In Water Splash v. Menon, 137 S. Ct. 1504 (2017), the Supreme Court finally resolved the question of whether Article 10(a) of the Hague Service Convention permits service of process by postal channels (it does). That’s the end of the story for Letters Blogatory readers, but it wasn’t the end of the story for the litigants. As I had hoped, the Court was careful in its decision to note that Article 10 permits, but does not itself authorize, service of process by postal channels. The Court remanded the case to the Texas Supreme Court for a decision on whether the service by mail in the case was authorized by Texas law.
The Texas Court of Appeals has now reversed the trial court’s original decision and remanded for further proceedings. Recall that the original trial court’s decision was that Water Splash was entitled to a default judgment because the service by mail on the defendant, Menon, was sufficient. The Texas appellate court disagreed, holding that Article 10(a) did not permit service of process by mail, but the Supreme Court agreed with the trial court, which made it seem that Water Splash would get its default judgment back. But now we see that Water Splash’s victory was Pyrrhic. The Texas court held, first, that Menon had not waived the argument that the service was insufficient under Texas law, and second, that in fact the service was insufficient under Texas law (because the summons was mailed by a legal assistant for Water Splash’s lawyer). I’m not going to cover the holding in detail, but no doubt Water Splash, which won a case in the Supreme Court only to have its victory slip away, was left wondering what had hit it. The case started off as a run-of-the-mill commercial dispute between a small business and a former employee. Is there any chance that the attorney’s fees have not by now eclipsed the amount at stake? And now Water Splash has to start again with service of process.