Can You Start a Lawsuit by Mail?

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The U.S. Supreme Court will soon decide a case involving the interpretation of a key civil litigation treaty.

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How could a four-letter word force the U.S. Supreme Court to intervene in a playground dispute?

“Send” seems like an innocuous and simple word. But, for the past quarter century, federal courts have not agreed on what “send” means when applying an important international treaty. The Supreme Court will likely settle the matter this year, and how it chooses to define this word will determine a key outcome in a case originally filed in Texas state court by a company that designs water playgrounds. More broadly, the Court’s “send” decision will impact rules for commencing lawsuits involving parties who live abroad and provide guidance to courts on how to interpret other treaties in the future.

Water Splash, Inc.—an American company—claims that the treaty permitted it to legally notify, or serve, its former employee Tara Menon—a Quebec resident—by mail when suing her for allegedly stealing aquatic playground designs. But Menon argues that “send” and “serve” have entirely different legal meanings. If Menon did not receive notice as required under the treaty, an existing court judgment requiring her to pay Water Splash must be thrown out and Water Splash must restart its lawsuit from scratch.

Water Splash tried through various methods, including the mail, to notify Menon in Quebec about its lawsuit. But Menon, despite actually knowing about the lawsuit, refused to acknowledge that she had been notified. The court eventually entered a judgment in favor of Water Splash.

Menon soon challenged the court’s judgment. She argued that Water Splash’s attempt to serve her by mail violated the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters—known as the Hague Service Convention—which governs how U.S. litigants can serve people residing outside of the United States. The convention requires each ratifying country—including the United States and Canada—to establish a “central authority” to handle service requests stemming from litigation in other ratifying nations. Menon argues that she was not properly notified of the lawsuit since Water Splash did not serve her through Canada’s central authority.

If that were true, Water Splash’s victory would evaporate. Court judgments cannot bind someone who was not properly served. The Hague Service Convention, however, provides more than one way to serve an opponent. Crucially, the convention states that its provisions should not interfere with any litigant’s ability to “send” court documents by mail.

Menon contends that “send” does not mean “serve” because the convention’s authors used the word “serve” everywhere else in the convention to specify how documents informing individuals of lawsuits against them must be delivered. So, according to how courts interpret statutes, “send judicial documents” must mean something else entirely—for example, mailing paperwork and documents to an opponent after the nation’s central authority had already served them with notice of the lawsuit.

Water Splash, on the other hand, argues that treaties should be interpreted like contracts between countries rather than like domestic statutes. When interpreting contracts, courts consider evidence of what contract drafters intend terms to mean. Since treaties are essentially contracts between countries, Water Splash contends that courts should consider what the convention’s drafters intended “send” to mean.

And according to Water Splash, the convention’s drafters intended to allow litigants to serve their opponents by sending legal complaints by mail. To support this view, Water Splash points out that the U.S. government and other signatory countries have consistently stated that the convention permits service by mail unless a country objects. Further, the convention’s own statement of purpose limits the scope of the treaty solely to service of process abroad. Consequently, the phrase “send judicial documents” cannot refer to mailing paperwork and documents after service, as Menon claims, since the treaty does not cover those documents.

In addition to the legal arguments advanced by Water Splash, the U.S. government has filed a separate friend of the court brief arguing that allowing service by mail is good policy. Postal channels are at least as reliable as diplomatic channels and are often much faster and less expensive than service through a country’s central authority.

Although lower federal and state courts are split on this issue, the majority of courts that have considered this question have taken the approach Water Splash promotes. Also, at oral argument in March 2017, some members of the U.S. Supreme Court also seemed to favor an interpretation that the Hague Service Convention permits international service by mail if the state where the litigation occurred also allowed service by mail. For instance, Justice Sonia Sotomayor questioned whether the convention could forbid states from permitting service by mail.

Moreover, Justice Elena Kagan appeared particularly concerned about the international implications of interpreting the convention to prevent service by mail. She asked Menon’s attorney whether it was a problem “that no other court in the world has construed the treaty” to forbid service by mail. Justice Kagan also suggested that adopting Menon’s method of interpreting treaty provisions would lead the United States to consistently apply treaties differently from the way other countries apply them, which could complicate negotiations of future international agreements.

A recording and transcript of the oral argument are available on the Supreme Court’s website. The Court typically announces all of each term’s decisions by late June or early July, but may also choose to issue opinions well before then.