February 16, 2018 Articles

Clarity or Confusion? International Service of Process

Yesenia E. Cárdenas-Colenso and Hunter B. Oliver

During its last term, the U.S. Supreme Court sought to clarify the scope of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Convention) as it pertains to service of process by mail. For international defendants, particularly those sued in jurisdictions throughout the United States, this was a much-anticipated opinion. For years, whether an international defendant was properly served with process depended largely on the jurisdiction in which it was served. If a defendant was sued in the Second, Fourth, Seventh, or Ninth Circuits, service of process by mail would likely be considered proper. If, however, a defendant was sued in the Fifth or Eighth Circuits, that defendant had a viable argument for quashing such service as invalid.

In Water Splash, Inc. v. Menon, ––– U.S. ––––, 137 S. Ct. 1504 (2017), the Court unanimously held that article 10(a) of the Convention indeed permits service by mail. However, writing for the Court, Justice Alito specifically warned that the Court’s decision did “not mean that the Convention affirmatively authorizes service by mail.” In other words, while the Court’s holding aligns with the interpretations of numerous special commissions, the U.S. State Department, and other foreign courts, the validity of an attempted service of process by mail remains an issue necessitating further analysis.


Service methods encompassed by the Convention generally fall under two classifications: (1) those affirmatively authorized by the Convention and (2) those merely permitted by the Convention.

The Convention affirmatively authorizes certain service methods. The most traditional example of the type of service affirmatively authorized by the Convention is service through a central authority under articles 2–6. The Supreme Court has characterized this form of service as “the primary innovation of the Convention” and described the method as requiring

. . . each state to establish a central authority to receive requests for service of documents from other countries. Once a central authority receives a request in the proper form, it must serve the documents by a method prescribed by the internal law of the receiving state or by a method designated by the requester and compatible with that law. The central authority must then provide a certificate of service that conforms to a specified model.

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698–99 (1988) (internal citations omitted).

In the United States, due to the Supremacy Clause, service requirements authorized by the Convention are mandatory, and neither federal rules nor state laws may prohibit them. See Schlunk, 486 U.S. at 699 (“By virtue of the Supremacy Clause, U.S. Const., Art. VI, the Convention pre-empts inconsistent methods of service prescribed by state law in all cases to which it applies.”).

The Convention passively permits certain service methods. Article 10 of the Convention articulates a second category of service methods. For these methods of service, the Convention merely recognizes them as permissible, if authorized by an underlying sovereign. See Water Splash, 137 S. Ct. at 1508 (describing article 10’s provisions as “additional methods of service that are permitted by the Convention (unless the receiving state objects)”). This category encompasses the direct service by mail method specifically analyzed by the Supreme Court in Water Splash.

Notably, the article 10 provisions are passive rather than active, which indicates that the Convention does not autonomously authorize the utilization of the service methods. For example, article 10 merely specifies that the Convention “shall not interfere with” the three methods of service set forth in the article. In contrast, other articles in the Convention affirmatively mandate that “[e]ach Contracting State shall be free to effect service” through a particular means. Seeart. 8 (providing for service directly through “diplomatic or consular agents”). The passive nature of article 10 signifies that the Convention does not impose any affirmative requirements upon contracting states but, instead, defers to the states’ individual approaches to the manners of service in the article.

Accordingly, article 10 does not form an independent source of authority for a litigant in a contracting state to serve another party through the means described in the article. As a result, the underlying procedural law of the forum jurisdiction must offer such an authorization. Water Splash, 137 S. Ct. at 1513 (“To be clear, this does not mean that the Convention affirmatively authorizes service by mail.”) (emphasis in original). Moreover, due to article 10’s lack of affirmative mandates, the manners of service in article 10 of the Convention do not implicate the Supremacy Clause because the article does not preclude individual jurisdictions from prohibiting their use.

Water Splash: Two Conditions
Ultimately, the permissive nature of article 10 service methods resulted in the Supreme Court articulating a bifurcated requirement in Water Splash. The Court concluded that service of process by mail is permitted if two conditions are satisfied: “first, the receiving state has not objected to service by mail; and, second, service by mail is authorized under otherwise-applicable law.” Id. at 1513.

Adoption of the Water Splash Analysis
For the most part, the opinions decided since Water Splash have followed the Court’s analysis and considered the two-prong test adopted by the Court.

In re LLS America court holds that both prongs are satisfied. For example, in In Re LLS America, LLC, No. 2:12-CV-422-RMP, 2017 WL 3013260 (E.D. Wash. July 14, 2017), a case where Canadian defendants challenged the court’s personal jurisdiction following the entry of a default judgment, the plaintiffs claimed that service had been properly effected by mailing a copy of the summons and complaint “by international registered mail with Return Receipt for International Mail.” Id. at *2. The court acknowledged that Canada had not objected to service by mail in acceding to the Hague Convention and, as such, deemed service by mail as potentially available in Canada under article 10. Id. Furthermore, the court stressed that the Hague Convention did not “provide an affirmative answer to what specific types of service are allowed in a particular case” but, instead, must be read within the context of the service requirements of the forum jurisdiction. Id. at *1. Thus, the court considered service by mail as proper under Federal Rule of Civil Procedure 4(f)(2)(C)(ii). Id. at *2.

Mireskandari focuses on bifurcation and efforts to effect service. Similarly, in Marks Law Offices, LLC v. Mireskandari, No. 15-3014, 2017 WL 3575237 (3d Cir. Aug. 18, 2017), a case involving a default judgment against a United Kingdom defendant, the Third Circuit deemed mail service on the defendant’s London address proper. The court began by noting the litany of efforts undertaken by the plaintiff to effect service. Id. at *3. These lengths included serving the defendant at a domestic address, as well as obtaining an order from the trial court that permitted regular mail service at the London address. Id.

Like other courts interpreting Water Splash, the Third Circuit construed the opinion as advancing a bifurcated requirement: (1) “the receiving state has not objected to service by mail,” and (2) it is authorized by “otherwise-applicable law.” Id. at *4 (quoting Water Splash, 137 S. Ct. at 1513).The court held that both requirements were met. First, the court did not find any indication that the United Kingdom objected to service by mail under the Hague Convention. Id. at *4. Second, the court noted that the trial court’s order permitting service on the defendant’s foreign address provided the necessary authorization under Federal Rule of Civil Procedure 4(f)(3). Id. Consequently, the court considered a court order permitting mail service pursuant to Rule 4(f)(3) sufficient authority under the federal rules, irrespective of the applicability of mail service to Rule 4(f)(1)–(2). Id.

Cessna Aircraft uses Water Splash to find for the defendant. Additionally, in Federal Insurance Co. v. Cessna Aircraft Co., No. 16-2755-JWL, 2017 WL 2905576 (D. Kan. July 7, 2017), the court did employ the Water Splash two-pronged analysis; however, it ultimately denied a motion for default judgment of an Israeli defendant, holding that international mail did not properly effect service absent a signed return receipt.

The court stressed that the Water Splash opinion “did not mean that the Convention affirmatively authorizes service by mail.” Id. at *2. As such, service by mail required underlying authority from the forum state. Id.

The court analyzed Federal Rule of Civil Procedure 4 for the requisite authority. The court held that because the Convention did not affirmatively authorize mail service, service by mail was not authorized under Rule 4(f)(1). Id. However, the court considered Rule 4(f)(2) to potentially authorize service by mail, provided that the plaintiff met the specific procedural requirements of the rule. Id. In the particular service at issue in the case, the plaintiff mailed the summons and a copy of the complaint by “United States Mail, International Delivery.” Id. The evidence included a tracking document notating the package’s delivery in Israel. Id. However, no evidence proved that the mailing required a signed receipt. Id. Because the plaintiff did not obtain a court order authorizing service under Rule 4(f)(3), the only subsection of Rule 4 potentially applicable to the mailing was Rule 4(f)(2)(C)(ii), which permits “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.”

Consequently, without evidence that the plaintiff obtained a signed receipt, the court concluded that the plaintiff had not complied with Rule 4’s service procedures, and, accordingly, the defendant had not been properly served. Id. at *3.

Rejection of the Water Splash Analysis

In contrast, a Southern District of New York opinion concerning the propriety of international mail service did not consider the distinction between manners of service affirmatively authorized by the Convention and those that the Convention merely permitted.

In Zamora v. JPMorgan Chase Bank, N A., the plaintiffs sued two Columbian residents alleged to have opened and maintained fraudulent bank accounts as part of a scheme to steal investor funds. See generally Zamora v. JPMorgan Chase Bank, N.A., No. 1:14-CV-5344-WHP-SN (S.D.N.Y. June 21, 2017), report and recommendation adopted, No. 1:14-CV-5344-WHP-SN (S.D.N.Y. July 10, 2017). As Columbia is a signatory to the Convention, the plaintiffs attempted to effectuate service under the Convention. They did so by having a licensed Columbian attorney personally deliver the Original Complaint and Summons to the defendants’ residence and by having the Columbian attorney mail the documents via certified mail.

In considering a subsequent motion for default judgment, the court found that service of process had been effected pursuant to articles 10(a) and 10(c) of the Convention. The court’s decision, however, contained no analysis of whether service by mail was authorized under otherwise-applicable law, such as Federal Rule of Civil Procedure 4. Instead, the court concluded that “[b]ecause Columbia has not objected to the use of ‘postal channels’ under Article 10(a), service of process by certified mail constitutes an appropriate method of service.”

By proceeding directly from the receiving state’s lack of article 10 objection to the ultimate holding that mail service was appropriate in the case, the court bypassed a consideration of whether federal procedure authorized the service. The absence of this inquiry thus suggests that Zamora may stand for the proposition that article 10 does not merely permit service by mail but affirmatively authorizes the practice.


Ultimately, there is no question that the jurisprudence concerning service requirements in light of Water Splash is still evolving. The diverse opinions that have already resulted within the several months following Water Splash suggest that the issue of international service of process remains unsettled and open for further development. Future case law promises to both continue this evolution and clarify more nuanced secondary questions following Water Splash, such as the specific procedural requirements applicable to international mail service within each forum jurisdiction.


Yesenia E. Cárdenas-Colenso is a partner and Hunter B. Oliver is an associate in Bowman and Brooke LLP’s Dallas, Texas, office.

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