Partially obscured by the significant patent venue ruling in TC Heartland, another decision issued by the Supreme Court on the same day, Water Splash v. Menon, presents guidance for multinational plaintiffs and defendants charting the rarely tested waters of international service.[1] Specifically, in determining that service by direct mailing is not expressly prohibited under the Hague Service Convention, the Court opened the flood gates for parties to attempt Convention-compliant service by direct mailing.[2]
Background
Starting from the beginning, in 2013, Water Splash, Inc., sued Tara Menon, a former employee, alleging, among other things, unfair competition, conversion, and tortious interference with business relations. Like many modern lawsuits, however, effectuating service and process presented a problem, because the parties were diverse and outside of the locale of the controversy. Specifically, Water Splash, a Delaware corporation sued Menon, a Canadian citizen living in Quebec, Canada, concerning her and her new employer’s misuse of Water Splash’s drawings and designs when submitting construction bids to the City of Galveston, Texas. Accordingly, Water Splash sued Menon in a Texas state court, and faced serving Menon under the laws of Texas (locale of the controversy), as well as those of Canada (residence of the defendant).
Citing Texas law, Water Splash served Menon by direct mail. When Menon did not respond, the Texas trial court entered a default judgment against Menon. Menon, appearing for the first time in the controversy, then filed a post-judgment motion seeking a new trial and to set aside the default judgment. Specifically, Menon argued proper service was never effectuated under the Hague Service Convention. The trial court denied Menon’s motion; Menon appealed; the Texas Court of Appeals reversed, holding that the Hague Service Convention prohibits service by direct mailing; and the en banc Texas Court of Appeals denied review, as did the Texas Supreme Court. Then, the U.S. Supreme Court, recognizing the import and variance among courts throughout the U.S., granted certiorari to resolve the conflict.[3]
The question presented to the Court in Water Splash related to the interpretation of Article 10 of the Hague Service Convention controlled the controversy.[4] More specifically, section (a) details that under the Hague Service Convention, “[p]rovided that the State of destination does not object,” parties are “free[] to send judicial documents, by postal channels, directly to persons abroad.” Under this section, Water Splash argued that its direct mailing to Menon sufficed as proper service under the Convention. Menon disagreed, arguing that unlike any other provision of the Hague Service Convention, Article 10 used the word “send” instead of “service”—and, thus, service by direct mailing was insufficient.[5]
The Court’s Analysis
The Supreme Court, in a unanimous decision, read the phrase “send judicial documents” to include sending such judicial documents for the purpose of service under Article 10.[6] With Justice Alito writing the opinion, the Court held that nothing within the Hague Service Convention expressly precluded service documents being exchanged by direct mailing as long as the receiving country (e.g., Canada) and/or the state from which the service documents were mailed (e.g., Texas) do not prohibit such service methods. In the context of Water Splash “[b]ecause the [Texas] Court of Appeals concluded that the Convention prohibited service by mail outright,” this was a non-dispositive inquiry as the court “had no occasion to consider whether Texas law authorizes the methods of service used by Water Splash.”[7]
Moreover, the Court noted that “[m]ultiple foreign courts have held that the Hague Service Convention allows for service by mail.”[8] Additionally, the Court noted that because they have “either objected, or declined to object,” several of the Convention’s signatories have “acknowledge[ed] that Article 10 encompasses service by mail.”[9] Thus, because the waters have been cleared for international service by the Court, as long as no objection...
