Serving defendants in other countries can be an infuriatingly tricky process.
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, commonly known as the Hague Service Convention, left a number of terms undefined, unexplained and, in some places, loosely translated from an earlier treaty that was in French.
To make matters even worse, the service requirement depended on the state or federal circuit in which the case was filed. But now the United States Supreme Court has cleared up much of the confusion about international service of process.
In Water Splash, Inc. v. Menon, 581 U.S. ____, 16-254 (2017), the Supreme Court unanimously set down a simple rule: service can be made by mail, so long as the country in which service is made allows process to be served that way. This means that serving a defendant abroad is now much easier, so long as the home court authorizes service by mail. Fed. R. Civ. P. 4(c); see, e.g., Tex. R. Civ. P. 103.
The holding in Water Splash turned on a loose phrase contained in Article 10 of the Hague Service Convention:
“Provided the State of destination does not object, the present Convention shall not interfere with—
‘(a) the freedom to send judicial documents, by postal channels, directly to persons abroad[.]’”
Water Splash at 3.
For years, courts have disagreed on whether “send” means the same thing as “serve.” For the Second, Fourth, Seventh and Ninth Circuits, and some courts in the First, Third, Sixth and Eleventh Circuits, “send” meant “service of process.” Petition for Writ of Certiorari at 9 (citing cases).
For the Fifth, Eighth and some courts in the Third and Eleventh Circuits, however, “send” meant only what it literally said, and did not govern service of process. Id. This split of authority lasted more than 25 years and was implicated in more than 120 state and federal court decisions. Id. at 15.
Despite all this disparity, for Justice Samuel Alito, writing for the Court (except for Justice Gorsuch, who did not participate), the treaty’s meaning appeared easy to divine. The whole purpose of the treaty was to regulate service abroad, Alito wrote. Water Splash at 5. So it would be “quite strange” if “send” meant something other than service of documents. Id. Nowhere else in the treaty is there any discussion of documents that are not service documents, Alito wrote, so why would this one section mention it when doing so would be unnecessary? Id. at 6-7.
If there was any ambiguity about the meaning, Alito found that turning to the “traditional tools of treaty interpretation” – the treaty’s drafting history, the views of the executive and th views of other signatories - cleaned the matter up. Id. at 12. The drafters of the treaty, writing at the time of its drafting, confirmed that Section 10(a) was intended to allow service by mail, unless the receiving country objected. Id. at 8-9. The president at the time of the signing, Lyndon B. Johnson, reported to the Senate that the treaty would allow service by mail. Id. at 9. And many other countries have acknowledged that the Convention allows service by mail. Id. at 11.
For Tara Menon, the Supreme Court’s decision will likely come as a blow. Menon is a Canadian citizen who began working for Water Splash, a Texas maker of water park equipment. Id. at 1. Water Splash accused Menon of secretly working for a competitor and attempted to serve her a complaint by mail in Canada. Id. at 2. After she failed to respond to the complaint, Water Splash obtained a default judgment. Id. Menon then countered that she had not been properly served, and the Texas state courts agreed.
Alito ended his opinion with a strong caveat. The Hague Service Convention does not interfere with the freedom to effect service by mail, but that does not mean that it authorizes it. Id. at 12. So before a plaintiff tries to serve a defendant abroad, two conditions should be checked: 1. Does the receiving country allow service by mail, or has it objected or reserved this provision? 2. Does the applicable law allow service by mail? In other words, does the state or federal court allow service that way? Id.
Now that the Supreme Court has ruled against her, Menon can still argue that Texas law does not allow service by mail. In fact, in oral argument before the Supreme Court, her lawyer argued that this was exactly the case. Water Splash Oral Argument at 28.05.
So service abroad is still somewhat complicated, but Water Splash has removed one level of this many-layered chessboard.
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