IN THE SUPREME COURT OF IOWA

No. 08–1888

Filed May 7, 2010

IN THE MATTER OF THE ESTATE

OF CLEMENS GRAF DROSTE ZU

VISCHERING, Deceased,

J. DIXON TEWS,

Appellant,

Appeal from the Iowa District Court for Mitchell County, Bryan H. 

McKinley, Judge.

In proceedings to reopen an estate, the executor appeals from an 

interlocutory order in which the district court determined it was 

unnecessary for petitioners to comply with the Hague Service Convention 

in serving process on the estate beneficiary, who resides in Germany. 

DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED 

FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

Eric G. Hoch and Jerry P. Alt of Finley, Alt, Smith, Scharnberg, 

Craig, Hilmes & Gaffney, P.C., Des Moines, for appellant.

Michael M. Sellers of Sellers, Heraldson and Binford, Des Moines, 

for appellee.
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BAKER, Justice.

In proceedings to reopen an estate, the executor appeals from an 

interlocutory order in which the district court agreed with petitioners 

that it was unnecessary for them to comply with international treaty 

requirements for service abroad in serving process on the estate 

beneficiary, who resides in Germany. We find the district court erred in 

ruling that service of process on the estate beneficiary did not require 

compliance with the Hague Service Convention.

I. Background Facts and Proceedings.

In April 2008, the petitioners filed an application in district court 

to reopen the estate of Clemens Graf Droste Zu Vischering. All of the 

petitioners were, at one time, tenants of a commercial building in West 

Des Moines, Iowa. Clemens was the sole owner of this office building 

from approximately 1982 until at least November 1997. Petitioners 

allege Clemens breached their rental agreements and defrauded them by 

using a secret formula to increase the rent charged for the office spaces 

the petitioners occupied. They claim the lease language guaranteed 

them a specific number of square feet of office space for the price being 

charged pursuant to the terms of the written contracts. They have 

petitioned to reopen the estate to procure the information necessary to 

properly pursue their claims.

In November 1997, Clemens transferred his interest in the building 

to a limited liability company, Vischering, L.L.C. Vischering, L.L.C.’s 

principal place of business activity is located at the building in West Des 

Moines. Clemens then sold his interest in the L.L.C. to his son Benedikt 

Graf Droste zu Vischering. Clemens died on June 3, 1998.
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A petition for the probate of Clemens’s will was filed in February 

1999. Benedikt was the sole beneficiary of Clemens’s estate. Due to 

Clemens’s status as a nonresident alien, there was a dispute with the 

German taxing authority concerning the estate’s federal and state tax 

liabilities. Clemens’s estate finally closed on October 5, 2006. At that 

time, the court declared there were no claims filed against the estate.

The petitioners’ application to reopen the estate was filed on April 

18, 2008. The district court issued an order scheduling a hearing on the 

application and directing that a copy of the order and a copy of the 

petitioners’ application be served upon Benedikt at his residence in 

Germany. The executor of Clemens’s estate filed a resistance to the 

petitioners’ application to reopen the estate.

The petitioners attempted to serve Benedikt at his residence in 

Germany by mail on July 9, 2008, and through personal service on July 

30, 2008. The executor moved to quash the service, claiming it was 

defective as petitioners failed to comply with the Hague Convention on 

the Service Abroad of Judicial and Extrajudicial Documents in Civil or 

Commercial Matters [hereinafter “Hague Service Convention”]. The 

estate alleged that the district court’s ruling demanded that Benedikt be 

personally served in Germany, triggering the application of the Hague 

Service Convention which required the petitioners serve him through the 

German Central Authority and provide German translations of the 

petition. Because the executor claimed the petitioners failed to comply 

with these requirements, he asked the court to dismiss their claims 

without prejudice as they failed to serve Benedikt with original notice 

within ninety days of the filing of the petition.
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Petitioners’ original claims were dismissed. A new case, involving 

the same parties and claims, was filed against Clemens’s estate. In 

connection with this case, the petitioners filed a supplemental 

application to reopen the estate. The application also requested that the 

court order direct personal service of Benedikt at his residence in 

Germany in accordance with the court’s order concerning petitioners’

original claim. The court subsequently entered an order declaring the 

executor’s motion to quash the service moot.

The executor filed a resistance to the petitioners’ supplemental 

application. The district court ruled that service of process on Benedikt 

did not require compliance with the Hague Service Convention. The 

court reasoned that since neither Iowa Rule of Civil Procedure 1.305 or 

Iowa Rule of Civil Procedure 1.306 define the applicable method of 

serving process as requiring the transmittal of documents abroad, the 

Hague Service Convention did not apply and petitioners were not 

required to comply with its provisions. The court once again ordered 

that a copy of the petitioners’ application, the amended application, and 

the court’s order requiring notice be served on Benedikt at his residence 

in Germany.

Soon after this order, the Clemens’s estate filed an application for 

interlocutory appeal, claiming the district court erred in determining the 

Hague Service Convention did not apply, and therefore the petitioners 

were not required to comply with its provisions in serving Benedikt with 

original notice. The estate also asked that the proceedings below be 

stayed during the pendency of the appeal. The petitioners filed a 

resistance to Benedikt’s appeal. We granted the executor’s application.
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II. Scope of Review.

In federal court, the trial court’s interpretation of a treaty is subject 

to de novo review. State v. Lopez, 633 N.W.2d 774, 781 (Iowa 2001) 

(citing Blake v. Am. Airlines, Inc., 245 F.3d 1213, 1215 (11th Cir. 2001)). 

Our review is, likewise, de novo. State v. Buenaventura, 660 N.W.2d 38, 

44 (Iowa 2003). The meaning of the language used in a treaty, however, 

is a question of law. Lopez, 633 N.W.2d at 781.

III. Discussion and Analysis.

The executor claims that the Hague Service Convention applies to 

this case, and its requirements demand service of German-translated 

original notice documents upon and through Germany’s Central 

Authority. The Hague Service Convention is a multilateral treaty that 

was formed in 1964 at the Hague Conference of Private International 

Law. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698, 

108 S. Ct. 2104, 2107, 100 L. Ed. 2d 722, 730 (1988). We have never 

had occasion to consider the Hague Service Convention and its interplay 

with the Iowa Rules of Civil Procedure concerning the service of process 

when the party to be served is living abroad in one of the signatory 

countries to the Convention.

The Hague Service Convention was intended to revise parts of the 

Hague Convention Treaties on Civil Procedure from 1905 and 1954. Id.;

Hague Convention on the Service Abroad of Judicial and Extrajudicial 

Documents in Civil or Commercial Matters, Nov. 15, 1965 [1969], 20 

U.S.T. 361, T.I.A.S. No. 6638. The revisions were intended to

simplify the service of process abroad so as to insure that 

judicial and extrajudicial documents to be served abroad are 

brought to the notice of the addressee in sufficient time, and 

to make available one method of service that will avoid the 

difficulties and controversy attendant to the use of other 

methods.
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Marjorie A. Shields, Annotation, When Is Compliance with Hague 

Convention on Service Abroad of Judicial and Extrajudicial Documents in 

Civil and Commercial Matters, Art. 1 et seq., Required, 18 A.L.R. Fed. 2d 

185, 197 (2007). Both the United States and Germany have ratified or 

acceded to the Convention. Volkswagenwerk, 486 U.S. at 698, 108 S. 

Ct. at 2107, 100 L. Ed. 2d at 730.

The scope of the Convention is defined by Article 1. Id. at 699, 108 

S. Ct. at 2108, 100 L. Ed. 2d at 730. It states: “The present Convention 

shall apply in all cases, in civil or commercial matters, where there is 

occasion to transmit a judicial or extrajudicial document for service 

abroad.” Hague Service Convention art.1, 20 U.S.T. at 362. The United 

States Supreme Court has declared that this language is mandatory. 

Volkswagenwerk, 486 U.S. at 699, 108 S. Ct. at 2108, 100 L. Ed. 2d at 

730 (citing Société Nationale Industrielle Aérospatiale v. U.S. Dist. Ct., 482 

U.S. 522, 534 n.15, 107 S. Ct. 2542, 2550 n.15, 96 L. Ed. 2d 461, 478

n.15 (1987)). “By virtue of the Supremacy Clause, U.S. Const. Art. VI, 

the Convention pre-empts inconsistent methods of service prescribed by 

state law in all cases to which it applies.” Id.

Our task is to determine whether this is a case to which the 

Convention applies. The district court held that because the Iowa Rules 

of Civil Procedure do not define the applicable method of serving process 

in this case as requiring the transmittal of documents abroad, the Hague

Service Convention did not apply. The court came to this conclusion by 

analyzing the requirements of Iowa Rules of Civil Procedure 1.305 and 

1.306.
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Iowa Rule of Civil Procedure 1.305 outlines acceptable forms of 

personal service of original notice under Iowa law. Iowa R. Civ. P. 1.305. 

The Rule provides in pertinent part:

Original notices are “served” by delivering a copy to the 

proper person. Personal service may be made as follows:

1.305(1) Upon any individual who has attained 

majority and who has not been adjudged incompetent . . . by 

serving the individual personally; or by serving, at the 

individual’s dwelling house or usual place of abode, any 

person residing therein who is at least 18 years old . . . .

. . . .

1.305(14) If service cannot be made by any of the 

methods provided by this rule, any defendant may be served 

as provided by court order, consistent with due process of 

law.

Id. The district court determined that 1.305(14) was applicable in this 

case because the court’s earlier order directed the petitioners to serve a 

copy of the application to reopen the estate on Benedikt at his residence 

in Germany.

Iowa Rule of Civil Procedure 1.306 states:

Service may be made on any . . . individual . . . as 

provided in rule 1.305 within or without the state or, if such 

service cannot be so made, in any manner consistent with 

due process of law prescribed by order of the court in which 

the action is brought.

Nothing herein shall limit or affect the right to serve an 

original notice upon any . . . individual . . . within or without 

this state in any manner now or hereafter permitted by 

statute or rule.

The court reasoned that the Hague Service Convention did not apply to 

the case because the district court had ordered service in a manner 

authorized by rule 1.305, and under rule 1.306 nothing could limit the 

right to serve individuals outside Iowa utilizing the methods approved in 

rule 1.305. The court indicated that following the requirements of the 
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Hague Service Convention would have limited or affected the ability to 

serve those outside the state with personal service.

We find the district court erred in both its interpretation of the 

controlling case law and its application of Iowa Rule of Civil Procedure 

1.306. The Supreme Court decision in Volkswagenwerk holds that 

American plaintiffs need not serve foreign defendants at locations abroad 

if the law of the forum state allows for plaintiffs to serve the defendant’s 

domestic agent within the United States. Volkswagenwerk, 486 U.S. at 

707, 108 S. Ct. at 2112, 100 L. Ed. 2d at 735–36. Volkswagenwerk

concerned a wrongful death action brought against Volkswagen of 

America, Inc. Id. at 696, 108 S. Ct. at 2106, 100 L. Ed. 2d at 728–29. In 

Volkswagenwerk, the plaintiff successfully served Volkswagen of 

America, but Volkswagen of America denied it had designed or 

assembled the automobile at issue. Id. The plaintiff amended the 

complaint to include Volkswagen Aktiengesellschaft, Volkswagen of 

America’s German parent company. Id. The plaintiff then served

Volkswagen Aktiengesellschaft by serving Volkswagen of America as its 

agent. Id. at 697, 108 S. Ct. at 2106, 100 L. Ed. 2d at 729. Illinois, the 

state where Volkswagen of America was registered to do business, has a 

long-arm statute that authorizes plaintiffs to serve foreign defendants by 

substituted service on their domestic agents. Id. at 706, 108 S. Ct. at 

2111–12, 100 L. Ed. 2d at 735. The Court determined that the Illinois 

long-arm statute provided “ ‘notice reasonably calculated, under all the 

circumstances, to appraise interested parties of the pendency of the 

action and afford them an opportunity to present their objections.’ ” Id. 

at 707, 108 S. Ct. at 2112, 100 L. Ed. 2d at 735 (quoting Mullane v. 

Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 
9

657, 94 L. Ed. 865, 873 (1950)). The Court also determined that 

Volkswagen of America was the domestic agent of Volkswagen 

Aktiengesellschaft. Id. Because the Court determined that service on a 

domestic agent is valid and service abroad was not required, the Court 

held that the Hague Service Convention did not apply. Id.

In the case at issue, the district court ordered the petitioners to 

serve Benedikt at his residence in Germany and, in fact, documents have 

been served abroad, first by mail and then by personal service. “If the 

. . . forum state defines the applicable method of serving process as 

requiring the transmittal of documents abroad, then the Hague Service 

Convention applies.” Id. at 700, 108 S. Ct. at 2108, 100 L. Ed. 2d at 

731. While the internal law of the forum state may determine whether 

serving notice on a defendant must be accomplished through personal 

service abroad, once the court orders documents to be transmitted 

abroad, the provisions of the Convention apply. Id.

Iowa Rule of Civil Procedure 1.306 allows for defendants outside of 

Iowa to be served in the manners set forth in rule 1.305. Iowa R. Civ. P. 

1.306. It also states that “[n]othing herein shall limit or affect the right 

to serve an original notice upon any . . . individual . . . within or without 

this state in any manner now or hereafter permitted by statute or rule.” 

Id. The district court appears to have interpreted this provision as 

declaring that anything that conflicts with the methods of service allowed 

by the law of Iowa is void or need not be followed.

The Supremacy Clause establishes the United States Constitution, 

federal statutes, and U.S. treaties as “the supreme Law of the Land.” 

U.S. Const., Art. VI, § 2. The United States has ratified the Hague

Service Convention. Volkswagenwerk, 486 U.S. at 698, 108 S. Ct. at 
10

2107, 100 L. Ed. 2d at 730. It is the supreme law of the land and preempts any inconsistent service methods allowed by state law. Id. at 699, 

108 S. Ct. at 2108, 100 L. Ed. 2d at 730. Iowa Rules of Civil Procedure 

do not trump the Hague Service Convention and allow Benedikt be 

personally served in Germany when the Convention requires that he be 

served through the German Central Authority. See Eto v. Muranaka, 57 

P.3d 413, 420 (Haw. 2002) (“It is evident, then, that Hawai‘i law cannot 

override the Hague Convention, when the Convention applies.”). The 

district court erred in determining the Hague Service Convention did not 

apply in this case.

Having determined that the Hague Service Convention applies, we 

must determine if the manner of service complies with the Convention. 

Three liberal methods of service employed by the petitioners are 

permitted under the Hague Service Convention. Dahya v. Second 

Judicial Dist. Court ex rel. County of Washoe, 19 P.3d 239, 242 (Nev.

2001). First, service may go through the central authority of the 

receiving country. Id. (citing Hague Service Convention art. 5, 20 U.S.T. 

at 362). Second, service may go through diplomatic or consular agents 

that the receiving country considers “non-objectionable.” Id. (citing

Hague Service Convention art. 8–11, 20 U.S.T. at 363–64). Third, service 

may be done by any method permitted by the internal law of the 

receiving country. Id. (citing Hague Service Convention art. 19, 20 U.S.T. 

at 365). In Germany, service is only permitted through the Central 

Authority although personal service may be affected by court personnel if 

specifically requested through the Central Authority. Hague Convention 

Conference on Private International Law, Germany—Central Authority & 

practical information, Replies to the 2003 and/or 2008 Service 

Convention Questionnaire, http://www.hcch.net/index_en.php?act=auth
11

orities.details&aid=257 (detailing Germany’s objection to Article 10 of the 

Convention which allowed for direct personal service); see also Hague 

Service Convention art. 10, 20 U.S.T. at 363 (providing authority for the 

country of destination to object to the methods of service allowed by 

Article 10 of the Convention).

The petitioners attempted to serve Benedikt at his residence in 

Germany by mail and through personal service. The record contains a 

return receipt which confirms that they attempted to serve Benedikt 

personally in compliance with German law through the Coesfeld District 

Court in Germany; however we are unable to discern if this attempted 

service was properly commenced through the Central Authority. We are 

also unable to determine whether the documents were translated into 

German before being served. As these are two central requirements of 

the Hague Service Convention, on this record we are unable to determine 

whether the petitioners complied with the requirements of the 

Convention.

IV. Disposition.

We hold the district court erred in ruling that service of process on 

Benedikt did not require compliance with the Hague Service Convention

and that the petitioners need not comply with the Convention’s 

requirements of German-translated documents sent through the German 

Central Authority. The case is remanded to determine if service as 

accomplished complied with the requirements of the Hague Service 

Convention.

DISTRICT COURT JUDGMENT REVERSED AND CASE 

REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS 

OPINION.