By: Tom On: November 26, 2019 In: Hague Service Convention, International Service of Process Comments: 0
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It seems to me that when it comes to international service of process (ISOP), the next case the Supreme Court of the United States (SCOTUS) will review will involve one of two possible subject matters.

Option #1: Email Service

The first candidate is ISOP via email. While the Hague Service Convention contemplates ISOP occurring via “postal channels,” the Convention is silent on ISOP occurring via email. (Indeed, when the Convention was first promulgated, the introduction of email was still 30 years in the future.)

Whether the service of documents via postal channels and email are tantamount to the same thing under the Convention, is something worthy of debate. Email lacks the confidentiality of traditional mail and, unlike traditional mail, the transmission of email documents occurs by breaking the documents up into little pieces and transmitting them asynchronously.

Yet, in actual practice, email service of process to Hague Convention counties is rare because plaintiffs have an affirmative duty to investigate the defendant’s address when serving process. So, while the issue of whether postal channels = email is an important one in our modern age, given its relatively rare occurrence, SCOTUS may choose to accept a case with a more frequent problem.

Which brings us to…

Option 2: Objection to Mail Service

The second, and more likely, ISOP subject matter to be reviewed by SCOTUS concerns whether a destination country has objected to mail service. Under Water Splash v. Menon, mail service upon a defendant is permissible when the destination country permits mail service.[1] Conceptually, this is a straight forward task: one merely needs to consult the destination country’s declarations and reservations to the Convention.

This technique works great when the destination country has expressly declared itself in favor of, or in objection to, service by mail. But in actuality, most Hague countries have not explicitly expressed an opinion on mail service; i.e., most Hague countries are silent on Article 10(a) service. So, the question then becomes if a Hague country is silent on mail service, does that mean that the country is pro-mail service, anti-mail service, or has no opinion on mail service at all?

In the two plus years since SCOTUS handed down the Menon opinion, trial courts have taken a pluralist view of the meaning of salience. Consider, for example, the opinion in Wyndham Hotel Group Canada v. 683079 Ontario Limited[2] — a case we previously reviewed — which holds that mail service is only permissible when a Hague country has affirmatively expressed its intentions to authorize such service. In Wyndham Hotel, the trial court ruled that because Canada had not affirmatively or expressly authorized mail service, service in this case was not proper.

However, by contrast, in Evergreen Shipping Agency America Corporation v. Evergreen America Corporation[3] — a case heard in the same District Court of New Jersey a year later (but by a different judge) — reached the opposite conclusion. In Evergreen Shipping, the court was asked to review the adequacy of mail service upon a Colombian defendant. Just as in Wyndham Hotel (where Canada had not made any affirmative declarations regarding mail service), the Evergreen Shipping court took notice that Columbia was silent with respect to whether mail service was permitted or prohibited under the Hague Convention.

Given this baseline, the Evergreen Shipping court stated:

under Article 10(a) of the Hague Convention, if the state of destination does not object, the Hague Convention “shall not interfere with… the freedom to send judicial documents by postal channels, directly to persons abroad,”… and it appearing that where a signatory nation does not object to the service of judicial documents through postal channels, the Hague Convention affirmatively authorizes the service of process by mail, and it appearing that because Colombia has not objected to the service of judicial documents by mail under Article 10(a) of the Hague Convention… [when the] Plaintiff sent the summons and Amended Complaint to Defendants at their principal place of business in Medellin, Colombia via DHL, which the Court finds to be a sufficient “postal channel” under the Hague Convention… it therefore appearing that Plaintiff properly served Defendants.

Increases in Mail Service Litigation

In the wake of Menon, an uptick in international service by mail has occurred. Consequently, there has followed an uptick in litigation over whether said service was proper in instances where the destination country is silent regarding Article 10(a). This increase in mail service litigation is occurring across the country and — as this blog has demonstrated — sometimes the same district court cannot agree on when mail service is and isn’t proper.

There are two corollaries to this increasing volume of contradictory ISOP by mail cases:

  1. Whether mail service is proper is currently judge dependent – it is virtually impossible to predict whether mail service is proper if the Hague country has not affirmatively spoken on this matter.
  2. Eventually different trial court opinions will be manifested by a split in the circuits – something SCOTUS will need to address.

Here at LLS, we continue to stand by our bottom-line in the Wyndham Hotel blog:

ex ante ISOP by mail (as opposed to service under Articles 5 and 10(b) of the Hague Service Convention) may sound like a bargain in terms of both time and money. But when it comes time for the plaintiff to prove that ISOP by mail was proper, the plaintiff is likely to find that they have entered into a Faustian bargain.

How LLS Can Help

When you need to serve process abroad, it’s important that you work with knowledgeable professionals well-versed in the complexities of foreign litigation. At Legal Language, we’re used to the complications, increasing the likelihood of a successful outcome. With more than 35 years of experience effecting service in more than 90 countries, we are the leading US provider of international service of process.

Contact LLS today to learn more about how we can assist you when serving process abroad.

Call us at 1-800-755-5775 or simply fill out our free quote form.

[1] 137 S. Ct. 1504, 1513 (2017). Menon actually involves a two pronged analysis. Here for simplicity we focus only on the first of these prongs.
[2] Civil Action No. 17-4000 (JMV)(D. New Jersey May 4, 2018).
[3] Civil Action No. 19-4958, US District Court, D. New Jersey. November 12, 2019.

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