MEXICO Law and Practice Contributed by: Adrián Magallanes, Diego Sierra and Rodrigo Barradas Muñiz, Von Wobeser y Sierra, SC
There is no opportunity to amend the complaint after it has been filed, unless there are superven- ing facts. 3.5 Rules of Service Service of process is done by an authorised court clerk called an actuario . The court clerk must go to the domicile of the defendant indicated by the plaintiff, and request to see the defendant or their representative or agent. If the clerk cannot find the defendant or their legal representative, the clerk can serve a relative, employee or any other person that lives there, once they have confirmed that it is the defendant’s domicile. Service of process includes a writ indicating: • the date and time of the notice; • the kind of proceedings; • the names of the parties; • the court hearing the dispute; • a transcription of the relevant court’s rulings; and • the name of the receiving party. Copies of the complaint and documents sub- mitted by the plaintiff are attached to that writ (Article 1390 Bis 15 of the Commerce Code). If the plaintiff does not know where the defend- ant lives, the court may request information from certain authorities or companies; if no domicile can be found, the court can order the service of process through publications in a newspaper (Article 1070 Bis). Unlike other jurisdictions, service of process is a very formalistic and crucial part of judi- cial proceedings (entire proceedings may be declared null and void due to an omission when the defendant was served with process), so it
is important to make sure that the court clerk properly fulfils all the applicable requirements. 3.6 Failure to Respond According to the Code of Civil Procedure for Mexico City, if the respondent fails to file an answer to the complaint, the facts are consid- ered admitted if process was served on the defendant or their legal representative. If pro- cess was served on someone else (for example, an employee or a relative), the facts are con- sidered denied (Article 332 of the Code of Civil Procedure for the Federal District). Even if the facts are considered admitted, the plaintiff still has to prove all the affirmative state- ments made in their claim, which serve as the basis of the action. The defendant also has the opportunity to offer evidence. 3.7 Representative or Collective Actions Collective actions have been allowed in Mexico since 2011. Federal courts have exclusive juris- diction to hear this type of claim. Pursuant to the Federal Code of Civil Procedure, only class actions concerning the protection of collective interests or rights related to consumer relation- ships or environmental matters are allowed. Matters related to antitrust issues, financial ser- vices, product liability and consumer redress are considered to fall within the scope of consumer relationships. However, in order to file a collective action for damages caused to consumers in relation to monopolistic practices or unlawful acquisitions, it is necessary to first obtain a final ruling from the Federal Antitrust Commission, declaring the existence of that practice or acquisition. The Mexican Congress decided to adopt the opt-in mechanism for collective actions, which
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