Justices Soak Up Arguments in Service of Process Case

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By Melissa Heelan Stanzione

The high court could resolve a decades-long circuit split about a treaty’s interpretation after oral arguments March 22 ( Water Splash, Inc. v. Menon, U.S., No. 16-254 , argued 3/22/17 ).

The question before the U.S. Supreme Court was whether service of process by mail is authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

The United States, as amicus in support of petitioner Water Splash Inc., argued that the Convention doesn’t affirmatively authorize service of process by mail but should be construed to permit it.

The text of the relevant provision, section 10(a), says that the Convention “shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad,” Elaine J. Goldenberg of the Department of Justice said.

This isn’t “the same thing as providing an affirmative authorization for service by mail,” Goldenberg said.

That affirmative authorization has to be found “in the law of” the United States, she said.

And under Federal Rule of Civil Procedure 4, “where an international agreement permits, but does not authorize service on persons abroad,” service by mail is allowed, Goldenberg said.

Water Fight

Here, Water Splash sued former employee Tara Menon for unfair competition, alleging she gave their splash pad designs to a competitor. A splash pad is an outdoor aquatic play area with spraying or flowing water fixtures.

The company served Menon with process in Canada via mail. When Menon didn’t answer, the court granted the company’s motion for default judgment.

Menon then filed a motion for a new trial, arguing the service didn’t comply with the requirements of the Convention.

The Texas Court of Appeals held that “send” does not mean “serve” under the treaty and vacated the default judgment.

‘Serve’ Versus ‘Send’

“Send” and “effect service” are indeed used in section 10, so that the text isn’t “wholly unambiguous,” Jeremy Gaston, who represented Water Splash, said.

Gaston is an attorney with Hawash Meade Gaston Neese & Cicack LLP, Houston.

Sections 10(b) and (c) say that the Convention shall not interfere with the freedom of specified persons “to effect service of judicial documents.”

Why did the drafters use both words? Justice Sonia Sotomayor asked Gaston.

The “practical answer” is that the three predecessor treaties to the Convention were written in French and used the word “adresser.” The translation of this word is broad enough to cover “service,” Gaston said.

When questioned by Justice Elena Kagan about why the Convention’s drafters used two different words, Goldenberg said that when there’s ambiguity in a treaty’s language, courts should look to extrinsic sources for assistance.

These could include historical documents such as the French treaties, Goldenberg said.

“‘Adresser’ had been understood by everyone and it was clear in context to capture service,” she said.

International Comity

Policy considerations also play an important role in adopting Water Splash’s interpretation of “send,” Goldenberg said.

“Affirming the court below would take us out of step with the rest of the world,” she said. “Seventy other countries are parties to this treaty” and such an interpretation could make them “think that we’re not living up to our obligations.”

The justices questioned Timothy A. Hootman, attorney for Menon, about how uncommon the interpretation was.

“Do you think it’s a problem for your position that no other court in the world has construed the treaty this way?” Kagan asked him.

“Someone’s got to be first, right?” Chief Justice John G. Roberts Jr. quipped.

Kagan persisted.

It would “be sort of a problem for international relations, wouldn’t it” if we just interpret everything “differently from the way everybody else in the world does,” she asked Hootman.

“Clearly” we don’t want to come across as “arrogant” but “we have to respect the Constitution,” Hootman said.

Treaty interpretation is “somewhat unlike how you might interpret a statute,” Roberts said.

They should be visualized as similar to contracts so that “the conduct and expectations of the parties” at the time of treaty formation are relevant to a treaty interpretation inquiry, he said.

“I have a real problem with that analogy, because it doesn’t factor in the Constitution,” Hootman said.

“We adopt a treaty and make it a federal law, just like a federal statute,” he said.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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