alternative service using Federal Express. The court concluded that other courts have found that Mexico has not outright objected to Article 10(a) of the Hague Service Convention, which permits service by postal mail. Therefore, the Court concluded that FedEx'ing Defendant the process to his last known address in Mexico is appropriate, both under the New York civil procedure rules and Article 10(a) of the Hague Service Convention.