Facebook: Use it to Like a Person, Don’t Use it for Service of Process

As reported in today’s New York Law Journal, a Federal Court Judge sitting in the Southern District of New York recently denied a request by an affiliate of Chase Bank to serve process through a party’s Facebook profile.

In Fortunato v. Chase Bank USA, N.A., No. 11-cv-06608-JFK (S.D.N.Y. June 7, 2012),
Chase was sued under the Fair Credit Reporting Act and state law claims arising from a credit card account plaintiff alleged was created without her authorization. Chase Bank impleaded the plaintiff’s estranged daughter, alleging she created the credit card debt using the plaintiff’s personal information. Despite several attempts, Chase Bank could not affect service upon the plaintiff’s daughter. It hired an investigator who located what she believed to be the estranged daughter’s Facebook profile.

In denying Chase Bank’s request for alternate service, the court found that service by “private Facebook message, email to the address listed on the Facebook profile,” and delivery of the complaint to the plaintiff, are not “reasonably calculated to notify [the estranged daughter] of these proceedings.” Service could not be affected by Facebook, the court wrote, because Chase Bank provided no facts to give “a degree of certainty” that the Facebook profile is that of the estranged daughter or that the email address is “operational and accessed by [her].” The court noted it understood that a Facebook profile could be created by anyone using “real, fake or incomplete information,” allowing no way to confirm the Facebook profile belongs to the impleaded daughter. In reaching this decision, the court contrasted these facts to Philip Morris USA Inc. v. Veles Ltd., No. 06 Civ. 2988, 2007 WL 725412, at *2 (S.D.N.Y. Mar. 12, 2007), where service was permitted by fax and email upon defendants who did not disclose having a physical presence, but conducted “business extensively, if not exclusively” through its website and regularly communicated with its customers through email.

The court did allow alternate service, the old-fashioned way, through publication in newspapers serving the four cities where the estranged daughter was believed to reside.

The decision is available here: Fortunato v Chase.

 

 

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Donald Maurice provides counsel to the financial services industry, successfully litigating matters in the state and federal courts in individual and class actions. He has successfully argued before the Third, Fourth and Eighth Circuit U.S. Courts of Appeals, and has represented the financial services industry before several courts including as counsel for amicus curiae before the United States Supreme Court. He counsels clients in regulatory actions before the CFPB, and other federal and state regulators and in the development and testing of debt collection compliance systems. Don is peer-rated AV by Martindale-Hubbell, the worldwide guide to lawyers. In addition to being a frequent speaker and author on consumer financial services law, he serves as outside counsel to RMA International, on the governing Board of Regents of the American College of Consumer Financial Services Lawyers and on the Governing Committee of the Conference on Consumer Finance Law. From 2014 to 2017, he chaired the ABA's Bankruptcy and Debt Collection Subcommittee.