August 4, 2017

International Service By Mail; Water Splash, Inc. v. Menon

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The Hague Service Convention governs service of process across international borders. There was a conflict regarding whether the Convention would allow service by mail. The Court resolved that question.

Water Splash is a U.S. corporation, and Menon was a former employee who resided in Canada. Water Splash sued Menon in Texas alleging that she had begun working for a competitor while still employed by Water Splash. It obtained the court’s permission to serve Menon by mail. But Menon did not answer or enter an appearance, and the trial court defaulted Menon.

Menon moved to set aside the judgment, arguing that service by mail was not allowed under the Convention. The trial court denied that motion and the issued was appealed to the Supreme Court.

The unanimous Court began its discussion by noting that there was disagreement over whether the Convention allowed service by mail. In order to resolve this question, the Court looked to the text of the treaty and the context in which it was written. And the section in question authorized “send[ing] judicial documents” by mail, but it did not specifically authorize service by mail. The Court found that the Convention’s structure showed that this section authorized service by mail.

The key structural point is that the scope of the Convention is limited to service of documents. Several elements of the Convention indicate as much. First, the preamble states that the Convention is intended “to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.” And Article 1 defines the Convention’s scope by stating that the Convention “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” Even the Convention’s full title reflects that the Convention concerns “Service Abroad.”

In light of this context, “it would be quite strange” if the section in question “concerned something other than service of documents.”

The text did not change the result. While the section in question did not contain the word “service” or any variant (unlike other provisions in the Convention), it spoke of “sending” documents. Rather than excluding “service,” the Court found that “send” was “a broader concept that includes service but is not limited to it.” Finally, the French version of the Convention used language that had been consistently interpreted as “service.”

Finally, the Court looked to a number of other sources (legislative history, the views of other countries, etc.) and found that these authorities supported its interpretation.

Lesson:

You are allowed to serve a foreign entity by mail unless the country in which the entity reside objects to that form of service.