Archive for service of process

Law & Technology Friday: It’s Time for Service of Process via Social Media

Last year, I discussed here a court’s decision denying service of process by publication on © aey - Fotolia.comFacebook. A Texas legislator has introduced a bill proposing substituted service of process through social media. The Texas proposal makes very good sense because it provides more effective substituted service then courts regularly approve today.

Some have complained the proposal is flawed because it makes public (the existence of the lawsuit on Facebook or Twitter) what is a private matter. That is a mistaken belief. Lawsuits are public record  — you can search for them with the same browser you are using to read this article. And, as you’ll learn in a moment, legal notices are routinely published in newspapers. This “public exposure” argument against social media only underscores the tremendous publicity of social media and the decline of newsprint.

Others suggest you must “authenticate” that the social media account at which the notice is directed is actually that of the target defendant. I don’t share this concern — not in the least. The Texas bill is proposing substituted service. Substituted service is a manner of providing a person with notice of the pendency of a lawsuit only after personal service has failed. A party desiring to serve a defendant via Twitter will be required to demonstrate they have made a good faith effort at personal service, but the effort failed. Only then could counsel Tweet a divorce complaint.

The key concept of substituted service is to provide the best method to give actual notice of a lawsuit when personal service cannot be made. 1

In a New Jersey foreclosure action, for example, state court rules permit publishing notice of the lawsuit once in a “newspaper of general circulation” in the venue where the foreclosure is pending. A copy of the notice and the complaint are then mailed to the last known address where the defendant received mail.

This may have been effective 50 years ago, but in 2013 it is not the best method for actual notice of anything. Newspapers of “general circulation” are about as common as an eight-track cassette player. The papers that remain have anemic circulations. In New Jersey, the choice would be to publish in the state’s largest daily circulation paper (just over 300,000 readers) or the local daily, with a circulation of about 32,000. I would opt for the local paper because it costs a lot less and meets the “general circulation” test. With seven million state residents aged 18 and older, my legal notice reaches less than one-half of one percent (.0045) of the population. Most of that one-half of one percent, I will venture to say, do not read the legal notices section. Those who do are likely reading the obituaries too — which is to say, I might be reaching a dozen people. 2

Imagine your defendant has a Facebook, Twitter or LinkedIn profile. They are posting, tweeting, or otherwise engaged in social media several times a day. Their social media profile includes a picture matching the description of the defendant and there are other indicia this is likely your guy. So you send him this notice — “@johndoe State of NJ to John Doe: you have been named as a Defendant in a lawsuit – more here: http://tinyurl.com/acrnqgl”. The link delivers the defendant to his summons and complaint and the message is well within Twitter’s 140 character limit.

If you still are not convinced this is a most effective way to notify a person of bad news, then  look at how Matthew Keys discovered he was indicted by a federal grand jury yesterday (which is a whole other story itself):

Matthew Keys tweets

 

 

 

 

 

 

As Keys said, he learned of his indictment “[f]rom Twitter.”  There is really no justification  to deny substituted service through social media when court rules still cling to legal notices published in newspapers having about as many “followers” as Keys does himself. 3

 

Notes:

  1. “[T]he correct standard to be applied would be ‘whether or not the form of substituted service . . . is reasonably calculated to give . . . actual notice of the proceedings and an opportunity to be heard.'” Blouin v. Dembitz, 489 F.2d 488, 492 (2d Cir. 1973) citing Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 61 S. Ct. 339 (1940).
  2. Even if the notice were published in the largest paper, it is still reaching only one percent of New Jersey adults.
  3. Keys had more than 24,000 followers and had posted more than 68,000 tweets as of last night.

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.