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Service of Process Outside the United States Updated: Water Splash and its Progeny

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written by NITA guest blogger Tereza Horáková

On May 22, 2017, one year after publication of our blog post[1] on how to serve process outside the United States, the United States Supreme Court resolved a conflict among the lower courts concerning an important practical service question: Does the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter the Hague Convention) prohibit service by mail under Article 10(a)? In Water Splash, Inc. v. Menon, the Supreme Court held that the Hague Convention indeed does not prohibit service by postal channels[2]. This note provides a brief analysis of the Supreme Court decision and an overview of the case law that followed.

Water Splash, Inc. sued its former employee, Tara Menon, in a state court in Texas, alleging that Ms. Menon had begun working for a competitor while still employed with Water Splash, Inc. Ms. Menon resided in Canada at the time, and Water Splash, Inc. effectuated service by mail after obtaining permission to do so from the trial court. Eventually, the trial court entered a default judgment for Water Splash, Inc. due to Ms. Menon’s refusal to answer or otherwise enter an appearance. Ms. Menon moved to set aside the default judgment, arguing that she had not been properly served. The trial court denied Ms. Menon’s motion, only to be overturned on appeal. After the Texas Supreme Court denied discretionary review, the United States Supreme Court granted certiorari to resolve a broader conflict among lower courts turning on the interpretation of the Hague Convention.

The Supreme Court first analyzed the key language of Article 10(a) of the Hague Convention, which states that “[p]rovided the State of destination does not object, the present Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad.” Ms. Menon argued that because subsection (a) uses the word “send” as opposed to expressly referring to service as in subsections (b) and (c) of Article 10, this textual difference implies that sending documents through postal channels does not equal service. The Supreme Court rejected this argument as having no foundation in the text of the treaty or anywhere else.

First, the Supreme Court noted that the scope of the Hague Convention is limited to service of documents and Ms. Menon’s interpretation would render Article 10(a) meaningless, which goes against fundamental principles of contract interpretation. Second, treaty interpretation must consider the context in which a particular treaty provision is used. The structural placement of Article 10(a) strongly suggests that it pertains to service of process, considering that the immediately following subsections (b) and (c) expressly refer to “service of judicial documents.” Last, the Supreme Court considered extratextual sources shedding light on the meaning of Article 10(a). The Hague Convention’s drafting history, the views of the Executive, and the views of many other signatory countries such as Canada, Italy, and United Kingdom all concluded that the Hague Convention allows service via postal channels.

However, the Supreme Court’s unanimous decision authored by Justice Alito also cautioned that neither does the Hague Convention affirmatively authorize it[3]. In fact, the Hague Convention permits service by mail only if two conditions are met: 1) the receiving state has not objected to service by mail, and 2) service by mail is authorized under otherwise-applicable law[4]. For affirmative authorization of service by mail and any requirements as to how that service is to be accomplished, one must look to the law of the forum in which the suit is filed[5].

Several courts have already cited Water Splash and utilized its holding. For example, the technical differentiation between permission and affirmative authorization under the Hague Convention proved fatal to the plaintiff in Fed. Ins. Co. v. Cessna Aircraft Co[6]. In that case, the plaintiff argued that it properly served the defendant by international mail pursuant to Fed.R.Civ.P. 4(f)(1) and (2). Rule 4(f)(1) provides for service by an internationally agreed means of service, “such as those authorized by the Hague Convention” (emphasis added). However, Water Splash held that the Hague Convention does not affirmatively authorize service by postal channels, but merely permits it only if the otherwise-applicable law authorizes it. Accordingly, the district court held that plaintiff had not effectuated service under Rule 4(f)(1), because the plaintiff served the defendant by means not authorized by the Hague Convention, but merely permitted by it[7]. The district court then analyzed whether the plaintiff served the defendant under Rule 4(f)(2), which applies there is no internationally agreed means, or an international agreement allows but does not specify other means (as here under the Hague Convention); however, the plaintiff failed to comply with the requirements of Rule 4(f)(2) as well.

In Moore v. Toyota Motor Corp[8]., the defendant was not properly served because the plaintiff did not comply with the second prong of the test for service by mail under the Hague Convention—i.e., that service by mail is authorized by otherwise-applicable law. Specifically, the plaintiff attempted to serve the defendant in Japan by regular international mail via United States Postal Service without a proof of delivery on the recipient. However, no provision of the Federal Rules of Civil Procedure affirmatively authorizes service in a foreign country by regular mail without a proof of delivery. Therefore, the district court found that the plaintiff failed to properly serve the defendant.

In a similar case, In Re LLS Am., LLC[9], the plaintiff served the defendant via the clerk of court, who certified “that a copy of the Summons and Complaint was mailed by international registered mail with Returned Receipt for International Mail” to both defendants. This method of service is affirmatively authorized under Fed.R.Civ.P. 4(f)(2)(C)(ii) and, therefore, the district court found that the plaintiff properly served the defendant via postal channels under the Hague Convention.

In conclusion, the Supreme Court has made clear that the Hague Convention does not prohibit service of process by mail. However, as the progeny of Water Splash has shown, one must be cautious to comply with the two-prong test for service of process under the Hague Convention as set out in Water Splash.

Tereza Horáková is an attorney in Miami, where she practices commercial litigation, probate administration and litigation, and estate planning. Ms. Horáková graduated from Nova Southeastern University, College of Law, and Charles University Faculty of Law in Prague, Czech Republic. While at Nova, Ms. Horáková was a research assistant to Professor Michael J. Dale, whom she thanks for his review of this article. She can be reached at tereza@hotmail.cz.


[1] “Service of Process Outside the United States: A Basic Overview,” by Tereza Horáková and Michael J. Dale, posted on March 23, 2016. Available at http://blog.nita.org/2016/03/service-process-outside-united-states-basic-overview/.
[2] While the Hague Convention does not define the term postal channels, the case law generally construes the term to mean postal mail, such as the United States Postal Service. However, the Hague Convention does not define what type of mail qualifies as use of postal channels. A Special Commission of the Convention stated in 2003 that service through private courier is the equivalent of service through postal channels (see Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Apostille, Evidence and Service Conventions, at ¶ 56 (Oct. 28–Nov. 4, 2003)).
[3] Justice Gorsuch took no part in the consideration or decision of the case.
[4] The countries that have objected to the service of process via postal channels include, among others, the Czech Republic, Germany, and Argentina.
[5] Brockmeyer v. May, 383 F.3d 798, 803–04 (9th Cir. 2004) (“Article 10(a) does not itself affirmatively authorize international mail service. It merely provides that the Hague Convention “shall not interfere with” the “freedom” to use postal channels if the “State of destination” does not object to their use. As the Rapporteur for the Convention wrote in explaining Article 10(a), “It should be stressed that in permitting the utilization of postal channels, . . . the draft convention did not intend to pass on the validity of this mode of transmission under the law of the forum state: in order for the postal channel to be utilized, it is necessary that it be authorized by the law of the forum state.”)). The Supreme Court cited Brockmeyer in Water Splash, 137 S. Ct. at 1513 (2017).
[6] Fed. Ins. Co. v. Cessna Aircraft Co., 2017 WL 2905576 (D. Kan. July 7, 2017).
[7] The United States District Court for the District of New Jersey has reached the same conclusion in an unpublished opinion in Trzaska v. L’Oreal USA, Inc., 2017 WL 6337185 (D.N.J. Dec. 12, 2017), where the plaintiff unsuccessfully attempted to effectuate service under Rule 4(f)(1) by mailing a copy of the summons and complaint by way of the United States Postal Service’s “Priority Mail Express International.”
[8] Moore v. Toyota Motor Corp., 2017 WL 5257050 (E.D. La. Nov. 13, 2017).
[9] In Re LLS Am., LLC, 2017 WL 3013260 (E.D. Wash. July 14, 2017).

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