United States: Supreme Court Makes A "Splash," Upholds Hague Service By Mail, And Leaves Us Lost In Translation

A question that has divided state courts, federal district courts and the federal circuits regarding methods of service under the Hague Service Convention (Convention) was decided May 22, 2017, by the U.S. Supreme Court in Water Splash, Inc. v. Menon, No. 16-254, 581 U.S. ___ (2017). The Supreme Court, in an 8-0 decision written by Justice Alito, without recently appointed Justice Gorsuch, held that "The Hague Service Convention does not prohibit service of process by mail." The case concerned a Texas corporation suing a former employee residing in Quebec, Canada.

This decision may be seen as a bit of a setback for counsel defending clients abroad, as the holding effectively rubber-stamps service of process on foreign nationals and foreign corporations via mail; however, such service is not without certain limitations. In particular, the Supreme Court failed to address the issue of whether the mailed judicial documents need to be translated into the intended recipient's national language. Article 5 of the Convention requires such translation if service is to be effectuated through a state's centralized authority. However, there is a split on the translation issue because Article 10 fails to contain a requirement for a translation, which a seeming majority of U.S. courts have held does permit service by mail without an appropriate translation.

Background

Water Splash, Inc., a Texas corporation, sued its former employee, Menon, for unfair competition, tortious interference with business relations and conversion, as it appeared that she had begun working for a competitor before leaving Water Splash. Menon was a resident of Quebec, Canada, and after attempts at service through other means were unsuccessful, Water Splash sought leave to serve Menon via mail. After mail service was completed, Menon defaulted in appearing and a default judgment was entered against her. Menon appealed, arguing that the Hague Convention does not "Comport with the requirements of the Hague Service Convention." The Texas Court of Appeals sided with Menon and the Supreme Court granted certiorari.

In articles 2-7, the Convention requires each state to establish a central authority to receive requests for service of documents from other countries. When the central authority receives a request it must either serve the documents or arrange for their service and provide a certificate of service. According to the Supreme Court's holding, the Convention does not prohibit other means of service, as Article 11 allows two states to agree on other methods of service and Article 19 clarifies that the Convention does not preempt any internal laws of its signatories that permit other methods of service from abroad.

The Supreme Court interpreted the treaty by (1) viewing the text and its context and (2) looking to extra-textual sources such as the drafting history, views of the executive and views of other signatories. In particular, they found that the scope of the Convention is limited to service of documents and that the Convention was intended to ensure that judicial documents served abroad are brought to the notice of the addressee in sufficient time. See Hague Service Convention, Art. 1 (1965). Justice Alito's decision suggested that it would be "quite strange if Article 10(a) ... concerned something other than service of documents."

The failed argument by Menon centers on the distinction between "send" and "serve" as used in Article 10. In particular, Menon attempted to distinguish that Article 10(a), which uses "send," refers to a different set of documents than 10(b) or 10(c), which each use "serve." Menon claimed that the distinction means that Article 10(a) applies to documents to be served following the filing of an answer. However, the Court quickly dismissed the argument, finding it "hard to fathom," that Article 10(a) applies to a different category of documents than 10(b) and 10(c), especially as the three sub-articles each refer to the same term "judicial documents." Besides finding this argument entirely "atextual" there was no other support for their claim. In particular, the French word in Article 10(a) is adresser, which was "consistently interpreted as meaning service or notice." The French version of the Convention is "equally authentic" to the English version; as a result, at best, the English version of the Convention creates an ambiguity, and therefore the Court may look beyond the written words.

The Supreme Court then looked to other sources that confirmed "Article 10 permits direct service by mail ... unless the receiving state objects to such service." Notably, the Court found that the State Department in 1991 expressed its disagreement with the ruling of the Eighth Circuit in a letter addressed to the Administrative Office of the U.S. Courts and the National Center for State Courts regarding Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir. 1989), which addressed this issue of service through mail under the Convention, where the Eighth Circuit found that the Convention did not allow for service via mail. The Supreme Court also found that multiple foreign courts have held that the Convention does allow for service by mail. Ultimately, the Court remanded the case to the Texas courts to determine whether Texas law authorizes service by mail and any other remaining issues.

Analysis

In cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law." As a result, service on a foreign individual or corporation via mail is not sufficient in and of itself. The foreign state must not have objected to service by mail, the venue in which the suit was commenced must have laws authorizing such service, and such law must be fully complied with in effectuating service via mail in the foreign state.

By way of example, in New York, C.P.L.R. §312-a, et seq. allows for "Personal Service by Mail," whereby a party serves the summons and complaint together with two copies of a statement of service by mail, an "acknowledgement of receipt" form (proscribed by statute) and a postpaid return envelope. This method of service requires some cooperation on the part of the recipient, who must affirm the acknowledgement and return one copy of the acknowledgement form in the postpaid envelope. C.P.L.R. §312-a(c). If none is returned, then the plaintiff will have to resort to other conventional forms of service and the penalty to the defendant is that the court may assess against the defendant the "reasonable expense" of the other form of service (the acknowledgement includes a statement to this effect). C.P.L.R. §312-a(f). If a New York plaintiff were to sue a Canadian resident, they could use this method of mail service, C.P.L.R. §312-a, as Canada does not object to the service of process by mail. For a full listing of the current (as of April 26, 2017) status of countries that have adopted various portions of the Hague Service Convention, see the current Status Table.

Again, none of what is described above discusses the need (or lack thereof) to translate the documents being served into the native language of the recipient, which is required by the Convention. That would fall into one of the "other remaining issues" on remand. Therefore, service without the appropriate translation via mail may still be a valid argument to be made against good service, even if the mail reached the appropriate individual, who understood English and then timely appeared in the action. See Hague Service Convention, Art. 5 (1965) (Article 5 requires translation before service by the central authority; however, it appears a majority of courts have ruled that the absence of such requirement for a translation in Art. 10 of the Convention negates the need for such translation to be provided when process is served via mail). See Taft v. Moreau, 177 F.R.D. 201, 204 (D. Vt. 1997) (citing Lemme v. Wine of Japan Import, Inc., 631 F.Supp. 456,464 (E.D.N.Y. 1986)); Williams v. LeBrun, 2010 Conn. Super. LEXIS 1989 (Conn. Super. Ct. 2010); Atl. Specialty Ins. Co. v. M2 Motor Yachts, 2017 U.S. Dist. LEXIS 56846 (D.Fl. 2017); Fraserside IP L.L.C. v. Youngtek Solutions Ltd., 796 F. Supp. 2d 946 (D. Iowa 2011).

A minority of jurisdictions have found the other way, requiring documents that were served via mail to be translated into the recipient's national language. See Froland v. Yamaha Motor Co., Ltd., 296 F. Supp. 2d 1004, 1008 (D. Minn. 2003) (quashing service via mail for failure to translate). See also Borschow Hosp. & Medical Supplies, Inc. v. Burdick-Siemens Corp., 143 F.R.D. 472, 480 (D.P.R. 1992); American River Transp. Co. v. M/V BOW LION, 2004 WL 764181 (E.D. La. 2004).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.