Service of Process Abroad by Mail OK, Supreme Court Says

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By Melissa Heelan Stanzione

Service of process abroad by mail is permitted under international law, the U.S. Supreme Court held May 22 ( Water Splash, Inc. v. Menon , 2017 BL 169676, U.S., No. 16-254, 5/22/17 ).

The high court’s holding resolves an almost 30-year-old circuit split and provides a uniform interpretation of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters.

Water Fight

Here, Water Splash, a water playground equipment maker, sued former employee Tara Menon for unfair competition after she allegedly began working for a competitor while still employed by the company.

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 relevant provision, Article 10(a), says that the Convention “shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.”

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

Limited Scope

Traditional tools of treaty interpretation “unmistakably” show that Article 10(a) includes services of process, Justice Samuel A. Alito Jr. wrote for a unanimous court.

Article 10(a) doesn’t authorize service by mail but allows it as long as the receiving state doesn’t object, the court said.

Although Article 10(a) uses the word “send” instead of “to effect service” like Articles 10(b) and (c), this “textual difference” can be resolved by the treaty’s text, context, and history, it said.

The scope of the convention is limited to service of documents abroad, as its title reflects and the preamble states, it said.

If Article 10(a) concerned something other than service of documents it would be “quite strange,” the court said.

Ambiguity Resolved

Even if the word “send” created some ambiguity, it was resolved by the history surrounding the treaty’s formation, the court said.

An article written by a member of the U.S. delegation involved in the treaty’s drafting said that “‘Article 10 permits direct service by mail’” unless the receiving country objects to this type of service, the court said.

When President Lyndon B. Johnson submitted the treaty to the Senate for its advice and consent, he included a report from the then secretary of state saying the same thing, it said.

Furthermore, the State Department agreed with this interpretation, the court said.

The court vacated the lower court’s opinion and remanded to determine whether Texas law allows for the type of service Water Splash used.

Under Texas law, service of process on a defendant out of the country by mail isn’t allowed, Timothy A. Hootman, Houston, attorney for Menon, told Bloomberg BNA.

In such a case, the convention offers alternate methods for service, such as via a central authority in the receiving state or diplomatic agents.

Once the case is remanded, the default judgment will get set aside and the case will proceed “as normal,” Hootman said.

Jeremy Gaston, attorney for Water Splash, didn’t return a request for comment.

Justice Neil M. Gorsuch took no part in the consideration or decision of the case.

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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Full text at http://src.bna.com/o5K.

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