Water Splash Reveals a Glaring Omission in Wisconsin's Service-of-Process Rules, Which Ought To Be Fixed

23 May 2017 Wisconsin Appellate Law Blog
Authors: Thomas L. Shriner Jr

Today’s unanimous U.S. Supreme Court decision in Water Splash, Inc. v. Menon, 581 U.S. ___, No. 16-254, points out a glaring omission in Wisconsin’s service-of-process rules that ought to be fixed, so that Wisconsin plaintiffs are not unnecessarily put at a disadvantage when suing overseas defendants in state court. Justice Samuel Alito’s decision, reversing the Texas Court of Civil Appeals, held that Article 10(a) of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), 20 U. S. T. 361, T. I. A. S. No. 6638, authorizes service of process, including summons, by mail in any country that is party to the Hague Service Convention and does not object to mail service. Canada, where the respondent Tara Menon lives, does not object, so the Supreme Court upheld the judgment that Water Splash obtained against her by default when she refused to appear in Texas. The Texas courts had not determined whether Texas law allows service by mail, so the Court sent the case back to allow them to make that call.

Wisconsin’s state law clearly precludes service by mail in this situation. Wis. Stat. § 801.11 requires personal or substituted service on defendants or their agents, unless the plaintiff can be served by publication and mailing under § 801.11(1)(c). That statute requires the plaintiff first to attempt personal or substituted service “with reasonable diligence,” which certainly takes time, and service by publication in a foreign country is itself a dicey proposition from the plaintiff’s perspective. How do you do it, and is such publication constitutionally effective?

The problem is particularly excruciating for Wisconsin plaintiffs because service in state court has to be accomplished within 90 days of the filing of the summons and complaint, § 801.02(2), and § 801.15(2)(a) expressly forbids a court to enlarge the 90-day period for service. And, to make matters worse, the statute of limitations is not tolled by filing of the action unless service of authenticated copies of the summons and complaint is made within 90 days. Wis. Stat. § 893.02. Under Fed. R. Civ. P. 4(m), the normal, extendable 90-day time to accomplish service does not apply to service in foreign countries. Rather, Rule 4(f) allows service under the Hague Service Convention (which is to say, after Water Splash, by mail in countries that permit it) and by alternative mechanisms. But not all actions can be filed in federal court, particularly state-law claims where not all the parties are of diverse citizenship.

The solution seems obvious. The Wisconsin Supreme Court (or the Legislature—either can do it) should amend § 801.11 to permit service of process outside the United States by mail. Because many countries that are parties to the Hague Service Convention do object to service by mail, this will not be a complete solution to the problem; that might require an amendment to state law permitting courts to enlarge the time for service in such situations. But for many countries, this amendment will solve the problem, and fortunately many of the countries where Wisconsin plaintiffs will want to serve process do not object to service by mail. As Water Splash shows, our neighbor to the north and the destination of nearly one-third of our exports is one important example. So, too, (according to a quick online search) are the United Kingdom and Japan, as well as Belgium, Denmark, Ireland, Israel, Italy, the Netherlands, Portugal, Spain, Sweden, and a number of smaller trading partners of Wisconsin businesses.

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