The case of the day is Paddock v. May (Wash. Ct. App. 2024). The husband and wife were married in the UK but later moved to Washington. The husband sought a legal separation in Washington, which was granted, and he moved to Wales. The husband’s lawyer withdrew from the case.

Washington law provides that six months after a decree of legal separation, the court, on motion of either party, must enter a decree of dissolution of the marriage. The wife moved for a decree of dissolution and served notice of the motion on the husband by mail. The court entered the decree, and the husband appealed, arguing that the service by mail was imprpoer.

The interesting question for Letters Blogatory readers is whether the Service Convention applied. Ordinarily this issue doesn’t come up, because service of documents in the course of a lawsuit is generally made, under FRCP 5 and state-law equivalents, on the party’s lawyer in the United States. Thus there is no occasion to transmit the document abroad.

But when a party is acting pro se and lives abroad, then service must be made on him, abroad. So the question arises whether the Convention applies. Article 1 provides that the Convention applies “in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” There’s no real question that a divorce case is civil, and there’s no real question that they had to be transmitted abroad. So the Convention applies unless (1) the papers that were served were not “judicial documents,” or (2) the papers were not transmitted “for service abroad.”

The court answered the question straightforwardly with reference to the Supreme Court’s leading case, Volkswagenwerk AG v. Schlunk. There the court said that “service” means “a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action.” But the husband already had notice of the action: he brought the action. Schlunk suggests that the Convention simply doesn’t apply to service of the various documents that go back and forth, typically between lawyers, during the pendency of the action.

That’s the typical American approach, and it has a lot to recommend it practically. Litigation would be impossible if every motion, every discovery request, and every notice had to be transmitted via the Convention, particularly when a pro se party is in a state that has objected to service by alternate means.

But does this make sense of the Convention’s text? After all, the Convention also applies to the transmission of extrajudicial documents, which cannot be service of process in the strict sense.

The good news is that I have been writing Letters Blogatory for almost fourteen years, and so I don’t need to reinvent the wheel to start to figure out a view on this interesting question. Here is an excerpt from my chapter on service in the ABA treatise on international litigation, which I reprinted in a 2017 post:

In addition to the issue of which law governs the question whether there is occasion to transmit a document for service abroad, there is also an issue about whether a particular transmission of a document is a transmission for service abroad. This issue arises rarely, since in the overwhelming majority of cases applying the Hague Service Convention, the documents transmitted are the summons and complaint, and there can be no doubt that in such cases the transmission is for service. But the issue does sometimes arise in the service of process context. For example, in an in personam case within the admiralty or maritime jurisdiction, where a party seeks an attachment (e.g., attachment of a vessel), under Rule B of the Supplemental Rules for Admiralty or Maritime Claims, a default judgment cannot enter unless the plaintiff has served notice of the attachment on the defendant. The requirement of notice is distinct from the requirement of service of process. In Hyundai Merchant Marine Co. v. Grand China Shipping (Hong Kong) Co., the court held that the convention did not apply to transmission of the notice required by Rule B because service of the notice was not service of process in the strict sense. Another example is in the Pennsylvania state courts, where it is possible to commence an action by filing a praecipe for a writ of summons rather than a complaint. A plaintiff who files the praecipe instead of a complaint can serve process by serving the summons alone, without the complaint. One commentator has suggested that when the plaintiff later serves the complaint, the Hague Service Convention does not apply because the service of the complaint is not, under Pennsylvania law, service of process.

This view expressed in Hyundai and in the Pennsylvania commentary stems from a dictum in Volkswagen suggesting that the convention applies only to “service of process in the technical sense”:

The negotiating history supports our view that Article 1 refers to service of process in the technical sense. The committee that prepared the preliminary draft deliberately used a form of the term “notification” (formal notice), instead of the more neutral term “remise” (delivery), when it drafted Article 1. Then, in the course of the debates, the negotiators made the language even more exact. The preliminary draft of Article 1 said that the present Convention shall apply in all cases in which there are grounds to transmit or to give formal notice of a judicial or extrajudicial document in a civil or commercial matter to a person staying abroad. … (“La presente Convention est applicable dans tous les cas ou il y a lieu de transmettre ou de notifier un acte judiciaire ou extrajudiciaire en matiere civile ou commerciale a une personne se trouvant a l’etranger”). … To be more precise, the delegates decided to add a form of the juridical term “signification” (service), which has a narrower meaning than “notification” in some countries, such as France, and the identical meaning in others, such as the United States. The delegates also criticized the language of the preliminary draft because it suggested that the Convention could apply to transmissions abroad that do not culminate in service. The final text of Article 1 eliminates this possibility and applies only to documents transmitted for service abroad. The final report (Rapport Explicatif) confirms that the Convention does not use more general terms, such as delivery or transmission, to define its scope because it applies only when there is both transmission of a document from the requesting state to the receiving state, and service upon the person for whom it is intended.

The view that the convention applies only to service of the summons and complaint and not to service of other documents accords with the view taken by some foreign courts, and several U.S. courts have reached the same conclusion in cases involving temporary restraining orders or preliminary injunctions, where the perceived need for speedy notice has led the courts to conclude that notices of injunctions or motions for entry of an injunction need not be served by a method prescribed by the convention even though they occur at the beginning of a case.

But there are good reasons to question whether Volkswagen should be read to mean that the convention should be construed so strictly. First, the convention applies whenever there is occasion to transmit a judicial or extrajudicial document for service abroad. Extrajudicial documents can be “transmitted for the purpose of service” using the same methods prescribed for transmission of judicial documents. It seems clear that documents involved in service of process, strictly defined, will always be judicial rather than extrajudicial documents. Thus if the convention should be construed as the Hyundai court suggests, then the convention’s reference to transmission of extrajudicial documents has no apparent meaning. Second, in French, Article 1 reads: La présente Convention est applicable, en matière civile ou commerciale, dans tous les cas où un acte judiciaire ou extrajudiciaire doit être transmis à l’étranger pour y être signifié ou notifié. “Signification” refers to service that must be made by personal delivery by a judicial officer or huissier, while “notification” refers to service that can be made by mail or even fax. Under the French Code de Procédure Civile, there are times after the commencement of an action when a document is served by notification (e.g. notification entre avocats). The better rule seems to be that the convention should apply whenever a judicial document has to be transmitted for service abroad, whether or not the document is “process” in the strict sense.

It occurs to me that there might be a way out of the practical problem that this view creates. Maybe the best answer is to limit the scope of the Convention’s exclusivity. We typically say that when the Convention applies, you must use one of the methods it authorizes or at least permits in order to serve the document abroad. But maybe it is better to say that when the Convention applies, and when the document to be served is “process” in the strict sense, the Convention is exclusive. I don’t mean to be suggesting that we import the common law way of thinking about writs etc. into the Convention. But we would be distinguishing between documents issued by the court that do something (allow the court to exercise jurisdiction, e.g., a summons; order someone to do something, e.g., an injunction or a subpoena, an order on a motion to compel discovery) from everyday litigation documents litigants issue to each other that don’t carry the force of a court order (requests for discovery, motions, or in other words, requests to the court for action). This line would not be simple to draw, because there are lots of documents that aren’t formally orders but that carry an “or else” with them. For example, take a request for admissions. You don’t have to respond, but if you don’t, you might be deemed to have admitted the matters in question. But it would solve the otherwise insoluble problem of the pro se litigant abroad.

Photo credit: Stedelijk Museum De Lakenhal (public domain)