Alvarado-Fernandez, the Fourth District affirmed the trial court's denial of the defendant's
motion to dismiss arguing improper service of process. The case arose
after the plaintiff's vehicle was struck by a vehicle being driven
by the defendant, a Columbian citizen, and rented from Alamo. Following
various attempts to secure process, the plaintiff effected substitute
service on the defendant by serving the Secretary of State in accordance
with Fla. Stat. 48.161. The defendant asserted four arguments, each of
which were rejected by the Fourth DCA.
First, the defendant argued that the plaintiff failed to strictly comply
with two treaties -- the Hague Convention on the Service Abroad of Judicial
and Extrajudicial Documents in Civil or Commercial Matters and the Inter-American
Service Convention on Letters Rogatory and Additional Protocol ("IASC")
-- between Columbia and the United States when attempting to serve process
on the defendant. The Fourth DCA noted that the effect of international
legal agreements entered into by the United States on domestic law depends
upon whether the agreement is self-executing or non-self-executing. International
treaties are self-executing if they have the force of law without the
need for subsequent legislative action. Treaties that are not considered
self-executing are understood to require implementing legislation to provide
legal authority to carry out the functions and obligations contemplated
by the agreement.
The Fourth DCA found that the Hague Convention is self-executing. The Hague
Convention is of "equal dignity with acts of Congress and enjoys
the constitutional status of 'supreme Law of the Land.'"
Therefore, the Hague Convention preempts inconsistent methods of service
prescribed by state law in all cases to which it applies. The Hague Convention,
however, is expressly inapplicable in cases where the location of the
person to be served is unknown. The defendant's location in this case
was unknown. In addition, Columbia acceded to the Hague Convention on
April 10, 2013, and it did not enter into force until November 1, 2013,
following the events in this case.
"While compliance with the provisions of the Hague Convention may
be mandatory, parties are not required to use all of the alternatives
set forth in the IASC to the exclusion of any others." The Fourth
DCA noted that the IASC is not self-executing, and it is neither the exclusive
nor the mandatory channel for transmission of service of process between
signatories. Where there is no binding international treaty governing
service of process, a party must look instead to Florida's service
of process rules. Therefore, since the Hague Convention did not apply,
the trial court was permitted to accept compliance with either the IASC,
the law of Columbia, or any method provided by the Florida Statutes or
Rules of Procedure. Accordingly, the Fourth DCA found that because the
Hague Convention did not apply and compliance with the IASC was not required,
service upon the defendant was valid if perfected in accordance with Sections
48.161 and 48.181, Florida Statutes.
Second, the defendant argued that the plaintiff failed to comply with Florida's
substituted service statutes. Section 48.161 requires substituted service
be evidence by (1) registered or certified mailing to the nonresident
of (a) a notice of such substituted service and (b) a copy of the process,
which must be evidenced by (c) the filing of the nonresident's return
receipt and (d) an affidavit of compliance by plaintiff or his or her
attorney; or (2) an appropriate officer's return showing service on
the nonresident within or without the state of Florida. Section 48.181
sets forth the jurisdictional requirements for substituted service of
process, and Section 48.171 provides that the Secretary of State is the
designated agent for a non-resident defendant who has caused injury by
the operation of a motor vehicle within the state. Further, non-resident
motorists have a duty to make their whereabouts known in the event of
an accident, and a defendant's attempt to conceal their whereabouts
will not preclude the courts from obtaining jurisdiction over them. In
addition, before using substitute service, a plaintiff must demonstrate
the exercise of due diligence in attempting to locate the defendant. Defendant
asserted that the plaintiff failed to file a copy of the postal receipt.
However ,the Fourth DCA found that the court may dispense with the filing
of a postal receipt if the substituted service statute is invoked on the
ground that the defendant is evading service. Moreover, the Fourth DCA
found that the plaintiff persistently searched for the defendant in Columbia,
and met his due diligence requirement.
Third, the defendant argued that the plaintiff failed to timely file an
affidavit of compliance. The Fourth DCA found that the trial court acted
within its discretion by accepting the plaintiff's untimely affidavit.
Fourth, the defendant argued that the trial court erred by denying the
motion to dismiss pursuant to Rule of Procedure 1.070(j), which is meant
to prevent a plaintiff from filing suit and taking no action to move the
claim forward. The Fourth DCA rejected this argument, finding that the
plaintiff continuously made efforts to comply with Florida law and serve
the defendant -- it was the defendant who attempted to evade service.
Accordingly, the trial court's denial of the motion to dismiss was affirmed.