The Hague Service Convention Does Not Prohibit Service of Process by Mail

Author: Forrest A. Jones
Editor: Kevin D. Rodkey

The Supreme Court held in Water Splash, Inc. v. Menon, No. 16–254 (May 22, 2017), that the Hague Service Convention allows service of process by mail under Article 10(a), when two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under the otherwise-applicable law.

Water Splash sued its former employee, Menon, in Texas state court, alleging she had begun working for a competitor while still employed by Waters Splash. Water Splash effected service by mail on Menon, who resided in Canada, and was awarded a default judgment when Menon failed to answer or otherwise appear. Menon challenged service, arguing that service by mail was prohibited by the Hague Service Convention. The Texas Court of Appeals agreed with Menon.

The Supreme Court granted certiorari to resolve a circuit split as to whether Article 10 of the Hague Convention allows service by mail. Article 10 is composed of three parts. By their plain terms, Articles 10(b) and 10(c) address methods of service that are permitted, but 10(a)—at issue in this case—does not expressly refer to service, stating instead that it merely does not restrict “the freedom to send judicial documents, by postal channels, directly to persons abroad.”

The Supreme Court unanimously held that the phrase “send judicial documents” in Article 10(a) includes for the purposes of service. The Court reasoned that, although service was not explicitly mentioned in Article 10(a), the scope of the Convention is limited to the service of documents, which Article 1 makes clear. If Article 10(a) did not also apply to service, it would be superfluous. The Court was not convinced by arguments that Article 10(a) may refer only to “post-answer judicial documents,” because it concluded that this distinction did not have any plausible textual basis. Combined with other supporting sources outside of the Convention’s text, the Court held that Article 10(a) did not prohibit service by mail.

As a practical take away, the Court outlined two conditions to determine if service by mail is available under the Convention. First, the receiving state must have not objected to service by mail; and second, service by mail must be authorized “under otherwise-applicable law” (i.e., in the jurisdiction of the matter being served). If both conditions are met, then the Court explained service by mail to a foreign defendant will be proper.

 

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