Water Splash v. Menon: Resources Page

This page has resources on Water Splash v. Menon, the case before the Supreme Court that asks the Court to decide whether Article 10(a) of the Hague Service Convention permits service by mail.

Contents

Lower Court Decisions

Briefs and Orders on the Petition for a Writ of Certiorari

Hague Conference and Other Materials

  • 1989 Conclusions and Recommendations of the Special Commission. Paragraph 16 reads: “It was pointed out that the postal channel for service constitutes a method which is quite separate from service via the Central Authorities or between judicial officers. Article 10 a in effect offered a reservation to Contracting States to consider that service by mail was an infringement of their sovereignty. Thus, theoretical doubts about the legal nature of the procedure were unjustified. Nonetheless, certain courts in the United States of America in opinions cited in the ‘Checklist’ had concluded that service of process abroad by mail was not permitted under the Convention.”
  • 2003 Conclusions and Recommendations of the Special Commission. Paragraph 55 reads: “The SC reaffirmed its clear understanding that the term ‘send’ in Article 10(a) is to be understood as meaning ‘service’ through postal channels.”
  • Practical Handbook on the Operation of the Hague Service Convention (4th ed). The issue is discussed in-depth in paragraphs 270 to 282, and the Texas decision is noted in footnote 374. With permission of the Permanent Bureau, I quote paragraph 279:

    [I]t may be useful to recall that the 1965 Convention was the first text drawn up by the Hague Conference to include an official English version and relating to service abroad. Nevertheless, the verb “adresser” used in the French version of Article 10(a) of the 1965 Convention, rendered in English by the verb “send”, had been used in substantially the same context in the three predecessor treaties drafted in The Hague (the 1896 Civil Procedure Convention, the 1905 Civil Procedure Convention, replacing the 1896 Convention, and the 1954 Civil Procedure Convention, itself replacing the 1905 Convention). While “adresser” is indeed not equivalent to the concept of “service”, it certainly does not exclude the latter. On the contrary, it has been consistently interpreted as meaning service or notice. Accordingly, neither the letter nor the history of the Hague Conventions can be used to support the approach applied in Bankston [v. Toyota Motor Corp, 889 F.2d 172 (8th Cir. 1989)].

    I also quote paragraph 77, to address an issue that has come up in the briefs:

    Judicial documents for the purposes of the Convention are instruments of contentious or non-contentious jurisdiction, or instruments of enforcement. Judicial documents include writs of summons, the defendant’s reply, decision and judgments delivered by a member of a judicial authority, as well as witness summons (subpoenasa), and requests for discovery of evidence sent to the parties even if these are orders delivered as part of evidentiary proceedings.

  • Letter from the Deputy Legal Adviser to the Administrative Office of the U.S. Courts and the National Center for State Courts, excerpted at 30 I.L.M. 260 (1991), or in Born & Rutledge’s case book (5th ed.) at p. 930. This letter is apparently not available online. It reads in part as follows:

    I am writing with reference to the interpretation of United States treaty obligations in the recent Bankston decision. As you are aware, while courts in the United States have final authority to interpret international treaties for the purposes of their application as law in the United States, they give great weight to treaty interpretations made by the Executive Branch. Rest. 3rd, Restatement of Foreign Relations Law of the United States section 326(2) (1986).

    The United States Government did not have an opportunity to express its views on the issues before the 8th Circuit Court in Bankston. The November 28 issue of the United States Law Week first brought the November 13, 1989 decision of the Court of Appeals in Bankston to the attention of the Office of the Legal Adviser in the Department of State and the Office of Foreign Litigation in the Justice Department, which serves as the U.S. Central Authority under the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. 6638. The Circuit Court in Bankston, examining Toyota’s motion to dismiss for improper service on the defendant in Japan by registered mail rather than under procedures set out in the Hague Service Convention (to which both the United States and Japan are parties), concluded that service of summons and complaint by registered mail to a defendant in a foreign country (Japan) is not a method of service of process permitted by the Hague Convention.

    We understand from appellant’s/plantiff’s counsel that the time period for filing a petition for a rehearing in Bankston has elapsed. We understand further that neither the plaintiff nor the Court of Appeals was aware of a statement made by the delegate of Japan in April, 1989 at a meeting of representatives of countries that have joined the Hague Service Convention that appears to be relevant to the basic question addressed in the Bankston case. The Japanese statement in question was the result of efforts by the Departments of State and Justice to encourage the Government of Japan to clarify its position with regard to the service of process in Japan by mail from another country party to the Hague Service Convention. …

    We consider that the Japanese statement represents the official view of the Japanese Government that Japan does not consider service of process by mail in Japan to violate Japanese judicial sovereignty and that Japan does not claim that such service would be inconsistent with the obligations of any other country party to the Hague Service Convention vis-a-vis Japan. The Japanese statement suggests, however, that it is possible, and even likely, that service in Japan by mail, which may be considered valid service by courts in the United States, would not be considered valid service in Japan for the purposes of Japanese law. Thus, a judgment by a court in the United States based on service on the defendant in Japan by mail, while capable of recognition and enforcement throughout the United States, may well not be capable of recognition and enforcement in Japan by the courts of that country.

    We therefore believe that the decision of the Court of Appeals in Bankston is incorrect to the extent that it suggests that the Hague Convention does not permit as a method of service of process the sending of a copy of a summons and complaint by registered mail to a defendant in a foreign country. …

  • Blogs and Other Commentary

  • SCOTUSBlog’s page about the case.
  • Prior coverage here at Letters Blogatory.

The Docket

Date Proceedings and Orders
Aug 25, 2016 Petition for a writ of certiorari filed. (Response due September 28, 2016)
Aug 31, 2016 Waiver of right of respondent Tara Menon to respond filed.
Sep 14 2016 DISTRIBUTED for Conference of October 7, 2016.
Sep 22 2016 Response Requested. (Due October 24, 2016)
Oct 13 2016 Brief of respondent Tara Menon in opposition filed.
Oct 25 2016 Reply of petitioner Water Splash, Inc. filed.
Nov 2 2016 DISTRIBUTED for Conference of November 22, 2016.
Nov 28 2016 DISTRIBUTED for Conference of December 2, 2016.
Dec 2 2016 Petition GRANTED.
Jan 17 2017 Joint appendix filed.
Jan 17 2017 Brief of petitioner Water Splash, Inc. filed.
Jan 17 2017 Brief amicus curiae of United States filed.
Feb 3 2017 SET FOR ARGUMENT on Wednesday, March 22, 2017
Feb 3 2017 Record requested from the Court of Appeals of Texas, Fourteenth District.
Feb 14 2017 Brief of respondent Tara Menon filed.