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?
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