In Water Splash, Inc. v. Menon (2017), the Supreme Court of the United States held in a unanimous 8-0 decision (J. Gorsuch took no part) that the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (“Hague Service Convention”) permits service of process by mail.
The Hague Service Convention, a Senate-ratified treaty to which the United States is a signatory, was created to simplify, standardize and generally improve” service of documents to persons outside a treaty-member State. The Hague Service Convention is a relatively expensive and slow method of service and generally thought by many state courts (including the Texas trial and appellate courts in this case) to exclude service of a summons and other legal notice abroad by mail, and there has been a split between the federal Circuit Courts of Appeals on whether service of process abroad by mail is valid under the Hague Service Convention. (The federal Ninth Circuit Court of Appeals earlier interpreted the convention as permitting service by mail (Brockmeyer v. May (2004) 383 F.3d 798, 802), but other federal Circuits have taken the opposite view.) The Supreme Court has put the conflict between the federal Circuits to rest. Now, serving persons outside the United States with court papers (including a summons and complaint) by mail will provide a faster and much less complicated delivery vehicle in treaty States so long as the receiving State has not objected to service by mail.
In 2013, Water Splash, Inc., sued Tara Menon, its former employee, in Texas state court after Menon had begun working for a competitor while still employed by Water Splash. The causes of action alleged were unfair competition, conversion, and tortious interference with business relations.
The Texas trial court granted Water Splash’s request that it be permitted to serve Menon by mail. Menon did not answer the Complaint, and Water Splash obtained a default judgment against her. Menon appealed, arguing that service by mail did not constitute valid service under the Hague Service Convention.
There exist several methods of serving persons abroad under the Hague Service Convention.* Article 10(a) states that unless the State of destination objects, the Hague Service Convention cannot interfere with the “freedom to send judicial documents, by postal channels, directly to persons abroad . . .” The question then becomes semantic: does “send[ing]” judicial documents abroad include serving a summons and complaint and other notice of pending legal matters?
The Supreme Court already had held (in Volkswagenwerk Aktiengesellschaft v. Schlunk (1988) 486 U.S. 694, 701) that the Hague Service Convention applies only to documents transmitted for service abroad. Also, it noted that the “key structural component” of the Hague Service Convention is that its scope is limited to the service of documents, and there’s no reason why “send[ing]” wouldn’t include service of process, which the Supreme Court has defined as “formal delivery of documents that is legally sufficient to charge the defendant with notice of the pending action.” (Id., at 700.) The opinion dismisses this argument as lacking any “textual footing” in Article 10. If the drafters of the Hague Service Convention wanted to limit Article 10 in this fashion, “they presumably would have said so.” If this were not true, it would render Article 10(a) superfluous.
Menon attempted to avoid the “superfluity problem” by suggesting Article 10(a) applies only to service of some documents (i.e., post-answer judicial documents). She argued it specifically excludes service of process or the drafters would have used the words “effect service” instead of the words “send judicial documents” to distinguish Article 10(a) from Article 10(b) and 10(c), which clarify the intention of delivery as to “effect service.” In the Supreme Court’s opinion, the best that could be said for Menon’s argument is that “send” creates an ambiguity as to Article 10(a)’s meaning. When a treaty provision is ambiguous, it permits the court to “look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” (Id.) Doing so resolves the dispute in Water Splashes’ favor.
As persuasive authority, the opinion notes the French text of Article 10(a) has always been interpreted to include service.
The opinion further supports its conclusion that “send” includes service of process by mail with sources other than the text of Article 10(a) and its interpretation. . Phillip W. Amram, a member of the U.S. delegation, was “most closely involved in the drafting” of the Hague Service Convention. He published a related article a few months before the Convention was signed. In that article, Amram stated Article 10 “permits direct service by mail . . . unless the [receiving] state objects to such service.” (The Proposed International Convention on the Service of Documents Abroad, 51 A. B. A. J. 650, 653 (1965).) Also, the Rapporteur’s Report (1 Ristau §4–3–5(a)) on a draft of Article 10 (which was materially the same as the final version) stated the first subdivision of Article 10 permitted service by telegraph and the drafters did not accept the proposal that postal channels be limited to registered mail. It was clearly understood that service by postal channels was permissible and the only question at that time was whether such service would be limited to registered mail.
The Supreme Court also gives “great weight” to the Executive branch’s interpretation of a treaty and to the position of other treaty members. During the Senate’s treaty ratification proceedings, President Lyndon Johnson delivered then-Secretary of State Dean Rusk’s report to the Senate, which confirmed the Executive’s position that Article 10 “permits direct service by mail . . . unless [the receiving] state objects to such service.” (Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters: Message from the President of the United States, S. Exec. Doc. C, 90th Cong. 1st Sess., 5 (1967).) Multiple foreign courts have held Article 10(a) to allow service by mail. Additionally, treaty members have objected to or declined to object to service by mail, Canada being in the latter category.
In sum, Water Splash’s service of process by mail was proper.
* The opinion summarizes Articles 2 through 7 to provide that service can be completed by providing the documents in a particular format to a government central authority in the State of destination. The central authority has the person served with the paperwork and returns a written certificate of service. Article 8 permits service through diplomatic and consular agents rather than through the central authority. Article 11 permits service by any method to which the originating State and the State of destination (here, the US and Canada, respectively) may agree, and Article 19 gives the State of destination latitude to prescribe methods of receiving documents in addition to those the Hague Service Convention authorizes – even if they are in conflict. Finally, so long as the State of destination does not object, Article 10(b) permits “judicial officers, officials, or other competent persons” in the originating State to “effect service” on “judicial officers, officials, or other competent persons” in the receiving State, and Article 10(c) permits “any person interested in a judicial proceeding to “effect service” of judicial documents directly through the “judicial officers, officials, or other competent persons of the State of destination.”