Facebook Notification: You’ve Been Served!

Social media and e-discovery continue to be a hot topic for litigators. But how about starting a lawsuit via social media? If you’re unable to find someone by usual means of service, despite your best efforts, can service be done by Facebook, or LinkedIn, or Twitter? How about other web-based social platforms outside of these providers, such as Reddit, or Tumblr? As these social networks continue to grow in popularity and relevance, attorneys need to be aware of whether they are able to serve a defendant by Facebook and other social media tools.

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After all, many modern businesses are no longer brick-and-mortar companies; instead, they exist online, often “in the cloud.” Even individuals may no longer have home phone numbers connected to land lines. Rather, they have smartphones loaded up with social media apps available at the touch of a button. So it should be no surprise that in this increasingly mobile world, traditional rules of service of process are being addressed by the courts.

These kinds of issues first came up over a decade ago, with respect to service of process by email. In a Ninth Circuit decision from 2002, the court allowed a “special method of service” by email on an individual in a foreign country, based on Fed. R. Civ. P. 4(f)(3) and the Hague Convention—so long as it was “reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

It remains to be seen whether service by social media will evolve from a “novel concept” to an acceptable means for effectuating service.

Service of Process on Foreign Defendants via Social Media

The early cases concerned service of process on foreign defendants. For example, in a case decided in 2013, the Federal Trade Commission (FTC) sought to serve the defendants, located in India, via email and Facebook. The FTC alleged that the corporate and individual defendants were part of a scheme to defraud American consumers with fixes to non-existent issues with their computers.

The court first noted that service by email was appropriate, based on the 2002 Ninth Circuit holding, since the defendants ran an Internet-based business, frequently used their emails for business purposes, and used their email to set up merchandising and advertising accounts. In fact, one of the defendants even contacted the court on four occasions via his company’s email address.

The FTC, “for the sake of thoroughness,” also sought to serve the defendants via Facebook. The court noted that the FTC’s submissions regarding service via Facebook “suppl[ied]ample reason for confidence that the Facebook accounts identified are actually operated by defendants.”

Since the defendants ran an online business, communicated with customers via email, had their Facebook profiles registered with their email addresses, and advertised their businesses on Facebook, the court had no difficulty allowing the FTC to serve the defendants via Facebook as well as by email.

While it “acknowledge[d]that service by Facebook is a relatively novel concept,” the court stated that “history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.”

In a decision from 2014, WhosHere, Inc. sought to serve Gökhan Örün d/b/a WhoNear; Who Near; and whonear.me for violations of its intellectual property rights. WhosHere was a social media company that linked people with similar interests based on their online profiles. Mr. Örün was located in Turkey, and created the businesses that WhosHere alleged had infringed on its trademark.

Before litigation, Mr. Örün responded to WhosHere’s emails from his whonear.me email address, stating, “[t]his is Gökhan, I’m founder and developer of WhoNear,” and writing that he would “like to talk.” He also provided WhosHere with a second email address at Gmail, as well as a Skype username.

In another email to WhosHere, Mr. Örün wrote “you can find me in all social network [sic]with this email address.”

After noting the difficulty that WhosHere had in usual methods of service, the court had no problem granting its request, citing to the emails that Mr. Örün had sent the company.

Service of Process on Domestic Defendants via Social Media

Initially, service of a domestic individual by social media was more problematic. For example, in a lawsuit filed in the Southern District of New York against Chase Bank USA, N.A., Lorri Fortunato alleged, among other claims, that the bank violated the Fair Credit Reporting Act. She believed that another person (quite possibly her estranged daughter, Nicole Fortunato) “fraudulently opened a Chase credit card in her name” and “incur[red]debt without her knowledge or consent.” When presented with Lorri’s suit, Chase then sought to implead Nicole in a third-party action, for, among other claims, contribution, indemnification, and fraud.

The problems for Chase began when it was unable to serve Nicole, despite hiring an investigator. Thus, the bank wanted to serve her via email and Facebook (as well as publication and service on Lorri, neither of which will be discussed here).

The court, in its June 7, 2012 decision, cited to Federal Rule 4(e) which allowed service based on the laws of the district court’s state; in this case, New York’s Civil Practice Law and Rules.  Specifically, CPLR 308(5) provides that when usual methods prove “impracticable,” service may be made “in such manner as the court…directs.”

However, the court ruled against Chase’s request, noting that “[s]ervice by Facebook is unorthodox, to say the least…” Chase failed to provide sufficient facts that would show that Nicole’s Facebook profile was indeed hers, or that the email associated with Nicole’s Facebook account was operational and accessed by her.

As the court understood, “anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way” to confirm whether Nicole would even receive the third-party pleading.

A similar issue came up in Missouri federal court when Joe Hand Promotions, Inc. filed a lawsuit against Stephen Shepard and Steve & Colleen’s Sports Bar, Inc., doing business as Zach’s Sports Bar & Grill, and sought permission from the court to serve Mr. Shepard via Facebook.

In this case, the court applied Missouri’s service rules, RSMo §506.160, which only authorizes mail or publication as substituted service. The court refused to permit service on the domestic defendants by any electronic means, whether via email, Facebook, or other social media.

A New Trend?

On September 12, 2014, in a New York child support proceeding, the court noted that the petitioner had, as recently as July 2014, posted photos that had been “liked” by the respondent, thus showing that the account is actively used by her. Since this was the only means by which the petitioner was able to locate the respondent, the Court allowed service via Facebook.

On March 27, 2015, in another domestic dispute, the New York County Supreme Court ruled that plaintiff-wife Ellanora Arthur Baidoo could serve her defendant-husband Victor Sena Blood-Dzraku with a divorce summons via Facebook, through a private message. Blood-Dzraku had admitted to Baidoo that he had no permanent address and was not employed, while her investigators were unable to obtain any addresses linked to him.

Thus, the court allowed service by Facebook, along with a back-up method of service via email.

The court admitted that this was a “radical departure from the traditional notion of what constitutes services of process.”  Nevertheless, the judge had no problem allowing service via social media, writing: “In this age of technological enlightenment, what is for the moment unorthodox and unusual stands a good chance of sooner or later being accepted or standard, or even outdated or passé. And because legislatures have often been slow to react to these changes, it has fallen on courts to insure that our legal procedures keep pace with current technology.”

In a sharp rebuke to the other, statutory-provided method of alternative service (i.e. publication), the court noted that this was “almost guaranteed not to provide a defendant with notice of a divorce action, or any other law suit for that matter” (emphasis in original).

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Conclusion

In the past two years, the courts have had difficulty deciding whether service of process via social media is proper. However, savvy lawyers will continue to push the envelope, and use whatever means necessary to get a defendant served within the boundaries of due process.

It remains to be seen whether a litigant can serve a party defendant via his or her WordPress blog, or via an Instagram photo (imagine that!). Does service of process by federal or state rules by “electronic means” include Skype? (The Skype account was mentioned in the case against Örün, but the plaintiff did not pursue this method, and thus the court did not rule on whether service by Skype would be permitted.) Does it also include massive multiplayer online roleplaying games, such as World of Warcraft? It would be quite an interesting legal issue, for a 35th-level Paladin to approach someone’s 21st-level Mage, hand him an electronic summons and complaint, and say, “You’ve been served!”

One thing is certain: as social media becomes more popular, the courts will increasingly be asked to determine if these means of service are proper.

About the Author

TurnaciogluErdal Turnacioglu is an associate at Weber Gallagher in Warren, NJ.   He can be reached at eturnacioglu@wglaw.com. The author would like to thank Antigone Peyton and Ernest Svenson’s article, “Social Media for Litigators,” in the June 2012 issue of Law Practice Today, for being an inspiration and guide for this piece.

 

(Feature Image Credit: ShutterStock)

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