Charting the Waters of International Service Requirements in the Wake of Water Splash v. Menon

Article co-written by Yuri Levin-Schwartz, Ph.D., a law clerk at MBHB.

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]


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 exists from the sending state or receiving country, the sufficiency of direct mailing for service requirements will be an emerging area of law on at least two fronts: the U.S. side (sufficiency under the laws of the sending state), as well as abroad (sufficiency under the laws of the receiving country). And, although this body of quickly emerging law is still in its infancy, a few details from the few district courts that have attempted to interpret and apply Water Splash are worth noting.

So, What To Do In the Wake?

First, plaintiffs who provide clear evidence, as early as possible, that neither the receiving country, nor the laws of the sending state, expressly object to service by mail have fared better in district courts applying the analysis under Water Splash.[10]

Second, plaintiffs who ensure that the documents to be served by direct international mailing under Article 10 comply with Federal Rule of Civil Procedure 4 to the letter (including the requirement for a signed receipt of the mailed documents as required by Federal Rule of Civil Procedure 4(f)(2)(C)(ii)) seem to also fare better.[11]  

Third, as this body of law continues to emerge, plaintiffs may want to consider relying more and more on the clerks of the federal courts in which they file their complaints to help ensure compliance with the Federal Rules, and proceeding under Fed. R. Civ. P. 4(f)(2)(C)(ii) whenever possible—as it has provided the only verifiably sufficient service of process by direct mailing post-Water Splash.[12]

[1] 137 S. Ct. 1504 (2017).

[2] It is no secret that complying with service requirements under the Hague Service Convention can be an incredibly expensive (sometimes tens of thousands of dollars) and time-intensive process (sometimes taking more than a year to effectuate), especially for countries that do not allow for fairly open and reciprocal service requirements, for instance, China (see, e.g., Serving A China Company Under The Hague Service Convention: Have Fun With That, China Law Blog (June 11, 2015)).

[3] See id. at 1508 (comparing Bankston v. Toyota Motor Corp., 889 F.2d 172, 173-174 (8th Cir. 1989) (holding that the Convention prohibits service by mail), and Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 385 (5th Cir. 2002) (same), with, e.g., Brockmeyer v. May, 383 F.3d 798, 802 (9th Cir. 2004) (holding that the Convention allows service by mail), and Ackermann v. Levine, 788 F.2d 830, 838–840 (2d Cir. 1986) (same)). 


[4] See Convention Done at the Hague Nov. 15, 1965, Art. X, T.I.A.S. No. 6638 (Feb. 10, 1969).

[5] Menon further argued that the use of the phrase “send” was intentional to indicate that Article 10 pertained only to non-service documents (e.g., documents to be exchanged post-answer).

[6] For reference, Justice Gorsuch took no part in the decision.

[7] Water Splash, 137 S. Ct. at 1513.

[8] Id. at 1512 (citing courts from Canada (see Wang v. Lin, [2016] 132 O.R.3d 48, 61 (Can.Ont.Sup.Ct. J.)), the U.K. (Crystal Decisions (U.K.), Ltd. v. Vedatech Corp., EWHC (Ch) 1872 (2004)), Greece (see R. v. Re Recognition of an Italian Judgt., 2000 WL 33541696, ¶ 4 (D.F.Thes.2000), and Italy (see Case C–412/97, ED Srl v. Italo Fenocchio, 1999 E.C.R. I–3845, 3877–3878, ¶ 6 [2000] 3 C.M.L.R. 855); see also Brockmeyer v. May, 383 F.3d 798, 802 (9th Cir. 2004) (noting that foreign courts are “essentially unanimous” in the view “that the meaning of ‘send’ in Article 10(a) includes ‘serve’ ”).

[9] Id. (noting that courts in the Czech Republic, Latvia, Australia, Slovenia, Bulgaria, Hungary, Kuwait, and Turkey have all objected to the service of judicial documents under Article 10).

[10] Compare In Re LLS Am., LLC, No. 2:12-CV-422-RMP, 2017 WL 301323260 (E.D. Wash. July 14, 2017) (upholding judgment against because they were properly served under Article 10 because the “Plaintiff provided the Court with a copy of Canada’s Accession Document to the Hague Convention, which states that ‘Canada does not object to service by postal channels’” and a copy of the service documents sent by the clerk of the court, using a form of mail requiring a signed receipt, as required by Fed. R. Civ. P. 4(f)(2)(C)(ii)) with Fed. Ins. Co. v. Cessna Aircraft Co., No. 16-2755-JWL, 2017 WL 2905576, at *2 (D. Kan. July 7, 2017) (denying motion for default judgment as plaintiff did not show that “the law of Israel permits service by mail in any particular fashion or that Israel has responded to a letter rogatory or letter of request,” nor did plaintiff show that the mailed documents required a signed receipt upon delivery (or that one was obtained), as required by Fed. R. Civ. P. 4(f)(2)(C)(ii)).

[11] See, e.g., Fed. Ins. Co., 2017 WL 2905576 at *2 (“Plaintiff apparently relies on paragraph (C)(ii), as it previously argued that Israel does not prohibit service by mail. Plaintiff has not shown, however, that it used a form of mail (such as certified mail) that requires a signed receipt, as required by Rule 4(f)(2)(C)(i). The proof of service filed by plaintiff indicates that the summons and complaint were mailed by ‘United States Mail, International Delivery,’ and it includes a tracking document with a notation that the item was delivered in Israel, but there is no indication that a signed receipt was required or obtained.”) (emphasis added).

[12] See In Re LLS Am., LLC, 2017 WL 301323260 (and again, remember that the sufficiency of this service was gauged in light of Canada being the receiving state, the specific country the Court addressed in Water Splash).


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