United States: Nevada Case A Reminder To Foreign Entities: Protect Your Due Process Rights When Served

Foreign companies frequently face lawsuits filed by U.S.-based plaintiffs. The service of the initial lawsuit on a foreign company is a process that has come under greater scrutiny in recent years in order to ensure substantive due process rights are preserved. 

The main legal mechanism used by plaintiffs to effectuate service on a foreign defendant is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("the Convention"). A multilateral treaty, the Convention offers a framework for serving process within signatory nations, including multiple means through which a party may perfect service of process documents abroad. 

Whether a plaintiff complies with the Convention to effect service, however, is just one part of the inquiry. Service must also satisfy due process. Foregoing the due process requirement runs afoul of the fundamental protections given to litigants under the United States Constitution. 

A recent Nevada Supreme Court decision reaffirms the principle that to pass muster and be upheld as valid in U.S. courts, service of process on a foreign defendant must not only comply with the requirements of the Convention itself, but also satisfy constitutional due process standards.1

The Groupo Famsa case

In Grupo Famsa, S.A. DE C.V. v. Eighth Judicial District Court of the State of Nevada, the Nevada Supreme Court decided the question of whether constitutional due process is satisfied when service of process on a foreign company pursuant to the Convention hinges only on a certificate of compliance issued by the foreign nation's central authority. The court said no, and instructed the trial court to conduct further fact-finding to determine whether service on a customer greeter at that foreign defendant corporation also satisfied the due process requirements of notice reasonably calculated, under the circumstances, to apprise that foreign corporation of the pending action in Nevada.

The facts before the court were as follows. B.E. Uno, LLC ("Uno") owned a shopping center in Las Vegas, Nevada. Famsa, Inc. ("Famsa") entered into an agreement to lease space at the shopping center, and Grupo Famsa, S.A. de C.V. ("Grupo"), a publicly traded Mexican company, agreed to guarantee the lease. When Famsa failed to comply with the terms of the lease, Uno filed a complaint in district court against Famsa and Grupo for breach of the lease and guaranty.

Because Mexico, like the United States, is a signatory to the Convention, Uno served Grupo under the Convention. One of the means for service under the Convention is to have the Central Authority designated by the signatories to the Convention serve the party abroad. Once service is completed, the Central Authority completes a form certifying the time, place, and method of service, and documents the person served. 

In this case, the certification issued by the Mexican Central Authority stated that the papers were served on a female employee in Grupo's legal department. Grupo filed a motion to quash service of process, arguing that it was constitutionally deficient because the employee was actually a hostess employed to greet individuals as they entered the store, and so was not an agent, officer, or representative of Grupo. Grupo further argued that the employee had no authority to accept legal documents on its behalf. Uno countered that, even if she was a hostess with no authority to accept legal documents, service was still valid because it complied with Mexican law and the Hague Convention. 

At the hearing on the motion to quash, despite not being sure as to whether the employee was merely a hostess or someone more involved with the company, the district court nonetheless denied the motion, stating that Grupo was properly served "under the laws of Mexico as well as the Hague Convention and that such service efforts satisfied constitutional standards of Due Process." Grupo petitioned the Nevada Supreme Court for a writ of prohibition, precluding the district court from exercising jurisdiction over Grupo for insufficient service of process.

The Nevada Supreme Court rejected Uno's argument that the concept of due process is already built into the Convention and could be satisfied simply by following the requirements of service of process laid out in the Convention. The court held that a constitutional inquiry is necessary even where the Convention applies, and thus whether service complies with the Constitution is a separate, though related, question from whether service complies with the Convention.2

As such, the court ruled that the district court erred in concluding that Uno's service efforts, which supposedly complied with Mexican law, also satisfied constitutional standards of due process without conducting the necessary fact-finding. The court ordered a further evidentiary hearing to determine whether service was "reasonably calculated, under all the circumstances, to apprise [Grupo] of the pendency of the action."

As Grupo Famsa recognized, while Uno may have followed the procedures outlined in the Convention, the Central Authority's service efforts may nevertheless have been constitutionally infirm, amounting to nothing more than handing off judicial documents to the equivalent of a greeter at Wal–Mart. 

Lessons for foreign entities

To uphold process as valid under those circumstances would be unjust to the foreign party defendant, because it might not have any notice of the plaintiff's attempt to serve it with process in an effort to haul it into a court of law in the United States. This is especially important to a large company made up of a diverse group of employees, each having their own special roles and responsibilities. This, in part, explains why a company designates certain person(s) responsible for accepting court papers so that the company can take timely and appropriate steps to defend itself against the allegations in the lawsuit papers. Grupo Famsa and court decisions like it remind a foreign party defendant to safeguard its protections afforded under the Constitution by demanding that service of process not only meet the requirements of the Hague Convention, but also comport with due process.


1 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), articulated the contours of the constitutional due process standard for service of process: 

[A] fundamental requirement of due process . . . is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information and it must afford a reasonable time for those interested to make their appearance. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that . . . the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Id. at 314-15.

2 This view is in line with case law from other jurisdictions. See, e.g., Burda Media Inc. v. Viertel, 417 F.3d 292, 303 (2d Cir. 2005) ("[I]n addition to the Hague Convention, service of process must also satisfy constitutional due process."); Gurung v. Malhorta, 279 F.R.D. 215, 220 (S.D.N.Y. 2011) (same); Heredia v. Transport S.A.S., Inc., 101 F. Supp. 2d 158, 162 (S.D.N.Y. 2000) (same).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.