Follow by Email

Wednesday, June 13, 2012

Federal Judge Rejects 'Unorthodox' Plea to Permit Service by Facebook

Judge John Keenan of the U.S. District Court for the Southern District of New York decided that Service of Process by Publication was more effective manner of alternative service than posting an update to the Facebook page of the defendant.    

The Plaintiff after being unable to locate and serve the defendant petitioned the court to allow service by electronic mail, publication, Facebook and mail.  The judge determined that service by publication in 5 newspapers was the most likely to provide actual notice.  

The Judge said "Service by Facebook is unorthodox to say the least, and this court is unaware of any other court that has authorized such service," Keenan said. "Furthermore, in those cases where service by email has been judicially approved, the movant supplied the Court with facts indicating that the person to be served would be likely to receive the summons and complaint at the given email address."

The judge went on to say "give the Court a degree of certainty that the Facebook profile its investigator located is in fact maintained by Nicole or that the email address listed on the Facebook profile is operational and accessed by Nicole."  "Indeed, the Court's understanding is that anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm whether the Nicole Fortunato the investigator found is in fact the third-party Defendant to be served."

I for one happen to agree at least in part with the judge in this instance.  Unless the moving parties can establish that the profile did in fact belong to the defendant, that manner of service is not reasonably calculated to provide actual notice.   That said, service by publication is not much better, but it has a long history of being a means of last resort where service by social media does not.  

Service via social media platforms has been picking up momentum in recent years and I believe it would be threat to due process rights of the parties to accept it as a reliable manner of service just because Facebook has established a platform and brand that is used the world over. 

The courts should be looking to craft and adopt Best Practices for Electronic Service of Process for parties that opt-in or for instances where all of manner of service have been exhausted.  Perhaps judge should be more aware of the the American Bar Association adopted a set of best practices way back in 2006.    I would argue that is it time to dust them off and make sure that they are as relevant today as they were meant to be back then.  The bench and bar should be socializing them across the country so that judges have as much information as possible before they rule on motion to allow alternative forms of service of process.