Discussion

The brothel will have a hard time collecting.  If they sue directly in Louisiana, their cause of action is one to collect a debt for prostitution, which cause of action is contrary to the strong public policy of Louisiana.  The suit will be dismissed.  If they sue in Mexico (and longarm Bubba into the courts of Baja California), they will no doubt obtain a Mexican judgment.

A judgment from a sister state of the US would be entitled to full faith and credit notwithstanding that the underlying cause of action is contrary to public policy.  Fauntleroy v. Lum.  But while a Nevada judgment on a debt for prostitution would be enforceable in Louisiana, Mexico is not a state of the United States.  Rules of comity, not full faith and credit, govern recognition of foreign-country judgments.  Those rules permit a Louisiana court to refuse to honor a foreign-country judgment based on a cause of action contrary to the strong public policy of Louisiana.

The brothel could always put a private detective on Bubba to ascertain whether this nouveau riche spendthrift millionaire is making trips to Las Vegas, and then sue and serve him there on the debt (where the cause of action is not contrary to local public policy).  The judgment would then be that of a sister state and entitled to full faith and credit in Louisiana.

The brothel also conceivably could obtain a judgment in Mexico, have it made executory in Nevada, and then have the Nevada judgment made executory in Louisiana.  See Roche v. McDonald.

While the brothel will have a difficult time suing Bubba, so too will Bubba have a difficult time suing the brothel.  The courts of the Mexican state of Baja California, of course, have in personam jurisdiction over the brothel, but as a practical matter any suit there is doomed to failure or at best a grossly inadequate verdict.

Plan A

The brothel does not appear to be susceptible to the longarm jurisdiction of Louisiana.  Nor can Bubba commence an in rem action to garnish the brothel’s merchant account with American Express in advance of judgment.  That pre-judgment garnishment procedure, used in Harris v. Balk, was restricted with the United States Supreme Court decision in Shaffer v. Heitner, which now requires a defendant to have minimum contact with the garnishment state before being subjected to pre-judgment garnishment in proceedings strictly quasi in rem.

However, if the brothel sues Bubba in Louisiana, it will have made a general appearance.  Bubba may then file a reconventional demand.  Any judgment Bubba obtains in the United States will be easy to enforce by seizure of the brothel’s assets in the United States, including garnishment of their merchant account with American Express.

The object, then, is to bait or goad the brothel into suing Bubba in Louisiana, and preferably in New Orleans (where Hibernia has its home office and where verdicts run high).  The somewhat rude draft letter shown below attempts to do just that.  No mention is made of Bubba’s HIV-positive condition.  Any such mention would surely cool the brothel’s enthusiasm for filing suit in the United States.

Plan B

Can the brothel be sued in California under the doctrine of the California case of Bernhard v. Harrah’s Club?  Under Harrah’s Club (and Carnival Cruise Lines, Inc. v. Shute), it can be argued that this brothel draws on a clientele from California and sends infected (as opposed to intoxicated) persons into California.  Does the brothel do anything to advertise in California, whether by billboards, internet, men's magazines, or even Mexican radio stations whose signals can be heard in southern California?

Plan C

Did the brothel deposit the check into a bank account in the US?  (Bubba’s bank can supply a microfilm copy of both sides of the stopped check).  If so, it is arguable, but by no means certain, that by maintaining a bank account in the US, the brothel has minimum contact with the US state where their American bank is located.  File suit in that state based on minimum contact, both in personam and in rem as to the bank account.

Plan D

Does the brothel have a policy of liability insurance from an insurance company that does business in the United States?  If so, does the State of Baja California have a direct action statute?

If "yes" to both questions, suit can be filed in any jurisdiction that regards direct action statutes as substantive and where the insurance company may be found.  This could include, of course, Louisiana.  It is not necessary, however, that the forum itself have a direct action statute.  Collins v. American Automobile Insurance Co.  Suit would of necessity be based on the Baja Californian direct action statute, not on any direct action statute the forum might have.  However, a Mexican liability insurer not doing business in the United States that merely reinsured with an American reinsurance company probably would not be amenable to such garnishment.  But see generally Home Insurance Co. v. Dick.

The sample letter to the lawyers in Mexico follows (see Plan A, supra):

Dear Sirs:

We have your letter.  You are not telling the truth when you say Bubba wrote a “bad check.”  There were ample funds on deposit in the Hibernia Bank of New Orleans at the time he wrote the check - indeed he has over one million dollars on deposit there now.

We don’t appreciate your dishonest misrepresentation in falsely accusing Bubba of having written a “bad” check.  He merely changed his mind about paying your client after he wrote the check.  To be blunt, he feels that you Mexican lawyers won’t bother to file suit in Mexico, get a Mexican judgment, and then file suit to enforce your judgment against his bank account with Hibernia Bank of New Orleans.  He doesn’t believe you folks down south of the Rio Grande have the wherewithal, the ability or the determination to do very much to collect this claimed debt.  Bubba feels you folks just don’t have what it takes.

Bubba, however, sends his best regards to Passionita.  Better luck collecting from her next John.

Sincerely,

Attorney at Law

Now the grading key