I called it. It wasn’t a really stretch, but I was confident that this would be at least a 7-vote decision. In Water Splash v. Menon, the U.S. Supreme Court this morning held unanimously (8-0, sans Gorsuch) that mail service is permissible under the Article 10(a) of the Hague Service Convention, overturning the Texas Court of Appeals and, along with it, the 8th and 5th Circuits in Bankston and Nuovo Pignone, SpA. At long last, there’s sense in the jurisprudence surrounding Article 10(a)– for years, I’ve thought the 8th & 5th were flat wrong in their approach, clinging to a very tenuous thread of logic. Essentially, they focused on the drafters’ use of the word “send”, rather than “serve” in 10(a) and said that a drafting error rendered the intent questionable. It’s always seemed silly to me, frankly; why in the hell would the drafters have put it in a Service Convention if they didn’t mean it was okay to serve that way? Justice Alito said as much for the Court, though far more diplomatically.
Yet, I still hold to the same assertion: just because service abroad by mail is legally valid, that doesn’t mean you should do it. It’s almost always a horribly bad idea, if for no other reason, because proving proper delivery is a sketchy undertaking. Plus that, it has to be valid under both the venue’s rules and the destination state’s declaration to the Convention.
Sorry, but it’s frequently unavailable to begin with (read: China, Germany, India, Mexico), and it’s usually is not the way to go anyway. Article 5 is usually the safest option for serving defendants in Hague countries, but it’s not necessarily the most practical. Article 10(b)/(c), where available, is usually quicker– and sometimes cheaper. The choice of which method is most appropriate for any situation requires guidance. Don’t just DIY the decision.