8.08.2007

W.D. Kentucky Notes Split Re Whether Service of Process on a Foreign National by Direct Mail is Proper Under Hague Convention

Per Moore v. Irving Materials Inc., Slip Copy, 2007 WL 2081095 (W.D. Ky Jul 18, 2007) (NO. CIV.A. 4:05-CV-184):

The Hague Convention is a multinational treaty "whose purpose was to formulate an 'appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time,' and seeking to 'improve the organization of mutual judicial assistance for the purpose of simplifying and expediting the procedure.' " Uppendahl v. American Honda Motor Co., 291 F.Supp.2d 531, 532 (W.D.Ky.2003) (quoting Hague Convention Preamble, November 15, 1965, 20 U.S.T. 361, 362). Article 10 of the Hague Convention states, in part: "Provided the State of destination does not object, the present Convention shall not interfere with-(a) the freedom to send judicial documents, by postal channels, directly to persons abroad ..." While the Sixth Circuit has not considered the issue, other circuits are divided as to whether this section of the Hague Convention permits service on a foreign defendant by direct mail. See, e.g., Brockemeyer v. May, 383 F.3d. 798, 802 (9th Cir.2004) (because the term "send" includes the meaning "serve," service of process by direct mail is proper under this section); Ackerman v. Levine, 788 F.2d 830, 838 (2nd Cir.1986); but see Bankston v. Toyota Motor Corp., 889 F.2d. 172, 173-174 (8th Cir.1989) (this section authorizes the sending of judicial documents by mail, but only after service of process is accomplished by some other means); Nuovo Pignone v. Storman Asia M/V, 310 F.3d. 374 (5th Cir.2002). Additionally, another court in the Western District of Kentucky has taken the position of the Eighth and Fifth Circuits and held that the Hague Convention does not permit international service of process by direct mail. Uppendahl v. American Honda Motor Co., 291 F.Supp.2d 531 (W.D.Ky.2003).

The Court finds the reasoning of the second line of authority to be more persuasive and holds that the word "send" in Article 10(a) is not equivalent to "service of process." As the Eighth Circuit noted, it is a "familiar canon of statutory instruction that the starting point for interpreting a statute is the language of the statute itself." Bankston, 889 F.2d at 174 (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). Additionally, where a legislative body "includes particular language in one section of a statute but omits it in another section ... it is generally presumed that [the legislative body] acts intentionally and purposely in the disparate inclusion or exclusion." Id. (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). Here, because the word "service" is specifically used in other section of the Convention, it seems that if the drafters had meant for 10(a) to provide an additional manner for service of judicial documents, they would have used the word "service." Accordingly, the Court holds that sending a copy of a summons and complaint by registered mail to a defendant in a foreign country is not a method of service permitted by the Hague Convention.

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