International Service of Process: The Supreme Court Weighs In

The question of whether the Hague Convention permits international service on defendants by mail was taken on by the Supreme Court in 2017 in the case Water Splash v. Menon. It’s well established that the intent behind rules that govern the service of legal documents is to ensure that persons or companies are informed of legal proceedings against them. Disputes over proper service are common in state and federal courts, sometimes used by defendants when they lack substantive defenses to claims. For international matters, many countries have agreed to abide by the rules set forth in the Hague Convention in order to create uniform expectations for international legal proceedings. Still, there are often disagreements on how those rules should be implemented. The Circuit Courts were not able to agree on whether to permit international service by mail. In 2017, the Supreme Court decided Water Splash, Inc. v. Menon, holding that service by mail is permitted under the Hague Convention.

The Circuit Courts Split

Leading up to the Supreme Court’s decision to weigh in on this issue with Water Splash v. Menon, there were hundreds of cases in federal and state courts addressing it. The Second, Fourth, Seventh and Ninth Circuits supported the “majority” position, allowing service by mail. The Fifth and Eighth Circuits, as well as the district courts in the Third and Eleventh Circuits rejected this view, limiting service to specific methods mentioned in the Hague Convention terms. The minority opinion expands the Convention’s provisions in Articles 2 through 7, requiring nations to establish a “central authority,” use of “diplomatic channels” and to “act as agents to facilitate requests for service of documents and to provide proof of service” to preclude service by mail. The majority believes this to be in conflict with an Article 10 provision which says that no provision in the Convention shall interfere with the “freedom to send judicial documents, by postal channels, directly to persons abroad.”

The Goals Of the Hague Convention

The majority also believed that permitting service by mail was in line with the goals of the Hague Convention itself. These goals include the following:

• To create a means to ensure that judicial and extrajudicial documents to be served abroad can be brought to the attention of the addressee in sufficient time.
• To improve the organization of mutual judicial assistance.

Some countries that are signatories to the convention have set up “central authorities” and “diplomatic channels” that can facilitate service and provide proof of service more efficiently and reliably than service by mail. In such countries, experienced process servers in the United States that serve international defendants will usually prefer this route. Over sixty percent of requests in Hague Convention countries are efficiently handled for “central authorities” or “diplomatic channels” within two months, making it the most efficient option in those jurisdictions. The other forty percent of signatory countries do not have well-developed systems for process service from other countries, making serving defendants in those countries extremely cumbersome under the minority position. Some countries such as China and Mexico actually go out of their way to put up roadblocks, making service by mail the only practical option.

Water Splash, Inc. v. Menon Goes To The Supreme Court

• THE ISSUE
• BACKGROUND
• THE CASE ON APPEAL
• THE SUPREME COURT DECISION

When default judgments are taken against a defendant, challenging the legality of service on the defendant is a common strategy for overturning the judgment. It’s well established that service must meet the requirements of the law, even if the defendant had actual knowledge of the proceedings with ample time to respond. Here, the issue is whether the Hague Convention permits the use of service by mail for persons and companies in signatory countries.

Water Splash, Inc., a corporation that produces aquatic playground systems, sued its former employee, Tara Menon, claiming that she was working for a competitor while still employed at Water Splash. They asserted several commercial claims against the defendant, including unfair competition, conversion and tortious interference with business relations. Since Menon had moved to Canada, Water Splash requested permission from the Texas trial court to serve her by mail. After obtaining approval from the Texas court, she was served by mail at her residence in Montreal. When Menon did not appear or answer, the court entered a default judgment on behalf of Water Splash. The trial court denied Menon’s motion to set aside the judgment due to improper service under the Hague Convention, and she appealed.

The Texas Court of Appeals reviewed the issue of whether Article 10(a) of the Hague Convention permitted service of process by mail. The court agreed with the well-settled notion that the Hague Convention is applicable to all commercial and civil cases where it’s necessary to “transmit a judicial or extrajudicial document for service abroad.” The Texas court noted that the “majority view” held that Article 10(a) allowed service by mail, but felt that due to the way the terms “service,” “serve” and “to effect service” were used throughout the Article 10, the interpretation that the word “send” in Article 10(a) to refer to service on defendants for legal matters was incorrect. The court supported its decision with the idea that mail could not be counted on to ensure that plaintiffs deliver notices to defendants in a timely manner. A lengthy dissent by Justice Christopher argued that that the court failed to follow the guidance of the Supreme Court for interpreting treaties and erred by relying on state and federal law.

The Supreme Court resolved the split in the Circuit Courts, siding with the majority, holding that the Hague Convention permits service by mail. The court reasons that Hague Conventions provisions to provide a central authority and to permit services through diplomatic and consular agents were intended to augment the option of service by mail, not to replace or forbid it. It cites Article 10 which states that “provided the destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.” The unanimous decision states that the “plain terms” of the Convention address the issue and permit service by mail.

How Does This Impact International Civil Litigation?

Despite the fact that the Supreme Court’s decision in Water Splash v. Menon, on its face, seems to provide a cost-effective and efficient way to serve defendants internationally by mail, it would be wise not to rely on it too heavily. The court was careful to point out that the Convention does not authorize service by mail. It merely permits it, limiting it to situations where there is no objection by the foreign state and it’s legal in the forum for the particular case. So, for cases where there is a clear “central authority” or “diplomatic channels” that are able to expeditiously and conveniently serve a defendant, it would still be prudent to obtain this type of service. In order to altogether avoid the prospect of the challenges to proper service, it’s important to thoroughly research the laws in both the local and foreign jurisdiction before relying on service by mail.

About ABC Legal Services

ABC Legal is the nation’s leading service of process and court filing company and is the official process server to the U.S. Department of Justice. Docketly is a subsidiary of ABC Legal, providing appearance counsel on a digital, custom-built platform that smoothly integrates with our applications and services. ABC Legal’s applications are cloud-based and compatible for use on desktop, browser, and smartphones. Our solutions and digital approach ensure process server partners, law firm customers, and their clients save valuable time and resources when serving legal notices safely and with maximum compliance, control, and transparency. ABC Legal is based in Seattle, WA, with more than 2,000 process servers throughout the U.S., as well as internationally in more than 75 countries. To learn more about ABC Legal, our solutions, and subsidiary company Docketly, visit www.abclegal.com.