Petition for Writ of Certiorari — Water Splash, Inc. v. Menon, 137 S. Ct. 1240 (2017) (No. 16-254)

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In the Supreme Court of the Anited States

WATER SPLASH, INC.,

Petitioner,

TARA MENON,

Respondent.

On Petition for a Writ of Certiorari to the

Fourteenth Court of Appeals, Houston, Texas

PETITION FOR A WRIT OF CERTIORARI

JEREMY GASTON

Counsel of Record

HAWASH MEADE GASTON

NEESE & CICACK LLP

jgaston@hmgnc.com

2118 Smith Street

Houston, TX 77002

(713) 658-9001

Counsel for Petitioner

(oe hance een a TS TREN I

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTION PRESENTED

In 1965, the member states of the Hague

Conference on Private International Law, including

the United States, adopted a treaty known as the

Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial

Matters (“Hague Service Convention”). The Hague

Service Convention enables service of process from

one member state to another without the use of

consular or diplomatic channels. This case presents

the following federal question on which state and

federal courts have been divided for over 25 years:

Does the Hague Service Convention authorize

service of process by mail?

TABLE OF CONTENTS

Page

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PARTIES TO THE PROCEEDING. ..................ccs0eeeee0 1

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TT inettrinisnenntnincniatainmmniintininneietentitiniitiiia 1

TREATY PROVISION INVOLVED ................cc200200008 1

IEE sesnesrcocennensnnsnmupnsmbenincneenininsaiaaniiianl 2

REASONS FOR GRANTING THE PETITION ....... 14

I. The question presented implicates a

longstanding and deep split of authority on

a fundamental question of civil procedure.......... 14

II. The question presented arises frequently. .......... 15

Ill.The question presented implicates

fundamental principles of treaty

interpretation whose proper application is

of widespread importance. ....................0sessseeeeeerees 15

IV. This case is a good vehicle to address the

iii ibcrsiniensnconnsnsrensscesstnsbusensisessnisnieanienininennbiunsiil 16

IEEE cicenicnncscensnntensevesesinininctenseniecesseiiaadl 17

APPENDIX

Opinion of the Court of Appeals.......................00+6 la

Order Denying Rehearing En Banc..................... 47a

TABLE OF CONTENTS — continued

TABLE OF AUTHORITIES

Cases

Ackermann vy. Levine,

788 F.2d 830, 838-39 (2d Cir.1986)..................c0000. 7

Arco Elec. Control Ltd. y. Core Intern..,

794 F. Supp. 1144 (S.D. Fla. 1992)......................... 7

Bankston v. Toyota Motor Corp.,

889 F.2d 172 (8th Cir. 1989) ...............cccccccccceeeeeeeeee 5

Borschow Hospital & Medical Supplies, Inc. v.

Burdick—Siemens Corp.,

BD ee Ge ie I ccceccccccccccccccesccescsssessese 7

Brockmeyerv. May,

383 F.3d 798 (Sth Cir. 2004) .............cccceceeceeenceesenees 7

Consumer Prod. Safety Comm'n v.

GTE Sylvania, Inc.,

TET ET 5

Dierigv. Lees Leisure Indus., Ltd,

CIV.A. 11-125-DLB, 2012 WL 669968 (E.D. Ky.

Feb. 28, 2012) (mem. Op.) ..........-..---scereeeeeeeceeseerereees 7

Frankenmuth Mut. Ins. Co. vy. ACO, Inc.,

484 N.W.2d 718 (Mich. App. 1992) ...................... 14

Girafa.com, Inc. vy. Smartdevil Inc.,

728 F.Supp.2d 537 (D. Del. 2010) ......................0000 7

Hayes v. Evergo Tel. Co., Lid,

397 S.E.2d 325 (N.C. App. 1990)..................c0000++: 14

Koehler v. Dodwell,

152 F.3d 304, 307-08 (4th Cir. 1998) .....................7

TABLE OF AUTHORITIES — continued

Page(s)

Meek v. Nova Steel Processing, Inc.,

706 N.E.2d 374 (Ohio App. 1997)...................---00+ 14

New York State Thruway Auth. v. Fenech,

94 A.D.3d 17 (N.Y. App. Div. 2012) ...................... 14

Nicholson v. Yamaha Motor Co., Lid.,

566 A.2d 135 (Md. App. 1989)....................-.ceseee00 14

Nuovo Pignone, SpA v. STORMAN ASIA M/V,

310 F.3d 374 (5th Cir. 2002) ..................... 4, 5, 6,13

Penrod Drilling Corp. v. Williams,

868 S.W.2d 294 (Tex. 1993) (per curiam) ............ 7-8

Raffa v. Nissan Motor Co. Ltd.,

Re 8 SG ee 7

Research Sys. Corp. v. IPSOS Publicite,

276 F.3d 914 (7th Cir. 2002) ............cccccececeeeceerseeeses 7

Sandoval v. Honda Motor Co., Ltd.,

527 A.2d 564 (Pa. Super. 1987)...................000ccc00-- 14

TracFone Wireless, Inc. v. Does,

No. 11-cv-21871-MGC,

2011 WL 4711458

(S. D. Fla. Oct. 4, 2011) (mem. op.) .................02220- 7

Volkswagenwerk Aktiengeselischaft v. Schlunk,

i tcnicsinicnttcicttnnienectieieesenmennn 11

TABLE OF AUTHORITIES — continued

Page(s)

Treaties, Statutes, and Rules

Hague Convention on the Service Abroad

of Judicial and Extrajudicial Documents in Civil or

Commercial Matters, art. 10, No. 15, 1965,

20 U.S.T. 361, 658 U.N.T.S. 163................... passim

Other Authorities

Philip W. Amram,

The Proposed Internationa/ Convention on the

Service of Documents Abroad, 51 A.B.A. J. 650

Michael O. Eshleman & Stephen A. Wolaver,

Using the Mail to Avoid the Hague Service

Convention’s Central Authorities,

12 OR. REV. INT'L L. 283 (2010) ..............cccccceeeeneees 13

Beverly L. Jacklin,

Service of process by mail in international civil

action as permissible under Hague Convention,

112 ALL.R. FED. 241 (1993 & 2013 Supp.) ............ 15

PETITION FOR A WRIT OF CERTIORARI

Petitioner Water Splash, Inc. respectfully petitions

for a writ of certiorari to review the judgment of the

Fourteenth Court of Appeals, Houston, Texas.

OPINION BELOW

The opinion of the court of appeals (App. la-46a) is

reported at 472 S.W.3d 28 (Tex. App.—Houston [14th

Dist.] 2015, pet. denied). The order of the Supreme

Court of Texas denying review (47a) is unpublished.

PARTIES TO THE PROCEEDING

The caption includes the names of all parties in the

court of appeals.

RULE 29.6 STATEMENT

The petitioner does not have a parent corporation

or shares held by a publicly traded company.

JURISDICTION

The court of appeals entered judgment on June 30,

2015. App. la. Petitioner filed a timely motion for

rehearing en banc, which was denied on October 6,

2015. App. 47a. Petitioner filed a timely petition for

review, which the Supreme Court of Texas denied on

May 27, 2016. App. 482. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1257(a).

TREATY PROVISION INVOLVED

Article 10 of the Hague Convention on the Service

Abroad of Judicial and Extrajudicial Documents in

Civil or Commercial Matters, 20 U.S.T. 361 (1969)

provides in full:

Provided the State of destination does not

object, the present Convention shall not

interfere with —

(a) the freedom to send judicial documents, by

postal channels, directly to persons abroad,

(b) the freedom of judicial! officers, officials or

other competent persons of the State of origin

to effect service of judicial documents directly

through the judicial officers, officials or other

competent persons of the State of destination,

judicial proceeding to effect service of judicial

documents directly through the judicial

officers, officials or other competent persons

of the State of destination.

STATEMENT

A. Background

Petitioner Water Splash, Inc. makes aquatic

playground systems known as “splash pads” that are

popular in municipalities. Petitioner sued respondent

Tara Menon, a citizen of Canada, in state district

court in Galveston, Texas for unfair competition and

tortious interference with business relations. App. 2a-

3a. Petitioner specifically alleged that Menon, once a

sales rep for Water Splash, went to a competitor who

then used Water Splash’s designs and drawings in

submitting a bid to the City of Galveston for the

construction of splash pads at two city parks. Ibid.

The trial court authorized Water Splash to

effectuate service of process on Menon in Canada by

several forms of service, including certified mail,

which Water Splash accomplished. Id. at 3a.

After Menon failed to answer or otherwise appear,

Water Splash moved for default judgment. Ibid. The

trial court granted the motion and awarded actual

and exemplary damages and attorneys’ fees. [bid.

Menon filed a metion for new trial seeking to set aside

the default judgment based on the argument that

service had not been accomplished consistent with the

requirements of the Hague Service Convention. Ibid.

The trial court denied Menon’s motion. Ibid.

B. Appellate History

1. The Panel Majority

On appeal, the court addressed whether the Hague

Service Convention allows service of process by mail.

Article 10(a) of the Hague Service Convention states

that:

Provided the State of designation does not

object, the present Convention does not

interfere with . . . the freedom to sand judicial

documents, by postal channels, directly to

persons abroad ....

Hague Convention on the Service Abroad of Judicial

and Extrajudicial Documents in Civil or Commercial

Matters (“Hague Service Convention”), art. 10, No. 15,

1965, 20 U.S.T. 361, 658 U.N.T.S. 163 (emphasis

added). The determinative question was therefore

whether “send” includes “service of process” or,

alternatively, only covers transmittal of other judicial

documents (e.g., after service of process has already

been effectuated).

The panel majority followed a federal Fifth Circuit

case and held that “send” does not include “service of

process”:

“In [Nuovo Pignone, SpA v. STORMAN ASIA

M/V, 310 F.3d 374, 383 (5th Cir. 2002),

plaintiff attempted service by mailing service

of process to the defendant’s office in Italy.

See Nuovo, 310 F.3d at 383. Arguing that

service by mail violated Fed. R. Civ. P. 4(f1)

because it did not comply with the Hague

Convention, the defendant urged that the

drafters used the term ‘send’ in connection

with the delivery of judicial documents, but

used ‘serve,’ ‘service,’ and ‘to effect service’ in

other sections, including article 10. Jd The

Nuovo court discussed how other courts have

construed ‘send’ and determined that,

because ‘service’ was used throughout the

Hague Convention while ‘send’ was confined

solely to article 10(a), this demonstrated that

the drafters did not ‘intend to give the same

meaning to “send” that they intended to give

to “service.” ’ Jd. at 384.

We conclude that the better-reasoned

approach is to follow the so-called ‘minority

view which adheres to and applies the

meaning of the specific words used in article

10(a) and prohibits service of process by mail.”

App. 6a, 8a.

In reaching the result above, the panel majority

(like the Fifth Circuit) relied primarily on the

following principle of statutory construction:

“*“Absent a clearly expressed legislative

intention to the contrary,” a _ statute’s

language “must ordinarily be regarded as

conclusive.” Consumer Prod. Safety Comm’n

v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100

S.Ct. 2051, 64 L.Ed.2d 766 (1980). And

because the drafters purposely elected to use

forms of the word “service” through the Hague

Convention, while confining use of the word

“send” to article 10(a), we will not presume

that the drafters intended to give the same

meaning to “send” that they intended to give

to “service.” ’

Nuovo, 310 F.3d at 384... .”

App 8a. The panel majority also noted that the Eighth

Circuit had reached the same result for essentially the

same reason. Id. at 8a-9a (citing Bankston v. Toyota

Motor Corp., 889 F.2d 172, 174 (8th Cir. 1989)).

The panel majority secondarily relied on the

assumption (also expressed by the Fifth Circuit) that

it was unlikely for the drafters of the Hague Service

Convention to have put in place specific methods of

service in Articles 2 through 7 (through central

authorities or diplomatic channels) “ ‘while

simultaneously permitting the uncertainties of

service by mail.’” App. 9a (quoting Nuovo Pignone,

310 F.3d at 385). The panel majority then vacated the

trial court’s judgment and remanded for further

proceedings. App. 11a.

2. The Panel Dissent

Justice Tracy Christopher dissented. The crux of

her reasoning was that treaties are not statutes: they

are contracts between sovereigns whose

interpretation is governed by different legal

principles. In turn, state courts must follow these

principles because they are based on controlling

precedent from the Supreme Court:

“(The majority fails to follow the United

States Supreme Court’s directions on the

construction of treaties and the Texas

Supreme Court’s instructions on the correct

approach to decisions of the federal courts.

Because Texas intermediate appellate courts

are bound by these authorities, I instead

would follow their precepts, which lead to the

conclusion that service by mail to a litigant in

Canada is permitted under Article 10(a) of the

Service Convention.”

App. lla.

The dissent noted the two lines of cases on the

issue. The prevailing view — adopted by federal courts

of appeals for the Second, Fourth, Seventh, and Ninth

Circuits (and some district courts in the First, Third,

Sixth and Eleventh Circuits)’ — holds that “send”

includes “service of process.” The minority view —

adopted by the Fifth and Eighth Circuits (and some

older cases from district courts in the Third and

Eleventh Circuits)’ — holds that it does not. App. 14a.

The dissent then explained that the job of the court

was to choose the most persuasive view based on

controlling principles of treaty interpretation:

“This provision [Hague Service Convention,

Article 10(a)} had not been construed

previously by the United States Supreme

Court, the Texas Supreme Court, or this

court. In the absence of binding precedent for

us to follow, this case presented our court with

the opportunity to choose the better-reasoned

approach. See Penrod Drilling Corp. v.

1 See Ackermann v. Levine, 788 F.2d 830, 838-39 (2d Cir.1986);

Koehler vy. Dodwell, 152 F.3d 304, 307-08 (4th Cir. 1998);

Research Sys. Carp. v. IPSOS Publicite, 276 F.3d 914, 926 (‘7th

Cir. 2002); Brockmeyerv. May, 383 F.3d 798, 802 (9th Cir. 2004);

Dierigv. Lees Leisure Indus., Ltd., CTV.A. 11-125-DLB, 2012 WL

669968 (E.D. Ky. Feb. 28, 2012) (mem. op.); TracFone Wireless,

Inc. vy. Does, No. 11-cv-21871-MGC, 2011 WL 4711458 (S. D. Fla.

Oct. 4, 2011) (mem. op.); Girafa.com, Inc. vy. Smartdevil Inc., 728

F.Supp.2d 537 (D. Del. 2010); Borschow Hospital & Medical

Supplies, Inc. v. Burdick—Siemens Carp., 143 F.R.D. 472 (D.P.R.

1992).

* Nuovo Pignone SpAv. STORMAN ASIA M/V, 310 F.3d 374, 384

(5th Cir. 2002); Bankston v. Toyota Motor Coarp., 889 F.2d 172,

174 (8th Cir. 1989); Raffa v. Nissan Motor Co. Lid., 141 F.R.D.

45, 46 (E.D. Pa. 1991); Arco Elec. Cantrol Ltd. v. Core Intern.,

794 F. Supp. 1144, 1147 (S.D. Fla. 1992).

Williams, 868 S.W.2d 294, 296 (Tex. 1993)

(per curiam) (explaining that Texas courts

‘are obligated to follow only higher Texas

courts and the United States Supreme

Court’).”

“Fortunately, however, our existing tools are

equal to the task of breaking new ground.

Although there is no binding precedent that

answers the specific question before us, there

is binding precedant that tells us how to find

that answer for ourselves. | accordingly would

look first to the United States Supreme Court

to identify the principles that both state and

federal courts are required to apply in

construing treaties. Next, I would follow the

same steps used by our nation’s highest court

in applying those principles.”

App. 14a-1l5a.

The dissent then listed over a dozen principles of

treaty interpretation that are binding on state and

federal courts under Supreme Court precedent:

* A treaty is not legislation.

* A treaty is not construed in the same way

as legislation.

* A treaty is construed in the manner of a

contract.

¢ Atreaty is construed more liberally than a

private contract

Such a liberal construction is required to

secure equality and reciprocity between

the signatories.

Although the construction of a treaty

begins with its text, courts are not

permitted to end the inquiry there.

The text of the treaty must be read with a

view to making effective the purposes of

the high contracting parties.

The treaty must be read in a manner

consistent with the shared expectations of

the contracting parties.

To identify those shared expectations,

courts must consider the _ treaty’s

negotiating and drafting history.

Where the official text of the treaty is

written in two languages, courts should

consider both languages in analyzing the

parties’ shared expectations.

In addition to considering the text, courts

must consider the way the text was

interpreted by the delegates involved in

negotiating and drafting the treaty.

The interpretation of a treaty by the

Executive Branch of the United States is

entitled to great weight.

* The opinions of other signatories are

entitled to considerable weight.

* Courts should consider the analysis of

scholars.

App. 15a-22a. Based on the above, the dissent

concluded that the term “send” includes “service of

process”:

First, the dissent determined that the Hague

Service Convention’s purpose was limited to service of

process issues. This indicated that the term “send” in

Article 10(a) meant “service of process” because non-

service transmittals were not within the scope of the

Convention in the first place:

“By agreeing with Menon’s argument that

‘she was not served pursuant to the Hague

Convention service of process provisions,’ the

majority necessarily has concluded that there

are non-service provisions in the Service

Convention. But the United States Supreme

Court has examined the English and French

text of the Service Convention and its drafting

history and concluded that the opposite is

true: the Court explained that Article 1

‘eliminate[d} the possibility’ that the Service

Convention could apply to transmissions

abroad ‘that do not culminate in service’.|

In accordance with the United States

Supreme Court’s analysis, I would conclude

that the Service Convention addresses only

the transmission of documents that culminate

in service, and thus, the reference in Article

10(a) to ‘send[ing] judicial documents’ means

‘serv[ing] judicial documents.’ ”

App. 23a-25a (citing Volkswagenwerk Aktiengesell-

schaft y. Schlunk, 486 U.S. 694, 700 (1988)).

Second, the dissent considered the negotiation and

drafting history of the treaty and stated that she

“would give considerable weight to the fact that ‘(t]he

French text of the 1965 convention was copied from

three earlier Hague Conference conventions, all of

which were understood to allow service upon

defendants abroad by mail.’” App. 25a. The dissent

also would have considered a Convention report:

“The Rapporteur’s report on article 10(a) of

the draft convention provides in part: “The

provision of paragraph 1 [labelled ‘(a)’ in the

final text] also permits service by telegram if

the state where service is to be made does not

object. The Commission did not accept the

proposal that postal channels be limited to

registered mail.”

App. 25a-26a. From this, the dissent concluded that

“lilf Article 10(a) was considered to include service by

telegram, and not to be ‘limited to registered mail,’

then it cannot be said, as the majority now holds, that

this provision does not permit service by mail.” /d. at

26a.

Third, the dissent noted the understanding of

Philip Amram (part of the United States delegation to

the Hague Conference that drafted the Service

Convention). Jd. Amram’s understanding was clear:

“Article 10 permits direct service by mail. . . unless

[the receiving] state abjecta to such service.” /d. at 27a

(quoting Philip Amram, 7he Proposed International

Convention on the Service of Documents Abroad, 51

A.B.A. J. 650, 653 (1965)) (emphasis added).

Fourth, the Executive Branch “has unwaveringly

maintained that Article 10{a) permits service by

mail.” App. 27a; see also id. (“In accordance with the

instructions from the United States Supreme Court, I

would give such views ‘great weight.’ ”).

Fifth, the dissent relied on a Hague Report which

established the signatories’ post-ratification

understanding that service by mail was allowed. App.

29a (“[Tlheoretical doubts about the legal nature of

the procedure were unjustified.”); id. (“I accordingly

would defer to the signatories’ interpretation that

Article 10(a) permits service by mail.”).

Sixth, the dissent noted that it “would follow the

example of the United States Supreme Court in

consulting the writings of [noted scholar] Bruno

Ristau as to the intentions of the Service Convention’s

drafters”:

“ * Ristau has written that the language of

Article 10(a) regarding the use of “postal

channels” was “intended to include service of

process.” Others concur. “It is clear that ... every

participant in the debates concerning Article

10a) ... understood the provision as referring to

... the use of postal channels for the purpose of

service.” Another analysis said “[plerhaps the

most compelling evidence in support of the

theory that Article 10(a) authorizes service by

mail is the fact that those who actually

believe that to be the case.” Ristau quoted the

official report on the draft convention, which

indicated the language of Article 10 was worded

broadly. It is so broad, he writes, that it

“permits service by telegram if the State where

service is to be made does not object.” ’”

App. 31a (quoting Michael O. Eshleman & Stephen A.

Wolaver, Using the Mail to Avoid the Hague Service

Convention’s Central Authorities, 12 OR. REV. INT'L L.

283, 333 (2010)).

Finally, the dissent noted analytical problems with

the majority's analysis. Most notably, the dissent

criticized the majority’s reliance on Nuovo Pignone

because in that case, the Fifth Circuit relied on

principles of statutory interpretation, not treaty

interpretation. App. 33-35a; id. at 34a (“[T]he Fifth

Circuit essentially compared two words—in English

only—and treated the distinction between the two as

conclusive. . . . This approach follows none of the

governing precepts of treaty construction.”). The

dissent also criticized the Fifth Circuit’s reliance on

unsupported assumptions, such as the assumption

that the drafters of the Hague Service Convention

would not have permitted service by mail when other,

ostensibly more reliable methods of service were

available. App. 36-39a.°

REASONS FOR GRANTING THE PETITION

I. The question presented implicates a longstanding

and deep split of authority on a fundamental

question of civil procedure.

The question presented is the subject of a 4-2 split

in the federal appellate courts, with the majority view

favoring petitioner. See supra notes 1-2. The question

presented is also the subject of a 4-4 split among state

appellate courts, including the appellate courts of

seven of the ten largest States.* Finally, the split of

authority on this federal question has persisted for

over 25 years without showing any sign of resolving

on its own. See supra notes 1-2.

* The dissent also criticized the majority's reliance on recent

Texas federal district court cases because those courts were

bound to follow Nuovo Pignone. App. 42a. In addition, the dissent

criticized the majority’s reliance on decisions by other Texas

courts because in “none of the Texas state decisions cited by the

majority was the question of the correct interpretation of Article

10 even before the court.” App. 43a-45a.

*Compare New York State Thruway Auth. v. Fenech, 94 A.D.3d

17, 22 (N.Y. App. Div. 2012); Nicholson v. Yamaha Motar Co.,

Ltd, 566 A.2d 135, 141 (Md. App. 1989); Hayes v. Evergo Tei.

Co., Ltd., 397 S.E.2d 325, 328 (N.C. App. 1990); and Sandoval v.

Honda Motor Co., Lid., 527 A.2d 564, 566 (Pa. Super. 1987) (each

holding that “send” includes “service of process”), with Meek v.

Nova Steel Processing, Inc., 706 N.E.2d 374, 377 (Ohio App.

1997); Frankenmuth Mut. Ins. Co. v. ACO, Inc., 484 N.W.2d 718

(Mich. App. 1992); Handa Motar Co. y. Superior Court, 10 Cal.

App. 4th 1043 (Cal Ct. App. 1992); and the instant case (each

holding the opposite).

IL. The question presented arises frequently.

The question presented potentially arises in any

state or federal lawsuit with a defendant who is a

citizen of another signatory to the Hague Service

Convention. By way of example, a recently updated

ALR cites over 120 state and federal decisions (from

district and appellate courts in 11 federal circuits and

16 states) implicating the propriety of mail for service

of process on foreign defendants under the Hague

Service Convention. See Beverly L. Jacklin, Service

of process by mail in international civil action as

permissible under Hague Convention, 112 A.L.R. FED.

241 (1993 & 2013 Supp.).° And going forward, one

would expect this issue to arise with increasing

frequency as globalization leads to more cross-border

disputes.

The question presented may seem simple on its

face, but if it were a deep split would not persist.

Moreover, the question implicates principles of treaty

interpretation that are not only important but also so

basic and fundamental that their correct application

in a case like the present would resolve not only this

matter, but also would influence judicial analysis of

similar questions by lower courts in other cases.

° Not all cases cited therein address the specific question whether

“send” includes “service of process,” but the number of decisions

does reflect the prevalence of the overarching issue (service of

process by mail on foreign defendants).

IV. This case is a good vehicle to address the issue.

This case is a good vehicle to address the question

presented, as it is the only issue in the case. App. 12a

(Christopher, J., dissenting) (explaining that the case

“present{s] only a single narrow question of law”).

Against this, respondent will argue that the

question presented is somehow moot because, even if

service of process had been proper under the Hague

Service Convention, it was somehow improper under

Canadian domestic law. But even assuming that were

correct for the sake of argument, it is a red herring for

two reasons:

First, although the propriety of service under

Canadian law might be relevant in other

circumstances (such as a post-judgment enforcement

proceeding in Canada), it has no bearing on whether

service of process was proper in this case under

federal law, the only issue of relevance in a domestic

lawsuit.

Second, in the court of appeals, respondent

conceded that the only question at issue in this case

was the federal question presented here. App. 13a

(Christopher, J., dissenting) (“[Menon] concedes that

(ilf Article 10(a) authorizes service of process by a

litigant mailing or e-mailing documents directly to a

party, without going through the Centra! Authority of

the receiving nation, then the service in this case was

good.” (internal quotation marks omitted)).

All that said, one factor that ordinarily would

counsel against review in this particular case is that

it originates from an intermediate state court rather

than a state supreme court or an intermediate federal

court. And certainly, that might be determinative if

the split were recent or highly lopsided, or the case

implicated the majority view or was unpublished, or if

there otherwise were a lack of lower court analysis

supporting petitioner. But none of that is the case

here: the split is deep, over 25 years old, and the

present case implicates the minority view. In

addition, Justice Christopher’s published dissent is

one of the most detailed and thorough analyses

supporting petitioner’s position.

In addition, the longstanding nature of the split

coupled with the fact that the issue has already been

addressed by so many federal courts means that, as a

practical matter, the question presented is likely to

continue reaching this Court from state intermediate

courts given the discretionary review of most state

high courts.®

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

JEREMY GASTON

Counsel of Record

HAWASH MEADE GASTON

NEESE & CICACK LLP

jgaston@hmgnc.com

® Because this case implicated no split within Texas, it was

perhaps unsurprising that the state high court denied review.

2118 Smith Street

Houston, TX 77002

(713) 658-9001

Counsel for Petitioner

AUGUST 25, 2016

APPENDIX

472 S.W.3d 28

Court of Appeals of Texas,

Houston (14th Dist.).

Tara Menon, Appellant

Water Splash, Inc., Appellee

NO. 14—-14—-00012-CV

Opinions filed June 30, 2015

Rehearing En Banc Overruled October 6, 2015

Synopsis

Background: Employer sued its former employee, who

now worked for competitor, and competitor, alleging

unfair competition, conversion, tortious interference

with business relations, and conspiracy. After employee

did not file an answer or otherwise appear, employer

moved for default judgment . The District Court granted

motion for default judgment against employee.

Employee filed motion for new trial to set aside the

default judgment. The 212th District Court, Galveston

County, denied employee’s motion, and employee

appealed.

(Holding:] The Court of Appeals, John Donovan, J., held

that service by mail to a defendant, namely former

employee, in Canada was not permitted by Hague

Convention.

Reversed and remanded.

Christopher, J., filed dissenting opinion.

*29 On Appeal from the 212th District Court, Galveston

County, Texas, Trial Court Cause No. 13-CV-—0205,

Susan Elizabeth Criss, Judge.

Attorneys and Law Firms

*30 Timothy A. Hootman, Houston TX, for Appellant.

Andrew K. Meade, Jeremy Jason Gaston, Houston TX,

for Appellee.

Panel consists of Justices Christopher, Donovan, and

Wise

OPINION

John Donovan, Justice

**] Appellant, Tara Menon (“Menon”), appeals the trial

court’s default judgment granted after she failed to

answer the suit filed by appellee, Water Splash, Inc.

(“Water Splash”). In four issues, Menon contends that

the trial court erred in refusing to set aside the default

judgment because state law cannot allow service of

process in foreign nations where the service does not

comport with the requirements of the Hague Service

Convention. We reverse and remand.

IL BACKGROUND

Menon is a citizen of Canada, residing in Quebec. Water

Splash is a Delaware corporation with its principal

office located in Champlain, New York. Water Splash

sued Menon in Galveston, Texas. In its original petition,

Water Splash alleged that Menon was its regional sales

representative and that Menon also began to act as a

sales manager for South Pool, a competitor of Water

Splash. Sometime in 2012, Water Splash discovered

that South Pool had used some of Water Splash’s

designs and drawings when submitting a bid to the City

of Galveston for the construction of splash pads at two

parks. A year later, Water Splash sued South Pool and

Menon for unfair competition, conversion, tortious

interference with business relations, and conspiracy.

To effectuate service, Water Splash filed a motion for

alternative service of process pursuant to Texas Rule of

Civil Procedure 108a. See Tex. R. Civ. P. 108a. The

motion requested that the trial court order service on

Menon in Quebec, Canada, by “first class mail, certified

mail, and Federal Express to Menon’s address” and “by

email to each of Menon’s known email addresses.” The

trial court granted the motion.

After Menon did not file an answer or otherwise appear,

Water Splash moved for default judgment alleging it

had diligently sought service on Menon utilizing the

methods allowed for substituted service. The motion

stated that service was accomplished by sending a letter

to Menon’s Quebec address by certified mail, return

receipt requested and first class mail, and Water Splash

introduced evidence of those attempts at service. Water

Splash also alleged that Menon’s emails proved she

knew of the existence of the suit. The trial court granted

the motion for default judgment against Menon and

awarded actual and exemplary damages and attorneys’

fees.

Menon filed a motion for new trial seeking to set aside

the default judgment because service was not

accomplished pursuant to the terms of article 10(a) of

the Hague Service Convention. Water Splash

responded, arguing Rule 108a was an acceptable form

of alternative service. The trial court denied Menon’s

motion for new trial.

IL ANALYSIS

In four interrelated issues involving the interpretation

of particular words in the Hague Service Convention,

appellant attacks the trial court’s grant of default

judgment and denial of her motion for new trial.

*31 A. Standard of Review

We review a trial court’s denial of a motion for new trial

for abuse of discretion. Dolgencorp of Tex., Inc. v.

Lerma, 288 S.W.3d 922, 925 (Tex.2009). A trial court

abuses its discretion if it reaches a decision without

reference to any guiding rules or principles, or acts in an

arbitrary or unreasonable manner. Cire v. Cummings,

1384 S.W.3d 835, 838-39 (Tex.2004); Stevens v.

Anatolian Shepherd Dog Chub of Am., Inc., 231 8.W.3d

71, 76 (Tex.App.—Houston [14th Dist.] 2007, pet.

denied).

oeQ 1) 1B M@Absent waiver, a trial court lacks personal

jurisdiction over a defendant to whom citation has not

been “issued and served in a manner provided for by

law.” See Wilson v. Dunn, 800 S.W.2d 833, 836

(Tex.1990). In a direct appeal from a no-answer default

judgment, there is no presumption of valid issuance,

service, and return of citation. See id. (quoting Uvalde

Country Club v. Martin Linen Supply Co., 690 S.W.2d

884, 886 (Tex.1985)) (per curiam). Thus, a default

judgment cannot withstand a direct attack unless the

record affirmatively shows strict compliance with the

rules for service of citation. Primate Constr., Inc. v.

Silver, 884 S.W.2d 151, 152 (Tex.1994) (per curiam).

Whether a trial court has personal jurisdiction over a

defendant is a question of law, which we review de novo.

Haaksman v. Diamond Offshore (Bermuda), Ltd., 260

S.W.3d 476, 479 (Tex.App.—Houston [14th Dist.) 2008,

pet. denied).

B. Hague Convention

Articles 2 through 7 of the Hague Convention require a

signatory nation to establish a “Central Authority”

which acts as an agent to handle various matters

regarding requests for service, service of documents and

proof of service. Article 10(a) of the Hague Convention,

at issue here, states:

Provided the State of designation does not object, the

present Convention does not interfere with

(a) the freedom to send judicial documents, by postal

channels, directly to persons abroad,

(b) the freedom of judicial officers, officials or other

competent person of the State of origin to effect service

of judicial documents directly through the judicial

officer, officials or other competent persons of the

State of designation,

proceeding to effect service of judicial document

directly through the judicial officers, officials, or other

competent persons of the State of destination.

Hague Convention on the Service Abroad of Judicial

and Extrajudicial Documents in Civil or Commercial

Matters, art. 10, No. 15, 1965, 20 U.S.T. 361, 658

U.N.T.S. 163, available at http:www.hcch.net/index_en.

php?act=conventions.text & cid=17 (last visited June

22, 2015) (“Hague Convention”). The question before us

turns on the meaning attributed to “send” and “service.”

| (Where it applies, compliance with the provisions of

the Hague Convention is “mandatory.” Volkswagen-

werk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698—

99, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). Its purpose

is to provide a more efficient and effective manner of

service of process abroad and to ensure that defendants

sued in foreign jurisdictions receive timely notice of suit.

Id. at 699, 108 S.Ct. 2104; see also Nuovo Pignone, SpA

v. STORMAN ASIA M/V, 310 F.3d 374, 383 (5th

Cir.2002). In Nuovo, plaintiff attempted service by

mailing service of process to the defendant's office in

Italy. See Nuovo, 310 F.3d at 383. Arguing that service

by mail violated Federal Rule of Civil Procedure. 4(fX 1)

*32 because it did not comply with the Hague

Convention, the defendant urged that the drafters used

the term “send” in connection with the delivery of

judicial documents, but used “serve,” “service,” and “to

effect service” in other sections, including article 10. Jd

The Nuovo court discussed how other courts have

construed “send” and determined that, because “service”

was used throughout the Hague Convention while

“send” was confined solely to article 10(a), this

demonstrated that the drafters did not “intend to give

the same meaning *o ‘send’ that they intended to give to

‘service.’ ” Jd. at 384. In short, the drafters intended to

attach meaning to the specific word used. See id.

The Hague Convention applies “in all cases, in civil or

commercial matters, where there is occasion to transmit

a judicial or extrajudicial document for service abroad.”

20 U.S.T. 361, art. 1. The Hague Convention “preempts

any inconsistent methods of service prescribed by Texas

law in all cases where the Convention applies.” Wux7

Taihu Tractor Co, Ltd. v. York Group, Inc., No. 01—13—

00016—CV, 2014 WL 6792019, at *5 (Tex. App.—Houston

{ist Dist.) Dec. 4, 2014, no pet.) (mem.op.) (citing

Paradigm Entm't Inc. v. Video Sys. Co., No. Civ. A.

3.99-CV—2004P, 2000 WL 251731, at *4 (N.D.Tex. Mar.

3, 2000)) (concluding service was effective where

secretary of state forwarded a copy of service of process

to defendant pursuant to Texas law, and Japan did not

object to this manner of service).

C. Application of article 10(a)

**3 Menon argues the default judgment should not have

been rendered because she was not served with process.

See Tex. R. Civ. P. 124 (“In no case shall judgment be

rendered against any defendant unless upon

service....”). Menon further asserts that Water Splash

did not effectuate service under Rule 108a, providing for

service in a foreign country “pursuant to the terms of

any treaty or convention,” because she was not served

pursuant to the Hague Convention service of process

provisions. She argues “the drafters use the words

‘serve,’ ‘service,’ and ‘to effect service’ in other sections,

including subparts (b) and (c) of article 10,” but they

only used the word “send” in subsection (a), which

applies only to sending judicial documents. See Nuovo,

310 F.3d at 383.

Water Splash argues that article 10(a) allows service of

process by mail, and relies on the “majority view” which

holds that article 10(a) allows service of process by mail,

so long as the state of destination does not object.’

Courts following this view include the Second, Fourth,

Seventh and Ninth Circuits.’

‘Canada has not objected to the use of the mail for

service of process. See Canada—Central Authority &

Practical Information, HAGUE CONF. OF PRIVATE

INTL. L., http?//www.hcch.net/index_en.php?act=au-

thorities.details & aid=248 (last updated Aug. 19, 2014)

(listing the text of Canada’s declarations, including

those to “[tlransmission through postal channels,” and

stating that “Canada does not object to service by postal

channels” as permitted in article 10(a)); see also Dierig

v. Lees Leisure Indus., Ltd., CTV.A. 11—125—DLB, 2012

WL 669968, at *19 (E D.Ky. Feb. 28, 2012) (mem.op.).

"Ackermann vy. Levine, 788 F.2d 830, 838-39 (2nd

Cir.1986); Koehler v. Dodweil, 152 F.3d 304, 307-08

(4th Cir.1998); Research Sys. Corp. v. IPSOS Publicite,

276 F.3d 914, 926 (7th Cir.2002); and Brockmeyer v.

May, 383 F.3d 798, 802 (9th Cir.2004).

“We conclude that the better-reasoned approach is to

follow the so-called “minority view” which adheres to

and applies the meaning of the specific words used in

article 10(a) and prohibits service of process by mail.

*33 ‘Absent a clearly expressed legislative intention to

the contrary,’ a statute’s language ‘must ordinarily be

regarded as conclusive. Consumer Prod. Safety

Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100

S.Ct. 2051, 64 L.Ed.2d 766 (1980). And because the

drafters purposely elected to use forms of the word

‘service’ throughout the Hague Convention, while

confining use of the word ‘send’ to article 10(a), we will

not presume that the drafters intended to give the

same meaning to ‘send’ that they intended to give to

‘service.’

Id. at 384 (relying on canons of statutory interpretation

and adopting the reasoning of the courts which

concluded that article 10(a) of the Hague does not

permit service of process by mail); see also Bankston v.

Toyota Motor Corp., 889 F.2d 172, 174 (8th Ci:.1989)

(stating that language used should be regarded as

conclusive and concluding that article 10(a) prohibits

service of process by registered mail); see also Wuxi,

2014 WL 6792019, at *6 (citing Nuovo, 310 F.3d at 384).

Wuxi involved service on a defendant located in China

attempted under Rule 108a. 2014 WL 6792019, at *6,,.

The Wuxi court held that article 5 of the Hague

Convention does not permit service by direct mail to a

defendant in China who should have been served

throughout the Central Authority pursuant to the

specific language of the Hague Convention. Jd.

Because the purpose of the Hague Convention is to

“ensure that plaintiffs deliver notice to foreign

addressees in sufficient time to defend the allegation,”

we are not persuaded that the drafters did not intend

what they wrote, particularly where the Hague

Convention describes other methods of service. See

Nuovo, 310 F.3d at 385. Specifically, articles 2 through

7 provide for service of process through a central

authority and, under articles 8 and 9, through

diplomatic channels. “It is unlikely that the drafters

would have put in place these methods of service ...

while simultaneously permitting the uncertainties of

service by mail.” Jd

**4 Further, other federal district courts in Texas which

considered whether service of process by mail, under

article 10(a) as involved here, or under article 5 which

allows service through a central authority, have ruled

consistently that service must be effectuated by the

specific methods authorized by the terms included in the

Hague Convention. See Duarte v. Michelin N. Am., Inc.,

No. 2:13-CV-—00050, 2013 WL 2289942, at *4-6

(S.D.Tex.2013) (considering question of service by mail

on the secretary of state and determining, following

Nuovo, that service by mail not authorized under the

Hague Convention) (citing Berezowsky v. Ojeda, No.

10a

4:12-CV-03496, 2013 WL 150714, at *7 (S.D.Tex.2013)

(holding service was not effectuated under articles 2-5

demonstrating courts adherence to the specific

meaning of the words used in the Hague Convention);

LK. v. Mazda Motar Carp., No. 3:09-cv-469—M, 2009

WL 1033334, at *2 (N.D.Tex.2009) (holding service

under article 5 was not effective because Japanese

requirement that service be transmitted to the Central

Authority was not met); A/bo v. Suzuki Motor Corp., No.

3:08-0139-KC, 2008 WL 2783508, at *2 (W.D.Tex.2008)

(holding service not effective because, under article 5,

the Hague Convention required full translation of

documents into Japanese and without complying with

specific Hague Convention requirements, service was

insufficient)).

Further, in addition to Wuxi, two other state courts

have considered whether the specific words used in the

Hague Convention have specific meanings regarding

service *34 of process or sending of judicial documents.

See In re J_P.L., 359 S.W.3d 695, 706 (Tex.App.—San

Antonio, 2011, pet. denied) (holding that service of

process in a child custody matter must be accomplished

through the provisions of the Hague Convention and

service on the Central Authority in Mexico); Velasco v.

Ayala, 312 S.W.3d 783, 794 (Tex.App.—Houston [1st

Dist.) 2009, no pet.) (relying on article 10(a) and Nuovo

and concluding that service of process must be

accomplished pursuant to the requirements of the

Hague Convention).

In sum, we conclude the specific provisions set forth in

the Hague Convention govern service, whether through

article 5 and its reliance on a central authority, or on the

lla

language expressed in article 10(a).

For these reasons, we sustain appellant’s four issues,

reverse the trial court's default judgment and

permanent injunction against Tara Menon, and remand

for further proceedings consistent with this opinion.

(Christopher, J., dissenting).

Tracy Christopher, Justice, dissenting.

The only question that appellant Tara Menon presents

for our review is whether service by mail to a defendant

in Canada is permitted under Article 10(a) of the Hague

Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial

Matters (“the Service Convention”).' The majority

concludes that it is not.’ In reaching this result, the

majority fails to follow the United States Supreme

Court's directions on the construction of treaties and the

Texas Supreme Court’s instructions on the correct

approach to decisions of the federal courts. Because

Texas intermediate appellate courts are bound by these

authorities, I instead would follow their precepts, which

lead to the conclusion that service by mail to a litigant

in Canada is permitted under Article 10(a) of the

Service Convention. I accordingly would affirm.

‘Opened for signature Nov. 15, 1965, 20 U.S.T. 361, 658

U.N.T.S. 163.

*But see Cook v. Toidze, 950 F.Supp.2d 386, 394

(D.Conn.2013) (“[Slervice by regular mail is proper

under the Hague Convention where the party served is

a resident of Canada.”); Mitchell v. Theriault, 516

F.Supp.2d 450, 455 (M.D.Pa.2007) (holding that service

of process by mail on a resident of Québec is not

prohibited by the Service Convention); Heredia v.

12a

Transp. SAS, Inc, 101 FSupp.2d 158, 161

(S.D.N.Y.2000) (“[Slervice by registered mail in Quebec

is adequate service under the Convention.”); Randalph

v. Hendry, 50 F.Supp.2d 572, 578 (S.D.W.Va.1999)

(“Because Canada does not object to service by postal

channels, service of process by mail is authorized in this

case.”); Taft v. Moreau, 177 F.R.D. 201, 204 (D.Vt.1997)

(“Plaintiffs’ use of registered mail, return receipt

requested, to transmit the summons and complaint [to

defendants in Québec] was in compliance with the

Hague Convention.”); Cantara v. Peeler, 267 A.D.2d

997, 701 N.Y.S.2d 556, 557 (1999) (holding that Article

10(a) permits service by mail upon residents of Canada

because Canada has not objected to service through

postal channels).

L ISSUES PRESENTED

**5 It is unnecessary to detail the facts in this case,

because although Menon’s brief lists four issues, she has

presented only a single narrow question of law. That

question is presented in her third issue, in which she

asks, “Did the drafters of the Hague Service Convention

intend for the word ‘send’ contained in Article 10(a) to

meen ‘serve’” She restates the question in her fourth

issue, asking, “May a litigant serve a Canadian citizen

and resident of Québec with process in a Texas civil

proceeding (bypassing traditional diplomatic channels

and the Central Authority under the Hague Service

Convention) by sending *35 citation directly to the

Canadian citizen ... by mail, private delivery service, or

e-mail?”

Menon’s first two issues do not raise any other

questions. Her briefing of her first stated issue (“Did the

13a

trial court err in denying the motion for new trial and

refusing to set aside the default judgment?) contains no

argument, but instead consists solely of an introduction

and a single statement, with citations, regarding the

standard of review.” In her second issue, she asks, “Can

state law provide a procedure for service of process in

foreign nations that does not comport with traditional

international law (e.g. letters rogatory) or the Hague

Service Convention?” As stated, this issue begs the

question of whether service by mail comports with the

Service Convention.

*See TEX.R. APP. P. 38.1(i); Archer v. DDK Holdings

LLC, 463 S.W.3d.597, 603 (Tex.App.—Houston [14th

Dist.] 2015, no pet.) (where appellants stated an issue

challenging the judgment and the trial court’s findings

on two grounds, but only briefed one ground, they

waived appellate review of the unbriefed ground).

Menon has not briefed any other grounds for reversing

the trial court's denial of her motion for new trial or

setting aside the default judgment. 1 See TEX. R. CIV.

P. 108a(1\d) (“Service of process may be effected upon a

party in a foreign country if service of the citation and

petition is made ... pursuant to the terms and provisions

of any applicable treaty or convention....”). But, before

reaching this question, it is first necessary to clarify the

standard of review.

I. STANDARD OF REVIEW

We review the trial court’s ruling on a motion for new

trial for abuse of discretion, but “abuse of discretion”

means different things in different contexts. See

Schuring v. Fosters Mill Vill. Cmty. Ass’n, 396 S.W.3d

73, 76 (TexApp.—Houston [14th Dist.] 2013, pet.

denied). Here, the relevant facts are undisputed, and

l4a

Menon moved for a new trial on the ground that Article

10(a) of the Service Convention does not permit service

by mail. We accordingly are presented only with a

question of law, not with a matter within the trial

court’s discretion. See Walker v. Packer, 827 S.W.2d

833, 840 (Tex.1992) (orig. proceeding) (“A trial court has

no ‘discretion’ in determining what the law is or

applying the law to the facts.”). Courts review questions

of law de novo. Pinnacle Premier Props., Inc. v. Breton,

447 S.W.3d 558, 563 (Tex.App.—Houston [14th Dist.)

2014, no pet.) (sub.op.).

Il. GOVERNING LAW

In this country, there are at least two competing lines of

authority interpreting Article 10(a) of the Service

Convention. The prevailing view holds that Article 10(a)

permits service by mail. See, e.g., Brockmeyer v. May,

383 F.3d 798 (9th Cir.2004); Research Sys. Corp. v.

IPSOS Publicité, 276 F.3d 914 (7th Cir.2002); Koehler

v. Dodweill, 152 F.3d 304 (4th Cir.1998); Ackermann v.

Levine, 788 F.2d 830 (2d Cir.1986). The countervailing

view holds that Article 10(a) does not permit service by

mail. See, e.g., Nuovo Pignane, SpA v. STORMAN ASIA

MV, 310 F.3d 374 (5th Cir.2002); Bankston v. Toyota

Motor Carp., 889 F.2d 172 (8th Cir.1989). This provision

had not been construed previously by the United States

Supreme Court, the Texas Supreme Court, or this court.

In the absence of binding precedent *36 for us to follow,

this case presented our court with the opportunity to

choose the better-reasoned approach. See Penrod

Drilling Corp. v. Williams, 868 S.W.2d 294, 296

(Tex.1993) (per curiam) (explaining that Texas courts

“are obligated to follow only higher Texas courts and the

United States Supreme Court”).

15a

**§ Fortunately, however, our existing tools are equal to

the task of breaking new ground. Although there is no

binding precedent that answers the specific question

before us, there is binding precedent that tells us how to

find that answer for ourselves. I accordingly would look

first to the United States Supreme Court to identify the

principles that both state and federal courts are

required to apply in construing treaties. Next, I would

follow the same steps used by our nation’s highest court

in applying those principles. See Life Partners, Inc. v.

Arnold, 464 S.W.3d 660, 670 (Tex.2015) (“We have

described the Supreme Court’s decisions in some detail

here, however, because in addition to providing the

relevant test, they also describe the proper approach to

the term’s construction.”).

A. Principles of Treaty Construction

In construing Article 10(a) of the Service Convention,

this court is bound by the following principles.

1. A treaty is not legislation. See Lozano v. Montoya

Alvarez, ——U.S. , 134 S.Ct. 1224, 1232-33, 188

L.Ed.2d 200, (2014) (“‘A treaty is in its nature a contract

between ... nations, not a legislative act.’ ” (quoting

Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415

(1829))); id. at 1233 (“[I]n their nature treaties originate

differently from laws. They are made by equal parties,

and each side has half of the bargain to make ....”

(quoting 2 Debates on the Federal Constitution 506 (J.

Elliot 2d ed. 1863) (James Wilson))).

2. A treaty is not construed in the same way as

legislation. See id. at 1233 (“That distinction [between a

legislative act and a contract] has been reflected in the

way we interpret treaties.”); Nielsen v. Johnson, 279

U.S. 47, 51, 49 S.Ct. 223, 73 L.Ed. 607 (1929) (“The

16a

narrow and restricted interpretation of the treaty ...,

while permissible and often necessary in construing two

statutes of the same legislative body in order to give

effect to both so far as is reasonably possible, is not

consonant with the principles which are controlling in

the interpretation of treaties.”).

3. A treaty instead is construed in the manner of a

contract. See Lozano, 134 S.Ct. at 1232-33; see also BG

Grp., PLC v. Republic of Argentina, ——U.S. ——, 134

S.Ct. 1198, 1208, 188 L.Ed.2d 220 (2014) (“As a general

matter, a treaty is a contract, though between nations.

Its interpretation normally is, like a contract's

interpretation, a matter of determining the parties’

intent.”); Santovincenzo v. Egan, 284 U.S. 30, 40 & n. 2,

52 S.Ct. 81, 76 L.Ed. 151 (1931) (“[Tireaties are

contracts between independent nations....”).

4. A treaty, however, is construed more liberally than a

private contract. See Choctaw Nation of Indians v.

United States, 318 U.S. 423, 431, 63 S.Ct. 672, 87 L.Ed.

877 (1943) (“[Tlreaties are construed more liberally than

private agreements ....”); see also Valentine v. United

States ex rel. Neidecker, 299 U.S. 5, 10, 57 S.Ct. 100, 81

L.Ed. 5 (1936) (“(Tlreaties should be liberally construed

so as to give effect to the apparent intention of the

parties.”); Factor v. Laubenheimer, 290 U.S. 276, 293—

94, 54 S.Ct. 191, 78 L.Ed. 315 (1933) (explaining that

“[clonsiderations which should govern the diplomatic

relations between nations, and the good faith of

treaties” require that “if a treaty fairly admits of two

constructions, one restricting the *37 rights which may

be claimed under it, and the other enlarging it, the more

liberal construction is to be preferred”); Todok v. Union

State Bank of Harvard, Neb., 281 U.S. 449, 454, 50 S.Ct.

363, 74 L.Ed. 956 (1930) (explaining that it is a

17a

“fundamental principle that treaties should receive a

liberal interpretation to give effect to their apparent

purpese”).

5. Such a liberal construction is required to secure

equality and reciprocity between the signatories. See

Factor, 290 U.S. at 293, 54 S.Ct. 191 (explaining that

treaties are “liberally construed so as to effect the

apparent intention of the parties to secure equality and

reciprocity between them”); Jordan v. K. Tashiro, 278

US. 123, 127, 49 S.Ct. 47, 73 L.Ed. 214 (1928) (same);

see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 80

(Tex.2000) (“As treaties are to be construed broadly, the

treaty need not provide explicitly for equal court access;

it need only imply it.” (citing Asakura v. City of Seattle,

265 U.S. 332, 342, 44 S.Ct. 515, 68 L.Ed. 1041 (1924)).

B. Steps in Applying the Principles of Treaty

Construction

**7 As the foregoing principles show, we are required to

construe a treaty more liberally than a private contract

to implement the apparent intention of the parties to

secure equality and reciprocity between them. And

although the construction of a treaty begins with its

text, we are not permitted to end the inquiry there. See,

e.g., Abbott v. Abbott, 560 U.S. 1, 9-10, 130 S.Ct. 1983,

176 L.Ed.2d 789 (2010) (“This Court’s inquiry is shaped

by the text of the Convention; the views of the United

States Department of State; decisions addressing the

meaning of ‘rights of custody’ in courts of other

contracting states; and the purposes of the

Convention.”); Choctaw Nation, 318 U.S. at 431-32, 63

S.Ct. 672 (“To ascertain their meaning we may look

beyond the written words to the history of the treaty,

the negotiations, and the practical construction adopted

18a

by the parties.” (citing Factor, 290 U.S. at 294, 295, 54

S.Ct. 191)).

As a practical matter, then, how do we apply the

principles that govern treaty construction? To answer

this question, I would again look to the precepts set

forth by the United States Supreme Court. See Life

Partners, Inc., 464 S.W.3d at 670.

1. Identify the Treaty’s Purpose.

The text must be read “with a view to making effective

the purposes of the high contracting parties.” Sullivan

v. Kidd, 254 U.S. 433, 439, 41 S.Ct. 158, 65 L.Ed. 344

(1921); see also El Al Isr. Airlines, Lid. v. Tsui Yuan

Tseng, 525 U.S. 155, 169, 119 S.Ct. 662, 142 L.Ed.2d 576

(1999) (identifying a treaty’s “cardinal purpose”). The

treaty’s purpose may be expressly stated in its

preamble, see Tseng, 525 U.S. at 169, 119 S.Ct. 662, and

the role played by a specific provision may be gleaned

from the treaty’s structure and the context in which the

provision appears. See Olympic Airways v. Husain, 540

U.S. 644, 650, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004)

(noting that the Court considers the treaty’s “text,

structure, and history”); Tseng, 525 U.S. at 169, 119

S.Ct. 662 (identifying the treaty interpretation that “is

most faithful to the Convention’s text, purpose, and

overall structure”); Santovincenzo, 284 U.S. at 37, 52

S.Ct. 81 (considering “the context of the provision in

question”).

2. Identify the signatories’ shared expectations.

The treaty must be read “in a manner ‘consistent with

the shared expectations of the contracting parties.’ ”

Lozano, 134 §.Ct. at 1233 (quoting Husain, 540 U.S. at

650, 124 S.Ct. 1221); Tseng, 525 U.S. at 167, 119 S.Ct.

662 (same); Air France v. Saks, 470 U.S. 392, 399, 105

19a

S.Ct. 1338, 84 L.Ed.2d 289 (1985) *38 (“[I]t is our

responsibility to give the specific words of the treaty a

meaning consistent with the shared expectations of the

contracting parties.”); see also Zicherman v. Korean Air

Lines Co., 516 U.S. 217, 223-25, 116 S.Ct. 629, 133

L.Ed.2d 596 (1996) (rejecting the petitioners’

interpretation of a phrase as “implausible” and

“unlikely” in view of “the shared expectations of the

contracting parties,” and instead concluding that “an

equally plausible reading ... that leads to a more

comprehensible result” was the only “realistic”

alternative). Adherence to the parties’ shared

expectations is required because—unlike legislation—a

treaty is “necessarily the product of consensus.” Michael

P. Van Alstine, The Death of Good Faith in Treaty

Jurisprudence and a Call for Resurrection, 93 Geo. L.J.

1885, 1923 (2005). “Contrary to the majoritarian

premise of statutory adoption, there is no means of

imposing treaty obligations on a dissenting minority. If

the product of negotiations is not satisfactory, a

disaffected nation may simply not ratify the treaty.” Jd.

It therefore is no surprise that to identify those shared

expectations, courts must consider the treaty’s

negotiating and drafting history. See, e.g., Medellin v.

Texas, 552 U.S. 491, 507, 128 S.Ct. 1346, 170 L.Ed.2d

190 (2008); Tseng, 525 U.S. at 167, 119 S.Ct. 662;

Zicherman, 516 U.S. at 226, 116 S.Ct. 629; Choctaw

Nation, 318 U.S. at 431-32, 63 S.Ct. 672; Factor, 290

U.S. at 294-95, 54 S.Ct. 191; Nielsen, 279 U.S. at 52, 49

S.Ct. 223. The construction of the Service Convention is

no exception to this rule. See Volkswagenwerk

Aktiengeselischaft v. Schlunk, 486 U.S. 694, 700, 108

S.Ct. 2104, 100 L.Ed.2d 722 (1988) (examining the

Service Convention’s drafting history and negotiations).

20a

**8 To understand a treaty’s negotiating and drafting

history, its provisions must be considered in the

language used by the drafters in the official text. See

Zicherman, 516 U.S. at 221, 116 S.Ct. 629 (considering

the meaning of the French word dommage where the

official text of the treaty was in French, and rejecting

the contention “that we simply look to English

dictionary definitions of ‘damage’ and apply that term’s

‘plain meaning’ ”); Saks, 470 U.S. at 399, 105 S.Ct. 1338

(“We look to the French legal meaning for guidance as

to [the signatories’ shared] expectations because the

Warsaw Convention was drafted in French by

continental jurists.”); Todok, 281 U.S. at 454, 50 S.Ct.

363 (“The text of the treaty of 1783 with Sweden was in

French only, and the French text is _ therefore

controlling.”). Where the official text of the treaty was

drawn up in two languages, then courts consider both

languages when analyzing the parties’ shared

expectations. See United States v. Percheman, 32 U.S.

(7 Pet.) 51, 88-89, 8 L.Ed. 604 (1833) (where a treaty

was drawn up in both Spanish and English, the Court

considered the text in both languages, explaining that

“[njo violence is done to the language of the treaty by a

construction which conforms the English and Spanish

to each other”).

The Service Convention was drafted “in the English and

French languages, both texts being equally authentic.”

Schlunk, 486 U.S. at 699, 108 S.Ct. 2104; see also

Service Convention, supra note 1, at closing paragraph

(stating that the Service Convention was drafted “in the

English and French languages, both texts being equally

authentic, in a single copy”). Thus, the negotiating and

drafting history of the Service Convention’s text in both

languages must be considered. See Schlunk, 486 U.S. at

2la

700-01, 108 S.Ct. 2104 (considering French terms that

were proposed for inclusion in the Service Convention

and comparing the meanings given to the terms “in

some countries, such as *89 France” and “in others, such

as the United States”). This negotiating and drafting

history may be documented by the conference’s

rapporteur. See United States v. Louisiana, 394 U.S. 11,

43, 89 S.Ct. 773, 22 L.Ed.2d 44 (1969).

In addition to considering the text itself, courts consider

the way in which the text was interpreted by the

delegates involved in negotiating and drafting the

treaty. See Schlunk, 486 U.S. at 703, 108 S.Ct. 2104

(considering statements and articles by Philip Amram,

the head of the United States delegation to the

Convention); id at 709-10 & n.1, 714, 716, 108 S.Ct.

2104 (Brennan, J., concurring) (same). The delegates’

views also may be memorialized by the conference

rapporteur. See Société Nationale Industrielle

Aérospatiale v. U.S. Dist. Court, 482 U.S. 522, 530 n. 13,

107 S.Ct. 2542, 96 L.Ed.2d 461 (1987).

3. Accord “great weight” to the Executive Branch’s

int ati

“It is well settled that the Executive Branch’s

interpretation of a treaty ‘is entitled to great weight.’ ”

Abbott, 560 U.S. at 15, 130 S.Ct. 1983 (quoting

Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176,

185, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982)); Medellin,

552 U.S. at 513, 128 S.Ct. 1346 (same); Tseng, 525 U.S.

at 168, 119 S.Ct. 662 (“Respect is ordinarily due the

reasonable views of the Executive Branch concerning

the meaning of an international treaty.”).

4. Accord “considerable weight” to the interpretation of

the other signatories.

22a

Finally, the parties’ shared expectations are shown by

their post-ratification understanding and conduct. See

Medellin, 552 U.S. at 507, 128 S.Ct. 1346; Husain, 540

U.S. at 649-50, 124 S.Ct. 1221; Theng, 525 U.S. at 167,

119 S.Ct. 662; Zicherman, 516 U.S. at 227, 116 S.Ct.

629; see also O'Connor v. United States, 479 U.S. 27, 33,

107 S.Ct. 347, 93 L.Ed. 2d 206 (1986) (“The course of

conduct of parties to an international agreement, like

the course of conduct of parties to any contract, is

evidence of its meaning.”). These may be documented in

an organizational handbook or report. See Sale v.

Haitian Ctrs. Council, Inc., 509 U.S. 155, 182 n. 40, 113

S.Ct. 2549, 125 L.Ed.2d 128 (1993) (quoting Office of

United Nations High Commissioner for Refugees,

Handbook on Procedures and Criteria for Determining

Refugee Status 46 (Geneva, Sept. 1979)). The United

States Supreme Court instructs us that, when

interpreting a treaty, “ t]he opinions of our sister

signatories ... are entitled to considerable weight.’ ”

Abbott, 560 U.S. at 16, 130 S.Ct. 1983 (Tseng, 525 U.S.

at 176, 119 S.Ct. 662); Saks, 470 U.S. at 404, 105 S.Ct.

1338 (same).

5. Consider the analysis of scholars.

**9 See Abbott, 560 U.S. at 18, 130 S.Ct. 1983 (“Scholars

agree that there is an emerging international consensus

on the matter.”).

IV. APPLICATION

Having identified the governing precepts in the

construction of treaties and the way in which they are

applied, I would pursue the same approach in this case.

A. The Service Convention’s Purpose

The Service Convention’s two purposes are stated in its

23a

preamble:

The States signatory to the present Convention,

Desiring to create appropriate means to ensure that

judicial and extrajudicial documents to be served

abroad shall be brought to the notice of the addressee

in sufficient time,

Desiring to improve the organisation of mutual

judicial assistance for that *40 purpose by simplifying

and expediting the procedure,

Have resolved to conclude a Convention to this effect

and have agreed upon the following provisions

Service Convention, supra note 1, at preamble

(emphasis added); see also Schlunk, 486 U.S. at 702-04,

108 S.Ct. 2104 (looking to the Service Convention’s

preamble for the identification of its purpose).

Consistent with those purposes, the Service

Convention’s scope is set forth in Article 1: “The present

Convention shall apply in all cases, in civil or

commercial matters, where there is occasion to transmit

a judicial or extrajudicial document for service abroad.”

Service Convention, supra note 1, at Art. 1 (emphasis

added).

This is a more specific purpose than that found by the

majority in this case. By agreeing with Menon’s

argument that “she was not served pursuant to the

Hague Convention service of process provisions,“ the

majority necessarily has concluded that there are nan-

service provisions in the Service Convention. But the

United States Supreme Court has examined the

English and French text of the Service Convention and

its drafting history and concluded that the opposite is

true: the Court explained that Article 1 “eliminate/[d]

24a

the possibility” that the Service Convention could apply

to transmissions abroad “that do not culminate in

service”:

The preliminary draft of Article 1 said that the

present Convention shall apply in all cases in which

there are grounds 40 transmit or to give formal notice

of a judicial or extrajudicial document in a civil or

commercial matter to a person staying abroad. [3 1964

Conférence de la Haye de Droit International Privé,

Actes et Documents de la Dixiéme Session

(Notification) 65 (1965) (3 Actes et Documents) | (“La

présente Convention est applicable dans tous les cas

ou il y a lieu de transmettre ou de notifier un acte

judiciaire ou extrajudiciaire en matiére civile ou

commerciale 4 une personne se trouvant a |’étranger”)

(emphasis added). 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. Jd, at 152-153, 155, 159, 366. The

delegates also criticized the Janguage of the

preliminary draft because it suggested that the

Convention could apply to transmissions abroad that

do not culminate in service. Id., at 165—167. The final

text of Article 1, supra, 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. Id., at 366.

25a

**10 Schlunk, 486 U.S. at 700-01, 108 S.Ct. 2104

(emphasis added).

*Ante, at

In accordance with the United States Supreme Court’s

analysis, I would conclude that the Service Convention

addresses only the transmission of documents that

culminate in service, and thus, the reference in Article

10(a) to “send{ing] judicial documents” means “serv[ing}

judicial documents.” Service Convention, supra note 1,

at Art. 10(a).

*41 B. The Shared Expectations of the Signatories to

the Service Convention

To ascertain the parties’ shared expectations, I would

consider the actual and proposed language of Service

Convention’s bilingual text, its negotiating and drafting

history, and the understanding of the delegates.

1. Negotiating and Drafting History of the Text

In addition to the text and the negotiating and drafting

history previously described, I would give considerable

weight to the fact that “[tJhe French text of the 1965

convention was copied from three earlier Hague

Conference conventions, all of which were understood to

allow service upon defendants abroad by mail.” See

Michael O. Eshleman & Stephen A. Wolaver, Using the

Mail to Avoid the Hague Service Convention’s Central

Authorities, 12 Or. Rev. Int’] L. 283, 333 (2010).

I additionally would consider the following history:

The Rapporteur’s report on article 10(a) of the draft

convention provides in part: “The provision of

paragraph 1 [labelled {ay in the final text] also

permits service by telegram if the state where service

26a

is to be made does not object. The Commission did not

accept the proposal that postal channels be limited to

registered mail.”

"Patricia N. McCausland, Note and Comment, How May

I Serve You? Service of Process by Mail Under the

Hague Convention on the Service Abroad of Judicial

and Extrajudicial Documents in Civil or Commercial

Matters, 12 PACE L.REV. 177, 186 n.67 (1992)

(translated from 3 Actes et Documents de la Dixiéme

Session (Conférence de la Haye de Droit International

Privé) 90 (1964)).

If Article 10(a) was considered to include service by

telegram, and not to be “limited to registered mail,” then

it cannot be said, as the majority now holds, that this

provision does not permit service by mail.

2. The Understanding of the Delegates

I next would consider the statements of Philip W.

Amram, a member of the United States delegation to

the Hague Conference that drafted the Service

Convention. Indeed, in his concurring opinion in

Schiunk, Justice Brennan identified Amram as “(t]he

head of the delegation” and its “chief negotiator.”

Schiunk, 486 U.S. at 710, 714 (Brennan, J., concurring).

Amram also was the only English-speaking member of

the Service Convention’s drafting committee. See

Eshleman & Wolaver, supra, at 325 (citing Unification

of the Rules of Private International Law: Report of the

U.S. Delegation to the 10th Session of the Hague

Conference on Private International Law, October 7-28,

1964, 52 Dep’t State Bull. 265, 265-66 (1965)). Amram

“told the Senate Foreign Relations Committee that

‘unless the requested State objects, direct service by

mail’ was allowed under Article 10 and ‘use of the

27a

central authority is not obligatory.’ ” Jd at 325-26

(footnotes omitted).

**11 Because the United States Supreme Court cited

Amram’s statement to the Senate in the Court’s only

opinion construing the Service Convention, see Sch/unk,

486 U.S. at 703, 108 S.Ct. 2104, I would consider this

statement in ascertaining the signatories’ shared

expectations. See also Philip W. Amram, The Proposed

International Convention on the Service of Documents

Abroad, 51 A.B.A. J. 650, 653 (1965) (“Article 10 permits

direct service by mail ... unless [the receiving] state

objects to such service.”).

*42 C. The Executive Branch’s Interpretation of Article

10(a)

The Executive Branch has unwaveringly maintained

that Article 10(a) permits service by mail. “Dean Rusk,

the American secretary of state at the time the

convention was negotiated, signed, and ratified, stated

in his official report to President Johnson: ‘Article 10

permits direct service by mail ... unless [the receiving]

state objects to such service.’ ” Eshleman & Wolaver,

supra, at 325. The State Department subsequently

produced a circular stating that unless a nation “ ‘has

made a specific reservation ... objecting to service by

registered mail .. [service] may be made by

international registered mail.’ ” Jd. (citing U.S. Dep’t of

State, Bureau of Consular Affairs, Overseas Citizen

Services, Office of Citizen Consular Services, Service of

Legal Documents Abroad, excerpted in Judicial

Assistance: Service: International Registered Mail, [2]

1981—1988 Digest § 6, at 1441-45). And, when the first

federal appellate court held to the contrary, “the State

Department formally said the ... ruling was wrong ... [in

28a

suggesting] that the Hague Convention does not permit

as a method of service the sending of a copy of the

summons and complaint by registered mail to a

defendant in a foreign country.’” /d. at 326 (citing Letter

from Alan J. Kreczco, Legal Adviser, U.S. Dep’t of State,

to the Administrative Office of the U.S. Courts and the

National Center for State Courts (Mar. 14, 1991),

excerpted in United States Department of State

Opinion Regarding the Bankston Case and Service by

Mail to Japan Under Hague Service Convention, 30

I.L.M. 260, 261 (1991)).®

*Kreczco’s name actually is spelled “Kreczko”; his title

was Deputy Legal Adviser; and the referenced letter

was dated Mar. 14, 1990.

Regarding the specific application of Article 10(a) in this

case, the State Department’s website shows its view

that Canada accepts “service of process by mail.”

"U.S. Dep’t of State, Bureau of Consular Affairs, Lega/

Considerations: International Judicial Assistance:

Country Information: Canada, TRAVEL.STATE.GOV,

http://travel. state.gov/content/travel/english/legal-

considerations/judicial /country/canadahtm! (last

visited June 26, 2015) (parentheses added).

In accordance with the instructions from the United

States Supreme Court, I would give such views “great

weight.”

D. The Interpretation of Article 10(a) by Other

Signatories

The post-ratification understanding of the parties can

be seen in a Hague Conference report on the signatories’

response to the following question:

Question D: Have there been any court decisions in

29a

your country interpreting Article 10(a) of the Hague

Service Convention which reads as follows:

“Provided the State of destination does not object, the

present Convention shall not interfere with—

(a) the freedom to send judicial documents by postal

channels directly to persons abroad ...”

**12 [Answer] 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 *43 by mail

was not permitted under the Convention.°

‘PERMANENT BUREAU, HAGUE CONFERENCE

ON PRIVATE INT'L LAW, REPORT ON THE WORK

OF THE SPECIAL COMMISSION OF APRIL 1989 ON

THE OPERATION OF THE HAGUE CONVENTIONS

OF 15 NOVEMBER 1965 ON THE SERVICE ABROAD

OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS

IN CIVIL OR COMMERCIAL MATTERS AND OF 18

MARCH 1970 ON THE TAKING OF EVIDENCE

ABROAD IN CIVIL OR COMMERCIAL MATTERS 4—

5 (Apr. 1989), available at http:?//www-hcch.net/upload/

scrpt89e_20.pdf (italics omitted).

The significance of this unanimity in the interpretation

of a convention that has now existed for fifty years and

has been signed or ratified by sixty-eight countries

cannot be overstated, because as our highest court has

30a

explained, the judiciary’s “role is limited to giving effect

to the intent of the Treaty parties. When the parties to

a treaty ... agree as to the meaning of a treaty provision,

and that interpretation follows from the clear treaty

language, we must, absent extraordinarily strong

contrary evidence, defer to that interpretation.”

Avagtiano, 457 U.S. at 184-85, 102 S.Ct. 2374.

Despite a diligent search, I have found no authority that

our fellow signatories have interpreted Article 10(a) to

pertain only to the “sending” of documents and not to

the “service” of documents. Because the required

“extraordinarily strong contrary evidence” is lacking, I

accordingly would defer to the _ signatories’

interpretation that Article 10(a) permits service by mail.

See Trans World Airlines, Inc. v. Franklin Mint Corp.,

466 U.S. 243, 259, 104 S.Ct. 1776, 80 L.Ed.2d 273 (1984)

(“We may not ignore the actual, reasonably harmonious

practice adopted by the United States and other

signatories in the first 40 years of the Convention’s

existence.” (referring to the Convention for the

Unification of Certain Rules Relating to International

Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S.

No. 876 (1934), reprinted in Note following 49 U.S.C. §

1502)); see also In re Morgan Stanley & Co., 293 S.W.3d

182, 189-90 (Tex.2009) (orig. proceeding) (rejecting the

Fifth Circuit’s interpretation on a question of law

“[gliven the overwhelming weight of authority” reaching

a contrary result).

E. The Interpretation of Article 10(a) by Leading

I also would follow the example of the United States

Supreme Court in consulting the writings of Bruno

Ristau as to the intentions of the Service Convention’s

3la

drafters. See Schlunk, 486 U.S. at 698, 700, 703, 108

S.Ct. 2104 (citing 1 B. Ristau, International Judicial

Assistance (Civil and Commercial) (1984 and 1

Supp.1986)). Like all of our sister signatories and our

own government, Ristau states that Article 10(a)

permits service by mail:

Ristau has written that the language of Article 10(a)

regarding the use of “postal channels” was “intended

to include service of process.” Others concur. “It is

clear that ... every participant in the debates

concerning Article 10(a) ... understood the provision as

referring to ... the use of postal channels for the

purpose of service.” Another analysis said “[plerhaps

the most compelling evidence in support of the theory

that Article 10(a) authorizes service by mail is the fact

that those who actually participated in the original

Convention ... believe that to be the case.”

**13 Ristau quoted the official report on the draft

convention, which indicated the language of Article 10

was worded broadly. It is so broad, he writes, that it

“permits service by telegram if the State where service

is to be made does not object.”

Eshleman & Wolaver, supra, at 331-32 (footnotes

omitted).

*44 Based on all of the foregoing, I would conclude that

Article 10(a) of the Service Convention permits service

by mail.

V. THE COUNTERVAILING VIEW

The majority concludes that “the better-reasoned

approach” is to follow the countervailing view espoused

by the Fifth Circuit in Nuovo FPignone, SpA vy.

STORMAN ASIA M/V, 310 F.3d 374 (5th Cir.2002). The

32a

majority, however, has not explained why an approach

that eschews the principles of treaty construction laid

down by the United States Supreme Court is “better-

reasoned,” or even how those following the prevailing

view have arrived at a different result.

The majority's opinion constitutes binding precedent on

this court until it is overruled by a higher court or by our

own court, whether in response to a motion for

rehearing or for rehearing en banc or in a different case.

And because it is binding, I believe it is important for

the analysis to be transparent. This is especially so in

this case, given that the majority adopts an

interpretation contrary to that of the American

delegation, the American government, most American

courts, and those of our sister signatories—including, as

the majority admits, Canada.’ I accordingly have

applied the governing precepts to illustrate how they

necessarily lead to the conclusion that Article 10a) of

the Service Convention permits service by mail.

Respectfully, I believe that the majority’s differing

analysis, like the analyses in the cases on which it relies,

is flawed.

*Ante, at, —— n.1; see also Hague Conference on

Private Int] Law, List of Central Authorities

Designated by Canada, HCCH, 6,

http/www.hech.net/uploaWauth/l4ca20 14en.pdf (list

up-to-date as of August 2014) (identifying the Ministére

de la Justice as the Central Authority for Québec and

identifying that office’s website). On that website,

Québec’s Central Authority states, “The Convention

also sets out other methods of transmitting documents

sameine Guaiias Gaetan” aie to

Authority [including] postal service... Under the

Convention, a State may object to those methods

33a

although Canada did not declare any opposition when it

ratified the Convention.” Gouvernement du Québec,

Service Abroad of Judicial and Extrajudicial Documents

in Civil or Commercial Matters: Other Methods of

Transmission, JUSTICE QUEBEC, http://www justice.

gouv.qc.ca/english/programmes/sneaie/transmission-

a.htm (last updated Feb. 26, 2004).

A. The Majority’s Adoption of the Reasoning of Nuovo

Pignone

As previously explained, the first precept of treaty

construction is that a treaty is not construed as

legislation, but instead is construed more liberally than

a private contract, drawing on a wide variety of sources

in order to implement the signatories’ shared

expectations. In Nuovo Pignone, however, the Fifth

Circuit did the opposite. As the court stated it,

We adopt the reasoning of courts that have decided

that the Hague Convention does not permit service by

mail. In doing so, we rely on the canons of statutory

interpretation rather than the fickle presumption that

the drafters’ use of the word “send” was a mere

oversight. “Absent a clearly expressed legislative

intention to the contrary,” a statute’s language “must

ordinarily be regarded as conclusive.” Consumer Prod.

Safety Comm'n vy. GTE Sylvania, Inc., 447 U.S. 102,

108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). And

because the drafters purposely elected to use forms of

the word “service” throughout the Hague Convention,

while confining use of the word “send” to article 10(a),

we will not presume that the drafters intended to give

the same meaning to “send” that they intended to give

to “service.”

**14 *45 Jd. at 384 (emphasis added). Thus, the Fifth

34a

Circuit essentially compared two words—in English

only—and treated the distinction between the two as

conclusive. But see Eshleman & Wolaver, supra, at 333—

34 (discussing use of the same language in the

Conventions of 1954, 1905, and 1896, all of which used

the French word translated as “send” in referring to

service of process by mail).

This approach follows none of the governing precepts of

treaty construction. The majority in this case, like the

authors of the cases on which the majority relies,

instead have followed a canon of statutory

interpretation, despite the United States Supreme

Court’s contrary directive in a case decided just last

year. See Lozano, 134 S.Ct. at 1232-33 (“The Hague

Convention ... is a treaty, not a federal statute.... ‘A

treaty is in its nature a contract between ... nations, not

a legislative act.’ ... That distinction has been reflected

in the way we interpret treaties. It is our ‘responsibility

to read the treaty in a manner consistent with the

shared expectations of the contracting parties.”)

(citations and internal quotations omitted, emphasis in

original). The majority in this case neither treats the

United States Supreme Court’s discussion of how a

Hague Convention is to be construed as binding

precedent, nor explains its reasons for failing to do so.

The majority instead follows Nuovo Pignane, in which

the Fifth Circuit approached the question of treaty

construction as though the only alternative to the

application of “canons of statutory construction” was a

“fickle presumption that the drafters’ use of the word

“send” was a mere oversight.” Nuovo Pignone, 310 F.3d

at 384. But, the drafters’ intent is well-established

without the need for a presumption. As previously

explained, there is no dispute among the signatories

35a

that Article 10(a) permits service by mail. Like the

majority in this case, the Nuovo Pignane court did not

even mention most of the precepts that govern treaty

construction, or the fact that the Service Convention’s

predecessors dating back more than a hundred years

used the word “send” even when referring to service of

process by mail.

As reasons for rejecting the interpretation of Article

10(a) that is followed by all of the other Service

Convention’s signatories, the United States

government, and a majority of courts in this country, the

Fifth Circuit stated as follows:

Nuovo Pignone’s contention that the broad purpose of

the Hague Convention is furthered if article 10(a) is

interpreted to allow service by mail is problematic. As

noted, the purpose of the Hague Convention is not

only to simplify the service of process, but to ensure

that plaintiffs deliver notice to foreign addressees in

sufficient time to defend the allegation. Indeed, FED.

R. CIV. P. 4(f{1) presumes that the Hague

Convention provides methods of service “reasonably

calculated to give notice.”

We are not confident, nor should the drafters have

been confident in 1967 [sic],”° that mail service in the

more than forty signatories [sic] is sufficient to *46

ensure this goal. [In an accompanying footnote, the

court added, “Indeed, the advisory committee notes to

the 1963 amendments to FED.R.CIV.P. 4 recognize

that (slervice of process beyond the territorial limits

of the United States may involve difficulties not

encountered in the case of domestic service.”] Under

Nuovo Pignone’s interpretation of article 10(a), the

fact that a signatory could object to service by mail is

36a

unconvincing. There is no reason to think that

signatories with inadequate mail services would

voluntarily opt out of article 10(a).

**15 Finally, we note that other provisions of the

Hague Convention describe more reliable methods of

effecting service. Service of process through a central

authority under articles 2 through 7 and service

through diplomatic channels under articles 8 and 9

require that service be effected through official

government channels. It is unlikely that the drafters

would have put in place these methods of service

requiring the direct participation of government

officials, while simultaneously permitting the

uncertainties of service by mail.

Id. at 384-85 & n. 17. For several reasons, the stated

rationale cannot withstand scrutiny.

The Convention was not drafted in 1967; it was drafted

in 1964. See Schlunk, 486 U.S. at 698, 108 S.Ct. 2104

(“The Hague Service Convention is a multilateral treaty

that was formulated in 1964 by the Tenth Session of the

Hague Conference of Private International Law.”).

“There were twenty-three member States when the

Service Convention was drafted. See Schlunk, 486 U.S.

at 698, 108 S.Ct. 2104 (“Representatives of all 23

countries that were members of the Conference

approved the Convention without reservation.”); Kurt

H. Nadelmann & Willis L. M. Reese, The Tenth Session

of the Hague Conference on Private Internatianal Law,

13 AM. J. COMP. L. 612, 612 n.1 (1964) (listing the

twenty-three member States when the Service

Convention was drafted).

First, the Fifth Circuit implies that in the Federal Rules

of Civil Procedure in effect when the Service Convention

37a

was drafted, the advisory committee anticipated that

service abroad by mail involved difficulties not present

in domestic service. To the contrary, however, the

advisory committee’s only example of difficulties in

service abroad was that “a person not qualified to serve

process according to the law of the foreign country may

find himself subject to sanctions if he attempts service

therein.”” The 1963 amendment to Federal Rule of Civil

Procedure 4{i) was intended to ameliorate such

difficulties by providing for five “alternative provisions

for service in a foreign country”—including service by

mail. See Amendments to Rules of Civil Procedure for

the U.S. Dist. Courts, 31 F.R.D. 587, 595 (1963). That

affords a manner of service that is inexpensive and

expeditious, and requires a minimum of activity within

the foreign country.”” The Fifth Circuit cites neither

evidence nor authority for its contrary assumption.

“See ADVISORY COMM. ON CIVIL RULES,

STATEMENT ON BEHALF OF THE ADVISORY

COMMITTEE ON CIVIL RULES, PROPOSED

AMENDMENTS TO THE RULES OF CIVIL

PROCEDURE FOR THE UNITED STATES DISTRICT

COURTS 11 (July 18, 1962), available at http:

/Awww.uscourts.gov/rules-policies/archives/committee-

reports/advisory-committee-rulescivil-procedure-july-

1962.

’ADVISORY COMM. ON CIVIL RULES, supra note

12, at 12.

Second, the court’s statement that “[tJhere is no reason

to think that signatories with inadequate mail services

would voluntarily opt out of article 10(a)” is contrary to

the statutory textual analysis that the authoring court

38a

purports to apply. Specifically, Article 21 of the Service

Convention requires that “[ejach Contracting State

shall similarly inform the Ministry, where appropriate,

of ... opposition to the use of methods of transmission

pursuant to Articles 8 and 10.” Service Convention,

supra note 1, at Art. 21; see also United States v.

Caldera—Herrera, 930 F.2d 409, 411 (5th Cir.1991) (

“Where possible, statutes must be read in harmony with

one another so as to give meaning to each provision.”

(citing Fed. Aviation Admin. v. Robertson, 422 U.S. 255,

261, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975))). Not only *47

must we presume that signatories that voluntarily

chose to sign the agreement intended to comply with

Article 21, but such compliance is objectively verifiable

by the _ signatories’ post-ratification conduct:

approximately half of the Service Convention’s

signatories have either qualified their acceptance of

Article 10 or have opposed it entirely.“

“See Hague Conference on Private Intl Law, Table

Reflecting Applicability of Articles 82), 10(a),(b), and

(c), 15(2) and 16(3) of the Hague Service Convention,

HCCH (Feb. 2013), http//www.hcch.net/upload/applic-

ability14e.pdf.

**16 Third, the Fifth Circuit makes the unsupported

assumption that the drafters would not have permitted

service by mail when two “more reliable” methods of

service (through a Central Authority and through

diplomatic channels) were available. In doing so, the

court assumes not only that mail is less reliable, but also

that the drafters would not have included both a more

reliable and a less reliable method. If this were true,

however, then the drafters would have included only the

single most reliable method of service, whether that was

service through a Central Authority or service through

39a

diplomatic channels, but not both. But see Philip W.

Amram, Heport on the Tenth Session of the Hague

Conference on Private International Law, 59 AM. J.

INT'L L. 87, 90 (1965) (“Use of the Central Authority is

purely optional with the applicant for service.”). And if

mail is presumed unreliable, then how are the service

documents to be transmitted to a foreign Central

Authority without the use of mail? See Service

Convention, supra note 1, at Art. 2 (“Each Contracting

State shall designate a Central Authority which will

undertake to receive requests for service coming from

other Contracting States ....) (emphasis added); id. at

Art. 3 (“The authority or judicial officer competent

under the law of the State in which the documents

originate shall forward to the Central Authority of the

State addressed a request conforming to the model

annexed to the present Convention ....”) (emphasis

added). And how, without using mail, is the foreign

Central Authority to communicate directly with the

applicant as required? See id. at Art. 4 (“If the Central

Authority considers that the request does not comply

with the provisions of the present Convention it shal]

promptly inform the applicant and specify its objections

to the request.”) (emphasis added); id. at Art. 6 (“The

Central Authority of the State addressed .. shall

complete a certificate ... [stating] that the document has

been served ... [or stating] the reasons which have

prevented service. The certificate shall be forwarded

directly to the applicant.” (emphasis added).

Because the Fifth Circuit in Nuovo Pignone did not

apply the correct precepts of treaty construction but

instead relied on unsupported assumptions, I would

decline to follow it. The majority states that “other

federal district courts in Texas .. have ruled

40a

consistently that service must be effectuated by the

specific methods authorized by the terms included in the

Hague Convention.”” But, a// courts agree that if the

Hague Service Convention applies, then service must be

effectuated by a means permitted under the treaty’s

terms. As phrased, this statement begs the question of

whether service by mail is permitted under Article

1Q(a). If the majority intended to suggest that federal

district courts in the Fifth Circuit have consistently

stated that Article 10(a) does not permit service by mail,

then that implication is wrong. See, eg., Chattem

Chems., Inc. v. Akzo Nobel Chems. B. V., 229 F Supp.2d

555, 556 (M.D.La.2002) (“The Court, having *48

reviewed conflicting authorities, finds that service made

pursuant to Article 10(a) comports with the purpose,

meaning and intent of the Hague Convention.”); Brown

v. Bandai Am., Inc., No. 3-01-CV—0442-R, 2002 WL

1285265, at *4 (N.D. Tex. June 4, 2002) (“[TJhe Court

determines that service of process by mail is permissible

under Article 10(a) of the Hague Convention.”); Lafarge

Corp. v. M/V MACEDONIA HELLAS, No. Civ.A. 99—

2648, 2000 WL 687708, at *11 (E.D.La. May 24, 2000)

(“This court adopts the reasoning of those courts that

conclude that the Hague Convention permits service of

process by mail pursuant to Article 10(a).”); Friede &

Goldman, Ltd. v. Gotaverken Arendal Consultants, No.

CIV A 99-1970, 2000 WL 288375, at *3 (E.D.La. Mar.

16, 2000) (“[TThis Court adopts the reasoning of those

courts that conclude that the Hague Convention

permits service of process by mail pursuant to Article

10(a).”); Paradigm Entm’t, Inc. v. Video Sys. Co., No.

Civ.A. 3:99-CV-—2004P, 2000 WL 251731, at *7

(N.D.Tex. Mar. 3, 2000) (“[Tlhis Court finds that Article

10(a) provides for service by mail in the current

situation.”); Ortega Dominguez v. Pyrgia Shipping

4la

Corp., No. Civ.A. 98-529, 1998 WL 204798, at *2

(E.D.La. Apr. 24, 1998) (“[TIhis Court finds that Artide

10(a) of the Hague Convention permits service of

process by mail.”); Smith v. Dainichi Kinzoku Kogyo Co.,

680 F.Supp. 847, 851 (W.D.Tex.1988) (“Plaintiffs’

service of process directly upon Dainichi-Japan by

registered mail was sufficient to comport with Art. 10(a)

of the Hague Convention.”); Great Am. Boat Co. v.

Alsthom Ati., Inc., Civ. A. Nos. 84-0105 & 84-6442,

1987 WL 4766, at *3 (E.D.La. Apr. 8, 1987) (“Mailing a

summons and a copy of the complaint with a return

receipt ... creates personal jurisdiction ... against a FSIA

corporation [i.e, a corporation whose ownership is

vested in a foreign state] .. in a Hague Service

Convention state....”).

* Ante, at —.

**17 The majority cites several opinions that were

issued by federal district courts in Texas after the Fifth

Circuit Court of Appeals decided Nuovo Pignone, but

these decisions add nothing to the discussion. The

authoring courts had no choice but to follow Nuovo

Pignone, because the opinion constitutes binding

precedent over the lower courts in the Fifth Circuit. The

distinction between a court that is merely following

precedent and one that makes an independent

determination of an issue can hardly be

overemphasized: the Fifth Circuit’s trial courts are

required to treat the Fifth Circuit Court of Appeals’

decisions as binding precedent, whereas Texas state

courts—including this one—are forbidden to treat them

as binding precedent. As the Texas Supreme Court has

explained:

The court of appeals’ discussion of [a

42a

Fifth Circuit case] and its cursory

dismissal of contrary federal precedent

from other jurisdictions suggests that

the court felt bound by the

pronouncements of the Fifth Circuit on

federal law issues. This is not the

case.... By focusing so exclusively on

[the Fifth Circuit case], the court of

appeals overlooks the ... the weight of

.. federal court decisions from other

juriedictions.

Penrod Drilling Corp., 868 S.W.2d at 296. The

‘ority’s failure to di the queen rage

treaty construction or to address the reasoning of courts

that have reached a conclusion contrary to that of the

Fifth Circuit suggests that the majority has fallen into

the same error here.”

"This is not the only problem with the majority's

discussion of federal district court decisions. The only

case that it cites for the proposition that the Service

Convention does not permit service by mail is Duarte v.

Michelin North America, Inc., No. 2:13—CV—00050,

2013 WL 2289942 (S.D.Tex. May 23, 2013). The

majority cites the remaining cases only in connection

with articles of the Service Convention that are not at

issue here. And although Duarte does indeed cite

Berezowsky v. Ojeda, No. 4:12—CV—03496, 2013 WL

150714 (S.D.Tex. Jan. 14, 2013) that opinion has since

been vacated. 765 F.3d 456 (5th Cir.2014).

The majority cites L.K. v. Mazda Motor Corp., No. 3:09—

cv-469-M, 2009 WL 1033334, at *2 (N.D.Tex. Apr. 15,

2009) with the parenthetical, “holding service under

article 5 was not effective because Japanese

43a

requirement that service be transmitted to the Central

Authority was not met.” That is not the case’s holding.

To the contrary, the authoring court did not analyze the

adequacy of service at all, but said only that “Plaintiffs’

counsel admits that he failed to comply with the

requirements of the Hague Convention,”

Finally, the majority cites Albo v. Suzuki Motor Corp.,

No. 3:08—-0139—KC, 2008 WL 2783508 (W.D.Tex. July 2,

2008) with the parenthetical, “holding service not

effective because, under article 5, the Hague [Service

Convention] required full translation of documents into

Japanese and without complying with specific Hague

[Service Convention] requirements, service was

insufficient.” But as the authoring court explains, the

Service Convention itself has no such requirement; it

simply provides that “ ‘the Central Authority may

require [the] document be written in, or translated into,

the official language or one of the official languages of

the State.’ ” Jd. at *2 n.2 (quoting Service Convention,

supra note 1, at Art. 5) (emphasis added).

*49 B. The Majority’s Reliance on State Court

Decisions

The majoritys treatment of state court decisions

appears to me to be similarly flawed. For example, the

majority cites Wuxi Taihu Tractor Co. v. York Group,

Inc., stating that the authoring court “held that article

5 of the Hague Convention does not permit service by

direct mail to a defendant in China who should have

been served through the Central Authority pursuant to

the specific language of the Hague Convention.”” If that

were the court’s holding, then the case would be merely

inapposite, because only Article 10(a) is at issue in this

case. But that was not the court’s holding, as can be seen

44a

from the fact that the Wuxi Taihu court affirmed the

post-answer default against the foreign defendant. No.

01—13-00016-CV, 2014 WL 6792019, at *1 (Tex.App.—

Houston [lst Dist.] Dec. 2, 2014, pet. pending)

(mem.op.). In describing this as the court’s holding, the

majority fails to follow the standard for distinguishing

between dicta and an alternative holding. See State

Farm Mut. Auto. Ins. Co. v. Lopez, 156 S.W.3d 550, 554

(Tex.2004) (op. on reh’g) (granting petitioner’s motion

for rehearing because “we failed to apply the standard

for distinguishing between alternative holdings and

dicta”); Tex. Natural Hes. Conservation Comm’ v.

White, 46 S.W.3d 864, 868 (Tex.2001) (explaining that a

court’s statement is not dicta but instead is an

alternative holding if “the court could have relied on

either determination to reach its ultimate conclusion”).

Moreover, the construction of Article 10(a}—the only

issue presented for our review—is never mentioned in

Wuxi Taihu. Indeed, the issue could not have arisen on

the facts in that case, because the defective-service

complaint in Wuxi Taihu concerned service in the

People’s Republic of China,” which—in accordance with

Article 21 of the Service Convention—has formally

declared its opposition to “the service of documents in

the territory of the People’s Republic of China by the

methods provided by Article 10 of the Convention.”” But

*50 what the Wizx7 Taihu court actually held was that,

regardless of the appellant’s claims of defective service,

the appellant nevertheless “chose to answer, and it

cannot now, after voluntarily appearing, avoid the

consequences of its choice.” See Wuxi Taihu, 2014 WL

6792019, at *10 n.6 (citing Onda Enters., Inc. y. Pierce,

750 S.W.2d 812, 813 (Tex.App—Tyler 1988, orig.

proceeding) (per curiam)). As a result, the entirety of the

Wuxi Taihu court’s discussion of the Service Convention

45a

is dicta.

" Ante,

8 See Wuxi Taihu, 2014 WL 6792019, at *1.

*°A courtesy translation of that country’s declarations

are available on the website of the Hague Conference on

Private International Law at http://www.hcch.net/index

_en.php?act=status.comment=393=resdn (last visited

June 26, 2015).

**18 The other Texas cases cited by the majority and

decided by our sister courts also do not concern Article

10(a). See In re J.P.L., 359 S.W.3d 695 (Tex_App.— San

Antonio 2011, orig. proceeding [mand. denied] ); Velasco

v. Ayala, 312 S.W.3d 783 (Tex.App.—Houston [1st Dist.]

2009, no pet.).” As in Wuxi Taihu, the issue in Velasco

and in JPL. concerned service of process in a country

that has made a forma) declaration of opposition to

Article 10. Specifically, both Velasco and JPL.

concerned service in Mexico.” Like the Wuxi Taihu

opinion, the Velasco opinion cites Article 5 as authority

for the proposition that service by mail does not comply

with the Service Convention. See Velasco, 312 S.W.3d

at 794. In J.PL., the authoring court interpreted Article

19 of the Service Convention. See J.P_L., 359 S.W.3d at

707. Thus, in none of the Texas state decisions cited by

the majority was the question of the correct

interpretation of Article 10 even before the court. These

cases accordingly add nothing to the majority's

analysis—which make its failure to address the

reasoning of the cases that actually do address that

question and follow the prevailing view and all the more

puzzling.

* See ante, at —.

46a

“A courtesy translation of Mexico’s “declarations made

at the moment of accession” is available on the website of

the Hague Conference on Private International Law at

http://www.hcch.net/index_en.php?act=status.comment

=412=resdn (last visited June 26, 2015).

VL CONCLUSION

For the reasons stated herein, I would conclude that

Article 10(a) of the Service Convention permits service

by mail in Canada. Because the majority does not, I

respectfully dissent.

47a

FOURTEENTH COURT OF APPEALS

301 Fannin, Suite 245

Houston, Texas 77002

Tuescay, October 06, 2015

RE: Case No. 14-14-00012-CV

Style: Tara Menon

v. Water Splash, Inc.

Please be advised that on this date the court

DENIED APPELLEE’S motion for rehearing en banc in

the above cause.

1. C. Case # 13-CV-0205 Christopher Prine, Clerk

Jeremy Jason Gaston

Hawash Meade Gaston Neese & Cicack,

LLP

2118 Smith Street

Houston, TX 77002

DELIVERED VIA E-MAIL

RE: Case No. 15-0901 DATE: 5/27/2016

COA #: 14-14-00012-CV TC#: 13-CV-0205

STYLE: WATER SPLASH INC. v. MENON

Today the Supreme Court of Texas denied the

petition for review in the above-referenced case.

MR. JEREMY J. GASTON

HAWASH MEADE GASTON NEESE & CICACK

LLP

2118 SMITH STREET

HOUSTON, TX 77002

* DELIVERED VIA E-MAIL *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.