Case of the Day: Menon v. Water Splash

The case of the day is Menon v. Water Splash, Inc. (Tex. Ct. App. 2015). Water Splash, a Delaware corporation with its principal place of business in New York, sued Tara Menon, a Canadian national residing in Quebec, in a Texas court. The claim was that Menon had been Water Splash’s regional sales representative and that she had also gone to work for a competitor, South Pool, and had used Water Splash’s designs and drawings when submitting a bid to the city of Galveston, Texas on behalf of South Pool. Water Splash had sought and obtained leave to serve process on Menon by mail and email. After service of process, the case ended in a default judgment. Menon moved to set aside the judgment on the grounds that service was insufficient. The trial court denied her motion, and she appealed.

Canada is a party to the Hague Service Convention, and since Canada has not objected to service by postal channels under Article 10(a), the Convention permits service by mail in Canada, and such service is valid as long as it is authorized by the law of the forum. So since there was no dispute that Texas law authorized service by mail, this should have been an easy case. Menon should clearly lose.

Unfortunately, a majority of the appellate court followed a minority of American decisions in holding that service of process by mail is never permitted under Article 10(a), because the relevant provision uses the word “send” instead of “serve.”

It’s difficult to understand why some American courts continue to reach this conclusion, which has been severly, and correctly, criticized and which as far as I know is not adopted by courts anywhere else in the world. Here is my most recent comment on the issue, from the chapter on service of process in the forthcoming ABA treatise on international civil litigation in the US courts (with the footnotes omitted):

The first, somewhat surprising question that has arisen is whether Article 10(a) permits service of process by postal channels at all. The question arises because the Article uses the word “send” instead of the word “serve.” Some American courts have contrasted the word “send” in Article 10 with the word “serve” in Article 5 and concluded that Article 10 applies to the transmission of other judicial documents but not to service of process itself. Other courts hold that Article 10(a) does indeed permit service of process by postal channels. As the cases cited in the margin show, this is a true circuit split on a question of federal law that ought to be settled by the Supreme Court.

The latter view is clearly preferable. First, on its own terms the supposed distinction between “sending” and “serving” seems to prove too much, since in the terminology of the Federal Rules of Civil Procedure, a party “serves” rather than “sends” every pleading, order, discovery paper, notice, and motion in the case, not just the summons or other formal process. Second, with the exception of those American courts that have found the language of Article 10(a) difficult, the universal practice of other states, the view of the State Department, and the view of the Hague Conference is that Article 10(a) does permit service of process by postal channels. But prudent lawyers will consider the view taken by courts in the relevant jurisdiction before hazarding too much on service of process by postal channels.

Judge Tracy Christopher wrote a very good dissent, which emphasizes the importance, when construing a treaty, of construing it in a way that satisfies the shared expectations of the parties to the treaty, according great weight to the views of the Executive Branch and also according weight to the views of the other states parties as well as the view of scholars. He reviewed all of these kinds of evidence and reached the proper conclusion. I emphaisze Judge Christopher’s methodology only because, in light of the political climate in parts of the United States, it is not always so easy for a judge to rely expressly on the views of foreign courts, scholars, or even the US administration on matters of international law.

It seems to me that the only thing that even possibly justifies the Texas decision is that the case it primarily follows, Nuovo Pignone, SpA v. Storman Asia M/V, 310 F.3d 374 (5th Cir. 2002), is a Fifth Circuit case, and Texas falls geographically within the Fifth Circuit. I suppose there is something to be said for harmonizing the procedural law that applies in state and federal courts in a given state so as to avoid forum shopping problems. But that’s not saying much. The decision is incorrect, and if there is an appeal to the Texas Supreme Court it should be reversed. Ultimately, I hope this is a question that can and should reach the US Supreme Court, though I suppose the chances of that happening are low.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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