Petitioners Brief — Water Splash, Inc. v. Menon, 137 S. Ct. 1240 (2017) (No. 16-254)

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No. 16-254

3n the Supreme Court of the United States

WATER SPLASH, INC..,

Petitioner,

QUESTION PRESENTED

In 1965, the member states of the Hague Confer-

ence on Private International Law, including the

United States, adopted a treaty known as the Conven-

tion on the Service Abroad of Judicial and Extrajudi-

cial Documents in Civil or Commercial Matters

(“Hague Service Convention”). Article 10(a) of the

Hague Service Convention states:

“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|.|”

The question presented is:

Does the Hague Service Convention authorize ser-

vice of process by mail?

ee ee eS ee ee ee ee Oe SS eS SS SS Te Se

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................00ccccccccssssseseeeeeeeeee ii

TABLE OF AUTHORITIES ..................cccccecseeeeeeeeeerees Vv

TET ii cincenrnincccentincngntanonenenentanemnentients 1

ce 1

TREATY PROVISION INVOLVED......................0.000. 1

ETT Sn 2

A. The Hague Service Convention..................... 2

EO 7

C. Lower Court Proceedings......................000000+++ 8

1. District Court Proceedings.................... 10

2. Appellate Court Proceedings................. 13

SUMMARY OF ARGUMENT ........................ccceeeee00s 17

inca eitientsinbintadnriaiiaeppamestiaminasnensinenes 18

I. The scope of the Convention and the text of

Article 10(a) confirm that its use of “send”

means or includes the concept of service........... 18

A. “Send” means “serve” because the

Convention’s scope was limited to

regulating SErvice....................ccccceeceseseereeseeee 19

1. The stated purpose of the

Convention indicates an intent to

3. Contrary decisions ignore the

limited scope of the Convention. ........... 23

B. The text of Article 10(a) confirms that

“send” does not exclude the ¢ sncept of

GEIS crccscrsccsczscesesccerceseqnsssncssesnceenssecsvsscesess 24

Il. The signatories shared the expectation that

Article 10(a) permitted service by mail............. 26

A. Treaties that led up to the Convention

allowed service by mail....................ccceeeeeees 26

B. The members of the Conference

intended the Convention to permit

IE secetintetstentemerenciccssissorecvenees 30

1. The Rapporteur’s Report....................... 31

2. The U.S. Delegation’s Report................ 32

3. The Executive Branch’s View ............... 32

C. The signatories’ post-ratification

viewpoints are consistent with their

I IIIS cscronesnnticarsecstepmacsressecccesse 33

1. The Executive Branch’s View ............... 34

2. The Views of Other Signatories............ 34

D. Other scholarship supports the view

that Article 10(a) permits service by

EELS EL aE ee 38

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Abbott,

Ey By III cenccccccosvecscnsccscscsesess 32, 34, 36, 38

Ackermann v. Levine,

788 F.2d 830 (2d Cir. 1986)...............ccccccecceseneeeenee 6

Almendarez-Torres v. United States,

ES 19

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

794 F. Supp. 1144 (S.D. Fla. 1992) ................00 7

Bankston v. Toyota Motor Corp.,

889 F.2d 172 (8th Cir. 1989)... xii, 7, 15, 27, 33-34

BG Group, PLC v. Republic of Argentina,

a cccnccprescnsecscinnenesscccescccccccess 18

Borschow Hospital & Medical Supplies, Inc.

v. Burdick—Siemens Corp.,

143 F.R.D. 472 (D.P.R. 1992) ......2...cccccccecceceeneeees 6

Brockmeyerv. May,

383 F.3d 798 (9th Cir. 2004).............. 6, 32, 34, 38

Capitol Brick, Inc. v. Fleming Mfg. Co., Inc.,

722 S.W.2d 399 (Tex. 1986)...............ccccccceeceeeeeeeee 9

Cent. Hanover B. & T. Co. v. C.LR.,

159 F.2d 167 (2d Cir. 1947)..............ccccceeeeeeeeeeees 24

Choctaw Nation of Indians v. United States,

i ctidaiebiducnnnent 26

Consumer Prod. Safety Comm'n v.

GTE Sylvania, Inc.,

is cinicencrrnntenteisiipencnnnmiensit 15

TABLE OF AUTHORITES — CONTINUED

Page(s)

Corley v. United States,

ae 22

Dierig v. Lees Leisure Indus., Lid.,

CIV.A. 11-125-DLB, 2012 WL 669968

(E.D. Ky. Feb. 28, 2012) (mem. op.)...........-......0+- 6

E1 Al Israel Airlines, Ltd. v.

Tsui Yuan Tseng,

TTT 19, 34

Foster v. Neilson,

I ncccccnscenssccserenesnesenncenseeescess 18

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

484 N.W.2d 718 (Mich. App. 1992)...................... 7

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

728 F.Supp.2d 537 (D. Del. 2010)........................ 6

Graphic Styles/ Styles Intern. LLC v.

Men’s Wear Creations,

99 F. Supp. 3d 519 (E.D. Pa. 2015).................... 23

Hammond v. Honda Motor Co., Lid.,

128 F.R.D. 638 (D.S.C. 1989) .............cccccccceeeeeee 22

Hayes v. Evergo Tel. Co., Lid,

397 S.E.2d 325 (N.C. App. 1990) .................2.---008 7

Honda Motor Co. v. Superior Court,

10 Cal. App. 4th 1043 (Cal. Ct. App. 1992)......... 7

Koehler v. Dodwell,

152 F.3d 304 (4th Cir. 1998) ................ccccceeeseeees 6

Lozano v. Montoya Alvarez,

GT eee 18, 26

Medellin vy. Texas,

I eal 20, 33

vii

TABLE OF AUTHORITES — CONTINUED

Page(s)

Meek vy. Nova Steel Processing, Inc.,

706 N.E.2d 374 (Ohio App. 1997) ................0-.000+ 7

New York State Thruway Auth. v. Fenech,

94 A.D.3d 17 (N.Y. App. Div. 2012)............... 7, 22

Nicholson vy. Yamaha Motor Co., Lid.,

566 A.2d 135 (Md. App. 1989).................-cccceeeeeees 6

Nuovo Pignone SpA v.

STORMAN ASIA M/V,

310 F.3d 374 (5th Cir. 2002)..................... 7, 14-17

Olympic Airways v. Husain,

nn 26

Raffa v. Nissan Motor Co. Ltd.,

141 P.R.D. 45 (B.D. Pa. 1961).........cc0sssccesccosseeeeee 7

Research Sys. Corp. v. IPSOS Publicite,

276 F.3d 914 (7th Cir. 2002) .............cccecccecceeeeeeees 6

Russellov. United States,

"a 24

Sale v. Haitian Ctrs. Council, Inc.,

TN 34

Sandoval v. Honda Motor Co., Lid.,

527 A.2d 564 (Pa. Super. 1987)...................00ss00+ 7

The Schooner Exchange v. McFaddon,

11 US. (7 Cranch) 116 (1812)...............ccccseeeeees 25

Shoei Kako Co. y. Superior Court,

33 Cal. App. 3d 808 (Cal.

Tn 7, 22, 25

Société Nationale Industrielle Aérospatiale

v. U.S. Dist. Court for S. Dist. of Iowa,

ERI 2, 3, 19, 31

Viii

TABLE OF AUTHORITES — CONTINUED

Page(s)

Sumitomo Shoji America, Inc. vy. Avagliano,

I iericadmnennsidetenbentmmensnisenennense 32

TracFone Wireless, Inc. v. Does,

No. 11-cv-21871-MGC, 2011 WL 4711458

(S. D. Fla. Oct. 4, 2011) (mem. op..)...................... 6

Trainmen v. Baltimore & Ohio R. Co.,

SN 19

United States v. Percheman,

tt Ce 18

Volkswagenwerk Aktiengesellschatt v.

Schlunk, 486 U.S. 694 (1988)..............-.0000 passim

Whitney v. L & L Realty Corp.,

500 S.W.2d 94, 95 (Tex. 1973)......cccc.ccocecccesesseeeee 9

Zicherman v. Korean Air Lines Co., Ltd,

EB SE cccninsctuemsancunsensnsesinest 20, 26, 33

Foreign Cases

Crystal Decisions (U_K_), Lid. v.

Vedatech Corp., EWHC (Ch) 1872 (2004),

2004 WL 1959749 (High Court, England)......... 37

Case C-412/97, ED. Sri. vy. Italo Fenocchio,

1999 E.C.R. I-3845 4 6, C.M.L.R. 855

(2000) (Court of Justice of the European

EEE EE iS Ne 37

Integral Energy & Envtil. Engg Ltd. v.

Schenker of Canada Lid., 295 A.R. 233

(2001), 2001 WL 454163 (Alberta Queens

Bench), revd on other grounds, 293 A.R.

RARE A RU IRE A aE 37

TABLE OF AUTHORITES — CONTINUED

Page(s)

R. v. Re Recognition of an Italian Judgment,

1.L.Pr. 15 (2002), 2000 WL 33541696

(Thessaloniki Court of Appeal, Greece)............. 37

Treaties, Constitutions, Statutes, and Rules

Convention on the Service Abroad of Judi-

cial and Extrajudicial Documents in Civil

or Commercial Matters (1965) (English)

(“Hague Service Convention”), 20 U.S.T.

ee passim

Convention on the Service Abroad of Judi-

cial and Extrajudicial Documents in Civil

or Commercial Matters (1965) (French),

available at https://www.hech.net/fr/in-

strumentsa/conventions/full-text/?cid=17 ........... 30

Hague Convention on Civil Procedure (1954)

(French), available at https://www.hcch.

net/fr/instruments/conventions/full-text/

Tun iitintincentingteiesiiunsiabeetantbehibinpeniiiieepenessenees 30

Hague Convention on Civil Procedure (1954)

(unofficial English translation), available

at https://www.hech.net/en/instruments/

conventions/full-text/?cid=33 -...............-2.ccceeeeees 29

TEx. Civ. Prac. & REM. CODE § 17.026.................... 9

TEx. Civ. PRAC. & REM. CODE § 17.044.................... )

TEx. Civ. PRAC. & REM. CODE § 17.045.............. 9, 23

, § Rae 9, 22, 23

| TEE OT ENE ET reas se)

TABLE OF AUTHORITES — CONTINUED

Page(s)

, NS EERE SEIES CCU U ne aoe 10, 11

8 a, EE ne: 9,13

Other Authorities

3 Actes et Documents de Ja Dixiéme Session

(Conférence de la Haye de Droit Interna-

TT ERT 31

Philip W. Amram, Statement to S. Comm.

on Foreign Relations, quoted in Conven-

tion on the Service Abroad of Judicial and

Extrajudicial Documents, 8. EXEC. REP.

I cninsteniiicegsndaninnnneniannmenncnses 2, 32

George A.L. Droz & Adair Dyer, The Hague

Conference and the Main Issues of Private

International Law for the Eighties, 3 Nw.

J. INT'L L. & BUS. 155 (1981).............cccccceseceeeeeees 38

George A.L. Droz, “Mémoire sur Ia notifica-

tion des actes judiciaires et extrajudi-

ciaires a l’étranger,” in 3 THE HAGUE, PRO-

CEEDINGS OF THE TENTH SESSION (Jmpr7-

merie Nationale 196B)..............---00--seseeeesseeeceneees 28

Adair Dyer, First Secretary of the Hague

Conference on Private International Law,

Letter (June 19, 1992), quoted in Robert

B. von Mehren, International Control of

Civil Procedure: Who Benefits?, LAW &

CONTEMP. PROBS. 13 (1994).......22.....:c:ccceceeeeeeees 39

Michael O. Eshleman & Stephen A.

Wolaver, Using the Mail to Avoid the

Hague Service Convention’s Central Au-

thorities, 12 OR. REV. INT'L L. 283 (2010) ... 27, 39

TABLE OF AUTHORITES — CONTINUED

Page(s)

Hague Conference on Private Internal Law,

Hague Service Convention Status Table,

available at https://www.hcch.net/en/in-

struments/conventions/status-table ...................

Hague Conference on Private International

Law, Permanent Bureau, Practical Hand-

book on the Operation of the Hague Con-

vention of 15 November 1965 On the Ser-

vice Abroad of Judicial and Extrajudicia/l

Documents in Civil or Commercial Mat-

Ce: I tcccncenssncsscsesreersssstemnmmenes 3, 28, 36

Hague Conference on Private 'nternational

Law, Permanent Bureau, Practical Hand-

book on the Operation of the Hague Con-

vention of 15 November 1965 on the Ser-

vice Abroad of Judicial and Extrajudicial

Docurments in Civil or Commercial Mat-

Re I citintccnndcnnendntacsnmntenntivnttetmsacccees

Hague Conference on Private International

Law, Report of the Work of the Special

Commission of April 1989 on the Opera-

tion of the Hague Conventions of 15 No-

vember 1965 On the Service Abroad of Ju-

dicial and Extrajudicial Documents in

Civil or Commercial Matters and of 18

March 1970 On the Taking of Evidence

Abroad in Civil or Commercial Matters

(Aug. 1989), reprinted in 28 1.L.M. 1558,

available at http://www.hcch.net/upload/

xii

TABLE OF AUTHORITES — CONTINUED

Page(s)

Hague Conference on Private International

Law, Report on the Work of the Special

Commission on the Operation af the Con-

vention of 15 November 1965 On the Ser-

vice Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Mat-

ters (21-25 November 1977), reprinted in

17 1.L.M. 319 (1978), available at http://

hech.e-vision.nl/upload/scrpt14_77e.pdf............

Judicial Assistance: Convention on the Ser-

vice Abroad of Judicial and Extrajudicial

Documents in Civil and Commercial Mat-

ters, 61 AM. J. INT'L L. 799 (1967)...............00000

Alan J. Kreczko, U.S. Dep’t of State Deputy

Legal Adviser, Letter to the Administra-

tive Office of the U.S. Courts and the Na-

tional Center for State Courts (Mar. 14,

1990), excerpted in United States Depart-

ment of State Opinion Regarding the

Bankston Case and Service by Mail to Ja-

pan Under Hague Service Convention, 30

EA EE cicciccctindtsepinieetiniaahedaiasibiaabdaancndnainsenie

Gary A. Magnarini, Service of Process

Abroad by the Hague Convention, 71

MARQ. L. REV. 649 (1988) ..........-..seecceseeerseceenenees

Patricia N. McCausland, Note and Com-

ment, How May I Serve You? Service of

Process by Mail Under the Hague Conven-

tion on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Com-

mercial Matters, 12 PACE L. REv. 177

CUTIE cictnivenisinstinseniniaiabeilaniagictiabdnebaeeaiidnasasantaitinith

xiii

TABLE OF AUTHORITES — CONTINUED

Page(s)

Eric Porterfield, Too Much Process, Not

Enough Service: International Service of

Process Under the Hague Service Conven-

tion, 86 TEMP. L. REV. 331 (2014) ....................0005 4

1 BRUNO A. RISTAU, INTERNATIONAL JUDI-

CIAL ASSISTANCE, CIVIL AND COMMERCIAL

Oe OI SI ccccnsscccnscsssscsesnaceccosccocecs 38

BRUNO A. RISTAU, INTERNATIONAL JUDICIAL

ASSISTANCE, CIVIL AND COMMERCIAL

(2000) (volumes 1 and 2)......................-. 30, 32, 38

1 RESTATEMENT (THIRD) OF THE FOREIGN RE-

LATIONS LAW OF THE UNITED STATES (1987) ...... 25

Dean Rusk, Secretary of State, Letter to

President Lyndon B. Johnson (n.d.), re-

printed in 8. Exec. Doc. C, 90th Cong., ist

Ee 33

Office of United Nations High Commis-

sioner for Refugees, Handbook on Proce-

dures and Criteria for Determining Refu-

gee Status (Comeva 1979)................eecseeeeeeeeeeseees 34

OPINIONS BELOW

The opinion of the court of appeals is reported at

472 S.W.3d 28 (Tex. App.—Houston [14th Dist.] 2015,

pet. denied). J.A. 49-93. The district court’s default

judgment against respondent is unpublished. J.A. 39-

45.

JURISDICTION

The judgment of the court of appeals was entered

on June 30, 2015. J.A. 49-93. A timely motion for re-

hearing en banc was denied on October 6, 2015. J.A.

95. A timely petition for review to the Supreme Court

of Texas was denied on May 27, 2016. J.A. 97. The pe-

tition for certiorari was filed on August 25, 2016. This

Court granted certiorari on December 2, 2016, and has

jurisdiction under 28 U.S.C. § 1257(a).

TREATY PROVISION INVOLVED

Article 10 of the English version of the Convention

on the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters, 20 U.S.T.

361 (1969), states:

“Provided the State of destination does not ob-

ject, the present Convention shall not inter-

fere 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 docu-

ments directly through the judicial offic-

ers, officials or other competent persons of

the State of destination,

judicial proceeding to effect service of judi-

cial documents directly through the judi-

cial officers, officials or other competent

persons of the State of destination.”

The full text of the Hague Service Convention is re-

produced at pages 5-17 of the Joint Appendix.

STATEMENT

A. The Hague Service Convention

The Hague Conference on Private International

Law (“Hague Conference” or “Conference”) is an asso-

ciation of soverzign States whose members have met

periodically since 1893. See Société Nationale Indus-

trielle Aérospatiale vy. U.S. Dist. Court for S. Dist. of

Towa, 482 U.S. 522, 529 (1987). The United States at-

tended sessions as an observer in 1957 and 1960 be-

fore joining the Conference as a member in 1964. Jbid.

At the Tenth Session in 1965, representatives of

twenty-three member States, including the United

States, approved the Convention on the Service

Abroad of Judicial and Extrajudicial’ Documents in

’ “Extrajudicial documents” are those which “‘emanatje) from au-

thorities and judicial officers’ of a state. Hague Service Conven-

tion, Art. 17 [J A. 12]. According to the head of the American dele-

gation to the Convention, “the legislative history of the conven-

tion indicates that, in European practice, [the term ‘extrajudicial

document’ is intended to include the official documents of a Euro-

pean notary. In [American] practice, and also in England and Nor-

way, it is intended to include the official documents of administra-

tive agencies and commissions.” Philip W. Amram, Statement to

Senate Committee on Foreign Relations, quoted in Convention an

the Service Abroad of Judicial and Extrajudicial Documents, S.

Exec. REP. No, 90-6, at 14 (1967). Such documents “differ frora ju-

dicial documents in that they are not directly related to a trial, and

(differ! from strictly private documents in that they require the

Civil or Commercial Muitters (“Hague Service Conven-

tion” or “Convention”). 20 U.S.T. 361 [J.A. 5-17);

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486

U.S. 694, 698 (1988).

In 1967, the Senate of the United States advised

ratification of the Convention, the President then rat-

ified it, and the United States deposited its ratifica-

tion with the Ministry of Foreign Affairs of the Neth-

erlands. See 20 U.S.T. 361; Société Nationale, 482

U.S., at 530. The treaty entered into force on February

10, 1969. 20 U.8S.T 361; Convention, Art. 27 [J.A. 13]

(providing that the “Convention shall enter into force

on the sixtieth day after the deposit of the third in-

strument of ratification.”). Presently, seventy-one

States have ratified or acceded to the Hague Service

Convention.”

With respect to the Convention, the term “service”

necessarily embraces the concept of “service of pro-

cess”: i.e., the formal transmittal of documents that is

“legally sufficient to charge the defendant with notice

involvement of (public officials and] . . . include . . . demands for

payment, notices to quit in connection with leaseholds or contracts

of employment, protests with respect to hills of exchange and

promissory notes .. . [.] Objections to marriage, consents for adop-

tian, and acceptances of paternity are also in this class.” Hague

Conference on Private International Law, Permanent Bureau,

Practical Handbook on the Operatian of the Hague Convention of

15 November 1965 On the Service Abroad of Judicial and Extraju-

dicial Documents in Civil or Commercial Matters { 67 (3d ed.

2006) (“PRACTICAL HANDBOOK (2006)”).

* See Hague Conference on Private International Law, Hague

Service Convention Status Table, available at https//www_-bcch.

net/en/instrumentas/conventions/st :‘us-table.

of a pending action.” Sch/unk, 486 U.S., at 700.°

The Convention, a revision of prior treaties from

1954 and 1905 concerning civil procedure, had three

related purposes:

“The revision was intended to provide a simpler

way to serve process abroad, to assure that de-

fendants sued in foreign jurisdictions would re-

ceive actual and timely notice of suit, and to fa-

cilitate proof of service abroad.”

Id., at 698.

The Convention requires each State to establish a

“Central Authority” to receive service requests from

other countries. Convention, Art. 2 [J.A. 5-6]. The

Central Authority may impose requirements, such as

requiring the service documents to be translated into

an official language of the State. Convention, Art. 5

(J.A. 6-7]. After a Central Authority receives a proper

request, it must serve the documents by a method au-

thorized by its State’s internal law or by any means

designated by the requester that are compatible with

that law. Ibid. The Central Authority must then pro-

vide a certificate of service in conformity with a speci-

fied model. Convention, Art. 6 [J.A. 7]; see also

Schlunk, 486 U.S., at 698-99.*

* Although “service of process” is a clear example of “service” of

“judicial documents,” the Hague Service Convention does not use

the term “process” or phrase “service of process.” J.A. 5-17.

‘ Give the existence of central authorities, one might question the

desire to effectuate service through other methods, such as postal

channels. In practice, however, the use of the central authority

mechanism has been reported to be, at times, costly, lengthy,

and/or unreliable. See Eric Porterfield, Too Much Process, Not

Enough Service: [International Service of Process Under the

Service through a Central Authority is not the

only mode of service provided by the Convention, how-

ever. Article 8 allows the use of diplomatic or consular

agents to serve a foreign defendant. J.A. 8.° Article 9

allows diplomatic agents to forward documents to des-

ignated authorities in a receiving State who, in turn,

effectuate service on the foreign defendant. Jbid. And

Article 11 allows two States to agree to methods of ser-

vice not otherwise specified in the Convention. J.A. 9.

At issue in this case is Article 10, which states

that:

“Provided the State of destination does not ob-

ject, 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, offi-

cials or other competent persons of the State

of destination,

dicial proceeding to effect service of judicial

Hague Service Convention, 86 TEMP. L. REV. 331, 344-47 (2014).

° Article 8 specifically provides that “[eJach contracting State

shall be free to effect service of judicial documents upon persons

abroad, without application of any compulsion, directly through

its diplomatic or consular agents.” J.A. 8. However, “[alny State

may declare that it is opposed to such service within its territory,

unless the document is to be served upon a national of the State

in which the documents originate.” /bid.

documents directly through the judicial of-

ficers, officials or other competent persons of

the State of destination.”

J.A. 8-9 (emphasis added), Canada—the foreign State

of destination here—acceded to the Convention in

1989 and, pursuant to Article 21, filed an official dec-

laration with the Government of the Netherlands,

which stated that “Canada does not object to service

by postal channels” under Article 10(a). 1529 U.N.T.S.

499 (1989).

As can be seen above, Article 10(a) uses the word

“send,” while provisions (b) and (c) use the word “ser-

vice.” In addition, the word “send” does not appear an-

ywhere else in the Convention. By contrast, “service”

(or “served”) appears in the title, preamble, and Arti-

cles 1-3, 5-6, 8-16, and 19 of the Convention. J.A. 5-12.

In the United States, this difference in terminol-

ogy gave rise to a split of authority on the question

presented: “Does the Hague Service Conventions au-

thorize service of process by mail?” The Second,

Fourth, Seventh, and Ninth Circuits; some district

courts in the First, Third, Sixth and Eleventh Cir-

cuits; and appellate courts in at least five States have

determined that it does, reasoning that “send” either

means or includes “serve.” Conversely, the Fifth and

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

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

Sys. Carp. v. IPSOS Publicite, 276 F.3d 914, 926 (7th Cir. 2002);

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

Lees Leisure Indus., Lid, CIV.A. 11-125-DLB, 2012 WL 669968

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

Does, No. 11-cv-21871-MGC, 2011 WL 4711458, *3 (S. D. Fla. Oct.

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

F.Supp.2d 537, 543 (D. Del. 2010); Borschow Hospital & Medical

Supplies, Inc. vy. Burdick-Siemens Carp., 143 F.R.D. 472 (D.P.R.

Eighth Circuits; some earlier district court decisions

in the Third and Eleventh Circuits; and appellate

courts in at least four States, including the court be-

low (J.A. 55-56), have reached the contrary conclusion,

reasoning that “send” excludes “serve.”

B. Statement of Facts

Petitioner Water Splash, Inc. makes aquatic play-

ground systems known as “splash pads.” C.R. 8.° A

splash pad is a recreational area covered with a non-

slip surface containing nozzles and other physical fea-

tures that can spray, mist, and shoot streams of water,

thereby creating a place for recreational water play.

See C.R. 8, 16, 23-25. Drains in the surface collect wa-

ter for re-circulation (C.R. 51-53), which keeps the

area safe by preventing standing water. Splash pads

are popular at municipal recreation areas, such as

parks. C.R. 8.

From 2001 to 2013, respondent Tara Menon was

1992), New York State Thruway Auth. v. Fanech, 94 A.D.3d 17, 22

(N.Y. App. Div. 2012); Nicholson v. Yamaha Motor Co., Lid, 566

A.2d 135, 141 (Md. App. 1989); Hayes v. Evergo Tel. Co., Ltd, 397

S.E.2d 325, 328 (N.C. App. 1990); Sandoval v. Honda Motor Co.,

Ltd, 527 A.2d 564, 566 (Pa. Super. 1987), Shoei Kako Co. v. Supe-

rior Court, 33 Cal. App. 3d 808, 821 (Cal. Ct. App. 1973).

" See Nuovo Pignone SpAv. STORMAN ASIA M/V, 310 F.3d 374,

384 (5th Cir. 2002); Bankston v. Toyota Motor Corp., 889 F.2d

172, 174 (8th Cir. 1989), Raffa v. Nissan Motar Co. Lid. 141

F.R.D. 45, 46 (E.D. Pa. 1991); Arco Elec. Control Ltd. vy. Core In-

tarn., 794 F. Supp. 1144, 1147 (S.D. Fla. 1992); Meek v. Nova

Steel Proceasing, Inc., 706 N.E.2d 374, 377 (Ohio App. 1997);

Frankenmuth Mut. Ins. Co. v. ACO, Inc., 484 N.W.2d 718, 722

(Mich. App. 1992); Handa Motor Co. v. Superior Court, 10 Cal.

App. 4th 1043, 1046-47 (Cal. Ct. App. 1992).

® Parta of the record outside +he Joint Appendix are cited by the

page number of the Clerk’s Record (C.R.) in the lower courts.

an employee of Water Splash. J.A. 40 { 2. In July

2012, during the middle of her tenure with Water

Splash, Menon submitted bids to the City of Galveston

to construct splash pads at two parks. J.A. 40 { 3.

However, Menon submitted these bids as a sales man-

ager for a Water Splash competitor: South Pool & Spa,

Inc. J.A. 40 ¥ 3. Notably, Menon did not have Water

Splash’s permission to submit these bids, which in-

cluded trade names and product design information

belonging to Water Splash. J.A. 40 4 4.

At the time of those bids, Water Splash had an ex-

clusive distributor agreement with a business known

as Adventure Playground. J.A. 40 75. With Water

Splash’s permission, Adventure Playground also sub-

mitted bids for the Galveston projects using Water

Splash’s trade names and design information. Jbid. In

each case, however, Adventure Playground lost the

bid to South Pool and Spa. J.A. 40-41 {¥ 6-7.

Water Splash terminated Menon in February

2013. J.A. 41-42 ¥ 10. Even then, however, Menon con-

tinued to use and disseminate Water Splash’s propri-

etary information. Jbid. In one instance, she sent Wa-

ter Splash designs to a Turkish company known as

AquaTronics, then asked it to modify the plans to

make the resulting products look less like Water

Splash’s own. J.A. 41-42 ¥ 10.

C. Lower Court Proceedings

On February 12, 2013, Water Splash filed suit in

Galveston County District Court against Menon, a Ca-

nadian resident. J.A. 1; C.R. 6.

To obtain a valid judgment against Menon, Water

Splash had to serve her with process. Under federal

law, “if the internal law of the forum state”—here,

Texas—‘“defines the applicable method of serving pro-

cess as requiring the transmittal of documents

abroad, then the Hague Service Convention applies.”

Schlunk, 486 U.S., at 700. This results follows because

the Convention “pre-empts inconsistent methods of

service prescribed by state law in all cases to which it

applies.” Jd., at 699 (citing U.S. Consr., Art. VI (Su-

premacy Clause)).

Under Texas law, a plaintiff can serve a foreign

defendant in several ways, including (1) by certified

mail, return receipt requested, either by sending it to

the defendant directly,’ or, if certain conditions are

met,’° by sending it to the Texas secretary of state;"”

(2) by complying with the provisions of any applicable

treaty;” and, if certain other conditions are met, (3) by

other court-ordered means.” As next discussed, Water

* Tex. R. Civ. P. 10&(aX1Xc); TEx. R. Crv. P. 106(a\(2).

from the defendant's business activities in Texas, the Texas sec-

retary of state becomes the defendant’s agent for service of pro-

cess if it has no business presence or appointed agent in Texas.

Tex. Crv. Prac. & REM. CopE $17.044(b); see also id. §§

17.026(a), 17.045(a).

"' Under Texas law, service through the Texas secretary of state

is not complete until the secretary of state actually sends process

to the non-resident. Whitney v. L & L Realty Corp., 500 S.W.2d

94, 95 (Tex. 1973). In default judgment proceedings, a certificate

from the secretary of state (a “Whitney” certificate) constitutes

conclusive proof (absent fraud or mistake) that the nonresident

defendant was served. Capital Brick, Inc. v. Fleming Mig. Co.,

Inc., 722 8.W.2d 399, 401 (Tex. 1986).

* Tex. R. Civ. P. 108(aX1Xd).

'® Texas law allows citation by publication when a defendant is

transient, has no known residence, is absent from (or a nonresi-

dent of) the State, and other allowed efforts have failed. TEx. R.

Splash employed all of these methods here. Because

each method required the transmission of documents

abroad in order to effectuate service, the Hague Ser-

vice Convention applies to this case.**

1. District Court Proceedings

In its original petition, Water Splash raised state

law claims against Menon and her other employer,

South Pool and Spa (a Texas corporation), for unfair

competition, conversion, tortious interference with

prospective business relations, and conspiracy. J.A. 1;

C.R. 1, 5-6.

On the same day suit was filed, Water Splash ob-

tained a temporary restraining order against South

Pool and Spa and Menon (but only in her capacity as

South Pool and Spa’s agent), enjoining them from us-

ing Water Splash’s name or designs without permis-

sion. C.R. 136-37. On February 22, 2013, the district

court entered an agreed temporary injunction, which

extended the TRO during district court proceedings.

Civ. P. 109. When service by publication is authorized, “the court

may, on motion, prescribe a different method of substituted ser-

vice, if the court finds, and so recites in its order, that the method

so prescribed would be as likely as publication to give defendant

actual notice.” TEx. R. Civ. P. 109a.

By contrast, compliance with the Hague Service Convention is

not required when state law authorizes service on the domestic

agent of a foreign defendant and provides that such service is

complete when the domestic agant is served (assuming due pro-

cess concerns are otherwise satisfied). See Volkswagenwerk Ak-

tGiengesellschaftv. Schiunk, 486 U.S. 694, 707 (1988). Even where

state law does not require transmittal of documents abroad for

service, however, there may be reason for a plaintiff to effectuate

service in compliance with the Convention. See Sch/unk, 486

US., at 706 (“[Plarties that comply with the Convention ulti-

mately may find it easier to enforce their judgments abroad.”).

C.R. 146-48.

In February 2013, Water Splash served Menon by

mailing citation with a copy of its original petition to

the Texas secretary of state. J.A. 23. The secretary of

state received these materials on February 15, 2013,

and forwarded them on February 21, 2013 to Menon’s

address in Canada by registered mail, return receipt

requested. J.A. 23. On April 1, 2013, these materials

were returned to the secretary of state with the nota-

tion “Non Reclame” (unclaimed). J.A. 23.

On May 10, 2013, pursuant to Texas Rule of Civil

Procedure 109a, Water Splash asked the court to au-

thorize substitute service of process on Menon in Can-

ada by first-class mail; certified mail (return receipt

requested); Federal Express; and email to four ad-

dresses she had been known to use in the prior year.

J.A. 18-22. On May 17, 2013, the court granted the

motion and ordered that service could be effectuated

by first-class mail; certified mail (return receipt re-

quested); Federal Express; and email. J.A. 37-38.

On May 20, 2013, Water Splash used each of those

methods to send Menon a copy of the court’s order

along with Water Splash’s original petition and first

amended petition, which raised additional claims and

added an additional defendant (South Pool and Spa’s

owner/operator Muhammed “Mike” Tello). C.R. 167-

301, 303, 307-18. But the emails were not acknowl-

edged, and the Federal Express package and regis-

tered mail were both returned, the latter with a notice

stating “Unclaimed” and “Non réclamé.” C.R. 314-15.

During the pendency of the case, Water Splash ob-

tained through discovery an email showing Menon’s

actual notice of the lawsuit beginning on the date suit

was filed. C.R. 562, 575 (February 12, 2013 email from

Menon to South Pool and Spa and its counsel, asking

to discuss “this litigation”). Even so, Menon failed to

answer or otherwise appear in the lawsuit and on Au-

gust 1, 2013, Water Splash moved for a default judg-

ment against her. J.A. 1; C.R. 303-24.

On September 25, 2013, the trial court entered a

default judgment and permanent injunction against

Menon, which was interlocutory because Water

Splash’s claims against South Pool and Spa and Tello

remained pending. J.A. 39-45. In the default judg-

ment, the district court found that Menon’s conduct

breached the confidentiality provision of her employ-

ment agreement. J.A. 41 ¥ 8. The court also found

that, but for South Pool and Spa’s bid, Adventure

Playground would have won the two park contracts,

and that, in turn, Water Splash lost $75,000-$90,000

in income it otherwise would have earned from the

sale of its products. J.A. 40-41 4 6-7, 9.

The district court held Menon liable on Water

Splash’s original claims of unfair competition, conver-

sion, tortious interference with prospective business

relations, and conspiracy, as well as the claims Water

Splash added in its amended petition for fraud, breach

of fiduciary duty, and violation of the Texas Theft Li-

ability Act. J.A. 42 [J 1, 2.

The court found that Menon’s conduct was inten-

tional and malicious, and awarded actual damages

($60,000), exemplary damages ($60,000), attorneys’

fees, and interest. Ibid; J.A. 42-43 94 1-5. The court

*® The next day, Menon again emailed South Pool and Spa and

stated that its manufacturer needed to make “some changes to

the design somewhere so they don’t look like [Water Splash’s

products)” and that Water Splash would “regret this legal ac-

tion.” J.A. 27; CR563, 578.

also entered a permanent injunction barring Menon

and those subject to her control from using Water

Splash’s intellectual property, including product de-

signs and customer lists. J.A. 43-45

In October 2013, Water Splash reached a setile-

ment with the other defendants, which included their

agreement on a permanent basis to the terms of the

temporary injunction. C.R. 495. On October 28, 2013

(J.A. 2), Menon filed a motion for new trial (C.R. 497-

555), which argued that Menon was not properly

served because, among other reasons, “requests for

service in Quebec of judicial or extrajudicial docu-

ments under the Hague Convention must be sent to

the Central Authority for Quebec.” C.R. 499-500.

Menon also argued that, even if she had been properly

served, a new trial should be granted because her fail-

ure to appear was not intentional or due to conscious

indifference but was the result of a mistake or acci-

dent; she had a meritorious defense; and a new trial

would not prejudice Water Splash. C.R. 501-06.

On January 3, 2014, the district court denied

Menon’s motion for new trial. J.A. 2; C.R. 584. On De-

cember 31, 2013, the district court dismissed Water

Splash’s claims against South Pool and Spa and Mike

Tello (based on the settlement) and made final the de-

fault judgment against Menon. J.A. 46-47. On Janu-

ary 5, 2014, Menon filed a notice of appeal. C.R. 585.

2. Appellate Court Proceedings

On appeal, Menon argued that the default judg-

ment should be set aside because Water Splash’s at-

tempts to serve process were required to comply with

the Hague Service Convention by virtue of the Su-

premacy Clause, but that they had failed to do so be-

cause the Convention does not allow service of process

by mail, private delivery service, or email. Appellant’s

Brief at 14-25. In opposition, Water Splash argued

that service by mail was permitted under the Hague

Service Convention. Appellee’s Brief at 2-11.

On June 30, 2016, in a divided opinion, the 14th

Court of Appeals, Houston, Texas, vacated the default

judgment, holding that the Hague Service Convention

does not permit service of process by mai!. J.A. 49-93.

The panel majority defined “(t]he question before us”

as turning on “the meaning attributed to ‘send’ and

‘service’” under Article 10(a) of the Hague Service

Convention. J.A. 53. The court acknowledged a split of

authority (J.A. 54-55) and decided to follow the ap-

proach of the Fifth Circuit," which previously held

that “send” did not have the same meaning as “ser-

vice.” The panel majority summarized the Fifth Cir-

cuit’s reasoning as follows:

“In [Nuovo Pignone, SpA v. STORMAN ASIA

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

tiff 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(f(1) 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,’ ‘ser-

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

including article 10. Jd The Nuovo court dis-

cussed how other courts have construed ‘send’

‘6 J.A. 55 (“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 pro-

hibits service of process by mail.”).

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.”

J.A. 53.

In justifying its conclusion, the panel majority

also reiterated two of the Fifth Circuit’s supporting ra-

tionales. First, the panel majority stated that its con-

clusion followed from principles of statutory construc-

tion:

“ ‘Absent a clearly expressed legislative

intention to the contrary,’ a statute’s lan-

guage ‘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 pur-

posely 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... .”""

J.A. 55.

" The panel majority also noted that the Eighth Circuit had

reached the same result using essentially the same reasoning.

JA. 56 (citing Bankston v. Tayota Motor Carp., 889 F.2d 172, 174

(8th Cir. 1989)).

Second, the panel majority reasoned that it was

unlikely that the drafters of the Hague Service Con-

vention would have put in place specific methods of

service in Articles 2 through 7 (by a Central Authority

or diplomatic channels) “‘while simultaneously per-

mitting the uncertainties of service by mail.’” J.A. 56

(quoting Nuovo Pignone, 310 F.3d, at 385)."* The panel

majority then vacated the trial court’s judgment and

remanded for further proceedings. J.A. 58.

Justice Tracy Christopher dissented. As a thresh-

old matter, she determined that the stated purpose of

the Hague Service Convention inherently limited the

Convention’s scope to service of process transmittals.

J.A. 70-72 (citing Sch/unk, 486 U.S., at 700-01). She

thus concluded that “send{ing] judicial documents”

meant “serv[ing] judicial documents.” J.A. 72.

In addition, the dissent noted that because trea-

ties are contracts between sovereign States, their in-

terpretation is governed by different principles than

questions of pure statutory construction, including

principles that examine non-textual sources of mean-

ing. J.A. 66-70. The dissent then examined such

sources, including the history of prior treaties that led

to the Convention, the negotiation and drafting of the

Convention itself (including the views of its delegates

and reporter), as well as the post-ratification under-

standing of the Convention by its signatories—includ-

ing the United States—and their courts and deter-

mined that, apart from some domestic courts, all of

these sources unanimously supported the view that

Article 10(a) permits service by mail. J.A. 77, 73-79.

———

“ The panel majority also stated that this result was consistent

with other state and federal decisions in Texas. J.A. 57-58.

The dissent then criticized the countervailing view, in-

cluding state and federal decisions relied upon by the

majority, concluding that cases like Nuovo Pignone, su-

pra, “follow|| none of the governing precepts of treaty

construction.” J.A. 81; see J.A. 79-93.

SUMMARY OF ARGUMENT

The stated purpose of the Hague Service Conven-

tion is to establish methods for transmitting docu-

ments abroad in order to effectuate service. The

treaty’s negotiation and drafting history confirms that

its scope is limited and does not apply to transmittals

of documents for non-service purposes. See Sch/unk,

486 U.S., at 700-01. In turn, the limited scope of the

Convention confirms that all transmittals of judicial

documents regulated by it must be “service” transmit-

tals, whether the term it uses to describe the trans-

mittal is “send,” “service,” or anything else. Contrary

decisions from lower courts make the fundamental!

mistake of reading the literal language of Article 10(a)

without regard to the specific purpose of the treaty.

The alternative conclusion that “send” at least

does not exclude the concept of service is supported by

other language in Article 10. In particular, the open-

ing proviso of Article 10 lets a State formally object to

the use of postal channels for transmitting judicial

documents. On the one hand, if Article 10(a) permits

service by mail, there is a cognizable basis for a State

to object to the use of its postal channels, as the act of

service may be seen to infringe upon State sover-

eignty. On the other hand, if Article 10(a) does not per-

mit service by mail, there is no obvious reason for a

State to object to the use of its postal channels for non-

service communications, nor would any such objection

appear to have any practical purpose.

The history of the prior treaties that led to the

Convention also supports the above conclusions. The

Convention was a revision of those treaties, and Arti-

cle 10(a) in particular was based on an analogous pro-

vision from a 1954 treaty that was written in French

and that more obviously allowed service by mail.

When the Convention was drafted in 1964, how-

ever, the 1954 provision was both rearranged and

translated from French to English. Although these re-

visions inexorably led to the present interpretative

question, the negotiating and drafting history of the

Convention evidences no intent that the revisions

were meant to abandon a long-standing understand-

ing that service by mail was permissible absent objec-

tion. Indeed, all evidence of the signatories’ shared ex-

pectations, both at and after the time of adoption—

and including the views of both the United States and

Canada—treflect the expectation that Article 10(a)

permits service by mail.

ARGUMENT

I. The scope of the Convention and the text of Article

1Q(a) confirm that its use of “send” means or in-

cludes the concept of service.

A treaty is in the nature of a contract rather than

a legislative act; accordingly, its interpretation is a

matter of discerning the contracting parties’ intent.”

” BG Group, PLC v. Republic of Argentina, 134 8. Ct. 1198, 1208

(2014) (“As a general matter, a treaty is a contract, though be-

tween nations. Its interpretation normally is, like a contract’s in-

terpretation, a matter of determining the parties’ intent.”);

Lozanov. Montoya Alvarez, 134 8. Ct. 1224, 1232-33 (2014) (“‘A

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

lative act.’ ” (quoting Foster v. Neilson, 2 Pet. 253, 314 (1829),

overruled in part by United States v. Percheman, 32 U.S. 51, 89

As with most questions of intent, the starting point for

treaty interpretation is evidence from the text itself,

including statements of purpose, the structure of the

treaty and its provisions, and the ordinary meaning of

its words in context.”

A. “Send” means “serve” because the Conven-

tion’s scope was limited to regulating service.

1. The stated purpose of the Convention indi-

cates an intent to limit its scope to service

transmittals.

The Convention’s purpose, as stated in its the pre-

amble,” was to create faster and simpler means of en-

suring timely notice of documents transmitted abroad

(1833)).

™” See Société Nationale Industrielle Aérospatiale v. U.S. Dist.

Court for S. Dist. of Towa, 482 U.S. 522, 534 (1987) (“We therefore

begin ‘with the text of the treaty and the context in which the

written words are used.’” (quoting Air France v. Saks, 470 U.S.

392, 397 (1985))), £/ A/ Israel Airlines, Lid. vy. Tsui Yuan Tseng,

525 U.S. 155, 168-69 (1999) (“We conclude that the Government’s

constructian of Article 24 is most faithful to the Convention’s

text, purpose, and overall structure.”); Tseng, 525 U.S., at 169

(confirming “cardinal purpose” of treaty—achieving “uniformity

of rules governing claims arising from international air transpar-

tation”"—by examining treaty’s preamble, which “recognized the

advantage of regulating in a uniform manner the conditions of

... the liability of the carrier”).

*” Consistently, the title of the treaty is “Convention on the Ser-

vice Abroad of Judicial and Extra-Judicial Documents in Civil

and Commercia) Matters.” J.A. 5 (emphasis added); cf. A/-

mendares-Torres v. United States, 523 U.S. 224, 234 (1998) (not-

ing that “ ‘the title of a statute and the heading of a section’ are

‘tools available for the resolution of a doubt’ about the meaning

of a statute” (quoting 7Trainmen v. Baltimore & Ohio R. Co., 331

U.S. 519, 528-6529 (1947)).

for service:

“The States signatory to the present Conven-

tion,

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 purpose by simplify-

ing and expediting the procedure,

Have resolved to conclude a Convention to this

effect and have agreed upon the following pro-

vision.”

J.A. 5 (emphases added); see Sch/unk, 486 U.S., at

702-04 (assessing purpose by examining preamble).

Because the above statements of purpose are re-

stricted to the regulation of service, there is no reason

to infer that any transmittals of judicial or extrajudi-

cial documents regulated by the Convention would be

for any purpose beyond efforts to effect service.

2. The negotiating and drafting history of the

Convention confirms this conclusion.

The treaty’s negotiation and drafting history con-

firms that its regulation of transmittals of judicial and

extrajudicial documents is limited to service purposes.

Schlunk, 486 U.S., at 700 (examining Hague Service

Convention’s drafting history and negotiations in de-

termining its scope).” In Sch/unk, this Court exam-

ined the drafting history of Article 1:

™ See also Medellin v. Texas, 552 U.S. 491, 507 (2008) (“Because

a treaty ratified by the United States is ‘an agreement among

“The preliminary draft of Article 1 said that the

present Convention shall apply in all cases in

which there are grounds ¢ transmit ar to give

formal notice of a judicial or extrajudicial docu-

ment in a civil or commercial matter to a person

staying abroad... .

The delegates . . . criticized the language of the

preliminary draft because it suggested that the

Convention could apply to transmissions

abroad that do not culminate in service. . . . The

final text of Article 1. . . eliminates this possi-

bility and applies only to documents transmit-

ted for service abroad.

The final report (Rapport Explicatifi confirms

that the Convention does not use more general

terms, such as delivery or transmission, to de-

fine its scope because it applies only when there

is both transmission of a document from the re-

questing state to the receiving state, and ser-

vice upon the person for whom it is intended.”

Schiunk, 486 U.S., at 700-01 (italics in original; bold,

underlining, and paragraph breaks added); see Con-

vention, Art. 1 {J.A. 5] (“The present Convention shall

apply in all cases, in civil or commercial matters,

where there is occasion to transmit a judicial or extra-

judicial document for service abroad.”).

Based on this analysis, the Court concluded that

the drafting history “eliminate[d] the possibility” that

sovereign powers, we have also considered as ‘aids to its inter-

pretation’ the negotiation and drafting history of the treaty as

well as ‘the postratification understanding’ of signatory nations.”

(quoting Zicherman v. Korean Air Lines Co., 516 U.8. 217, 226

(1996))).

the Convention could apply to transmissions abroad

“that do not culminate in service” (7.2, non-service

transmissions). Jbid.; see Schiunk, 486 U.S., at 710

(Brennan, J., concurring) (“[The Hague Service Con-

vention] covers not every transmission of judicial doc-

uments abroad, but only those transmissions abroad

that constitute formal ‘service.’ ”).

Accordingly, the scope of the Convention is limited

to transmittals made to effectuate service. Thus, there

is no reason to interpret any of its transmittal provi-

sions for judicial or extrajudicial documents as involv-

ing something other than service, regardless of the

specific verb (“send,” “serve”) that may be used

therein. For these reasons, “send” in Article 10(a)

should be interpreted to mean “serve.” Alternatively,

and at a very minimum, the specific and limited pur-

pose of the Convention at least means that “send” can-

not be read to exc/ude the concept of service; otherwise

Article 10(a) would be superfluous.”

PB te United States, 556 U.S. 303, 314 (2009) (noting canon

against superfluity as “one of the most basic interpretive canons”),

see New York State Thruway Auth. v. Fenech, 94 A.D.3d 17, 20

(N.Y. App. Div. 2012) (“[T The express limitation of the Hague Con-

vention’s scope to the service of documents renders article 1((a)

meaningless if it is interpreted as applying only to documents that

are sent, but not served, by mail.”); Hammandv. Handa Motar Co.,

Ltd, 128 F. R.D. 638, 641 (D.S.C. 1989) (“Forbidding direct service

by mail would render subpart (a) extraneous material.”), Shoei

Kako Co. v. Superior Court, 33 Cal. App. 3d 808, 821 (Cal. Ct. App.

1973) (“[The Convention] purports to deal with the subject of service

abroad of judicial documents. The reference to ‘the freedom to send

judicial documents by postal channels, directly to persons abroad’

would be superfluous unless it was related to the sending of such

documents for the purpose of service.”).

The same conclusion may be reached even if the scope of the

3. Contrary decisions ignore the limited scope of

the Convention.

Domestic courts determining that Article 10(a)

does not permit service by mail primarily rely on the

fact that the English version of the Convention uses

the terms “serve” and “service” repeatedly, yet uses

“send” just once. From that, they conclude that the

drafters must have intended the terms to have differ-

ent—indeed, mutually exclusive—meanings. See, e.g.,

Graphic Styles/ Styles Intern. LLC v. Men’s Wear Cre-

ations, 99 F. Supp. 3d 519, 522-23 (E.D. Pa. 2015)

(“[W]here the drafters from numerous countries used

the words ‘serve’ or ‘service’ in fifteen articles of a

treaty as well as in Article 10, subsections (b) and (c),

it is facile to conclude that they merely chose to select

the words ‘to send’ in Article 10(a) by mistake.”).

Such reasoning can be traced to the following prin-

ciple of statutory construction:

cause the meaning of “send” is at least broad enough to encom-

pass service. In particular, when used as a verb, “serve” is nar-

rower than, but not inconsistent with, more general verbs of

transmission, including “send,” “mail,” or “deliver.” Indeed, pro-

cedural rules implementing different forms of service often are

written in such terms. See TEx. R. Crv. P. 106(a\(2) (process may

be served “by ... mailing (it) to the defendant by registered or

certified mail, return receipt requested” (emphasis added)); TEX.

R. Civ. P. 106(aX1) (process may be served by “delivering (it) to

the defendant, in person”) (emphasis added)); Tex. Civ. Prac. &

REM. CODE § 17.045(d) (for the Texas secretary of state to effec-

tuate service on a non-resident defendant “process or notice must

be sent by registered mail or by certified mail, return receipt re-

quested”) (emphasis added)); see also FED. R. Civ. P. 4(eX1) (gen-

erally allowing service to be accomplished pursuant to state law,

unless provided otherwise by federal law).

“(WlIhere Congress includes particular lan-

guage in one section of a statute but omits it in

another section of the same Act, it is generally

presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclu-

sion.”

Russello vy. United States, 464 U.S. 16, 23 (1983) (in-

ternal quotation marks omitted).

But this presumption is necessarily rebutted

when substantial evidence of scope and purpose, as

discussed above, leads to a contrary interpretation:

“There is no more likely way to misapprehend

the meaning of language—be it in a constitu-

tion, a statute, a will or a contract—than to

read the words literally, forgetting the object

which the document as a whole is meant to se-

cure.”

Cent. Hanover B. & T. Co. v. C_LR., 159 F.2d 167, 169

(2d Cir. 1947) (Hand, J.). Here, the Convention’s spe-

cific scope and purpose are limited to the regulation of

transmittals for effectuating service abroad. Conse-

quently, there is no basis to apply the interpretive pre-

sumptive that “send” must have a different meaning

from “serve.”™

B. The text of Article 10(a) confirms that “send”

does not exclude the concept of service.

Independent of the scope of the Convention, other

™* That said, even if the Convention’s scope were not limited to

service transmittals, “send” may be interpreted to include service

transmittals. See, supra, note 23. In that case, “send” and “serve”

would at least have different meanings, thus satisfying any pre-

sumption that different words usually do.

textual evidence shows that “send” in Article 10(a)

does not exclude “service.” In particular, the opening

proviso of Article 10 makes clear that a State can ob-

ject to the use of the postal channels to “send” judicial

documents under Article 10(a). J.A. 8. In turn, Article

21 requires that States make any such objections

known by informing the Ministry of Foreign Affairs of

the Netherlands upon or after adoption. J.A. 13.

Of course, if “send” means or includes “serve,” this

right of objection makes sense to avoid any potential

infringements on the sovereignty of civil law States.

See 1 RESTATEMENT (THIRD) OF THE FOREIGN RELA-

TIONS LAW OF THE UNITED STATES § 471 cmt. b (1987)

(“Civil law states generally regard service of judicial

process as a sovereign act that may be performed in

their territory only by the state’s own officials and in

accordance with its own law.”); The Schooner Ex-

change v. McFaddon, 11 U.S. (7 Cranch) 116, 136

(1812) (“The jurisdiction of the nation within its own

territory is necessarily exclusive and absolute.”).

By contrast, if the meaning of “send” excludes the

concept of service, then any right of objection would

seemingly embrace only transmittals of judicial docu-

ments for non-service purposes (7.e., where official no-

tification is neither required nor sought). Yet if official

notice—including any rights it may secure—is not re-

quired or sought by a particular transmittal, it is un-

clear what reason a State might have for objecting to

the form of its communication. And even if a State did

object to its postal channels being used for non-service

communications, an objection under the Convention

would appear ineffective to either prevent them or im-

pose negative consequences. E.g., Shoer Kako Co. v.

Superior Court, 33 Cal. App. 3d 808, 821 (Cal. Ct. App.

1973) (“The mails are open to all.”).

Consistent with the above argument, there is no

evidence in the negotiation or drafting history of the

Convention that any signatory desired to prevent the

use of postal channels for non-service transmittals.

Rather, as next shown, the very opposite is true: the

signatories shared the expectation that the Conven-

tion would allow service by such channels, absent for-

mal objection by the State of destination.

Il. The signatories shared the expectation that Arti-

cle 10(a) permitted service by mail.

In addition to a treaty’s text and drafting history,

other evidence of the contracting parties’ “shared ex-

pectations” may be employed in order to aid in its in-

terpretation.”

A. Treaties that led up to the Convention allowed

service by mail.

The contracting parties’ intent may be evidenced

by historical events leading up to the treaty. Choctaw

Nation of Indians v. United States, 318 U.S. 423, 431-

32 (1943) (“[T]o ascertain [a treaty’s] meaning we may

look beyond the written words to the history of the

treaty ....”); Volkswagenwerk Aktiengesellschaft v.

Schlunk, 486 U.S. 694, 700 (1988) (same).

** Lozano v. Montoya Alvarez, 134 8. Ct. 1224, 1233 (2014) (“It is

our ‘responsibility to read the treaty in a manner “consistent with

the shared expectations of the contracting parties.” ’ ” (quoting

Olympic Airways v. Husain, 540 U.S. 644, 650 (2004) (quoting

Air France v. Saks, 470 U.S. 392, 399 (1985); emphasis added)));

Zichermanyv. Korean Air Lines Co., Lid., 516 U.S. 217, 223 (1996)

(rejecting proposed treaty interpretation that was “implausible”

and “unlikely” in view of “the shared expectations of the contract-

Here, that history includes three prior treaties. In

particular, the French text of the Convention was

largely copied from prior treaties of 1896, 1905, and

1905, which were drafted solely in French. See Mi-

chael 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).

The language used in the earlier treaties sheds

light not only on the signatories’ shared expectations,

but also helps explain why the English version of Ar-

ticle 10(a) was not drafted as precisely as it might

have been. The Hague Conference explains what hap-

pened as follows:

“the 1965 Convention was the first text drawn

up by the Hague Conference to include an offi-

cial English version and relating to service

abroad. Nevertheless, the verb ‘adresser’ used

in the French version of Article 10(a) of the

1965 Convention, rendered in English by the

verb ‘send,’ had been used in substantially the

same context in the three predevessor treaties

drafted in The Hague (the Convention of 14 No-

vember 1896 on Civil Procedure, the Conven-

tion of 15 July 1905 on Civil Procedure, replac-

ing the 1896 Convention, and the Convention of

1 March 1954 on Civil Procedure, itself replac-

ing the 1905 Convention).

While ‘adresser’ is indeed not equivalent to the

concept of ‘service,’ it certainly does not exclude

the latter. On the contrary, it has been consist-

ently interpreted as meaning service or notice.

Accordingly, neither the letter nor the history

of the Hague Conventions can be used to sup-

port the [contrary] approach applied in Bank-

ston |v. Toyota Motor Corp., 889 F.2d 172 (8th

Cir. 1989) (which held that Article 10(a) did not

permit service by mail)].””

Because these prior conventions were written in

French, and because the Hague Service Convention

was written in both French and English, aspects of the

French language explained above are relevant to any

inquiry into the meaning of Article 10(a).””

Separate and apart from these nuances of transla-

tion, there was also a structural difference between

the 1954 treaty and the Convention that helps ex-

plains the imprecision of Article 10(a). This can be

seen by examining the following English translation

of Article 6 of the 1954 Convention on Civil Procedure,

which is unofficial but provided by the Conference:

“The provisions of the foregoing Articles

shall not interfere with -

* PRACTICAL HANDBOOK (2006), supra note 1, 4222 (citing

George A.L. Droz, “Mémoire sur la notificatian des actes judi-

ciaires et extrajudiciaires a l'étranger,” in 3 THE HAGUE, PRo-

CEEDINGS OF THE TENTH SESSION 12-13, 15-17 (Jmprimerie Natio-

nale 1965)) (paragraph breaks added).

™ Air France v. Saks, 470 U.S. 392, 399 (1985) (“We look to the

French legal meaning for guidance as to these expectations be-

cause the Warsaw Convention was drafted in French by conti-

nental jurists.”). Because the Hague Service Convention was

drafted “in the English and French languages, both texts being

equally authentic,” the negotiating and drafting history of the

Convention’s text in both languages should be considered. See

Schlunk, 486 U.S., at 699-01 (considering French terms proposed

for inclusion and examining the meanings given to them “in some

countries, such as France” and “in others, such as the United

States”).

(1)the freedom to send documents,

through postal channels, directly to

the persons concerned abroad;

(2) the freedom of the persons concerned

to have service effected directly

through the judicial officers or compe-

tent officials of the country of destina-

tion;

(3) the freedom of each State to have ser-

vice effected directly by its diplomatic

or consular agents of documents in-

tended for persons abroad.

In each of these cases, the freedom men-

tioned shall only exist if allowed by con-

ventions concluded between the States

concerned or if, should there be no con-

vention, the State on the territory of

which service must be effected does not

object. That State may not object when,

in the cases mentioned in sub-paragraph

3 of the above paragraph, the document

is to be served without any compulsion

on a national of the requesting State.”

Hague Convention on Civil Procedure, Art. 6 (1954).”

Because provision (1) uses the word “send,” it also

suffers—at least in isolation—from any lack of clarity

possessed by Article 10(a) of the Hague Service Con-

vention. In context, however, any confusion disap-

pears because the final paragraph quoted above clari-

fies that Article 6 is describing three means of service-

* This English translation is available at https://www.hcch.net/

en/instrumenta/conventions/full-text/?cid=33.

“In each of these cases, the freedom mentioned shall

only exist if... the State on the territory of which ser-

vice must be effected does not object.” (Emphasis

added.)

In 1964, the Conference drafted Article 10(a) us-

ing nearly same French words as Article 6(1) of the

1954 treaty.™ But in the Hague Service Convention,

the Conference moved the language concerning a

State’s right to object from the end of Article 6 of the

1954 Convention to the beginning of Article 10 of the

Hague Service Convention. At the same time, the Con-

ference omitted the clarifying language from the last

paragraph of Article 6 of the 1954 treaty.

Some might describe the omission of the clarifying

language and the use of a less-than-precise English

term as “careless drafting.” Cf. 2 BRUNO A. RISTAU, IN-

TERNATIONAL JUDICIAL ASSISTANCE, CIVIL AND COM-

MERCIAL 373 (2000). But it does help explain why the

signatories’ shared expectations—reflected by all

other evidence of intent, as next discussed—were not

expressed in the English text as precisely as they

might have been.

B. The members of the Conference intended the

Convention to permit service by mail.

The shared intentions of the contracting parties

may be evidenced by contemporaneous statements

* Compare Article 10(a) of the Hague Service Convention in French:

“& la faculté d’adreaser directement, par la voie de la poste, des actes

Judiciaires aux personnes se trouvant a I’étranger” (available at

https//www_hech.net/fr/instruments/conventionsa/full-text/?cid=17),

with Article 6(1) of the 1964 Convention on Civil Procedure in

French: “4 /a faculté d'adresser directement, par la voie de la poste,

des actes aux intéressés se trouvant a [Gtranger” (available at

https//www.hcch_net/fr/instruments/conventiona/ful!-text/?cid=33).

from conference delegates and the official reporter

(Rapporteur) for the Hague Conference session in

question. Sch/unk, 486 U.S., at 701-703 (considering

statements of both the Rapporteur and Philip Amram,

head of the United States delegation to the Conven-

tion); Jd., at 709-10 & n.1, 714, 716 (Brennan, J., con-

curring) (same); Société Nationale, 482 U.S., at 530 n.

13 (1987) (considering statements of Rapporteur).

Here, such evidence further supports the conclu-

sion that “send” either means or includes the concept

of service:

1. The Rapporteur’s Report

As translated by one commentator, the official

French report on the treaty’s preliminary draft stated:

“The provision of paragraph 1 [Article 10(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 pro-

posal that postal channels be limited to regis-

tered mail.’ ””

Yet if Article 10(a) was expected to include service by

telegram—i.e., so as not to be “limited to registered

mail”—then Article 10(a) necessarily was intended to

permit service by mail.

* Patricia N. McCausland, Note and Comment, How May I Serve

You? Service of Process by Mail Under the Hague Conventian on

the Service Abroad of Judicial and Extrajudicial Documents in

Civil or Cammercial Matters, 12 Pace L. REV. 177, 186 n.67

(1992) (quoting and translating 3 Actes et Documents de Ia

Dixiéme Session (Conférence de la Haye de Drait Internatiana/

Privé) 90 (1964)).

And even more clearly, “[alecording to the official

Rapporteur’s report, the first paragraph of Article 10

of the draft Convention, which ‘except for minor edito-

rial changes’ is identical to Article 10 of the final Con-

vention, was intended to permit service by mail.”

Brockmeyer v. May, 383 F.3d 798, 802-03 (9th Cir.

2004) (citing 1 BRUNO A. RISTAU, INTERNATIONAL JU-

DICIAL ASSISTANCE § 4—3—5, at 204-05 (2000)).

2. The U.S. Delegation’s Report

Philip Amram, the head of the United States del-

egation and its chief negotiator, reported to the Senate

Foreign Relations Committee that:

“use of the central authority is not obligatory.

Optional techniques may be used, for exam-

ple—

(1) diplomatic and consular channels (arts. 8

and 9)

(2) unless the requested State objects, direct

service by mail or transmission to a process

server for service (art. 10).”

Philip W. Amram, Statement to Senate Committee on

Foreign Relations, quoted in Convention on the Ser-

vice Abroad of Judicial and Extrajudicial Documents,

S. Exec. REP. No. 90-6, at 13 (1967); see Schlunk, 486

U.S., at 703 (relying on Amram as a member of the

U.S. delegation); Sch/unk, 486 U.S., at 710, 714 (Bren-

nan, J., concurring) (same).

3. The Executive Branch’s View

With respect the United States’ expectations,

“great weight” is given to the Executive Branch’s in-

terpretation of a treaty. Abbott v. Abbott, 560 U.S. 1,

15 (2010) (“It is well settled that the Executive

Branch’s interpretation of a treaty ‘is entitled to great

weight.’” (quoting Sumitomo Shoji America, Inc. v.

Avagliano, 457 U.S. 176, 185 (1982)); Medellin v.

Texas, 552 U.S. 491, 513 (2008) (same).

When the Hague Service Convention was negoti-

ated, signed, and ratified, the United States Secretary

of State was Dean Rusk. In his official report to Pres-

ident Johnson, he stated: “Article 10 permits direct

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

to such service.” Dean Rusk, Secretary of State, Letter

to President Lyndon B. Johnson (n.d.), reprinted in S.

Exec. Doc. C, 90th Cong., 1st Sess., at 6 (1967).*"

Courts also consider signatories’ post-ratification

views as evidence of their intent. Medellin, 552 U.S.,

at 507 (“ ‘Because a treaty ratified by the United

States is ‘an agreement among sovereign powers,’ we

have also considered as ‘aids to its interpretation’ the

negotiation and drafting history of the treaty as well

as ‘the postratification understanding’ of signatory

nations.” (quoting Zicherman v. Korean Air Lines Co.,

516 U.S. 217, 226 (1996))).

The post-ratification views of the signatories are

consistent with the above evidence of their shared ex-

pectations:

’ President Johnson’s letter transmitting the Convention and

urging its ratification is reprinted in Judicial Assistance: Con-

vention on the Service Abroad of Judicial and Extrajudicial Doc-

uments in Civil and Commercial Matters, 61 AM. J. INTL L. 799

(1967).

1. The Executive Branch’s View

When a federal court of appeals first held that Ar-

ticle 10(a) did not permit service by mail (Bankston v.

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

United States Department of State informed adminis-

trators of state and federal courts that:

“We ... believe that the decision of the Court of

Appeals in Bankston is incorrect to the extent

that it suggests that the Hague Convention

does not permit as a method of service of pro-

cess the sending of a copy of a summons and

complaint by registered mail to a defendant in

a foreign country. .. .”

Letter from U.S. Dep’t of State Deputy Legal Adviser

Alan J. Kreczko to the Administrative Office of the

U.S. Courts and the National Center for State Courts

(Mar. 14, 1990), excerpted in United States Depart-

ment of State Opinion Regarding the Bankston Case

and Service by Mail to Japan Under Hague Service

Convention, 30 1.L.M. 260, 261 (1991).

2. The Views of Other Signatories

The views of other signatories are entitled to “con-

siderable weight.” Abbott v. Abbott, 560 U.S. 1, 16

(2010) (“In interpreting any treaty, ‘[t]he “opinions of

our sister signatories” . . . are “entitled to considerable

weight.” ’ ” (quoting E/ A/ Israel Airlines, Ltd. v. Tsui

Yuan Tseng, 5625 U.S. 155, 176 (1999) (quoting Air

France v. Saks, 470 U.S. 392, 404 (1985)))). Post-rati-

2 See also Brockmeyerv. May, 383 F.3d 798, 803 (9th Cir. 2004)

(“State Department circulars also indicate that service by mail is

permitted in international civil litigation.”).

fication, these views may be seen from post-Conven-

tion reports by the Hague Conference,” including its

Special Commission, which repeatedly convened to ex-

amine the Hague Convention in actual practice:

In 1977, the Special Commission stated that “[tjhe

States which object to the utilisation of service by post

sent from abroad are known thanks to the declara-

tions made to the [Dutch] Ministry of Foreign Affairs”

and that most members “made no objection” to direct

mail service.™

In 1992, the Hague Conference stated that: “The

views of some of the courts in the United States [find-

ing that Article 10(a) does not permit service by mail]

.. . contradict what seems to have been the implicit

understanding of the delegates at the 1977 Special

Commission meeting, and indeed of the legal litera-

ture on the Convention and its predecessor treaties.”

Then, at the Special Commission’s 1989 meeting,

** Cf. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 182 n. 40

(1993) (examining acholar’s references to the Office of United Na-

tions High Commissioner for Refugees, Handbook on Procedures

and Criteria for Determining Refugee Status (Geneva 1979), in

construing a United Nations Treaty).

™“ Hague Conference on Private International Law, Heport on the

Work af the Special Commission on the Operation of the Conven-

tion of 15 November 1965 On the Service Abroad of Judicial and

Extrajudicial Documenta in Civil or Cammercial Matters (21-25

November 1977), reprinted in 17 LL.M. 319, 326, 329 (1978),

available at http://hech.e-vision.nl/upload/scrptl4 _77e.pdf.

“ Hague Conference on Private International Law, Permanent

Bureau, Practical Handbook on the Operation of the Hague Con-

vention of 15 November 1965 on the Service Abroad of Judicial!

and Extrajudicial Documents in Civil or Commercial Matters 44

(2d ed. 1992) (footnotes omitted).

“i]t was pointed out that the postal channel for

service constitutes a method which is quite sep-

arate from service via the Central Authorities

or between judicial officers. Article [10{a)] in ef-

fect offered a reservation to Contracting States

to consider that service by mail was an infringe-

ment of their sovereignty. Thus, theoretical

doubts about the legal nature of the procedure

were unjustified.”

In 2003, the Special Commission “reaffirmed its

clear understanding that the term ‘send’ in Article

10(a) is to be understood as meaning ‘service’ through

postal channels.”

In 2006, the Conference stated that “[sJervice by

mail under Article 10(a) is effective if (i) service by

mail is allowed by the law of the State of origin and all

the conditions imposed by that law for service by mail

have been met, and (ii) the State of destination has

not objected to the use of Article 10(a).”™

In addition, the post-ratification views of other

States may be evidenced by their courts’ decisions. See

Abbott v. Abbott, 560 U.S. 1, 9-10 (2010) (“This Court’s

inquiry is shaped by . . . decisions addressing the

* Hague Conference on Private Internationa) Law, Report of the

Work of the Special Commission of April 1989 on the Operatian

of the Hague Conventions af 15 November 1965 On the Service

Abroad of Judicial and Extrajudicial Documents in Civil or Coam-

mercial Matters and of 18 March 1970 On the Taking of Evidence

Abroad in Civil ar Commercial Matters { 16 (Aug. 1989), re-

printed in 28 1.L.M. 1558, 1561, available at http://www.hech.net/

upload/scrpt1989.pdf.

*’ PRACTICAL HANDBOOK (2006), supra note 1, App. 6 4 55.

** PRACTICAL HANDBOOK (2006), supra note 1, ¥ 201.

meaning of ‘rights of custody’ in courts of other con-

tracting states... .”).

On this front, several foreign courts, including one

in Canada, have held that Article 10(a) permits ser-

vice by mail:

°¢ Integral Energy & Envtl. Engg Ltd. v.

Schenker of Canada Litd., 295 A.R. 233

(2001), 2001 WL 454163 (Alberta Queens

Bench) (“Article 10(a) of the Hague Conven-

tion provides that if the state of destination

does not object, judicial documents may be

served by postal channels”), revd on other

grounds, 293 A.R. 327 (2001);

* Crystal Decisions (U.K.), Ltd. vy. Vedatech

Corp., EWHC (Ch) 1872 (2004), 2004 WL

1959749 ¥ 21 (High Court, England) (per-

mitting mail service to defendants in the

United States and Japan);

* Case C-412/97, ED. Sri. v. Italo Fenocchio,

1999 E.C.R. I-3845 4 6, C.M.L.R. 855 (2000)

(Court of Justice of the European Communi-

ties) (“Article 10(a) of [the Hague Conven-

tion] allows service by post.”); and

° 3. v. Re Recognition of an Italian Judgment,

I.L.Pr. 15 (2002), 2000 WL 33541696 (Thes-

saloniki Court of Appeal, Greece) (“It should

be noted that the possibility of serving judi-

cial documents in civil and commercial cases

through postal channels . . . is envisaged in

Article 10(a) of the Hague Convention.”).”

* The Ninth Circuit cited the pre-2004 decisions in reaching its

conclusion that the permissibility of service by mail was the “es-

sentially unanimous view of other member countries of the

D. Other scholarship supports the view that Ar-

ticle 10(a) permits service by mail.

In questions of treaty interpretation, the analysis

of scholars may also be persuasive. Abbott, 5€0 U.S.,

at 18 (“Scholars agree that there is an emerging inter-

national consensus on the matter.”); Sch/unk, 486

U.S., at 698, 700, 703 (relying on 1 BRUNO A. RISTAU,

INTERNATIONAL JUDICIAL ASSISTANCE, CIVIL AND COM-

MERCIAL (1984 and 1 Supp. 1986)).

Bruno A. Ristau was the American delegate to the

1977 Special Commission on the Convention, as well

as the head of the American Central Authority. Ristau

has written that the language of Article 10(a) regard-

ing the use of “postal channels” was “intended to in-

clude service of process.” 1 BRUNO A. RISTAU, INTERNA-

TIONAL JUDICIAL ASSISTANCE, CIVIL AND COMMERCIAL

§ 4-3-5 (2000).

Similarly, the two top officials of the Hague Con-

ference have written that the Convention allowed ser-

vice by mail. Georges A.L. Droz & Adair Dyer, The

Hague Conference and the Main Issues of Private In-

ternational Law for the Eighties, 3 Nw. J. INTL L. &

Bus. 155, 163-64 (1981). Dyer elaborated on this view

in a 1992 letter:

“The view that Article 10(a) does not allow ser-

vice of process by mail is, so far as we know at

the Permanent Bureau, entirely contrary to the

historical interpretation of the 1965 Conven-

tion as well as the similar language (in French

only) in its predecessors, the 1954 Convention

on Civil Procedure and the 1905 Convention on

Hague Convention” Brockmeyer v. May, 383 F.3d 798, 802 (9th

Cir. 2004).

Civil Procedure. The idea that the Convention

permits service of process by mail, not merely

sending of documents, was implicit in the con-

clusions of the Special Commission which met

in November 1977 to consider the operation of

this Convention, as well as of the Special Com-

mission of April 1989, which met to consider the

operation of both Conventions. Service of pro-

cess by mail under the Convention has also

been upheld by courts in Belgium and we at the

Permanent Bureau are not aware of any case,

except in the United States, where a court has

held that the Convention does not allow service

of process by mail abroad.””

Other scholars concur. See, e.g., 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, 343 (2010) (concluding, after an

exhaustive analysis of the history of the Convention,

that “the only sensible approach is to find mail service

is permissible under the Hague Convention” (citing

Gary A. Magnarini, Service of Process Abroad by the

Hague Convention, 71 Marq. L. REv. 649, 677

(1988))).

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

* Adair Dyer, First Secretary of the Hague Conference on Private

International Law, Letter to Robert B. von Mehren (June 19,

1992), quoted in Robert B. von Mehren, /nternational Cantro/ of

Civil Procedure: Who Benefits?, LAW & CONTEMP. PROBS. 13, 17-

18 & n.21 (1994).

Respectfully submitted.

JEREMY GASTON

Counsel of Record

ANDREW K. MEADE

HAWASH MEADE GASTON

NEESE & CICACK LLP

2118 Smith Street

Houston, TX 77002

jgaston@hmgnc.com

(713) 658-9001

Counsel for Petitioner

JANUARY 17, 2017

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.