Earlier in December, The Supreme Court agreed to settle whether The Hague Service Convention authorizes the service of process by mail. This has been an on-going question that has divided state and federal courts for decades.
Just in case you didn’t know, The Hague Service Convention is a multilateral treaty which was adopted in The Hague, The Netherlands, on 15 November 1965 by member states of The Hague Conference on Private International Law. The treaty allows for service of process of legal documents from one state to another without the use of consular or diplomatic channels.
Currently, one interpretation of the treaty permits the requesting judicial officer to “send” judicial documents by postal channels to states that have authorized this channel upon ratifying or acceding to the Convention, such as France and Italy. Other provisions of the treaty say “serve” or “service”. The controversy is over whether the treaty permits service directly on parties by mail. There are many interpretations of this, so it has caused some controversy in the past.
Water Splash, Inc. v. Menon, Tara was a court case that dealt with the treaty’s discrepancies.
Menon, a Canadian residing in Quebec, was employed by Water Splash Inc, of Galveston, Texas as a regional sales representative. In 2012, the company says, it discovered that she was also working as a sales manager for South Pool, a competitor, and had used some of Water Splash’s designs and drawings on its behalf in bidding on a municipal project at two Galveston city parks.
In 2013, Water Splash sued South Pool and Menon in a Texas court for unfair competition, conversion, tortious interference with business relations, and conspiracy.
To carry out service of the lawsuit to Menon, Water Splash asked the trial court to order service on Menon in Canada, by “first class mail, certified mail, and Federal Express to Menon’s address” and “by email to each of Menon’s known email addresses.” The trial court granted the motion.
As recounted in court documents, Menon did not answer the complaint, and the trial court granted a default judgment in favor of Water Splash, awarding the company actual and exemplary damages and attorney’s fees.
Menon then filed a motion for a new trial seeking to set aside the judgment on the grounds that it was not carried out to the terms of The Hague Service Convention. The court denied Menon’s motion for new trial. Menon then turned to the Texas 14th District Court of Appeals, which overturned the trial court’s ruling and remanded the case for further proceedings.
But in a dissent, Justice Tracy Christopher said the majority failed to follow the U.S. Supreme Court’s directions on the construction of treaties and the Texas Supreme Court’s instructions on the correct approach to decisions of the federal courts.
“Because Texas intermediate appellate courts are bound by these authorities, I instead would follow their precepts, which lead to the conclusion that service by mail to a litigant in Canada is permitted under Article 10(a) of the Service Convention,” Christopher wrote. I accordingly would affirm.”
This was just one example in Texas. Other states in the USA hold different interpretations for the treaty. Hopefully the Supreme Court can create a unified understanding that will be uphold in the federal and state courts.