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Filing # 75457829 E-Filed 07/24/2018 10:06:52 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL
CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA
CASE NO. 2017-CA-004395-O
DIV: 35
BRENTLEY M. HUXTABLE,
PLAINTIFF,
V.
CARLOS E. RESUMIL,
DEFENDANT.
/
DEFENDAN'
°S MOTION TO QUASH SERVICE OF PROCESS
COMES NOW, Defendant, CARLOS E. RESUMIL (hereinafter “CARLOS RESUMIL”), by and
through undersigned counsel, hereby enters a special appearance for the sole purpose of presenting
this motion without any voluntary submission to the jurisdiction of this Court, pursuant to Rules
1.080 and 1.140 of the Florida Rules of Civil Procedure and section 48.194, Florida Statutes, and
hereby files this his Motion to Quash Service of Process and Supporting Memorandum of Law,
and as grounds therefore would states as follows:
1 This lawsuit arises from an automobile accident that occurred in Orange County,
Florida on or around October 1, 2016, when the vehicle driven by Plaintiff, BRENTLEY M.
HUXTABLE (hereinafter “~BRENTLEY HUXTABLE”) collided with the vehicle driven by
Defendant, CARLOS RESUMIL. Plaintiff alleges personal injuries as a result of the crash.
2. Plaintiff acknowledged in his Complaint that Defendant is a foreign national. A
true and correct copy of the Complaint is attached hereto as “Exhibit A.”
TC# 17-0124383. However, on June 1, 2018, an alias summons was issued to Defendant, CARLOS
RESUMIL, at an address for the Florida Secretary of State in Tallahassee, Florida. A true and
correct copy of the Summons is attached hereto as “Exhibit B.”
4. This was not the first time Plaintiff had filed a Summons to be issued to Defendant
at an address for the Florida Secretary of State in this matter. Plaintiff e-filed an Alias Summons
to Defendant on three (3) prior occasions (November 8, 2017, March 2, 2018 and May 8, 2018).
It is unknown whether any of the Summons were issued for service of process upon Defendant. A
true and correct copy of same is attached hereto as “Composite Exhibit C.”
5 The first Summons filed by Plaintiff on May 15, 2017 was initially issued to
Defendant at an address in Argentina. To date, Plaintiff has not filed any documentation to
demonstrate that service was attempted upon this Defendant at his address in Argentina until June
2018. A true and correct copy of the Summons is attached hereto as “Exhibit D.”
6. Plaintiff has presented a document purporting to be a return of service in an attempt
to demonstrate service on the Secretary of State as Defendant’s agent for the service of process,
pursuant to section 48.161, Florida Statutes. The purported return of service, which Plaintiff filed
on or about July 19, 2018, is incorporated herein act “Exhibit FE.”
4. Defendant is a resident of a foreign country, namely Argentina, and service upon
him requires compliance under the Convention of 15 November 1965 on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service
Convention”), 20 U.S.T., 361, T.LA.S. No. 6638 (1969) because both the United States and
Argentina are signatures to this treaty.
8. On May 24, 2017, counsel for Defendant sent a letter to Plaintiffs counsel
requesting notification once he perfects proper service upon our client, CARLOS RESUMIL, andproof of service so we can assure that a timely responsive pleading is filed on his behalf. A true
and correct copy of said letter is attached hereto as “Exhibit F.”
9. On May 2, 2018, a Notice of Change of Counsel and Amended Notice of
Designation of E-Mail Address for Service by Electronic Mail was filed on behaif of Defendant,
CARLOS RESUMIL. A true and correct copy of said Notice is attached hereto as “Exhibit G.”
10. On June 27, 2018, Plaintiff made his first attempt to notice Defendant, CARLOS
RESUMIL, of these proceedings by purportedly sending the Complaint and interrogatories via
registered international mail in an attempt to serve him at his last known address in Argentina.
However, Plaintiff has not produced or filed a return receipt with the Defendant’s signature.
Instead, Plaintiff's counsel filed a copy of his online USPS tracking which states, “Attempted
Delivery Abroad” and “Addressee not available — Addressee advised to pick up the item
Argentina.” A true and correct copy of Plaintiff's Notice of Filing, dated July 19, 2018, is attached
hereto as “Exhibit H.”
11. On July 19, 2018, a Notice of Filing Affidavit of Compliance executed by
Plaintiff's counsel was filed to demonstrate the purported Service of Process on the Secretary of
State as Defendant’s agent for service of process, pursuant to section 48.161, Florida Statutes
(Method of Substituted Service on Nonresident). The only documents attached to Plaintiff s Notice
of Filing as proof of service upon Defendant are a copy of a receipt for the delivery of registered
mail by Plaintiff's counsel to the Defendant at an address in Argentina and a copy of the
aforementioned online USPS tracking, which do not demonstrate substituted service of process
upon Defendant by registered mail return receipt. See “Exhibit H.”
12. Plaintiff's purported service of process upon Defendant, CARLOS RESUMIL,
remains defective for numerous reasons.
w13. First, Plaintiff's attempted service of process upon Defendant is defective based on
his failure to serve Defendant within 120 days of the filing of the initial Complaint pursuant to
Florida Rule of Civil Procedure 1.070.
14. In addition, Plaintiff's attempted substitute service of process upon Defendant
through the Secretary of State of Florida, pursuant to Florida Statutes sections 48.161 and 48.171,
is defective based on Plaintiffs failure to strictly comply with the statutory prerequisites for
constructive service of process.
15. Furthermore, Defendant, CARLOS RESUMIL, is a resident of a foreign country,
namely Argentina. Service upon him requires compliance under the Hague Service Convention
because the United States and Argentina are both signatories to this international treaty which
provides the mechanism for service of process of legal documents abroad by a foreign central
authority.
16. Accordingly, such defective service of process should be quashed and Plaintiff
should be Ordered to effect proper service of process upon Defendant pursuant to the Hague
Service Convention and Florida Rule of Civil Procedure 1.070.
MEMORANDUM OF LAW
Plaintiff's Attempted Service Of Process Upon Defendant Must Be Quashed As A Matter Of
Law For Failure To Timely And Properly Serve Defendant With Process Within 120 days
Of Filing The Complaint Pursuant To Florida Rule Of Civil Procedure 1.070.
A. Pursuant to Florida Rules of Civil Procedure 1.070:
“{i]f service of the initial process and initial pleading is not made
upon a defendant within 120 days after filing of the initial pleading
directed to that defendant the court, on its own initiative after notice
or on motion, shall direct that service be effected within a specified
time or shall dismiss the action without prejudice or drop that
defendant as a party: provided that if the plaintiff shows good cause
or excusable neglect for the failure, the court shall extend the time
for service for an appropriate period. . . . A dismissal under thisIl.
subdivision shall not be considered a voluntary dismissal or operate
as an adjudication on the merits under rule 1.420(a)(1).”
Rule 1.070, Fla. R. Civ. P.
B. In the instant case, Plaintiff has not properly served Defendant, CARLOS RESUMIL,
within 120 days of filing the initial Complaint as required by Florida Rule of Civil Procedure 1.070.
Since the time when the Complaint was originally filed on May 15, 2017, Plaintiff has not perfected
proper service upon Defendant in an excess of 435 days.
G. When service of process is attempted but is invalid for whatever reason, the appropriate
disposition is to quash attempted service of process with leave to thereafter perfect service in the
manner provided by law. See Linn v. Kidd, 714 So.2d 1185 (Fla. Ist DCA 1998).
D. Thus, Defendant hereby moves this Court to quash Plaintiff's service of process as not
timely obtained and, therefore, not property perfected as a matter of law.
Plaintiff's Attempted Substitute Service Of Process Upon Defendant Via The Secretary of
State Is Improper And Insufficient For Failure To Strictly Comply With §§ 48.161 And
48.171, Florida Statutes, And Accordingly, Must Be Quashed As A Matter Of Law.
A. Pursuant to Plaintiff's “Notice of Filing Affidavit of Compliance,” filed on July 19, 2018,
Plaintiff has attempted service of process upon Defendant under section 48.171, Florida Statutes.
Section 48.171 authorizes substituted service of process upon the Secretary of State for motor
vehicle owners or operators who are non-residents or residents who have become non-residents or
concealed their whereabouts.
B. When using substituted service under section 48.171, “Plaintiff must meet two
requirements: (1) the complaint must allege the ultimate facts bringing the defendant within the
purview of the statute; and (2) the service must s¢rictly comply with section 48.161, Florida
Statutes, which sets forth the method of substituted service of process.” [emphasis added]. Monacov. Nealon, 810 So.2d 1084 (Fla. 4th DCA 2002). “Because statutes authorizing substituted service
are exceptions to the general rule requiring a defendant to be served personally, due process
requires strict compliance with their statutory requirements.” Id.; see Cason ex rel. Saferight v.
Hammock, 908 So.2d 512 (Fla. Sth DCA 2005); see also Torres v. Arnco Const., Inc., 867 So.2d
583 (Fla. Sth DCA 2004).
Cc. “Under section 48.161, the plaintiff must serve the secretary of state designated in section
48.171 and mail a copy of the summons and complaint to the defendant by registered or certified
mail.” Monaco, 810 So.2d at 1084. “The plaintiff must then file the return receipt for the papers
mailed to the defendant along with an affidavit showing compliance with the applicable statute.”
Id.. “Failure to timely file an affidavit of compliance alone warrants quashing of the substituted
service.” Id.
D. Although the “Notice of filing Affidavit of Compliance” was filed on July 19, 2017, a
return receipt signed by Defendant acknowledging receipt of the documents sent to him by
registered mail was not filed along with the Affidavit of Compliance as required pursuant to section
48.171, Florida Statutes. As of this date, the court record does not reflect complete compliance
with the requirements of section 48.161, Florida Statutes, to effect substituted service of process.
E. More importantly, Florida law requires the plaintiff to attempt personal service of process
upon the defendant to confer in personam jurisdiction in actions for personal money judgments,
before attempting substituted service of process upon the defendant. See Bedford Computer Corp.
y. Graphic Press. Inc., 484 So.2d 1225, 1227 (Fla. 1986). In addition, the plaintiff has the initial
burden of presenting facts which clearly justify the application of section 48.161, Florida Statutes.
See Leviten v. Gaunt, 360 So.2d 112 (Fla. 3rd DCA 1978); see also Bird v. Internat] Graphics.Inc., 362 So.2d 316 (Fla. 3rd DCA 1978). That is, the plaintiff must first show that using
substituted service (rather than personal service) is even justified.
F. Therefore, before resorting to substituted service of process, the plaintiff must prove that
he has exercised due diligence in attempting to locate and serve the defendant. See Cross v. Kalina,
681 So.2d 855 (Fla. Sth DCA 1996).
“[T]o overcome the primary requirement of personal service, the
plaintiff must demonstrate the exercise of due diligence in
attempting to locate the defendant. The test [for determining the
sufficiency of constructive or substituted service] is not whether it
was in fact possible to effect personal service in a given case, but
whether the complainant reasonably employed knowledge at his
command, made diligent inquiry, and exerted an honest and
conscientious effort appropriate to the circumstances, to acquire the
information necessary to enable him to effect personal service on
the defendant.”
Wiggam v. Bamfort, 562 So.2d 389, 391 (Fla 4th DCA 1990); see Grammer v. Grammer,
80 So.2d 457, 460 (Fla. 1955); see also McDaniel v. McElvey, 91 Fla. 770, 108 So. 820
(1926)).
G. In Wiggam, the plaintiff's efforts to locate the defendant included unsuccessful attempts at
service at the defendant’s address listed in the accident report, a check of the telephone book, a
check at the postal office for a forwarding address, calls to directory assistance and unsuccessful
attempts at service of process by an investigation agency. The court held that “although the
plaintiffs/appellees did make some effort to locate the defendant, their attempts do not rise to the
level of due diligence required by section 48.161, Florida Statutes” and substituted service was
insufficient. Wiggam, 562 So.2d at 392: see Linn v. Kidd, 714 So.2d 1185 (Fla. 1st DCA 1998)
(plaintiff sending certified letters to an address, which diligent inquiry would have shown was no
longer defendant’s address, did not constitute diligent search); Cross v. Kalina, 681 So.2d 856
(Fla. 5th DCA 1996) (“Other than one mailing, there is no evidence that any effort was expendedto locate [the defendant]. One mailed letter does not satisfy [the plaintiffs] burden”); see Bird v.
Internat’] Graphics. Inc., 362 So.2d 316 (Fla. 3rd DCA 1978) (failure of process server to locate
defendant at three addresses furnished by plaintiff was insufficient search and not enough to
establish concealment by defendant).
H. Plaintiff has not demonstrated any attempts to personally serve Defendant at his residence
in Argentina before resorting to substituted service. In addition, Plaintiff has failed to perform a
diligent search of Defendant’s whereabouts before attempting constructive service through the
Florida Secretary of State. Plaintiff further has not filed an Affidavit of Diligent Search
demonstrating compliance with this prerequisite to attempting substitute service on Defendant. As
such, Plaintiff has not satisfied his initial burden to justify application of section 48.161, Florida
Statutes, rather than personal service in this matter. Assuming arguendo that Plaintiffs use of
substituted service would be appropriate because a diligent search for Defendant had been
conducted in this matter, he still must comply with the strict statutory requirements for effecting
substituted service of process.
L In order to properly serve a defendant via substituted service of process, the plaintiff must
1) prove that the use of substituted service is justified in the first place because a diligent search
was made for the defendant; and 2) strictly comply with the statutorily prescribed method for
achieving substituted service. See Monaco v. Nealon, 810 So.2d 1084 (Fla. 4th DCA 2002).
“Because the statute allowing substituted service is an exception to the general rule requiring a
defendant to be personally served, due process values require strict compliance with the statutory
requirements.” [emphasis added] Id. at 1085; see Cason ex rel. Saferight vs. Hammock, 908 So.2d
512 (Fla. Sth DCA 2005). Florida state courts “have consistently held that statutes relating to
substituted service of process... must be strictly construed; and that the burden of proof to sustainthe validity of substituted service of process rests upon the person seeking to invoke the provisions
of such statutes.” Elmex Corp. v. Atlantic Fed. Sav. & Loan Ass'n, 325 So.2d 58, 61 (Fla. 4th DCA
1976).
di Under section 48.161, Florida Statutes, the plaintiff must send notice of service and
a copy of the process by registered or certified mail to the defendant; the plaintiff must file the
return receipt signed by the defendant; and the plaintiff must file an affidavit of compliance. The
purpose of these requirements is to provide notice to the defendant of the lawsuit filed against him
and to warn the defendant that he must appear in a timely manner to state such defenses as are
available. See Torres v. Arnco Const., Inc., 867 So.2d at 586 (Fla. Sth DCA 2004); see also
Shurman vy. Atl. Mortgage & Inv. Corp., 795 So.2d 952 (Fla. 2001). Thus, a jack of notice to the
defendant would violate his constitutional due process rights.
K. In the absence of strict compliance with the service of process statute, the Court
lacks personal jurisdiction over the defendant. See Sierra Holding. Inc. v. Inn Keepers Supply Co.,
464 So.2d 652 (Fla. 4th DCA 1978); see also Torres, 867 So.2d at 583 (“Jurisdiction is perfected
by the proper service of process.” “Indeed, a judgment entered without due service of process is
void,” citing Falkner vy. Amerifirst Fed. Savs. & Loan Ass‘n., 489 So.2d 758, 759 (Fla. 3rd DCA
1986)). The purpose of service substituted or otherwise is to provide the defendant with notice so
that he might exercise his opportunity to be heard. See Abbate v. Provident Nat’]. Bank, 631 So.2d
312 (Fla. Sth DCA 1994). “The Statutes regulating service of process are to be strictly construed
to assure that a defendant is notified of the proceedings” and receives notice of pleadings. Torres,
867 So.2d at 583; see Abbate, 631 So.2d at 312.L. In the instant case, Plaintiff has failed to meet the requirements set forth in section
48.161, Florida Statutes by failing to file a return receipt signed by Defendant in this case and
failing to prove that a copy of the process was sent to Defendant via certified mail.
M. Because due process requires notice to Defendant, strict compliance with all the
statutory requirements, including filing the certified return receipt signed by Defendant, is
mandatory. The only exception to the need for strict compliance in filing the signed return receipt
is in situations where the defendant is actively refusing or rejecting the substituted service of
process. See Smith v. Leaman, 826 So.2d 1077 (Fla. 2nd DCA 2002). However, the plaintiff must
establish that non-delivery of the substituted service was chargeable to the defendant due to the
defendant’s intentional refusal to accept service. Id. at 1078. Without such a refusal, there is no
exception to filing the return receipt, even when the defendant is actively concealing his
whereabouts. Id; see Linn v. Kidd, 714 So.2d 1185 (Fla. 1st DCA 1998) (substituted service was
insufficient where certified letters to the defendant were returned as undeliverable and marked
“Return to Sender: Attempted — Not known”, with no indication that the defendant intentionally
refused the letters).
N. In Smith v. Leaman, the Second District Court of Appeals of Florida explicitly
rejected the argument that the strict statutory requirements may be ignored if a defendant is actively
concealing his whereabouts:
“Despite the need for strict compliance with the statutory
requirements, the courts have created an exception to the
requirement that the plaintiff file the defendant's return receipt for
those situations in which the defendant is actively refusing or
rejecting the substituted service of process. However, in this appeal,
[plaintiffs] contend that substituted service of process should fall
within this judicially created exception whenever the defendant is
actively concealing his whereabouts. regardless of the reason for
nondelivery. We reject this contention.”Smith v. Leaman, 826 So.2d at 1078. [emphasis added].
oO. The burden is on the plaintiff to show the defendant has taken affirmative action to
conceal himself or to avoid/refuse service of process. See Hernandez v. State Farm Mutual Auto.
Ins. Co., 32 So.3d 695 (Fla. 4th DCA 2010). Moreover, just because a defendant is not located at
the last known address does not give rise to the inference that the defendant intentionally refused
process. See Hernandez, 32 So.3d at 695.
P. Again, the only exception to filing the return receipt signed by the defendant is
where the defendant is actively refusing or rejecting the substituted service of process (for
example, when the plaintiff has sent the letter to the correct address but the defendant refuses to
sign for it). The rationale for the Second DCA’s position in Smith is clear: due process requires
that a defendant have notice of a lawsuit filed against him. 826 So.2d at 1078. Where the defendant
is concealing his whereabouts there is no notice to the defendant of the lawsuit. Id.
Q. In this case, there is no evidence of a refusal by Defendant to accept a certified mail
package or of any attempt to evade service or conceal his whereabouts. Plaintiff counsel’s assertion
in his Notice of Filing Affidavit of Compliance that “Defendant and his counsel are employing
dilatory and technical tactics in avoidance of answering a duly served Complaint by virtue of
service on the Secretary of State” is misplaced and inaccurate. To the contrary, the USPS tracking
Exhibit attached to Plaintiff's Affidavit of Compliance plainly states “Attempted Delivery
Abroad” and “Addressee not available — Addressee advised to pick up the item Argentina.”
Therefore, Plaintiffs allegations are offensive and completely unfounded.
R. Plaintiff further has not made a showing of any attempts to serve Defendant at any
address except his last known address indicated on the accident report related to the subject
accident that occurred nearly two (2) year ago on or around October 1, 2016. Other than this oneattempt to constructively serve Defendant nearly two (2) years after the accident by registered mail
at his last known address, this attempt at substitute service, without first attempting to personally
serve Defendant or conduct a diligent search to locate his whereabouts, does not constitute the
requisite due diligence to allow Plaintiff to serve Defendant through substituted service of process.
As such, Plaintiff has not made a proper showing that due diligence, notice of service and a copy
of process was sent to and received by Defendant. Therefore, Plaintiff has failed to serve Defendant
as prescribed by law and his attempted substitute service of process upon Defendant is improper,
insufficient, has not been perfected and, accordingly, must be quashed.
Ss. Lastly, and ultimately, most importantly, Defendant resides in Argentina. As such,
service of process in a Florida lawsuit upon a resident of Argentina must be made in accordance
with the Hague Service Convention, a treaty to which the United States and Argentina are
signatories. Since Plaintiffs purported service was not effected through the Hague Service
Convention, the purported service is invalid and, therefore, must be quashed as a matter of law.
Ill. Applicable Preemption Law.
A. The United States is a party to two multilateral treaties on service of process, the
Hague Service Convention and the Inter-American Convention on Letters Rogatory and
Additional Protocol (Jan. 30, 1975, S Treaty Doc. No. 27, 98th Cong, 2d Sess (1984) (the
Convention)). Many Central and South American nations have not ratified the Hague Convention.
However, many of these nations are signatories to the Inter-American Service Convention
including: United States, Argentina, Brazil, Chile, Columbia, Ecuador, El Salvador, Guatemala,
Mexico, Panama, Paraguay, Peru, Uraguay and Venezuala. See 1438 U.N.T.S. 287, 14 LL.M. 339
(1975)). The Inter-American Service Convention therefore provides an important supplement tothe Hague Service Convention when U.S. litigation implicates parties located in Central and South
America. In the instant case, Argentina is a member of both treaties.
B. Provisions contained in these Conventions are intended to be superior to that of any
State and local law. See, e.g., Zschernig v. Miller, 389 U.S. 429 (1968); Boehringer-Mannheim
Diagnostics. Inc. v. Pan American World Airways. Inc., 737 F.2d 456, 459 (4th Cir.), cert. denied,
423 U.S. 877 (1975). The United States Supreme Court has held “[t]he state law must yield when
it is inconsistent with or impairs the policy or provisions of a treaty or of an international compact
or agreement.” United States v. Pink, 315 U.S. 203, 230-231 (1942). A “Convention” enjoys the
same supremacy status as a treaty. See American Trust Co. v. Smyth, 247 F.2d 149, 153 (9th Cir.
1957). International treaties are considered “self-executing” if they have the force of law without
the need for subsequent legislative action. Alvarado-Fernandez v. Mazoff, 151 So.3d 8 (2014).
See, e.g., Medellin v. Texas, 552 U.S. 491 (2008) (“What we mean by ‘self-executing’ is that the
treaty has automatic domestic effect as federal law upon ratification.”).
C. “Asa ratified treaty, the Hague Convention is of equal dignity with acts of Congress
and enjoys the constitutional status of ‘supreme Law of the Land.’” Alvarado-Fernandez, 151
So.3d at 12. Article 1 of the Hague Service Convention states that it “shall apply in all cases, in
civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial
document for service abroad.” [emphasis added]. Id. Therefore, the United States Supreme Court
has held that the Hague Service Convention is a self-executing treaty, and thus preempts
inconsistent methods of service prescribed by state law in all cases to which it applies; namely, all
civil matters where there is occasion to transmit a judicial document for service abroad.
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698-99 (1988). The Hague Service
Convention provides the exclusive and mandatory mechanism for service of process abroad. Id.Iv.
D. Likewise, “[t]he [Inter-American Service] Convention ... establish[es] a level of
international judicial cooperation among the contracting ... states analogous to that which now
exists among the 24 Contracting States to the Hague Convention on the Service Abroad of Judicial
and Extrajudicial Documents in Civil or Commercial Matters.” See President Ronald Reagan’s
“Message to the Senate Transmitting the Inter-American Convention on Letters Rogatory and a
Protocol,” dated June 25, 1984, http://www.reagan.utexas.edu/archives/speeches/1984/62584b
/htm). It is therefore undisputed that the Inter-American Service Convention was intended to
establish a process analogous to the Hague Service Convention that provides the exclusive and
mandatory means of perfecting service of process in Central and South American countries abroad.
Plaintiff's Attempted Substitute Service Of Process Upon Defendant Must Be Quashed As A
Matter Of Law For Failure To Comply With Requirements Of the Hague Service
Convention and the Inter-American Service Convention, which preempt § 48.171, Fla. Stat.
For Substitute Service on Secretary of State for Non-Residents That Operate A Motor
Vehicle Or Conceal Their Whereabouts.
A. The Hague Service Convention and the Inter-American Service Convention have
established uniform procedures for service of process among their signatories. The Inter-American
Service Convention provides an important supplement to the Hague Convention when U.S.
litigation involves parties located in Central and South America who are not members of the Hague
Convention. Each signatory to the Hague Service Convention and the Inter-American Service
Convention have established a Central Authority for receiving requests for service of process
within their borders, and for making service of process pursuant to those requests. Upon receipt
of a request for service of process, the Central Authority in the destination country will make
service by the method prescribed by local law.
B. Additionally, the Hague Service Convention and the Inter-American Service
Convention make no provision for service of process by mail. According to the U.S. Departmentof State Bureau of Consular Affairs, service of process by mail in Argentina is expressly
prohibited. See http://travel.state.gov/content/travel/csi_landing/csi_catalog/arg.html. In fact, the
U.S. State Department has reported that requests for service which are not transmitted through the
Central Authorities in both countries are often returned unserved.
c. Furthermore, American courts have held that formal objections to service by mail
made by countries party to a multilateral treaty or convention on service of process at the time of
accession or subsequently in accordance with the treaty are honored as a treaty obligation, and
litigants should refrain from using such a method of service. See DeJames_v. Magnificence
Carriers, In
, 654 F.2d 280 (3rd Cir. 1981), cert.den., 454 U.S. 1085; Porsche v. Superior Court,
123 Cal. App. 3d 755, 177 Cal. Rptr. 155 (1981).
D. At the time of ratification to these treaties, each State (i.e., country) was afforded
the opportunity to assert reservations and declarations on accession to the Hague Service
Convention and to the Inter-American Service Convention.
E. Moreover, it is noteworthy that service of process by mail may not be valid under
the laws of the foreign country. If eventual enforcement of a U.S. judgment in the foreign country
is foreseen, this method of service will not suffice. See Wright & Miller, Sec. 1135 and 1133
(1987).
Py For example, in Corporacion Salvadorena de Calzado SA. v. Injection Footwear,
533 F.Supp. 290 (S.D. Fla. 1982), an arbitration award rendered in El Salvador could not be
domesticated in the U.S. due to violations of due process requirements of both El Salvador and
Florida. The court appointed a Special Master, a University of Miami School of Law professor
who was fluent in Spanish and an expert in Latin American Law, who determined that service of
process by certified mail did not constitute sufficient service of process to support thecommencement of proceedings under El Salvador law. Id. at 296. “Specifically, as a signatory to
the Bustamante Code, El Salvador requires that Letters Rogatory or Letters Requisitorial be sent
by the issuing El Salvadorean judge through the executive department of his country to the named
judge or court in a foreign country.” Id.
G. As a result, the United States District Court, Southern District of Florida, Miami
division, held that the El Salvador judgment should be denied comity recognition because: (1) it
was not obtained by complying with the procedural requirements of the law of El Salvador both
in the commencing of arbitration proceedings and in reducing the award to judgment; (2) the
method of service of process did not comply with the law of El Salvador nor with the law of the
State of Florida; (3) the procedures utilized were not consistent with the Due Process Clause of the
Fifth Amendment of the United States Constitution and with Article 1, Section 9 of the Florida
Constitution; and (4) the validity of the judgment must be tested under the reciprocity law of the
State of Florida, and since El Salvador denies recognition of a judgment rendered by default in a
foreign country, a federal court applying Florida law should likewise do so because the judgment
was a de facto judgment in El Salvador. Id.
H. As a result of Plaintiff's failure to comply with the internationally agreed means of
serving a foreign defendant domiciled in Argentina via the Hague Service Convention or by letters
rogatory in accordance with the Inter-American Service Convention, his unauthorized mode of
attempted service of process was ineffective and, accordingly, must be quashed and Plaintiff must
be Ordered to properly perfect service upon Defendant through either the Hague Service
Convention or the Inter-American Service convention.
1. It is a relatively simple process for a party to make a request for service under the Hague
Service Convention or the Inter-American Service Convention by completing the official formsavailable at the website for the U.S. Department of Justice’s contractor, ABC Legal Services. ABC
Legal Services is the only recognized method of process service under these treaties and
conventions. See http://hagueservice.net/.
J. The official request for service is comprised of an original and two copies of the forms,
and three copies of the summons and complaint or other documents to be served. Although Article
3 of the Additional Protocol of the Inter-American Service Convention specifics that “letters
rogatory”! must be prepared as part of the request, the U.S. has taken the position that the Forms
USM-272 and 272A satisfies this requirement, and that a separate, formal letter Rogatory is not
required. A true and correct copy of the form to make a request for service under the Hague Service
Convention is attached hereto at “Exhibit I.” A/so see http://hagueservice.net/hsc.asp. A true and
correct copy of the forms used to request service under the Inter-American Service Convention are
USM-272 (English) and 272A (Spanish) are attached hereto as “Composite Exhibit J.” Also see
http://hagueservice.net/iac.asp.
K. Additionally, the Inter-American Service Convention requires the request for
service form (USM-272/272A) to bear the seal and signature of the clerk of the court from which
the process issues, as well as the signature and stamp of the Central Authority of the state in which
the court sits. Further, all documents serviced with the Form USM-272/272-A must be translated
into the language of the destination state.
L. Notably, the U.S. State Department advises that requests for service to Argentina generally
receive more prompt treatment, generally completing service within three (3) months. See
https://www.proskauerguide.com/litigation/3/III.
' SA letter Rogatory or letter of request is a formal request from a court to a foreign court for some type of judicial
assistance. See, e.g., Florida Rule of Civil Procedure 1.300(b) relating to foreign country depositions.” Alvarado-
Fernandez vy. Mazoff, 151 So.3d 8 (2014).
17M. While some foreign countries charge a $25.00 fee, it is usually recommended that a
certified check or money order in the amount of $25.00 made payable to the foreign central
authority be forwarded along with the form and the documents to be served. At the time of
ratification to the Hague Service Convention and the Inter-American Service Convention,
however, Argentina issued a declaration that it will not charge such a fee. As a result, Plaintiff will
incur costs to submit the request for service forms for processing to the Central Authorities in the
U.S. and Argentina, but there may be a fee for costs incurred to effect service in accordance with
the local law in Argentina. See https://www.hcch.net/en/states/authorities/details3/?aid=51. See
alsohttps://travel.state.gov/content/travel/en/legal/travel-legal-considerations/intern]-judicial-asst
/Service-of-Process/Inter-American-Service-Convention-Additional-Protocol.html.
V. For the foregoing reasons, Defendant, CARLOS RESUMIL, requests this Court grant his
Motion to Quash Purported Service of Process based on Plaintiff's: (1) failure to properly serve
Defendant with process within 120 days of filing the Complaint pursuant to Florida Rule of Civil
Procedure 1.070; (2) failure to demonstrate attempted personal service on Defendant and conduct
a diligent search for his whereabouts before resorting to attempted substitute service upon
Defendant via the Secretary of State: (3) failure to strictly comply with §§ 48.161 and 48.171,
Florida Statutes for Substituted Service of Process on the Secretary of State for Motor Vehicle
Operators who are Non-Residents or have Concealed their Whereabouts; and (4) failure to comply
with the requirements of the Hague Service Convention and the Inter-American Service
Convention, which preempt § 48.171, Florida Statutes, and provide the mechanism for service of
process by a foreign central authority.
Wherefore, Defendant, CARLOS RESUMIL, respectfully requests this Court enter an
Order granting Defendant’s Motion to Quash Service of Process of the Summons, Complaint and
18any discovery requests purportedly served upon Defendant for insufficient service and lack of
jurisdiction, Ordering Plaintiff to strictly comply with the service of process requirements
prescribed by Florida Rule of Civil Procedure 1.070, Ordering Plaintiff to strictly comply with the
requirements of the Hague Service Convention or the Inter-American Service Convention and
require service of process through the use of Letters Rogatory, which preempt § 48.171, Florida
Statutes or, in the alternative, Ordering Plaintiff to strictly comply with §§ 48.161 and 48.171,
Florida Statutes on substituted service of process, and granting such further relief as this Court
deems just and proper.
CERTIFICATE OF SERVICE
The document contains no confidential or sensitive information or that any such
confidential or sensitive language has been properly protected by complying with the provisions
of Rule 2.420 and 2.425. I HEREBY CERTIFY that a true and correct copy of the foregoing has
been furnished by electronic filing to John Allan Watson, Esquire/Travis J. McMillen, Esquire,
jwatson@boginmunns.com, storres@boginmunns.com, bmmservice@boginmunns.com, Bogin,
Munns & Munns, P.A., Gateway Center, 1000 Legion Place, Suite 1000, Orlando, FL 32801 on
this 24th day of July, 2018.
Xiu A : CL My
LISA A. CLARY, ESQUIRE
Fla. Bar No. 36891
Law Office of Sonya S. Wesner
200 East Robinson Street, Suite 510
Orlando, FL 32801
Telephone: — (407) 393-9100
Direct Dial: (407) 393-9408
Secretary: (407) 393-9410
Paralegal: (407) 393-9097
Fax: (877) 499-6079
Primary E-Mail: ORLMAIL@nationwide.com
Attorneys for Defendant
19(Page 2 of 4)
05/15/2017 MON 16:53 FAX (goo2z/004
Filing # 56452049 E-Filed 05/15/2017 04:29:29 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR ORANGE COUNTY, FLORIDA
CIVIL DIVISION
BRENTLEY M. HUXTABLE,
Case No.:
Plaintiff,
Ys.
CARLOS E. RESUMIL,
Defendant.
COMPLAINT
COMES NOW the Plaintiff, BRENTLEY M. HUXTABLE, by and through
undersigned counsel and sucs Defendant, CARLOS E. RESUMIL, and says:
|. This is an action for damages in excess of Fifteen Thousand Dollars ($15,000.00).
L ZLOZ/SL/G US PeANIe27euU bF 40 f Obed
2. At all times material to this action, Plaintiff, BRENTLEY M, HUXTABLE, was a
os
natural person residing in Orlando, Orange County, Florida,
3, At all times material to this action, Defendant, CARLOS E. RESUMIL, was a
natural person residing in Belen de Escobar in Buenos Aires, Argentina.
4. Venue is proper in Orange County, Florida pursuant to Florida Statute Section
47.011.
5, The event, a motor vehicle accident, which gives rise to this action occurred in
Orlando, Orange County, Florida.
6. On or about October 1, 2016, Plaintiff, BRENTLEY M. HUXTABLE, was
onerating a motor vehicle on Universal Roulevard and Hollywood Way in Orlando, Orange
County, Florida.
Page 1 of 3
DEFENDANT'S
EXHIBIT
‘tL PaepueIs UeJUNOCW SN] Wid OS
:
2
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2
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Z(Page 3 of 4)
05/15/2017 MON 16:53 FAX oo03/o0a
7. At said time and place, the Defendant, CARLOS E. RESUMIL, operated a motor
vehicle owned and maintained by Sixt Rent a Car., a foreign Limited Liability Corporation doing
business in Florida, at or near the crash location which collided with Plaintiff's motor vehicle.
8. At said time and place Defendant, CARLOS EK. RESUMIL, negligently operated
said motor vehicle so that it collided with the Plaintiff, BRENTLEY M. HUXTABLE’s, vehicle
being driven by Plaintiff.
9. All necessary conditions precedent to the commencement of this action have been
either satisfied or waived.
CLAIM OF BRENTLEY M. HUXTABL! GAINST CARLOS E. RESUMIL
10. Plaintiff, BRENTLEY M. HUXTABLE, realleges and incorporates by reference
paragraphs 1-9 as fully set forth herein.
11. Defendant, CARLOS E, RESUMIL, was negligent by operating said motor vehicle
in a negligent and careless manner so as to cause it to collide with a vehicle then and there
Operated by Plaintiff, BRENTLEY M, HUXTABLE.
L ZLOZ/SL/g UC PeAIBIEYH yp 4sJO © OBeEd
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12. As a direct and proximate result of the said negligent operation of the
said motor vehicle by Defendant, CARLOS E. RESUMIL, the Plaintiff, BRENTLEY M.
HUXTABLE, has suffered bodily injury, and resulting pain and suffering, disability,
disfigurement, mental anguish and pain, loss of earnings, loss of ability to earn money and
aggravation of a previously existing condition and has incurred substantial medical expenses for
treatment and care, past, present and future. Said losses, injuries and expenses are cither
permanent or continuing in nature and Plaintiff, BRENTLEY M. HUXTABLE will continue to
suffer same in the future. Further, said Plaintiff, was caused to suffer damages to his automobile.
WHEREFORE, Plaintiff, BRENTLEY M. HUXTABLE, demands judgment for damages
against Defendant, CARLOS E. RESUMIL and such other relief as this Court deems just and
proper.
Page 2 of 3
feu, Paepues UIe,JUNOW SN] Wid OS(Page 4 of 4)
L ZLOZ/SL/G US PeATETDeuU PF 4C y OBeEd
os:
‘aU PAepueIS UIEZJUNOCW SN] Wid OS
05/15/2017 MON 16:53 FAX
Wooa/ooe
DEMAND FOR JURY TRIAL
Plaintiff, BRENTLEY M. HUXTABLE, hereby respectfully requests this Court allow a
jury trial on all issues so triable.
Dated this 15" day of May, 2017.
1131 Jovan Wotyow
John Allan Watson, Esquire
Florida Bar Number 92596
Travis J. McMillen, Esquire
Florida Bar Number 0185655
BOGIN, MUNNS & MUNNS, P.A.
Gateway Center
1000 Legion Place, Suite 1000
Orlando, Florida 32801
Tel: 407-578-9696
Fax: 407-241-3800
Primary: jwatson@boginmunns,com
Secondary: storres@boginmunns,com
Attorneys for Plaintiff
Page 3 of 3Filing # 72542307 E-Filed 05/23/2018 10:09:45 AM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND FOR
ORANGE COUNTY, FLORIDA
CIVIL DIVISION |
Case No.: 2017-CA-004395-O
BRENTLEY M. HUXTABLE,
Plaintiff,
vs.
CARLOS E. RESUMIL,
Defendant.
- ALIAS SUMMONS ~ PERSONAL SERVICE ON A NATURAL PERSON
THE STATE OF FLORIDA:
To all and singular sheriffs of said state:
YOU ARE HEREBY COMMANDED to serve Summons, and Complaint, in the above-
styled cause, upon the Defendant:
CARLOS RESUMIL
c/o SECRETARY OF STATE
P.O. Box 6327
Tallahassee, FL 32314
Each Defendant is hereby required to serve written defenses to said Complaint on:
John A. Watson, Esquire
BOGIN, MUNNS & MUNNS, P.A.
1000 Legion Place, Suite 1000
Orlando, FL 32802
(407) 578-9696
IMPORTANT
A lawsuit has been filed against you. You have (20) calendar days after this Summons is served on
you, exclusive of the day of service, to file a written response to the attached Complaint in this
Court. A phone call will not protect you; your written response, including the above number and
named parties, must be filed if you want the Court to hear your case. If you do not file your
response on time, a default will be entered against you for the relief demanded in the Complaint or
Petition, you may lose the case, and your wages, money, and property may thereafter be taken
without further warning from the Court. There are other legal requirements. You may want to call
an attorney right away. If you do not know an attorney, you may call an attorney referral service
DEFENDANT'S
EXHIBIT Page 1 of 3
g
g
#
8 Bor a legal aid office (listed in the phone book). If you choose to file a written yourself, at the same
time you file your written response to the court you must also mail or take a copy of your written
response to the “Plaintiff's Attorney” named above.
IMPORTANTE
Usted ha sido demandado legalmente. Tiene veinte (20) dias contados, a partir del recibo de esta
notificacion, para contestar la demanda adjunta, por escrito, y presentarla ante este tribunal. Una
llamada telefonica no lo protegera; si uested desea que el tribunal considere su defensa, debe
presentar su respuesta por escrito, incluyendo el numero del caso y los nombres del las partes
interesadas en dicho caso. Si usted no contesta la demanda a tiempo, pudiese perder el caso y
podria ser desojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del
tribunal. Existen otros requisitos legales. Si lo desea, puede usted consultar a un abogado
immediatamente. Si no conoce a un abogado, puede Ilamar a una de las oficinas de asistencia legal
que aparencen en la guia telefonica.
Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su respuesta ante
el tribunal, debera usted enviar por correo, 0 entregar una copia de su respuesta a la persona
denonimada abajo como "Plaintiff/Plaintiffs Attorney" (Demandante o Abogado del
Demandante).
IMPORTANT
Des poursuites judiciaires ont ete entreprises contre vous. Vous avez 20 jours consecutifs a partir
de la date de l'assignation de cette citation pour deposer une reponse ecrite a la plainte ci-jointe
aupres de ce Tribunal. Un simple coup de telephone est insuffisant pour vous protegar; vous etes
oblige de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus et du nom des
parties nommees ici, si vous souhaitez que le Tribunal entende votre cause. Si vous ne deposez pas
votre reponse ecrite dans le relai requis, vous risquez de perdre la cause ainsi que votre salaire,
votre argent, et vos biens peuvcent etre saisis par la suite, sans aucun preavis ulterieur du Tribunal.
Il y a d'autres obligations juridiques et vous pouvez requerir les services immediats d'un avocat. Si
vous ne connaissez pas d'avocat, vous pourriez telephoner a un service de reference d'advocats ou a
un bureau d'assistance juridique (figurante a l'annuaire de telephones).
Si vous choisissez de deposer vous-meme un reponse ecrite, il vous faudra egalement, en meme
temps que cette fvormalite, faire parvenir ou expedier une copie au carbone ou une photocopie de
votre reponse ecrite au "Plaintiff/Plaintiffs Attorney" (Plaingnant ou a son avocat) nomme ci-
dessous.
Page 2 of 3Tiffany Moore Russell
CLERK OF THE COURT
BY:
Deputy Clerk
Civil Division
425 N. Orange Avenue
Room 310
Orlando, Florida 32801
NOTICE TO PERSONS WITH DISABILITIES
AMERICANS WITH DISABILITIES ACT. If you are a person with a disability who needs any
accommodation in order to participate in a court proceeding or event, you are entitled, at no cost
to you, to the provision of certain assistance. Please contact ADA Coordinator, Human
Resources, Orange County Courthouse, 425 N. Orange Avenue, Suite 510, Orlando, Florida,
(407) 836-2303, fax: 407-836-2204, at least 7 days before your scheduled court appearance, or
immediately upon receiving notification if the time before the scheduled court appearance is less
than 7 days. If you are hearing or voice impaired, call 711 to reach the Telecommunications
Relay Service.
Page 3 of 3Filing # 63940213 E-Filed 11/08/2017 02:16:09 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND FOR
ORANGE COUNTY, FLORIDA
CIVIL DIVISION
BRENTLEY M. HUXTABLE,
Case No.: 2017-CA-004395-O
Plaintiff,
vs.
CARLOS E. RESUMIL,
Defendant.
ALIAS SUMMONS — PERSONAL SERVICE ON A NATURAL PERSON
ALIAS SUMAN SS EE Seer
THE STATE OF FLORIDA:
To all and singular sheriffs of said state:
YOU ARE HEREBY COMMANDED to serve Summons, and Complaint, in the above-
styled cause, upon the Defendant:
CARLOS RESUMIL
c/o SECRETARY OF STATE
P.O. Box 6327
Tallahassee, FL 32314
Each Defendant is hereby required to serve written defenses to said Complaint on:
John A. Watson, Esquire
BOGIN, MUNNS & MUNNS, P.A.
1000 Legion Place, Suite 1000
Orlando, FL 32802
(407) 578-9696
IMPORTANT
A lawsuit has been filed against you. You have (20) calendar days after this Summons is served on
you, exclusive of the day of service, to file a written response to the attached Complaint in this
Court. A phone call will not protect you; your written response, including the above number and
named parties, must be filed if you want the Court to hear your case. If you do not file your
response on time, a default will be entered against you for the relief demanded in the Complaint or
Petition, you may lose the case, and your wages, money, and property may thereafter be taken
without further warning from the Court. There are other legal requirements. You may want to call
an attorney right away. If you do not know an attorney, you may call an attorney referral service
3 DEFENDANT'S
EXHIBIT Page 1 of 3
Pe
;or a legal aid office (listed in the phone book). If you choose to file a written yourself, at the same
time you file your written response to the court you must also mail or take a copy of your written
response to the “Plaintiff's Attorney” named above.
IMPORTANTE
Usted ha sido demandado legalmente. Tiene veinte (20) dias contados, a partir del recibo de esta
notificacion, para contestar la demanda adjunta, por escrito, y presentarla ante este tribunal. Una
llamada telefonica no lo protegera; si uested desea que el tribunal considere su defensa, debe
presentar su respuesta por escrito, incluyendo el numero del caso y los nombres del las partes
interesadas en dicho caso. Si usted no contesta la demanda a tiempo, pudiese perder el caso y
podria ser desojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del
tribunal. Existen otros requisitos legales. Si lo desea, puede usted consultar a un abogado
immediatamente. Sino conoce a un abogado, puede llamar a una de las oficinas de asistencia legal
que aparencen en la guia telefonica.
Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su respuesta ante
el tribunal, debera usted enviar por correo, o entregar una copia de su respuesta a la persona
denonimada abajo como "Plaintiff/Plaintiff's Attorney" (Demandante o Abogado del
Demandante).
IMPORTANT
Des poursuites judiciaires ont ete entreprises contre vous. Vous avez 20 jours consecutifs a partir
de la date de l'assignation de cette citation pour deposer une reponse ecrite a la plainte ci-jointe
aupres de ce Tribunal. Un simple coup de telephone est insuffisant pour vous protegar; vous etes
oblige de deposer votre reponse ecrite, avec men
Preview
Filing # 75457829 E-Filed 07/24/2018 10:06:52 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO. 2017-CA-004395-O DIV: 35 BRENTLEY M. HUXTABLE, PLAINTIFF, V. CARLOS E. RESUMIL, DEFENDANT. / DEFENDAN' °S MOTION TO QUASH SERVICE OF PROCESS COMES NOW, Defendant, CARLOS E. RESUMIL (hereinafter “CARLOS RESUMIL”), by and through undersigned counsel, hereby enters a special appearance for the sole purpose of presenting this motion without any voluntary submission to the jurisdiction of this Court, pursuant to Rules 1.080 and 1.140 of the Florida Rules of Civil Procedure and section 48.194, Florida Statutes, and hereby files this his Motion to Quash Service of Process and Supporting Memorandum of Law, and as grounds therefore would states as follows: 1 This lawsuit arises from an automobile accident that occurred in Orange County, Florida on or around October 1, 2016, when the vehicle driven by Plaintiff, BRENTLEY M. HUXTABLE (hereinafter “~BRENTLEY HUXTABLE”) collided with the vehicle driven by Defendant, CARLOS RESUMIL. Plaintiff alleges personal injuries as a result of the crash. 2. Plaintiff acknowledged in his Complaint that Defendant is a foreign national. A true and correct copy of the Complaint is attached hereto as “Exhibit A.” TC# 17-0124383. However, on June 1, 2018, an alias summons was issued to Defendant, CARLOS RESUMIL, at an address for the Florida Secretary of State in Tallahassee, Florida. A true and correct copy of the Summons is attached hereto as “Exhibit B.” 4. This was not the first time Plaintiff had filed a Summons to be issued to Defendant at an address for the Florida Secretary of State in this matter. Plaintiff e-filed an Alias Summons to Defendant on three (3) prior occasions (November 8, 2017, March 2, 2018 and May 8, 2018). It is unknown whether any of the Summons were issued for service of process upon Defendant. A true and correct copy of same is attached hereto as “Composite Exhibit C.” 5 The first Summons filed by Plaintiff on May 15, 2017 was initially issued to Defendant at an address in Argentina. To date, Plaintiff has not filed any documentation to demonstrate that service was attempted upon this Defendant at his address in Argentina until June 2018. A true and correct copy of the Summons is attached hereto as “Exhibit D.” 6. Plaintiff has presented a document purporting to be a return of service in an attempt to demonstrate service on the Secretary of State as Defendant’s agent for the service of process, pursuant to section 48.161, Florida Statutes. The purported return of service, which Plaintiff filed on or about July 19, 2018, is incorporated herein act “Exhibit FE.” 4. Defendant is a resident of a foreign country, namely Argentina, and service upon him requires compliance under the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention”), 20 U.S.T., 361, T.LA.S. No. 6638 (1969) because both the United States and Argentina are signatures to this treaty. 8. On May 24, 2017, counsel for Defendant sent a letter to Plaintiffs counsel requesting notification once he perfects proper service upon our client, CARLOS RESUMIL, andproof of service so we can assure that a timely responsive pleading is filed on his behalf. A true and correct copy of said letter is attached hereto as “Exhibit F.” 9. On May 2, 2018, a Notice of Change of Counsel and Amended Notice of Designation of E-Mail Address for Service by Electronic Mail was filed on behaif of Defendant, CARLOS RESUMIL. A true and correct copy of said Notice is attached hereto as “Exhibit G.” 10. On June 27, 2018, Plaintiff made his first attempt to notice Defendant, CARLOS RESUMIL, of these proceedings by purportedly sending the Complaint and interrogatories via registered international mail in an attempt to serve him at his last known address in Argentina. However, Plaintiff has not produced or filed a return receipt with the Defendant’s signature. Instead, Plaintiff's counsel filed a copy of his online USPS tracking which states, “Attempted Delivery Abroad” and “Addressee not available — Addressee advised to pick up the item Argentina.” A true and correct copy of Plaintiff's Notice of Filing, dated July 19, 2018, is attached hereto as “Exhibit H.” 11. On July 19, 2018, a Notice of Filing Affidavit of Compliance executed by Plaintiff's counsel was filed to demonstrate the purported Service of Process on the Secretary of State as Defendant’s agent for service of process, pursuant to section 48.161, Florida Statutes (Method of Substituted Service on Nonresident). The only documents attached to Plaintiff s Notice of Filing as proof of service upon Defendant are a copy of a receipt for the delivery of registered mail by Plaintiff's counsel to the Defendant at an address in Argentina and a copy of the aforementioned online USPS tracking, which do not demonstrate substituted service of process upon Defendant by registered mail return receipt. See “Exhibit H.” 12. Plaintiff's purported service of process upon Defendant, CARLOS RESUMIL, remains defective for numerous reasons. w13. First, Plaintiff's attempted service of process upon Defendant is defective based on his failure to serve Defendant within 120 days of the filing of the initial Complaint pursuant to Florida Rule of Civil Procedure 1.070. 14. In addition, Plaintiff's attempted substitute service of process upon Defendant through the Secretary of State of Florida, pursuant to Florida Statutes sections 48.161 and 48.171, is defective based on Plaintiffs failure to strictly comply with the statutory prerequisites for constructive service of process. 15. Furthermore, Defendant, CARLOS RESUMIL, is a resident of a foreign country, namely Argentina. Service upon him requires compliance under the Hague Service Convention because the United States and Argentina are both signatories to this international treaty which provides the mechanism for service of process of legal documents abroad by a foreign central authority. 16. Accordingly, such defective service of process should be quashed and Plaintiff should be Ordered to effect proper service of process upon Defendant pursuant to the Hague Service Convention and Florida Rule of Civil Procedure 1.070. MEMORANDUM OF LAW Plaintiff's Attempted Service Of Process Upon Defendant Must Be Quashed As A Matter Of Law For Failure To Timely And Properly Serve Defendant With Process Within 120 days Of Filing The Complaint Pursuant To Florida Rule Of Civil Procedure 1.070. A. Pursuant to Florida Rules of Civil Procedure 1.070: “{i]f service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party: provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period. . . . A dismissal under thisIl. subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).” Rule 1.070, Fla. R. Civ. P. B. In the instant case, Plaintiff has not properly served Defendant, CARLOS RESUMIL, within 120 days of filing the initial Complaint as required by Florida Rule of Civil Procedure 1.070. Since the time when the Complaint was originally filed on May 15, 2017, Plaintiff has not perfected proper service upon Defendant in an excess of 435 days. G. When service of process is attempted but is invalid for whatever reason, the appropriate disposition is to quash attempted service of process with leave to thereafter perfect service in the manner provided by law. See Linn v. Kidd, 714 So.2d 1185 (Fla. Ist DCA 1998). D. Thus, Defendant hereby moves this Court to quash Plaintiff's service of process as not timely obtained and, therefore, not property perfected as a matter of law. Plaintiff's Attempted Substitute Service Of Process Upon Defendant Via The Secretary of State Is Improper And Insufficient For Failure To Strictly Comply With §§ 48.161 And 48.171, Florida Statutes, And Accordingly, Must Be Quashed As A Matter Of Law. A. Pursuant to Plaintiff's “Notice of Filing Affidavit of Compliance,” filed on July 19, 2018, Plaintiff has attempted service of process upon Defendant under section 48.171, Florida Statutes. Section 48.171 authorizes substituted service of process upon the Secretary of State for motor vehicle owners or operators who are non-residents or residents who have become non-residents or concealed their whereabouts. B. When using substituted service under section 48.171, “Plaintiff must meet two requirements: (1) the complaint must allege the ultimate facts bringing the defendant within the purview of the statute; and (2) the service must s¢rictly comply with section 48.161, Florida Statutes, which sets forth the method of substituted service of process.” [emphasis added]. Monacov. Nealon, 810 So.2d 1084 (Fla. 4th DCA 2002). “Because statutes authorizing substituted service are exceptions to the general rule requiring a defendant to be served personally, due process requires strict compliance with their statutory requirements.” Id.; see Cason ex rel. Saferight v. Hammock, 908 So.2d 512 (Fla. Sth DCA 2005); see also Torres v. Arnco Const., Inc., 867 So.2d 583 (Fla. Sth DCA 2004). Cc. “Under section 48.161, the plaintiff must serve the secretary of state designated in section 48.171 and mail a copy of the summons and complaint to the defendant by registered or certified mail.” Monaco, 810 So.2d at 1084. “The plaintiff must then file the return receipt for the papers mailed to the defendant along with an affidavit showing compliance with the applicable statute.” Id.. “Failure to timely file an affidavit of compliance alone warrants quashing of the substituted service.” Id. D. Although the “Notice of filing Affidavit of Compliance” was filed on July 19, 2017, a return receipt signed by Defendant acknowledging receipt of the documents sent to him by registered mail was not filed along with the Affidavit of Compliance as required pursuant to section 48.171, Florida Statutes. As of this date, the court record does not reflect complete compliance with the requirements of section 48.161, Florida Statutes, to effect substituted service of process. E. More importantly, Florida law requires the plaintiff to attempt personal service of process upon the defendant to confer in personam jurisdiction in actions for personal money judgments, before attempting substituted service of process upon the defendant. See Bedford Computer Corp. y. Graphic Press. Inc., 484 So.2d 1225, 1227 (Fla. 1986). In addition, the plaintiff has the initial burden of presenting facts which clearly justify the application of section 48.161, Florida Statutes. See Leviten v. Gaunt, 360 So.2d 112 (Fla. 3rd DCA 1978); see also Bird v. Internat] Graphics.Inc., 362 So.2d 316 (Fla. 3rd DCA 1978). That is, the plaintiff must first show that using substituted service (rather than personal service) is even justified. F. Therefore, before resorting to substituted service of process, the plaintiff must prove that he has exercised due diligence in attempting to locate and serve the defendant. See Cross v. Kalina, 681 So.2d 855 (Fla. Sth DCA 1996). “[T]o overcome the primary requirement of personal service, the plaintiff must demonstrate the exercise of due diligence in attempting to locate the defendant. The test [for determining the sufficiency of constructive or substituted service] is not whether it was in fact possible to effect personal service in a given case, but whether the complainant reasonably employed knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable him to effect personal service on the defendant.” Wiggam v. Bamfort, 562 So.2d 389, 391 (Fla 4th DCA 1990); see Grammer v. Grammer, 80 So.2d 457, 460 (Fla. 1955); see also McDaniel v. McElvey, 91 Fla. 770, 108 So. 820 (1926)). G. In Wiggam, the plaintiff's efforts to locate the defendant included unsuccessful attempts at service at the defendant’s address listed in the accident report, a check of the telephone book, a check at the postal office for a forwarding address, calls to directory assistance and unsuccessful attempts at service of process by an investigation agency. The court held that “although the plaintiffs/appellees did make some effort to locate the defendant, their attempts do not rise to the level of due diligence required by section 48.161, Florida Statutes” and substituted service was insufficient. Wiggam, 562 So.2d at 392: see Linn v. Kidd, 714 So.2d 1185 (Fla. 1st DCA 1998) (plaintiff sending certified letters to an address, which diligent inquiry would have shown was no longer defendant’s address, did not constitute diligent search); Cross v. Kalina, 681 So.2d 856 (Fla. 5th DCA 1996) (“Other than one mailing, there is no evidence that any effort was expendedto locate [the defendant]. One mailed letter does not satisfy [the plaintiffs] burden”); see Bird v. Internat’] Graphics. Inc., 362 So.2d 316 (Fla. 3rd DCA 1978) (failure of process server to locate defendant at three addresses furnished by plaintiff was insufficient search and not enough to establish concealment by defendant). H. Plaintiff has not demonstrated any attempts to personally serve Defendant at his residence in Argentina before resorting to substituted service. In addition, Plaintiff has failed to perform a diligent search of Defendant’s whereabouts before attempting constructive service through the Florida Secretary of State. Plaintiff further has not filed an Affidavit of Diligent Search demonstrating compliance with this prerequisite to attempting substitute service on Defendant. As such, Plaintiff has not satisfied his initial burden to justify application of section 48.161, Florida Statutes, rather than personal service in this matter. Assuming arguendo that Plaintiffs use of substituted service would be appropriate because a diligent search for Defendant had been conducted in this matter, he still must comply with the strict statutory requirements for effecting substituted service of process. L In order to properly serve a defendant via substituted service of process, the plaintiff must 1) prove that the use of substituted service is justified in the first place because a diligent search was made for the defendant; and 2) strictly comply with the statutorily prescribed method for achieving substituted service. See Monaco v. Nealon, 810 So.2d 1084 (Fla. 4th DCA 2002). “Because the statute allowing substituted service is an exception to the general rule requiring a defendant to be personally served, due process values require strict compliance with the statutory requirements.” [emphasis added] Id. at 1085; see Cason ex rel. Saferight vs. Hammock, 908 So.2d 512 (Fla. Sth DCA 2005). Florida state courts “have consistently held that statutes relating to substituted service of process... must be strictly construed; and that the burden of proof to sustainthe validity of substituted service of process rests upon the person seeking to invoke the provisions of such statutes.” Elmex Corp. v. Atlantic Fed. Sav. & Loan Ass'n, 325 So.2d 58, 61 (Fla. 4th DCA 1976). di Under section 48.161, Florida Statutes, the plaintiff must send notice of service and a copy of the process by registered or certified mail to the defendant; the plaintiff must file the return receipt signed by the defendant; and the plaintiff must file an affidavit of compliance. The purpose of these requirements is to provide notice to the defendant of the lawsuit filed against him and to warn the defendant that he must appear in a timely manner to state such defenses as are available. See Torres v. Arnco Const., Inc., 867 So.2d at 586 (Fla. Sth DCA 2004); see also Shurman vy. Atl. Mortgage & Inv. Corp., 795 So.2d 952 (Fla. 2001). Thus, a jack of notice to the defendant would violate his constitutional due process rights. K. In the absence of strict compliance with the service of process statute, the Court lacks personal jurisdiction over the defendant. See Sierra Holding. Inc. v. Inn Keepers Supply Co., 464 So.2d 652 (Fla. 4th DCA 1978); see also Torres, 867 So.2d at 583 (“Jurisdiction is perfected by the proper service of process.” “Indeed, a judgment entered without due service of process is void,” citing Falkner vy. Amerifirst Fed. Savs. & Loan Ass‘n., 489 So.2d 758, 759 (Fla. 3rd DCA 1986)). The purpose of service substituted or otherwise is to provide the defendant with notice so that he might exercise his opportunity to be heard. See Abbate v. Provident Nat’]. Bank, 631 So.2d 312 (Fla. Sth DCA 1994). “The Statutes regulating service of process are to be strictly construed to assure that a defendant is notified of the proceedings” and receives notice of pleadings. Torres, 867 So.2d at 583; see Abbate, 631 So.2d at 312.L. In the instant case, Plaintiff has failed to meet the requirements set forth in section 48.161, Florida Statutes by failing to file a return receipt signed by Defendant in this case and failing to prove that a copy of the process was sent to Defendant via certified mail. M. Because due process requires notice to Defendant, strict compliance with all the statutory requirements, including filing the certified return receipt signed by Defendant, is mandatory. The only exception to the need for strict compliance in filing the signed return receipt is in situations where the defendant is actively refusing or rejecting the substituted service of process. See Smith v. Leaman, 826 So.2d 1077 (Fla. 2nd DCA 2002). However, the plaintiff must establish that non-delivery of the substituted service was chargeable to the defendant due to the defendant’s intentional refusal to accept service. Id. at 1078. Without such a refusal, there is no exception to filing the return receipt, even when the defendant is actively concealing his whereabouts. Id; see Linn v. Kidd, 714 So.2d 1185 (Fla. 1st DCA 1998) (substituted service was insufficient where certified letters to the defendant were returned as undeliverable and marked “Return to Sender: Attempted — Not known”, with no indication that the defendant intentionally refused the letters). N. In Smith v. Leaman, the Second District Court of Appeals of Florida explicitly rejected the argument that the strict statutory requirements may be ignored if a defendant is actively concealing his whereabouts: “Despite the need for strict compliance with the statutory requirements, the courts have created an exception to the requirement that the plaintiff file the defendant's return receipt for those situations in which the defendant is actively refusing or rejecting the substituted service of process. However, in this appeal, [plaintiffs] contend that substituted service of process should fall within this judicially created exception whenever the defendant is actively concealing his whereabouts. regardless of the reason for nondelivery. We reject this contention.”Smith v. Leaman, 826 So.2d at 1078. [emphasis added]. oO. The burden is on the plaintiff to show the defendant has taken affirmative action to conceal himself or to avoid/refuse service of process. See Hernandez v. State Farm Mutual Auto. Ins. Co., 32 So.3d 695 (Fla. 4th DCA 2010). Moreover, just because a defendant is not located at the last known address does not give rise to the inference that the defendant intentionally refused process. See Hernandez, 32 So.3d at 695. P. Again, the only exception to filing the return receipt signed by the defendant is where the defendant is actively refusing or rejecting the substituted service of process (for example, when the plaintiff has sent the letter to the correct address but the defendant refuses to sign for it). The rationale for the Second DCA’s position in Smith is clear: due process requires that a defendant have notice of a lawsuit filed against him. 826 So.2d at 1078. Where the defendant is concealing his whereabouts there is no notice to the defendant of the lawsuit. Id. Q. In this case, there is no evidence of a refusal by Defendant to accept a certified mail package or of any attempt to evade service or conceal his whereabouts. Plaintiff counsel’s assertion in his Notice of Filing Affidavit of Compliance that “Defendant and his counsel are employing dilatory and technical tactics in avoidance of answering a duly served Complaint by virtue of service on the Secretary of State” is misplaced and inaccurate. To the contrary, the USPS tracking Exhibit attached to Plaintiff's Affidavit of Compliance plainly states “Attempted Delivery Abroad” and “Addressee not available — Addressee advised to pick up the item Argentina.” Therefore, Plaintiffs allegations are offensive and completely unfounded. R. Plaintiff further has not made a showing of any attempts to serve Defendant at any address except his last known address indicated on the accident report related to the subject accident that occurred nearly two (2) year ago on or around October 1, 2016. Other than this oneattempt to constructively serve Defendant nearly two (2) years after the accident by registered mail at his last known address, this attempt at substitute service, without first attempting to personally serve Defendant or conduct a diligent search to locate his whereabouts, does not constitute the requisite due diligence to allow Plaintiff to serve Defendant through substituted service of process. As such, Plaintiff has not made a proper showing that due diligence, notice of service and a copy of process was sent to and received by Defendant. Therefore, Plaintiff has failed to serve Defendant as prescribed by law and his attempted substitute service of process upon Defendant is improper, insufficient, has not been perfected and, accordingly, must be quashed. Ss. Lastly, and ultimately, most importantly, Defendant resides in Argentina. As such, service of process in a Florida lawsuit upon a resident of Argentina must be made in accordance with the Hague Service Convention, a treaty to which the United States and Argentina are signatories. Since Plaintiffs purported service was not effected through the Hague Service Convention, the purported service is invalid and, therefore, must be quashed as a matter of law. Ill. Applicable Preemption Law. A. The United States is a party to two multilateral treaties on service of process, the Hague Service Convention and the Inter-American Convention on Letters Rogatory and Additional Protocol (Jan. 30, 1975, S Treaty Doc. No. 27, 98th Cong, 2d Sess (1984) (the Convention)). Many Central and South American nations have not ratified the Hague Convention. However, many of these nations are signatories to the Inter-American Service Convention including: United States, Argentina, Brazil, Chile, Columbia, Ecuador, El Salvador, Guatemala, Mexico, Panama, Paraguay, Peru, Uraguay and Venezuala. See 1438 U.N.T.S. 287, 14 LL.M. 339 (1975)). The Inter-American Service Convention therefore provides an important supplement tothe Hague Service Convention when U.S. litigation implicates parties located in Central and South America. In the instant case, Argentina is a member of both treaties. B. Provisions contained in these Conventions are intended to be superior to that of any State and local law. See, e.g., Zschernig v. Miller, 389 U.S. 429 (1968); Boehringer-Mannheim Diagnostics. Inc. v. Pan American World Airways. Inc., 737 F.2d 456, 459 (4th Cir.), cert. denied, 423 U.S. 877 (1975). The United States Supreme Court has held “[t]he state law must yield when it is inconsistent with or impairs the policy or provisions of a treaty or of an international compact or agreement.” United States v. Pink, 315 U.S. 203, 230-231 (1942). A “Convention” enjoys the same supremacy status as a treaty. See American Trust Co. v. Smyth, 247 F.2d 149, 153 (9th Cir. 1957). International treaties are considered “self-executing” if they have the force of law without the need for subsequent legislative action. Alvarado-Fernandez v. Mazoff, 151 So.3d 8 (2014). See, e.g., Medellin v. Texas, 552 U.S. 491 (2008) (“What we mean by ‘self-executing’ is that the treaty has automatic domestic effect as federal law upon ratification.”). C. “Asa ratified treaty, the Hague Convention is of equal dignity with acts of Congress and enjoys the constitutional status of ‘supreme Law of the Land.’” Alvarado-Fernandez, 151 So.3d at 12. Article 1 of the Hague Service Convention states that it “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” [emphasis added]. Id. Therefore, the United States Supreme Court has held that the Hague Service Convention is a self-executing treaty, and thus preempts inconsistent methods of service prescribed by state law in all cases to which it applies; namely, all civil matters where there is occasion to transmit a judicial document for service abroad. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698-99 (1988). The Hague Service Convention provides the exclusive and mandatory mechanism for service of process abroad. Id.Iv. D. Likewise, “[t]he [Inter-American Service] Convention ... establish[es] a level of international judicial cooperation among the contracting ... states analogous to that which now exists among the 24 Contracting States to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.” See President Ronald Reagan’s “Message to the Senate Transmitting the Inter-American Convention on Letters Rogatory and a Protocol,” dated June 25, 1984, http://www.reagan.utexas.edu/archives/speeches/1984/62584b /htm). It is therefore undisputed that the Inter-American Service Convention was intended to establish a process analogous to the Hague Service Convention that provides the exclusive and mandatory means of perfecting service of process in Central and South American countries abroad. Plaintiff's Attempted Substitute Service Of Process Upon Defendant Must Be Quashed As A Matter Of Law For Failure To Comply With Requirements Of the Hague Service Convention and the Inter-American Service Convention, which preempt § 48.171, Fla. Stat. For Substitute Service on Secretary of State for Non-Residents That Operate A Motor Vehicle Or Conceal Their Whereabouts. A. The Hague Service Convention and the Inter-American Service Convention have established uniform procedures for service of process among their signatories. The Inter-American Service Convention provides an important supplement to the Hague Convention when U.S. litigation involves parties located in Central and South America who are not members of the Hague Convention. Each signatory to the Hague Service Convention and the Inter-American Service Convention have established a Central Authority for receiving requests for service of process within their borders, and for making service of process pursuant to those requests. Upon receipt of a request for service of process, the Central Authority in the destination country will make service by the method prescribed by local law. B. Additionally, the Hague Service Convention and the Inter-American Service Convention make no provision for service of process by mail. According to the U.S. Departmentof State Bureau of Consular Affairs, service of process by mail in Argentina is expressly prohibited. See http://travel.state.gov/content/travel/csi_landing/csi_catalog/arg.html. In fact, the U.S. State Department has reported that requests for service which are not transmitted through the Central Authorities in both countries are often returned unserved. c. Furthermore, American courts have held that formal objections to service by mail made by countries party to a multilateral treaty or convention on service of process at the time of accession or subsequently in accordance with the treaty are honored as a treaty obligation, and litigants should refrain from using such a method of service. See DeJames_v. Magnificence Carriers, In , 654 F.2d 280 (3rd Cir. 1981), cert.den., 454 U.S. 1085; Porsche v. Superior Court, 123 Cal. App. 3d 755, 177 Cal. Rptr. 155 (1981). D. At the time of ratification to these treaties, each State (i.e., country) was afforded the opportunity to assert reservations and declarations on accession to the Hague Service Convention and to the Inter-American Service Convention. E. Moreover, it is noteworthy that service of process by mail may not be valid under the laws of the foreign country. If eventual enforcement of a U.S. judgment in the foreign country is foreseen, this method of service will not suffice. See Wright & Miller, Sec. 1135 and 1133 (1987). Py For example, in Corporacion Salvadorena de Calzado SA. v. Injection Footwear, 533 F.Supp. 290 (S.D. Fla. 1982), an arbitration award rendered in El Salvador could not be domesticated in the U.S. due to violations of due process requirements of both El Salvador and Florida. The court appointed a Special Master, a University of Miami School of Law professor who was fluent in Spanish and an expert in Latin American Law, who determined that service of process by certified mail did not constitute sufficient service of process to support thecommencement of proceedings under El Salvador law. Id. at 296. “Specifically, as a signatory to the Bustamante Code, El Salvador requires that Letters Rogatory or Letters Requisitorial be sent by the issuing El Salvadorean judge through the executive department of his country to the named judge or court in a foreign country.” Id. G. As a result, the United States District Court, Southern District of Florida, Miami division, held that the El Salvador judgment should be denied comity recognition because: (1) it was not obtained by complying with the procedural requirements of the law of El Salvador both in the commencing of arbitration proceedings and in reducing the award to judgment; (2) the method of service of process did not comply with the law of El Salvador nor with the law of the State of Florida; (3) the procedures utilized were not consistent with the Due Process Clause of the Fifth Amendment of the United States Constitution and with Article 1, Section 9 of the Florida Constitution; and (4) the validity of the judgment must be tested under the reciprocity law of the State of Florida, and since El Salvador denies recognition of a judgment rendered by default in a foreign country, a federal court applying Florida law should likewise do so because the judgment was a de facto judgment in El Salvador. Id. H. As a result of Plaintiff's failure to comply with the internationally agreed means of serving a foreign defendant domiciled in Argentina via the Hague Service Convention or by letters rogatory in accordance with the Inter-American Service Convention, his unauthorized mode of attempted service of process was ineffective and, accordingly, must be quashed and Plaintiff must be Ordered to properly perfect service upon Defendant through either the Hague Service Convention or the Inter-American Service convention. 1. It is a relatively simple process for a party to make a request for service under the Hague Service Convention or the Inter-American Service Convention by completing the official formsavailable at the website for the U.S. Department of Justice’s contractor, ABC Legal Services. ABC Legal Services is the only recognized method of process service under these treaties and conventions. See http://hagueservice.net/. J. The official request for service is comprised of an original and two copies of the forms, and three copies of the summons and complaint or other documents to be served. Although Article 3 of the Additional Protocol of the Inter-American Service Convention specifics that “letters rogatory”! must be prepared as part of the request, the U.S. has taken the position that the Forms USM-272 and 272A satisfies this requirement, and that a separate, formal letter Rogatory is not required. A true and correct copy of the form to make a request for service under the Hague Service Convention is attached hereto at “Exhibit I.” A/so see http://hagueservice.net/hsc.asp. A true and correct copy of the forms used to request service under the Inter-American Service Convention are USM-272 (English) and 272A (Spanish) are attached hereto as “Composite Exhibit J.” Also see http://hagueservice.net/iac.asp. K. Additionally, the Inter-American Service Convention requires the request for service form (USM-272/272A) to bear the seal and signature of the clerk of the court from which the process issues, as well as the signature and stamp of the Central Authority of the state in which the court sits. Further, all documents serviced with the Form USM-272/272-A must be translated into the language of the destination state. L. Notably, the U.S. State Department advises that requests for service to Argentina generally receive more prompt treatment, generally completing service within three (3) months. See https://www.proskauerguide.com/litigation/3/III. ' SA letter Rogatory or letter of request is a formal request from a court to a foreign court for some type of judicial assistance. See, e.g., Florida Rule of Civil Procedure 1.300(b) relating to foreign country depositions.” Alvarado- Fernandez vy. Mazoff, 151 So.3d 8 (2014). 17M. While some foreign countries charge a $25.00 fee, it is usually recommended that a certified check or money order in the amount of $25.00 made payable to the foreign central authority be forwarded along with the form and the documents to be served. At the time of ratification to the Hague Service Convention and the Inter-American Service Convention, however, Argentina issued a declaration that it will not charge such a fee. As a result, Plaintiff will incur costs to submit the request for service forms for processing to the Central Authorities in the U.S. and Argentina, but there may be a fee for costs incurred to effect service in accordance with the local law in Argentina. See https://www.hcch.net/en/states/authorities/details3/?aid=51. See alsohttps://travel.state.gov/content/travel/en/legal/travel-legal-considerations/intern]-judicial-asst /Service-of-Process/Inter-American-Service-Convention-Additional-Protocol.html. V. For the foregoing reasons, Defendant, CARLOS RESUMIL, requests this Court grant his Motion to Quash Purported Service of Process based on Plaintiff's: (1) failure to properly serve Defendant with process within 120 days of filing the Complaint pursuant to Florida Rule of Civil Procedure 1.070; (2) failure to demonstrate attempted personal service on Defendant and conduct a diligent search for his whereabouts before resorting to attempted substitute service upon Defendant via the Secretary of State: (3) failure to strictly comply with §§ 48.161 and 48.171, Florida Statutes for Substituted Service of Process on the Secretary of State for Motor Vehicle Operators who are Non-Residents or have Concealed their Whereabouts; and (4) failure to comply with the requirements of the Hague Service Convention and the Inter-American Service Convention, which preempt § 48.171, Florida Statutes, and provide the mechanism for service of process by a foreign central authority. Wherefore, Defendant, CARLOS RESUMIL, respectfully requests this Court enter an Order granting Defendant’s Motion to Quash Service of Process of the Summons, Complaint and 18any discovery requests purportedly served upon Defendant for insufficient service and lack of jurisdiction, Ordering Plaintiff to strictly comply with the service of process requirements prescribed by Florida Rule of Civil Procedure 1.070, Ordering Plaintiff to strictly comply with the requirements of the Hague Service Convention or the Inter-American Service Convention and require service of process through the use of Letters Rogatory, which preempt § 48.171, Florida Statutes or, in the alternative, Ordering Plaintiff to strictly comply with §§ 48.161 and 48.171, Florida Statutes on substituted service of process, and granting such further relief as this Court deems just and proper. CERTIFICATE OF SERVICE The document contains no confidential or sensitive information or that any such confidential or sensitive language has been properly protected by complying with the provisions of Rule 2.420 and 2.425. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by electronic filing to John Allan Watson, Esquire/Travis J. McMillen, Esquire, jwatson@boginmunns.com, storres@boginmunns.com, bmmservice@boginmunns.com, Bogin, Munns & Munns, P.A., Gateway Center, 1000 Legion Place, Suite 1000, Orlando, FL 32801 on this 24th day of July, 2018. Xiu A : CL My LISA A. CLARY, ESQUIRE Fla. Bar No. 36891 Law Office of Sonya S. Wesner 200 East Robinson Street, Suite 510 Orlando, FL 32801 Telephone: — (407) 393-9100 Direct Dial: (407) 393-9408 Secretary: (407) 393-9410 Paralegal: (407) 393-9097 Fax: (877) 499-6079 Primary E-Mail: ORLMAIL@nationwide.com Attorneys for Defendant 19(Page 2 of 4) 05/15/2017 MON 16:53 FAX (goo2z/004 Filing # 56452049 E-Filed 05/15/2017 04:29:29 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA CIVIL DIVISION BRENTLEY M. HUXTABLE, Case No.: Plaintiff, Ys. CARLOS E. RESUMIL, Defendant. COMPLAINT COMES NOW the Plaintiff, BRENTLEY M. HUXTABLE, by and through undersigned counsel and sucs Defendant, CARLOS E. RESUMIL, and says: |. This is an action for damages in excess of Fifteen Thousand Dollars ($15,000.00). L ZLOZ/SL/G US PeANIe27euU bF 40 f Obed 2. At all times material to this action, Plaintiff, BRENTLEY M, HUXTABLE, was a os natural person residing in Orlando, Orange County, Florida, 3, At all times material to this action, Defendant, CARLOS E. RESUMIL, was a natural person residing in Belen de Escobar in Buenos Aires, Argentina. 4. Venue is proper in Orange County, Florida pursuant to Florida Statute Section 47.011. 5, The event, a motor vehicle accident, which gives rise to this action occurred in Orlando, Orange County, Florida. 6. On or about October 1, 2016, Plaintiff, BRENTLEY M. HUXTABLE, was onerating a motor vehicle on Universal Roulevard and Hollywood Way in Orlando, Orange County, Florida. Page 1 of 3 DEFENDANT'S EXHIBIT ‘tL PaepueIs UeJUNOCW SN] Wid OS : 2 g 2 eH Z(Page 3 of 4) 05/15/2017 MON 16:53 FAX oo03/o0a 7. At said time and place, the Defendant, CARLOS E. RESUMIL, operated a motor vehicle owned and maintained by Sixt Rent a Car., a foreign Limited Liability Corporation doing business in Florida, at or near the crash location which collided with Plaintiff's motor vehicle. 8. At said time and place Defendant, CARLOS EK. RESUMIL, negligently operated said motor vehicle so that it collided with the Plaintiff, BRENTLEY M. HUXTABLE’s, vehicle being driven by Plaintiff. 9. All necessary conditions precedent to the commencement of this action have been either satisfied or waived. CLAIM OF BRENTLEY M. HUXTABL! GAINST CARLOS E. RESUMIL 10. Plaintiff, BRENTLEY M. HUXTABLE, realleges and incorporates by reference paragraphs 1-9 as fully set forth herein. 11. Defendant, CARLOS E, RESUMIL, was negligent by operating said motor vehicle in a negligent and careless manner so as to cause it to collide with a vehicle then and there Operated by Plaintiff, BRENTLEY M, HUXTABLE. L ZLOZ/SL/g UC PeAIBIEYH yp 4sJO © OBeEd os 12. As a direct and proximate result of the said negligent operation of the said motor vehicle by Defendant, CARLOS E. RESUMIL, the Plaintiff, BRENTLEY M. HUXTABLE, has suffered bodily injury, and resulting pain and suffering, disability, disfigurement, mental anguish and pain, loss of earnings, loss of ability to earn money and aggravation of a previously existing condition and has incurred substantial medical expenses for treatment and care, past, present and future. Said losses, injuries and expenses are cither permanent or continuing in nature and Plaintiff, BRENTLEY M. HUXTABLE will continue to suffer same in the future. Further, said Plaintiff, was caused to suffer damages to his automobile. WHEREFORE, Plaintiff, BRENTLEY M. HUXTABLE, demands judgment for damages against Defendant, CARLOS E. RESUMIL and such other relief as this Court deems just and proper. Page 2 of 3 feu, Paepues UIe,JUNOW SN] Wid OS(Page 4 of 4) L ZLOZ/SL/G US PeATETDeuU PF 4C y OBeEd os: ‘aU PAepueIS UIEZJUNOCW SN] Wid OS 05/15/2017 MON 16:53 FAX Wooa/ooe DEMAND FOR JURY TRIAL Plaintiff, BRENTLEY M. HUXTABLE, hereby respectfully requests this Court allow a jury trial on all issues so triable. Dated this 15" day of May, 2017. 1131 Jovan Wotyow John Allan Watson, Esquire Florida Bar Number 92596 Travis J. McMillen, Esquire Florida Bar Number 0185655 BOGIN, MUNNS & MUNNS, P.A. Gateway Center 1000 Legion Place, Suite 1000 Orlando, Florida 32801 Tel: 407-578-9696 Fax: 407-241-3800 Primary: jwatson@boginmunns,com Secondary: storres@boginmunns,com Attorneys for Plaintiff Page 3 of 3Filing # 72542307 E-Filed 05/23/2018 10:09:45 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA CIVIL DIVISION | Case No.: 2017-CA-004395-O BRENTLEY M. HUXTABLE, Plaintiff, vs. CARLOS E. RESUMIL, Defendant. - ALIAS SUMMONS ~ PERSONAL SERVICE ON A NATURAL PERSON THE STATE OF FLORIDA: To all and singular sheriffs of said state: YOU ARE HEREBY COMMANDED to serve Summons, and Complaint, in the above- styled cause, upon the Defendant: CARLOS RESUMIL c/o SECRETARY OF STATE P.O. Box 6327 Tallahassee, FL 32314 Each Defendant is hereby required to serve written defenses to said Complaint on: John A. Watson, Esquire BOGIN, MUNNS & MUNNS, P.A. 1000 Legion Place, Suite 1000 Orlando, FL 32802 (407) 578-9696 IMPORTANT A lawsuit has been filed against you. You have (20) calendar days after this Summons is served on you, exclusive of the day of service, to file a written response to the attached Complaint in this Court. A phone call will not protect you; your written response, including the above number and named parties, must be filed if you want the Court to hear your case. If you do not file your response on time, a default will be entered against you for the relief demanded in the Complaint or Petition, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the Court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service DEFENDANT'S EXHIBIT Page 1 of 3 g g # 8 Bor a legal aid office (listed in the phone book). If you choose to file a written yourself, at the same time you file your written response to the court you must also mail or take a copy of your written response to the “Plaintiff's Attorney” named above. IMPORTANTE Usted ha sido demandado legalmente. Tiene veinte (20) dias contados, a partir del recibo de esta notificacion, para contestar la demanda adjunta, por escrito, y presentarla ante este tribunal. Una llamada telefonica no lo protegera; si uested desea que el tribunal considere su defensa, debe presentar su respuesta por escrito, incluyendo el numero del caso y los nombres del las partes interesadas en dicho caso. Si usted no contesta la demanda a tiempo, pudiese perder el caso y podria ser desojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del tribunal. Existen otros requisitos legales. Si lo desea, puede usted consultar a un abogado immediatamente. Si no conoce a un abogado, puede Ilamar a una de las oficinas de asistencia legal que aparencen en la guia telefonica. Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su respuesta ante el tribunal, debera usted enviar por correo, 0 entregar una copia de su respuesta a la persona denonimada abajo como "Plaintiff/Plaintiffs Attorney" (Demandante o Abogado del Demandante). IMPORTANT Des poursuites judiciaires ont ete entreprises contre vous. Vous avez 20 jours consecutifs a partir de la date de l'assignation de cette citation pour deposer une reponse ecrite a la plainte ci-jointe aupres de ce Tribunal. Un simple coup de telephone est insuffisant pour vous protegar; vous etes oblige de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus et du nom des parties nommees ici, si vous souhaitez que le Tribunal entende votre cause. Si vous ne deposez pas votre reponse ecrite dans le relai requis, vous risquez de perdre la cause ainsi que votre salaire, votre argent, et vos biens peuvcent etre saisis par la suite, sans aucun preavis ulterieur du Tribunal. Il y a d'autres obligations juridiques et vous pouvez requerir les services immediats d'un avocat. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a un service de reference d'advocats ou a un bureau d'assistance juridique (figurante a l'annuaire de telephones). Si vous choisissez de deposer vous-meme un reponse ecrite, il vous faudra egalement, en meme temps que cette fvormalite, faire parvenir ou expedier une copie au carbone ou une photocopie de votre reponse ecrite au "Plaintiff/Plaintiffs Attorney" (Plaingnant ou a son avocat) nomme ci- dessous. Page 2 of 3Tiffany Moore Russell CLERK OF THE COURT BY: Deputy Clerk Civil Division 425 N. Orange Avenue Room 310 Orlando, Florida 32801 NOTICE TO PERSONS WITH DISABILITIES AMERICANS WITH DISABILITIES ACT. If you are a person with a disability who needs any accommodation in order to participate in a court proceeding or event, you are entitled, at no cost to you, to the provision of certain assistance. Please contact ADA Coordinator, Human Resources, Orange County Courthouse, 425 N. Orange Avenue, Suite 510, Orlando, Florida, (407) 836-2303, fax: 407-836-2204, at least 7 days before your scheduled court appearance, or immediately upon receiving notification if the time before the scheduled court appearance is less than 7 days. If you are hearing or voice impaired, call 711 to reach the Telecommunications Relay Service. Page 3 of 3Filing # 63940213 E-Filed 11/08/2017 02:16:09 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA CIVIL DIVISION BRENTLEY M. HUXTABLE, Case No.: 2017-CA-004395-O Plaintiff, vs. CARLOS E. RESUMIL, Defendant. ALIAS SUMMONS — PERSONAL SERVICE ON A NATURAL PERSON ALIAS SUMAN SS EE Seer THE STATE OF FLORIDA: To all and singular sheriffs of said state: YOU ARE HEREBY COMMANDED to serve Summons, and Complaint, in the above- styled cause, upon the Defendant: CARLOS RESUMIL c/o SECRETARY OF STATE P.O. Box 6327 Tallahassee, FL 32314 Each Defendant is hereby required to serve written defenses to said Complaint on: John A. Watson, Esquire BOGIN, MUNNS & MUNNS, P.A. 1000 Legion Place, Suite 1000 Orlando, FL 32802 (407) 578-9696 IMPORTANT A lawsuit has been filed against you. You have (20) calendar days after this Summons is served on you, exclusive of the day of service, to file a written response to the attached Complaint in this Court. A phone call will not protect you; your written response, including the above number and named parties, must be filed if you want the Court to hear your case. If you do not file your response on time, a default will be entered against you for the relief demanded in the Complaint or Petition, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the Court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service 3 DEFENDANT'S EXHIBIT Page 1 of 3 Pe ;or a legal aid office (listed in the phone book). If you choose to file a written yourself, at the same time you file your written response to the court you must also mail or take a copy of your written response to the “Plaintiff's Attorney” named above. IMPORTANTE Usted ha sido demandado legalmente. Tiene veinte (20) dias contados, a partir del recibo de esta notificacion, para contestar la demanda adjunta, por escrito, y presentarla ante este tribunal. Una llamada telefonica no lo protegera; si uested desea que el tribunal considere su defensa, debe presentar su respuesta por escrito, incluyendo el numero del caso y los nombres del las partes interesadas en dicho caso. Si usted no contesta la demanda a tiempo, pudiese perder el caso y podria ser desojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del tribunal. Existen otros requisitos legales. Si lo desea, puede usted consultar a un abogado immediatamente. Sino conoce a un abogado, puede llamar a una de las oficinas de asistencia legal que aparencen en la guia telefonica. Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su respuesta ante el tribunal, debera usted enviar por correo, o entregar una copia de su respuesta a la persona denonimada abajo como "Plaintiff/Plaintiff's Attorney" (Demandante o Abogado del Demandante). IMPORTANT Des poursuites judiciaires ont ete entreprises contre vous. Vous avez 20 jours consecutifs a partir de la date de l'assignation de cette citation pour deposer une reponse ecrite a la plainte ci-jointe aupres de ce Tribunal. Un simple coup de telephone est insuffisant pour vous protegar; vous etes oblige de deposer votre reponse ecrite, avec men