Product liability litigation is no stranger to corporate defendants residing outside of the United States. Whether you work for a foreign corporation or represent a foreign corporation, service of process should be at the forefront of your mind when a new lawsuit arises. Such service is often governed by the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, more commonly referred to as the Hague Convention. See 20 U.S.T. 361 (Feb. 10, 1969). The Hague Convention is a multilateral treaty intended to facilitate service of process to ensure foreign defendants receive actual, timely notice of lawsuits filed against them. A working knowledge of permissible service under the Hague Convention can make all the difference for you or your client, as a successful challenge to service can result in the dismissal of a case in its entirety.
As most would say, easier said than done. The Hague Convention is complex, and understanding its nuances can be a challenge. As much of a challenge as it is for the defense, it is arguably even more of a challenge for plaintiffs’ attorneys who have to ensure they are in compliance when serving process. Defense lawyers frequently use this to their benefit, reaching agreements with plaintiff’s attorneys to waive service under the Hague Convention in exchange for other benefits in the forthcoming litigation such as additional time to respond to discovery.
In the past year, the United States Supreme Court has – to an extent – evened the playing field. In a decision resolving a circuit split, the Supreme Court in Water Splash, Inc. v. Menon, 137 S. Ct. 1504 (May 22, 2017), found the Hague Convention permits service by mail.
Water Splash, Inc., a corporation producing aquatic playground systems, filed suit against former employee Menon for allegedly working for a competitor during her employment with Water Splash. At the time of filing suit, Menon resided in Canada. Water Splash obtained permission from Canada to serve Menon by mail. Menon did not answer or appear, and the court entered a default judgment against Menon. Menon unsuccessfully moved to set aside the default judgment, arguing that service by mail is not permissible under the Hague Convention. The Supreme Court granted certiorari to resolve what it saw as a broader conflict among courts as to whether the Hague Convention allows service by mail.
In finding it permissible to serve a foreign litigant by mail...
