This section addresses the intertwined concepts of notice and service of process. The concepts address a universal problem in litigation – it would seem unfair to have a judgment entered against you without your participation or knowledge when you could reasonably have been given notice of the litigation. Notice addresses the big, due process issue of what level of notice is required under the circumstances so that the proceeding is fundamentally fair. Service of process is more technical. It involves the specific rules for how notice is given. You will learn that different states have different rules, and that the federal system has its own set of rules that in some ways differ from but which also incorporate local state rules. You will also notice that different kinds of defendants (corporations versus individuals, for example) and defendants in different locations (within the forum state, outside the forum state, and outside the USA) may have different service of process rules.

    We will not go deep into the mechanics of service for domestic suits within a forum state within the US. There are reasons for this. First, for many reasons, it’s unlikely to be of practical importance to you. In the event you end up at a large firm in the US – which has been the dominant destination for our STL graduates who do end up in a US practice – there will be staff who handle service issues at lower rates than you will be charging. (As a partner in two different major litigation firms in the US, I never personally got involved even once with service of process issues).  In addition, as you will see, state courts have their own rules of service, and since those rules are incorporated into federal practice, you don’t really know what you need to know in a given setting until you look at the state law. Finally, it’s just not all that interesting. If you get into litigation in your practice where US local service of process rules matter, hire local counsel.

    We will pay a bit more attention to service of process outside the forum state, but will reach that issue as part of our personal jurisdiction analysis. At one time, as you will learn, it was believed that service could not be made directly outside the forum state, and how the rules for that developed really fit better into the story of how personal jurisdiction analysis developed.

    Compared to a domestic US course, we will spend a bit more time on how service of process is made on overseas defendants. Some US lawyers do not often have occasion to serve overseas defendants, and may not do it properly. Understanding how it should be handled may give you a competitive advantage, helping you toward our overall goal of helping you become a great lawyer.

    While service of process is rules-based and specific to a local jurisdiction the Constitutional concept of notice is broad and hot limited by local rules. It deals with the fundamental issue of being informed about litigation. It is context based, however, taking into account the circumstances in determining what level of notice is required.

     Statutory service of process involves the mechanics of how a party to a lawsuit should be informed about the filing of the lawsuit so that it can respond. Failure to serve a party properly under the rules can lead to any judgment being set aside or to the service being “quashed” so that the process has to start again.

     In general, the federal rules provide two pathways for making proper service of process against someone within the state where the lawsuit has been filed. First, the plaintiff can use any method of service permitted under state law. The state rules might allow methods not included in Rule 4 - for example, service by mail. Second, the plaintiff can use specific methods of service of process that are set forth in Federal Rule of Civil Procedure Four. You will note that different rules apply to individuals than those that apply to entities such as corporations or partnerships. We will also see how different set of requirements govern service of out-of-state defendants, and how still another set of requirements govern service for defendants that are outside the United States.

     Who. Which individuals can make service, and upon whom should service be made? Interestingly enough, service must be made under the federal rules by a third party, not by the plaintiff.  The third-party must be over 18 years old. While the third-party can in theory can be the lawyer handling the case, that’s generally considered a bad idea, because if there is a dispute as to whether service was properly made the attorney might be called as a witness, which under ethical rules in some states would prevent the attorney from handling the merits of the case. As a result, service, if not made by governmental officials, is normally made either by professional process servers or by paralegals or other employees of the law firm.

     The rules also govern who can accept service. In general, service can be made personally on the defendant by handing the proper papers to the defendant. The defendant does not need to agree to accept the papers. Simply bringing them into the presence of the defendant is enough. On occasion, efforts of defendants to avoid being personally served lead to creative methods for the process server to get into the presence of the defendant. In one case, the defendant was a celebrity who normally was hard-to-reach, but the process server appeared at an autograph signing event and served the papers when his term for an autograph arose (a video of this is on TWEN). There are other stories of process servers perfecting the skill of throwing the papers from an adjoining apartment in a tenement so that they could land on the kitchen table of the defendant who was refusing to leave her home so as to avoid being served with papers that would start the process of evicting her from her home. The federal rules also allow the papers to be delivered to a resident of the defendant’s normal place of abode, but require that the person receiving the papers be of suitable age and discretion. It’s not acceptable to hand the papers to a child, nor can they be delivered to someone simply visiting the defendant’s home. You will also note as you look at the rules that different rules apply to corporations, and under the federal version of the rule it is not acceptable to simply leave the papers with a low-level employee such as a cleaning person. Instead, service has to be made upon someone sufficiently high up in the corporation so as to be expected to know what to do with the documents.

     What. The rules also govern what must be included in the process papers. Generally, as you will note, this includes a summons, letting the defendant know that they need to respond and appear in court. The federal rules also require a copy of the complaint itself. Local federal rules can also require additional documents. When we get to Constitutional Notice, we will also see that some lower courts have held that certain information must be included in order for service to be fair. Note that under Rule 4(a) the summons must be issued by the court clerk and then delivered to the plaintiff for serving; the plaintiff cannot simply create her own summons.

     When. Once a lawsuit has been commenced by filing a lawsuit with the court, the clock starts running on the time period within which service must be made. Under the federal rules, the time limit is 90 days.

     How. Another question involves how service of the papers may be made. In general, the preferred method of service is by hand directly to the defendant. The federal rules also allow service at the residence of the defendant but limit rather narrowly the kind of individual who can receive the papers. The federal rules do not provide directly for service by mail, but many state systems do allow service to be made through the United States mail service. Increasingly, state systems are allowing service by electronic methods, such as email or even text message. In some cases when any of the normally approved methods of service are not succeeding, perhaps because the defendant is hard to find or has taken steps to be unavailable, applicable law may authorize any alternative method of process that the judge finds reasonable under the circumstances. Again, you will notice that the rules for service upon corporations are different for those for service upon individuals. You will also notice that there is a different process for defendants not within the United States, and that this can vary by country.

     In the average case, service of process is a bother and an expense, but since it generally can be accomplished service of process will not prevent the case from going forward. As a result, attorneys often ask their counterparts to waive service so as to expedite proceedings. Some lawyers, unfortunately, view it as their duty to set up every barrier to the other side that is possible, and so refuse to waive service. Rule 4 has been amended to include a waiver provision that gives a reward to the defendant who grants waiver and imposes a penalty on the domestic recipient who does not. As a consequence, it is generally in the client's interest to waive service unless there is a realistic prospect that the other side will be unable to make service in a timely fashion (and, aside from the built-in 90-day limitation, in some states, the statute of limitations is not tolled until service is made).  For non-US defendants, while waiver often will remain the best approach, the prospect of an unsophisticated lawyer failing to make service properly is somewhat higher, and so refusing waiver might be thought through more carefully.

     Aside from the mechanics of waiver, some defendants are immune from service of process and suit (for example, diplomats stationed in the United States for almost all cases) and in other cases public policy will argue against granting validity to service that followed the mechanical rules but was somehow tainted. You will see that in a case that follows.

     Read the rules that follow carefully. 

A civil action is commenced by filing a complaint with the court.

(a) Contents; Amendments.

     (1) Contents. A summons must:

          (A) name the court and the parties;

          (B) be directed to the defendant;

          (C) state the name and address of the plaintiff’s attorney or–if unrepresented–of the plaintiff;

          (D) state the time within which the defendant must appear and defend;

          (E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

          (F) be signed by the clerk; and

          (G) bear the court’s seal.

     (2) Amendments. The court may permit a summons to be amended.

(b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons–or a copy of a summons that is addressed to multiple defendants–must be issued for each defendant to be served.

(c) Service.

     (1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.

     (2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

     (3) By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. §1915 or as a seaman under 28 U.S.C. §1916.

(d) Waiving Service.

     (1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

          (A) be in writing and be addressed:

               (i) to the individual defendant; or

               (ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

          (B) name the court where the complaint was filed;

          (C) be accompanied by a copy of the complaint, 2 copies of the waiver form appended to this Rule 4, and a prepaid means for returning the form;

          (D) inform the defendant, using the form appended to this Rule 4, of the consequences of waiving and not waiving service;

          (E) state the date when the request is sent;

          (F) give the defendant a reasonable time of at least 30 days after the request was sent–or at least 60 days if sent to the defendant outside any judicial district of the United States–to return the waiver; and

          (G) be sent by first-class mail or other reliable means.

     (2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

          (A) the expenses later incurred in making service; and

          (B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

     (3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent–or until 90 days after it was sent to the defendant outside any judicial district of the United States.

     (4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

     (5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual–other than a minor, an incompetent person, or a person whose waiver has been filed–may be served in a judicial district of the United States by:

     (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

     (2) doing any of the following:

          (A) delivering a copy of the summons and of the complaint to the individual personally;

          (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

          (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual–other than a minor, an incompetent person, or a person whose waiver has been filed–may be served at a place not within any judicial district of the United States:

     (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

     (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

          (A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

          (B) as the foreign authority directs in response to a letter rogatory or letter of request; or

          (C) unless prohibited by the foreign country’s law, by:

               (i) delivering a copy of the summons and of the complaint to the individual personally; or

               (ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

     (3) by other means not prohibited by international agreement, as the court orders.

(g) Serving a Minor or an Incompetent Person. A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is not within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3) .

(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

     (1) in a judicial district of the United States:

          (A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

          (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and-if the agent is one authorized by statute and the statute so requires-by also mailing a copy of each to the defendant; or

     (2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2(C)(i).

(i) Serving the United States and its Agencies, Corporations, Officers, or Employees.

     (1) United States. To serve the United States, a party must:

          (A)

               (i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought–or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk–or

               (ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office;

          (B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and

          (C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.

     (2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.

     (3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).

     (4) Extending Time. The court must allow a party a reasonable time to cure its failure to:

          (A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or

          (B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee.

(j) Serving a Foreign, State, or Local Government.

     (1) Foreign State. A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. §1608.

     (2) State or Local Government. A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by:

          (A) delivering a copy of the summons and of the complaint to its chief executive officer; or

          (B) serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process on such a defendant.

(k) Territorial Limits of Effective Service.

     (1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

          (A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

          (B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or

          (C) when authorized by a federal statute.

     (2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

          (A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and

          (B) exercising jurisdiction is consistent with the United States Constitution and laws.

(I) Proving Service.

     (1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit.

     (2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:

          (A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

          (B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.

     (3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.

(m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court – on motion or on its own after notice to the plaintiff – must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).

(n) Asserting Jurisdiction Over Property or Assets.

     (1) Federal Law. The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule.

     (2) State Law. On a showing that personal jurisdiction over a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant’s assets found in the district. Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by state law in that district.

(As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 97–462, §2, Jan. 12, 1983, 96 Stat. 2527; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 29, 2015, eff. Dec. 1, 2015; Apr. 28, 2016, eff. Dec 1, 2016; Apr. 27, 2017, eff. Dec. 1 2017)

Personal service upon a natural person shall be made by any of the following methods:

•    by delivering the summons within the state to the person to be served; or
•    by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law; or
•    by delivering the summons within the state to the agent for service of the person to be served as designated under rule 318, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
•    where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
•    in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.

For purposes of this section, “actual place of business” shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business.

     In this section we are limiting ourselves to service on an individual - not a corporate entity - located within the area of the court. Review Rule 4, and be able to state what methods of service Rule 4 allows for service on an individual located within the forum state. Then review the New York rule, and be able to state what additional methods can be used in a federal court located in New York state.

     Immunity. In some cases, individuals are immune to being served. For example, diplomats cannot be sued with the exception of suits establishing the ownership of real property within the jurisdiction. Immunity also may be granted to foreign officials who travel to venues such as the United Nations to participate in international conferences. In the latter case, the scope of the immunity will be tied to the purpose - an extension of a trip to the UN to see Niagara Falls would not be within the scope, whereas travel to and from the airport to the UN headquarters would be. Witnesses in a suit within a forum also are often given immunity so that their cooperation with the litigation process will not lead their becoming defendants themselves.

     As the foregoing case indicates, in some cases public policy discouraging fraud and deception sometimes will prevent recognition of service and provide immunity from service even when service technically complies with the state rule. Why do you think that is? In the case we read, why do you think the public policy argument was made in New York and not at the outset of the case in Florida? What if the fraudulent activity was not directly connected to scheme to lure the defendant into the state?

     Note that not all deception leads to immunity. If, for example, a defendant is already within the jurisdiction but evading service, courts have tolerated quite a bit of deception. Process servers who dress up in costume or pretend to be workmen or otherwise use trickery to get close to a defendant generally are found to have properly made service of process.

     Agents. In contractual situations, it is not unusual for a party to appoint an agent within a state to receive service of process. So long as the agency relationship is proper (for example, so long as the agent has no fiduciary conflicts that would affect carrying out the charge), these clauses generally are enforced. In some cases, a state statute that allows out-of-state businesses to register to do business in a state will name a state official as an agent for the defendant with regard to business carried out in the state. The state official will then be required to forward the material to the defendant.

     Dwelling Place. Rule 4(e)(2)(B) allows service of process to be made by leaving the papers at the defendant's "dwelling or usual place of abode with someone of suitable age and discretion who resides there." Application of this rule is straightforward in the routine case (the neighbor will not suffice nor will a small child), but interesting situations do arise. What if the defendant has not one but many residences? That arose in National Development Co. v. Triad Holding Corp. & Adnan Khashoggi, 930 F.2d 253 (2d Cir. 1991), cert denied, where defendant Adnan Khashoggi's $20,000,000+ apartment in New York was only one of a dozen or so residences where he spent time. Service was left with his housekeeper at a time when Khashoggi was resident at the apartment, and the court upheld that service. Situations also arise when a defendant is in the process of moving when service is made, with one court finding that service was proper when made upon defendant's spouse even though defendant had already left for a new home in another state, Karlsson v. Rabinowitz, 318 F.2d 6669 (4th Cir. 1963), but another court in a similar setting finding service improper when service was made on an estranged wife who chose not to pass along the papers. Williams v. Capital Transit Co., 215 F.2d 487 (D.C. Cir. 1954). 

     Flexible Methods Beyond The Enumerated Methods in the Rule. When we get to service on foreign defendants, we will see that Rule 4(f) allows "other methods" according to the judge's discretion, which has been used to allow social media or email service. No such flexibility is given judges by the Federal Rules with regard to either individual or entity defendants within the United States. On the other hand, Rule 4 incorporates state methods of service, which might include many alternative methods.

     1. What are the limits on the court's approach in Hellenic Challenger? Could papers have been left with a secretary or a cleaning person, for example? 

     2. Service on a corporate officer does not need to be made at the corporation's (or partnership's) offices. If a CEO is passing through an airport in the forum state, that suffices. That said, whether personal jurisdiction exists over the corporation is a separate issue, and one that we will discuss later. 

     3. As with individuals, Rule 4 allows entities (entities being anything that can be sued in an entity name, such as corporations, limited liability companies, and partnerships) to be served in any way that entities (not individuals) can be served in the forum state. If state law allows service to made upon a cleaning person at the offices of a corporation or partnership, that will satisfy Rule 4 even though Rule 4's own direct provision, even as broadly applied, requires a higher level person or at least someone who is familiar with handling such materials and knows to whom to take them. 

    4. One pitfall for service on corporations is getting the name of the corporation correct on the papers. Not infrequently, parties misname the entity they are trying to serve, which can create issues where none were necessarily involved. This can occur, on occasion, because a parent entity has many similarly named subsidiaries with each having a separate corporate identity. 

     5. Out of state corporations - and individuals - are treated differently than corporations located within the forum state. We will discuss when we get to personal jurisdiction the rise of "long arm statutes" that allow defendants not within the state to be served. As we will shortly see, non-US corporations are yet another category subject to distinct rules.

     Rule 4(f) governs service of entities and individuals outside the United States.

     Many countries have signed The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (generally referred to as the Hague Service Convention). Both the United States and China have signed this treaty.  In some cases, and this is true with regard to China, the signing is with reservations set out explicitly.

     If the Hague Service Convention does not apply, Rule 4(f)(2) sets out the process. Please reread Rule 4(f) before reading the case that follows.  As you read the following case, ask yourself how it might have come out differently if there were an international treaty precisely on point.

137 S.Ct. 1504, 581 U.S. ----, 2017

ALITO, J., delivered the opinion of the Court, in which all other Members joined, except GORSUCH, J., who took no part in the consideration or decision of the case.

          Opinion

     This case concerns the scope of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention). The purpose of that multilateral treaty is to simplify, standardize, and generally improve the process of serving documents abroad. To that end, the Hague Service Convention specifies certain approved methods of service and “pre-empts inconsistent methods of service” wherever it applies.Today we address a question that has divided the lower courts: whether the Convention prohibits service by mail. We hold that it does not.

I

A

     Petitioner Water Splash is a corporation that produces aquatic playground systems. Respondent Menon is a former employee of Water Splash. In 2013, Water Splash sued Menon in state court in Texas, alleging that she had begun working for a competitor while still employed by Water Splash.  Water Splash asserted several causes of action, including unfair competition, conversion, and tortious interference with business relations. Because Menon resided in Canada, Water Splash sought and obtained permission to effect service by mail. After Menon declined to answer or otherwise enter an appearance, the trial court issued a default judgment in favor of Water Splash. Menon moved to set aside the judgment on the ground that she had not been properly served, but the trial court denied the motion.

     Menon appealed, arguing that service by mail does not “comport with the requirements of the Hague Service Convention.” The Texas Court of Appeals majority sided with Menon and held that the Convention prohibits service of process by mail. Justice Christopher dissented. The Court of Appeals declined to review the matter en banc, and the Texas Supreme Court denied discretionary review.

     The disagreement between the panel majority and Justice Christopher tracks a broader conflict among courts as to whether the Convention permits service through postal channels. We granted certiorari to resolve that conflict.

B

     The “primary innovation” of the Hague Service Convention — set out in Articles 2–7 — is that it “requires each state to establish a central authority to receive requests for service of documents from other countries.” When a central authority receives an appropriate request, it must serve the documents or arrange for their service, Art. 5, and then provide a certificate of service, Art. 6.

     Submitting a request to a central authority is not, however, the only method of service approved by the Convention. For example, Article 8 permits service through diplomatic and consular agents; Article 11 provides that any two states can agree to methods of service not otherwise specified in the Convention; and Article 19 clarifies that the Convention does not preempt any internal laws of its signatories that permit service from abroad via methods not otherwise allowed by the Convention.

     At issue in this case is Article 10 of the Convention, the English text of which reads as follows:

“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,

“(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

“(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.”

     Articles 10(b) and 10(c), by their plain terms, address additional methods of service that are permitted by the Convention (unless the receiving state objects). By contrast, Article 10(a) does not expressly refer to “service.” The question in this case is whether, despite this textual difference, the Article 10(a) phrase “send judicial documents” encompasses sending documents for the purposes of service.

II

A

     In interpreting treaties, “we begin with the text of the treaty and the context in which the written words are used.” For present purposes, the key word in Article 10(a) is “send.” This is a broad term, and there is no apparent reason why it would exclude the transmission of documents for a particular purpose (namely, service). Moreover, the structure of the Hague Service Convention strongly counsels against such a reading.

     The key structural point is that the scope of the Convention is limited to service of documents. Several elements of the Convention indicate as much. First, the preamble states that the Convention is intended “to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.” (Emphasis added.) And Article 1 defines the Convention's scope by stating that the Convention “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” (Emphasis added.) Even the Convention's full title reflects that the Convention concerns “Service Abroad.”

     We have also held as much. Schlunk, 486 U.S., at 701, 108 S.Ct. 2104 (stating that the Convention “applies only to documents transmitted for service abroad”). As we explained, a preliminary draft of Article 1 was criticized “because it suggested that the Convention could apply to transmissions abroad that do not culminate in service.” The final version of Article 1, however, “eliminates this possibility.” The wording of Article 1 makes clear that the Convention “applies only when there is both transmission of a document from the requesting state to the receiving state, and service upon the person for whom it is intended.”

     In short, the text of the Convention reveals, and we have explicitly held, that the scope of the Convention is limited to service of documents. In light of that, it would be quite strange if Article 10(a)—apparently alone among the Convention's provisions—concerned something other than service of documents.

     Indeed, under that reading, Article 10(a) would be superfluous. The function of Article 10 is to ensure that, absent objection from the receiving state, the Convention “shall not interfere” with the activities described in 10(a), 10(b) and 10(c). But Article 1 already “eliminates [the] possibility” that the Convention would apply to any communications that “do not culminate in service,” so it is hard to imagine how the Convention could interfere with any non-service communications. Accordingly, in order for Article 10(a) to do any work, it must pertain to sending documents for the purposes of service.

     Menon attempts to avoid this superfluity problem by suggesting that Article 10(a) does refer to serving documents—but only some documents. Specifically, she makes a distinction between two categories of service. According to Menon, Article 10(a) does not apply to service of process (which we have defined as “a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action.” But Article 10(a) does apply, Menon suggests, to the service of “post-answer judicial documents” (that is, any additional documents which may have to be served later in the litigation). The problem with this argument is that it lacks any plausible textual footing in Article 10.

     If the drafters wished to limit Article 10(a) to a particular subset of documents, they presumably would have said so — as they did, for example, in Article 15, which refers to “a writ of summons or an equivalent document.” Instead, Article 10(a) uses the term “judicial documents”—the same term that is featured in 10(b) and 10(c). Accordingly, the notion that Article 10(a) governs a different set of documents than 10(b) or 10(c) is hard to fathom. And it certainly derives no support from the use of the word “send,” whose ordinary meaning is broad enough to cover the transmission of any judicial documents (including litigation-initiating documents). Nothing about the word “send” suggests that Article 10(a) is narrower than 10(b) and 10(c), let alone that Article 10(a) is somehow limited to “post-answer” documents.

     Ultimately, Menon wishes to read the phrase “send judicial documents” as “serve a subset of judicial documents.” That is an entirely atextual reading, and Menon offers no sustained argument in support of it. Therefore, the only way to escape the conclusion that Article 10(a) includes service of process is to assert that it does not cover service of documents at all—and, as shown above, that reading is structurally implausible and renders Article 10(a) superfluous.

B

     The text and structure of the Hague Service Convention, then, strongly suggest that Article 10(a) pertains to service of documents. The only significant counterargument is that, unlike many other provisions in the Convention, Article 10(a) does not include the word “service” or any of its variants. The Article 10(a) phrase “send judicial documents,” the argument goes, should mean something different than the phrase “effect service of judicial documents” in the other two subparts of Article 10.

     This argument does not win the day for several reasons. First, it must contend with the compelling structural considerations discussed above. See Air France v. Saks, 470 U.S. 392, 397, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985)(treaty interpretation must take account of the “context in which the written words are used”); cf. University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. ––––, ––––, 133 S.Ct. 2517, 2529, 186 L.Ed.2d 503 (2013) (“Just as Congress' choice of words is presumed to be deliberate, so too are its structural choices”).

     Second, the argument fails on its own terms. Assume for a second that the word “send” must mean something other than “serve.” That would not imply that Article 10(a) must exclude service. Instead, “send[ing]” could be a broader concept that includes service but is not limited to it. That reading of the word “send” is probably more plausible than interpreting it to exclude service, and it does not create the same superfluity problem.

     Third, it must be remembered that the French version of the Convention is “equally authentic” to the English version. Schlunk, 486 U.S., at 699, 108 S.Ct. 2104. Menon does not seriously engage with the Convention's French text. But the word “adresser” — the French counterpart to the word “send” in Article 10(a) — “has been consistently interpreted as meaning service or notice.” Hague Conference on Private Int'l Law, Practical Handbook on the Operation of the Service Convention ¶ 279, p. 91 (4th ed. 2016).

     In short, the most that could possibly be said for this argument is that it creates an ambiguity as to Article 10(a)'s meaning. And when a treaty provision is ambiguous, the Court “may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” As discussed below, these traditional tools of treaty interpretation comfortably resolve any lingering ambiguity in Water Splash's favor.

III

     Three extratextual sources are especially helpful in ascertaining Article 10(a)'s meaning: the Convention's drafting history, the views of the Executive, and the views of other signatories.

     Drafting history has often been used in treaty interpretation. Here, the Convention's drafting history strongly suggests that Article 10(a) allows service through postal channels.

     Philip W. Amram was the member of the United States delegation who was most closely involved in the drafting of the Convention. A few months before the Convention was signed, he published an article describing and summarizing it. In that article, he stated that “Article 10 permits direct service by mail ... unless [the receiving] state objects to such service.” The Proposed International Convention on the Service of Documents Abroad, 51 A.B.A.J. 650, 653 (1965).

     Along similar lines, the Rapporteur's report on a draft version of Article 10 — which did not materially differ from the final version — stated that the “provision of paragraph 1 also permits service ... by telegram” and that the drafters “did not accept the proposal that postal channels be limited to registered mail.” 1 Ristau § 4–3–5(a), at 149. In other words, it was clearly understood that service by postal channels was permissible, and the only question was whether it should be limited to registered mail.

     The Court also gives “great weight” to “the Executive Branch's interpretation of a treaty.” In the half century since the Convention was adopted, the Executive has consistently maintained that the Hague Service Convention allows service by mail.

     When President Johnson transmitted the Convention to the Senate for its advice and consent, he included a report by Secretary of State Dean Rusk. That report stated that “Article 10 permits direct service by mail ... unless [the receiving] state objects to such service.” Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters: Message From the President of the United States, S. Exec. Doc. C, 90th Cong., 1st Sess., 5 (1967).

     In 1989, the Eighth Circuit issued Bankston, the first Federal Court of Appeals decision holding that the Hague Service Convention prohibits service by mail. 889 F.2d, at 174. The State Department expressed its disagreement with Bankston in a letter addressed to the Administrative Office of the U.S. Courts and the National Center for State Courts. The letter stated that “Bankston is incorrect to the extent that it suggests that the Hague Convention does not permit as a method of service of process the sending of a copy of a summons and complaint by registered mail to a defendant in a foreign country.” The State Department takes the same position on its website.

     Finally, this Court has given “considerable weight” to the views of other parties to a treaty.  And other signatories to the Convention have consistently adopted Water Splash's view.

     Multiple foreign courts have held that the Hague Service Convention allows for service by mail. In addition, several of the Convention's signatories have either objected, or declined to object, to service by mail under Article 10, thereby acknowledging that Article 10 encompasses service by mail. Finally, several Special Commissions — comprising numerous contracting States — have expressly stated that the Convention does not prohibit service by mail. By contrast, Menon identifies no evidence that any signatory has ever rejected Water Splash's view.

     In short, the traditional tools of treaty interpretation unmistakably demonstrate that Article 10(a) encompasses service by mail. To be clear, this does not mean that the Convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not “interfere with ... the freedom” to serve documents through postal channels. In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.

     Because the Court of Appeals concluded that the Convention prohibited service by mail outright, it had no occasion to consider whether Texas law authorizes the methods of service used by Water Splash. We leave that question, and any other remaining issues, to be considered on remand to the extent they are properly preserved.

     For these reasons, we vacate the judgment of the Court of Appeals, and we remand the case for further proceedings not inconsistent with this opinion.

     It is so ordered.

     1)    Does the defendant need to be served abroad? A potential defendant may be incorporated and headquartered overseas, or may be an individual living off the grid in a far away land. Is it always necessary to make service through 4(f) and, by extension, the Hague Convention? What if the defendant has registered to do business in a U.S. state? In many cases, such registration requires the designation of an agent – perhaps a state official – to receive service. In such situations, courts generally allow service on the designated agent.  Fed. Rules Civ. Proc. Rule 4(h)(1)(B), 28 U.S.C.A.  What if the defendant has an office or other facility with employees in the United States? In such situations, courts have held that service may be made at the U.S. office. See, e.g.,  Vega Glen v. Club Mediterranee S.A., 359 F. Supp. 2d 1352 (S.D. Fla. 2005).  What if the company has no office of its own, but has a partly or wholly owned subsidiary with offices and operations in the U.S.? These cases get a bit more gnarly, but in some cases courts have held that service could be made on the U.S. based subsidiary.  See, e.g., Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 716 (1988). In some cases, a court may allow service on the defendant’s U.S. based lawyer if the defendant is unreachable.  See, e.g., Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1023 (9th Cir. 2002)  (Email service acceptable where Hague convention was not applicable).  Do not fall into the trap of thinking that because the defendant is foreign based that service overseas is the only way to go.

     2)    As Menon makes clear, whether service by mail can be made in lieu of service through the Hague Convention applies only if the foreign country at issue has not rejected service by mail. Through a formal reservation to Article 10 of the Hague Convention China has rejected service by mail.  See https://www.hcch.net/en/instruments/conventions/status-table/notifications/. 

     3)    What happens if a foreign defendant has, in bad faith, sought to evade service? In cases where the Hague convention is not applicable, courts have allowed creative methods of reaching plaintiffs, including email and social media where the plaintiff clearly is dodging service. Note that Rule 4(f)(3) gives the trial court dealing with an international defendant the ability to allow service "by other means not prohibited by international agreement, as the court orders." 

     4)  The Hague Convention is far from an ideal method for quick, efficient delivery of service. While the US, China, and more than 70 other nations are signatories, the process can be somewhat convoluted. The Hague Convention requires each member country to designate a Central Authority that is responsible for receiving and processing requests to serve defendants located in that country. A plaintiff wishing to serve a defendant abroad must transmit a service request form, along with the summons and complaint, to the Central Authority in the country where the defendant is to be served. (Hague Convention, Article 2-3). The Central Authority is then responsible for delivering the summons and complaint to the defendant and for providing the plaintiff a certificate of service (Hague Convention, Article 5-6.) A plaintiff seeking to serve a defendant through a Central Authority must strictly comply with the Hague Convention’s procedures, often must periodically check on the status of service with a foreign Central Authority, and in many instances must obtain a translation of the summons and complaint. Therefore, service under the Hague Convention can be time-consuming and expensive. The Hague Convention also allows a plaintiff to obtain a default judgment against a foreign defendant if the Central Authority does not provide proof of service within six months of its receipt of a proper request for service (Hague Convention, Article 15). Some lawyers, especially those who regularly engage in transnational practice, will know the process and limitations of service under the Hague Convention very well. Others, especially those not used to transnational practice, may find it difficult to make process in a timely and efficient manner in the ways required by the Hague Convention.

     5)    Do you think modern technologies might change the approach enacted in the Hague Convention? For example, if a defendant is known to regularly log on to email or Twitter or WeChat, at some point can service be made through that kind of electronic communication as part of the international treaty? Even though we are a good quarter-century into the internet era, that question remains largely unaddressed, but one would expect modern electronic forms of communication to be taken into account during the span of your career.

     Service of process is a rules-based, somewhat technical aspect of letting parties know that a lawsuit has been started. The rules can be a bit complicated, but they are not intellectually challenging.

     For the following situations, and unless stated otherwise, assuming that state law provides no means of service not included in Rule 4, you should know how to analyze the situation.

• The plaintiff personally hands the correct papers to an individual defendant.
• A law firm paralegal leaves the correct papers at an individual defendant's home, handing them to the defendant's four-year-old child.
• A process server dresses up as a clown delivering a bouquet of flowers, and when in the presence of an individual defendant hands the defendant the correct papers.
• A man's lover invites him to come visit her in Florida, telling him that she wants to marry him. She has lied in that she really does not want to marry him, but she does want to spend time with him. Her lawyer hears that the man is coming to Florida and when he lands at the airport has a process server hand him the correct papers for a lawsuit brought by another client.
• A plaintiff's attorney mails the correct papers to an individual defendant based in Shenzhen, China, and separate;ly mails the correct papers to the corporation for which the defendant works, which is also a defendant.
• An attorney hears that the President of XYZ corporation will be passing through O'Hare Airport in Chicago, Illinois. He has a process server hand the correct papers for a lawsuit against XYZ corporation to the corporate executive while he is at the airport.
• A process server hands the correct papers for a lawsuit against ABC corporation to the night cleaning person at ABC corporation.
• State law provides for service by certified mail on an individual defendant. The plaintiff's attorney has her secretary send the correct papers by certified mail to the individual defendant, which are received and a receipt providing proof of delivery is sent back.

     Please note that the Rule 4 and the cases here deal with the serving of the summons and initial complaint in the case. In the course of a case many other pleadings and motions will need to be served. Rule 5 addresses that. As a matter of practicality, modern electronic docket systems and electronic filing will generally govern how that happens, and as before, in most large firms there will be professional staff who handle such matters. We will not go into that in this course.

     The concept of notice is broader than the service rules and goes to fundamental issues of due process. In the next section, we will ask to what extent must notice be given in a way that is fundamentally fair?

     1. What exactly does Mullane hold? Which, if any, of the following states the Court's approach:

           a. Notice by publication never will be acceptable.

           b. Plaintiffs must take all possible steps to give actual notice to the defendant.

           c. So long as a notice statute is followed properly notice will be acceptable.

           d. So long as the defendant actually knows about lawsuit the Constitutional requirement of notice has been met.

           e. None of the above (if this is your answer, please state the correct holding).

     2. Constructive notice is notice such as a newspaper advertisement or public posting that a lawsuit has commenced, without actual physical delivery to the particular defendant. Under Mullane, when, if ever, do you think constructive notice will be good enough?

     3. The Mullane standard is both fact-specific in application and somewhat general in theory, so it can be hard to predict what level of notice the Court might find sufficient. That said, see if you can deduce some general rules from the results of the following cases where the Supreme Court has considered the notice issue: 

• Wuchter v. Pizzutti, 276 U.S. 13 (1928) -- The failure of a statute to require either service in person or by mail rendered the statute unconstitutional, even though in the particular case the defendant was given actual notice. (Note that this case preceded Mullane.)
• Walker v. City of Hutchinson, 352 U.S. 112 (1956) -- Notice by publication in a newspaper is insufficient where landowner was a resident of the state and his name was known to city and was on its official records in property condemnation proceedings.
• Greene v. Lindsey, 456 U.S. 444 (1982) - Posting notice of eviction on a tenant's door in a public apartment complex where such notices were frequently removed or interfered with was not sufficient and additional notice through the mails was required.
• Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983) -- Notice by publication and public posting did not meet due process standards, and personal service or mailed service were required, even though the mortgagee of a piece of real property may have known that a sale of the property for overdue taxes was likely, where mortgagee's name and address were reasonably ascertainable.
• Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988) - If the identity of a creditor in a bankruptcy proceeding was known or 'reasonably ascertainable,' at least notice by mail was required.
• Dusenberry v. United States, 534 U.S. 161 (2002) - Notice by publication and certified mail to a prisoner in federal custody was adequate in forfeiture proceeding, even though prisoner alleged that while the prison mail room received the notice it was never forwarded to him personally.
• Jones v. Flowers, 547 U.S. 220 (2006) - Where notice was sent by certified mail to a homeowner of a pending property sale, but it was returned as not delivered, due process required that the government take "additional reasonable steps . . . if it is practicable to do so."

4. Some courts have also addressed issues about what information must be included in the notice given to the defendant.

• Aguchak v. Montgomery Ward Co., Inc., 520 P.2d 1352 (Alaska 1974) - Summons to persons living in a remote area of Alaska was required to inform them that that they could appear by written pleading and that they could request a change in venue to a location more convenient for them. In this case, traveling to the area where the suit was filed would have been expensive.
• Finberg v. Sullivan, 634 F.2d 50 (3d Cir. 1980) - A post-judgment garnishment proceeding was unconstitutional because it did not inform the recipient that the proceeds of her Social Security payments were exempt from garnishment under federal law.
   

     Service of process and notice are two aspects of the same stage in the litigation - letting those brought into it know of the claims against them. Service of process deals with the mechanics and is controlled by rules. The rules can be a bit complicated, especially when state rules are included in the mix, but there is nothing particularly difficult conceptually, even when dealing with corporations and overseas defendants.

     Notice deals with a more fundamental issue, and one that in the US has a Constitutional, Due Process dimension - what kind of process is sufficient to meet the core due process requirement that one not be bound by the outcome of litigation that has not fairly been brought to the defendant's attention? By its nature, notice is more flexible than the rules governing process, and also subject to debate about what meets the core concern of notice. That said, the Mullane rule provides a comprehensible standard. What procedure would you use to invite someone to your birthday party if you actually wanted them to come? That procedure is likely to meet the Mullane standard. What procedure would you use if you wanted to claim you had invited someone to the party, had a better and affordable way to reach them, but were in fact hoping they did not show up? That procedure is unlikely to meet the Mullane standard. That they might have or even in fact did hear about the case does not fix the problem.

     Consider these hypotheticals:

     Pam Plaintiff wants to serve three defendants, Don Defendo, Bennie Sued, and Ima Target. Target is located overseas in Shenzhen, China.  Sued is located in Toronto, Canada. Defendo is located in the area of the court. The state rule where the federal court is located allows service by certified mail (a receipt for delivery is provided with certified mail). Plaintiff serves all three by certified mail, and knows they all received the service. Please analyze whether service is valid for each defendant.

     Henrietta Homeowner owns a home in Eclipsed, Wisconsin. She inherited it from her grandmother, but rarely is in the area because she lives and works in Chicago, Illinois. Because the home is in poor repair and because there are few people who want to rent there, the home becomes increasingly run down. Homeowner does pay taxes every year, and receives the bill through the mail at her home in Illinois. Eventually, a new mayor is elected in Eclipsed who is committed to ridding the town of such broken-down houses. The city seeks an order that the home be torn down and goes to court to get one from the court. The state rule has all the service methods provided in the federal rules and also allows for service by mail, by publication in a local newspaper, or by posting a notice on the front door of the home. The city publishes in the local paper and posts the notice in full accordance with the rule, and also serves papers to the adult living in the neighboring home and to a nine year old boy playing in the yard, but does nothing else. Homeowner arrives at long last to arrange workmen to preserve her family's homestead, only to find that it is about to be torn down in accordance with the court order, which has been granted. She wants the order set aside. Please analyze on both service and notice grounds.