The U.S. Supreme Court rendered an 8-0 decision in Water Splash, Inc. v. Menon, on May 22, 2017, confirming that service of a complaint and summons by mail is not precluded by the Hague Service Convention (the “Convention”). 501 U.S. __ (2017).
The Convention is a multilateral treaty governing service of process of legal documents from one member state to another without the need to invoke consular or diplomatic channels. The Water Splash decision, penned by Justice Alito, resolved a Circuit split over a question of great practical importance to practitioners in the growing area of cross-border litigation.
Water Splash concerned a lawsuit brought in a Texas state court by a designer and manufacturer of aquatic playgrounds against a former sales representative and Canadian resident alleging the improper use of its designs and drawings. Water Splash served the summons and complaint on the defendant, Tara Menon, by mail and a default judgment was entered when she failed to respond. The Texas Court of Appeals set aside the default judgment, finding that the Convention prohibited service of process by mail. The Supreme Court granted certiorari to consider the issue of whether the Convention prohibits the initiation of a lawsuit through cross-border delivery of a complaint and summons by mail.
The Court’s analysis turned on an interpretation of the Convention’s Article 10(a), which sets forth when mail may be used for cross-border delivery of judicial documents. Specifically, Article 10(a) states that the “Convention shall not interfere with . . . the freedom to send judicial documents, by postal channels, directly to persons abroad.” Plaintiff Water Splash argued that Article 10(a)’s language was sufficiently broad to allow service of a complaint and summons by mail because mail service was an available method of service under both Texas and Canadian procedural law. Menon argued that service of a complaint and summons by mail was not permissible under Article 10(a), focusing on the absence of the word “service” in Article 10(a). She maintained that because “service” was not expressly referenced in that Section (in contrast to other Sections of the same Article), mail delivery of a complaint and summons was jurisdictionally inadequate.
The Court concluded that the Convention permits service of a complaint and summons by mail so long as it is permitted by both (1) the jurisdiction in which the litigation is pending; and (2) the country in which service is received. In reaching its conclusion, the Court relied primarily on three bases.
- First, the Court looked to the scope of the Convention—which concerns only service of documents—to conclude that Article 10(a) governs service despite the absence of the word “service” in the provision governing use of the mail.
- Second, the Court observed that Article 10(a) referred broadly to “judicial documents” and concluded this language was expansive enough to capture service of any judicial document, including a summons and complaint. This interpretation is reinforced by the fact that other provisions in the Convention use explicit language when limiting the given service rule to only certain types of documents.
- Third, the Court considered the legislative history of the Convention, the State Department’s interpretation of the Article 10(a) and the way in which other signatories to the Convention had interpreted the provision.
All of these supported the conclusion that service of a summons and complaint by mail is permitted when the country in which the service is received allows such service.
The facts of Water Splash highlight the practical importance of the Supreme Court’s ruling. Menon did not respond to the summons and complaint she received by mail, and as a result, default judgment was entered against her. The Supreme Court’s ruling effectively barred her from further challenging that judgment, though the Court did send the case back to the Texas appellate court to determine whether Texas law authorized service by mail under the circumstances. Going forward, as to U.S.-based litigation, the Supreme Court’s ruling will, in most circumstances, prevent both organizations and individuals from ignoring service received by mail if their own country and the relevant American jurisdiction permit cross-border service by mail. The ruling will also simplify and expedite service of process in litigation initiated against defendants located in countries that permit mail service, such as Japan, Canada, Colombia, France, Italy, Israel, Spain and the United Kingdom. (View the complete list of such countries).