United States: Water Splash V. Menon: U.S. Supreme Court Rules Hague Convention Allows For Service By Mail On Foreign Defendants

On March 22, 2017, the United States Supreme Court heard arguments on the issue of international service of process in the case of Water Splash v. Menon. The question before the Court was whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the "Hague Service Convention") allows service of process by mail.

This issue arises quite often in U.S. products liability cases where the defendant is a foreign manufacturer.  The Hague Service Convention is a multilateral treaty that allows for service of process of legal documents from one member country to another, without the use of consular or diplomatic channels, to provide a uniform method for delivering notice of a foreign lawsuit to entities overseas. The United States is a signatory to the treaty, along with other prominent countries that host multinational manufacturers within their borders, such as Canada, Mexico, China, Japan, Germany and Spain.

Under the default provisions of the treaty, service must be performed through a lengthy and expensive process involving a state designated central authority that would funnel service from foreign courts to the defendants residing in that state. To avoid the expense of serving a foreign entity through its country's designated central authority, claimants have relied on Article 10(a) of the Hague Service Convention to convince U.S. courts that service of process on a foreign entity through U.S. mail is a sufficient method for service of process under the treaty. Article 10(a) of the Hague Service Convention states, in pertinent part: "Provided the state of designation does not object, the present Convention does not interfere with ... the freedom to send judicial documents by postal channels directly to the person abroad."

Through Water Splash Inc. v. Menon, 2017 WL 2216933 (May 22, 2017), the Supreme Court ended years of lower court division and held that the Hague Service Convention does not prohibit service by mail. Thus, in cases governed by the Hague Service Convention, a party may serve documents in a foreign country by mail as long as that country authorizes service by mail. The decision will have a particularly significant impact on foreign entities defending products liability suits in the United States as the Supreme Court has finally resolved the circuit court split over the interpretation of Article 10 of the Hague Service Convention. 

The Case

The suit arose out of an employment dispute between Petitioner Water Splash, an aquatic playground business, and Respondent Menon, a former employee. Water Splash sued Menon in Texas state court and alleged that she had worked for a competitor while still employed by Water Splash. Although the case involved an employment dispute, the procedural issue and resulting holding are not limited to the facts of this case.

"Because Menon resided in Canada, Water Splash sought and obtained permission to effect service by mail."  Id. at *3. Menon did not answer or enter an appearance, and the trial court issued a default judgment in Water Splash's favor for actual and exemplary damages and attorneys' fees. Menon moved to set aside the motion and argued that she was not properly served. In response, Water Splash asserted that service had been diligently sought and accomplished by sending a letter to Menon's Quebec address by "first class mail, certified mail, and Federal Express." The trial court denied the motion, and Menon appealed. The Texas Court of Appeals found that the Hague Service Convention prohibits service of process by mail. After the Texas Court of Appeals denied en banc review, and the Texas Supreme Court denied discretionary review, the U.S. Supreme Court granted certiorari to resolve the general issue of whether the Hague Service Convention prohibits service by mail.

The Historical Circuit Split

Contrary to the Texas appellate court's decision in Water Splash, the "majority view" held that the Hague Convention allows service of process by mail, as long as the state of destination does not object. Courts following this view include the Second, Fourth, Seventh, and Ninth Circuits. The Fifth Circuit, Eighth Circuit, and district courts in the Third and Eleventh Circuits, however, rejected the "majority view" and held that service must be effectuated by the specific methods authorized by the terms of the Hague Convention. Federal and state courts have frequently addressed this issues—more than 120 times by a count of recent cases.

The Court's Analysis

The U.S. Supreme Court ended this circuit split.  The Court used "traditional tools of treaty interpretation" and examined the text, the Convention's drafting history, the views of the Executive Branch, and the views of other signatories in reaching its conclusion. Id. at *4, 6, 8. As to the text, the Court recognized that the main issue is the interpretation of Article 10 of the Convention. Article 10 refers to methods of service that are permitted by the Convention absent the relevant state's objection. However, Article 10(a), which refers to the ability to "send judicial documents" by postal channels, does not contain the word "service."  The Court found that since Article 10(a) contained the word "send," and the scope of the Convention as a whole is limited to service of documents, the section must refer to a party's ability to send documents via mail for the purpose of service. Based on this reasoning, the Court rejected the argument that Article 10(a) referred only to "post-answer judicial documents."

Furthermore, the Court cited to the fact that three extratextual sources also indicated that Article 10(a) allows a party to serve documents abroad via mail, unless the state has laws to the contrary. First, the delegates that participated in drafting the Convention indicated that Article 10 permitted service by mail. Second, the Court recognized that the Executive Branch "has consistently maintained that the Hague Service Convention allows service by mail." Id. at *7. And third, other signatories to the Convention have adopted the view that Article 10 allows for service by mail.

Conclusion

Water Splash clarifies that the Hague Service Convention does not bar U.S. plaintiffs from serving entities in foreign countries via mail as long as the state of destination does not does have a law to the contrary. The Court clarified that its holding "does not mean that the Convention affirmatively authorizes [sic] service by mail," but rather that the Convention does not interfere with the freedom to serve documents by mail. Id. at *8.  Thus, a party serving documents abroad should not rely on the Convention as the authority on whether service by mail is permitted. Rather, the decision means that "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." Id.

Now that the Supreme Court has resolved the split, circuit and district courts will have to follow its guidance, which will provide uniformity across all U.S. state and federal courts, while avoiding uncertainty over any final judgments against foreign defaulting parties or costly service of process battles.  As service by mail is often the most efficient and cost-effective method of serving process on foreign products liability defendants, companies with manufacturing facilities overseas can expect plaintiffs to take advantage of service by mail whenever possible. 

For More Information

If you have any questions about this Alert, please contact Effie D. Silva, Hope Krebs, Thomas Schmuhl or any member of the International Practice; Sharon Caffrey or any member of the Products Liability Practice; or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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
Similar Articles
Relevancy Powered by MondaqAI
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Related Articles
 
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions