Important Changes by U.S. Courts Regarding the Permissibility of Service of Process by Mail and Defendants Located Outside the U.S.

Legal Alert

December 18, 2019

BACKGROUND: The United States, Israel, and many other leading international economies are signatories to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the “Hague Service Convention”), a multinational treaty “intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.” The treaty requires each signatory state to establish a central authority that receives international service requests and thereafter serves documents by a method prescribed by the internal law of the receiving state. Nothing in the Hague Convention, however, requires litigants to rely exclusively upon the central authority, and a signatory state may consent to additional methods of service.

For years, American state and federal courts have been divided over whether Article 10(a) of the Hague Service Convention should be interpreted as allowing service of process by mail on defendants located outside of the U.S., provided the signatory state does not object. This had led to conflicting case law in which the permissibility of service of process by mail has varied by court, by state, and even by appellate division within the state. See, e.g., Mutual Benefits Offshore. v. Zeltser, 140 A.D.3d 444 (1st Dep’t 2016) (noting the different interpretations of Article 10(a) that had been adopted by New York State’s appellate departments and, for the first time, aligning the appellate departments).

THE UNITED STATES SUPREME COURT CLARIFIES THE ISSUE

On May 22, 2017, the United States Supreme Court in Water Splash Inc. v. Menon, 137 S.Ct. 1504 (2017) clarified the interpretation of Article 10(a) of the Hague Service Convention for all U.S. state and federal courts.

The Supreme Court held that Article 10(a) indeed authorizes service of process by mail on defendants located outside of the U.S., so long as the receiving state has not objected, and service by mail is recognized by the jurisdiction hearing the suit. While some countries have objected to Article 10(a), the State of Israel has not.

This decision thus resolves the disagreement in the lower U.S. courts on the permissibility of service by mail under the Hague Service Convention. Previous state and federal case law that interpreted Article 10(a) to not allow service of process by mail is no longer controlling precedent.

CONCLUSION: Because Israel has not objected to Article 10(a), this opens defendants located in Israel to service of process in U.S. courts by mail. Note, however, that this does not end the analysis in U.S. courts. Service by mail must also be recognized by the jurisdiction hearing the suit. In the United States, this will depend upon whether the case is brought in state or federal court, and in which state. While various restrictions apply on a state-by-state basis, in general service of process by mail is recognized by the U.S. state and federal jurisdictions provided that statutory conditions on such service are complied with.

For more information on this topic, contact: Sasha Bau (Native Hebrew) or Daniel S. Goldstein.