Our case of the day, Wuxi Taihu Tractor Co. v. York Group, Inc. (S.D. Tex. 2011), is a fairly straightforward application of waiver principles in a Hague Service Convention case. The parties were both manufacturers of coffins. The procedural posture of the case was somewhat complicated, but at bottom, York had sued Wuxi, a Chinese firm, in Texas state court on a claim that it violated an injunction from an earlier state court case that had found Wuxi liable for copying York’s coffin designs. Wuxi removed the case and simultaneously petitioned the state court for relief from the original injunction, using a Texas procedure known as a bill of review. Wuxi’s claim was that it had not properly been served with process under the Hague Service Convention in the original state court proceeding. York removed that proceeding to the federal court, and it moved to dismiss the bill of review (its motion was converted to a motion for summary judgment). The court granted the motion. Wuxi didn’t raise the insufficiency of service defense in the state court proceeding, in which it substantively participated. The defense of insufficiency of process is waivable under Texas civil procedure, even in a case where the Service Convention applies.

The court went on to say that the Service Convention itself permits relief from a judgment only where a defendant has not appeared, citing Articles 15 and 16. Articles 15 and 16 provide procedures for entry of a default judgment, or relief from a default judgment, where the defendant has not appeared. The Convention itself is silent on waiver in cases where the defendant has appeared.