By Mark Schwartz, One Legal LLC
Lately there’s been some chatter about service of process via social media, specifically Facebook. In case you haven’t seen it, on September 18th, nypost.com published an article entitled “Judge Oks serving legal papers via Facebook.” The article speaks to a “groundbreaking court ruling” in which Staten Island Support Magistrate Gregory Gliedman ordered a party to serve his ex-wife via Facebook. The order, according to the judge, was the “first of its kind in New York, and also the first in the United States that didn’t involve an attempt to serve someone overseas.”
In 2011, Jeffrey N. Rosenthal, of The Legal Intelligencer, wrote an article entitled “You’ve Been Served – On Facebook?” His article speaks to a Minnesota case, In re the Marriage of Jessica Mpafe v. Clarence Ndjounwou Mpafe (Hennepin County, MN No. 27-FA-11-3453), in which the court told the plaintiff not to waste her time with service via publication and instead “held that ‘publication on the internet’ was acceptable so long as it followed the same ‘information and timing’ requirements that would go into a newspaper.” “Soon may come a time,” Rosenthal writes, “when service via Facebook isn’t the exception – it’s the rule.” Okay, so we’re not there yet but perhaps it depends on your definition of “soon.” Sorry, I couldn’t resist. On a less flippant note I should point out that Mr. Rosenthal’s article also provides a concise analysis of what he calls “the origin of American service law: the U.S. Constitution.”
In November of 2011, Lisa McManus, of LexisNexis Legal Newsroom, published a post about the same case. She voices a valid concern as well: how does one know that the person who holds the account is really the person he or she claims to be? “On the other hand,” she writes, “neither notice by publication nor public posting provide actual notice to defendants.” That’s a great point and the essence of the judges holding in Mpafe; service via the internet “provides a cheaper and hopefully more effective way of finding respondent.” I always found it interesting that service via publication, which is authorized by statute here in CA (Code of Civil Procedure 415.50), culminates with publishing an image of the summons in a newspaper “that is most likely to give actual notice to the party to be served.” Even if the defendant doesn’t see it, or answer, a judgment can still be entered. So in reality it doesn’t matter if the defendant receives notice, does it? By the way, Ms. McManus also provides some additional resources from Australia, Canada, New Zealand the U.K. In those examples you’ll notice a theme: that service via Facebook takes place via court order, either after traditional service has been attempted or because it could not be.
In a 2013 Federal case, Federal Trade Commission v. PCCare247 INC., Dist. Court, SD New York 2013, the FTC asked the court “for leave to effect service of documents other than the Summons and Complaint by alternative means…of both email and Facebook.” The court did decide that service via email did comport with due process but raised the point that if the plaintiffs would have asked the court to serve via Facebook only, then it wasn’t quite as clear as to whether due process was satisfied. “To be sure, if the FTC were proposing to serve defendants only by means of Facebook, as opposed to using Facebook as a supplemental means of service, a substantial question would arise whether that service comports with due process. As one court in this district has observed, ‘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 Facebook page belongs to the defendant to be served.” Ms. McManus would probably agree! I’ll take it one step further and posit that service via email can be just as perilous. To tweak the court’s language just a bit: Anyone can set up an email account using real, fake or incomplete information, and thus, there is no way confirm it belongs to the party or that the party opened the email or viewed the document or documents.
I realize I’m taking some liberties. The point I am trying to make, though, is that while technology may provide some options that did not exist just 10 years ago, that doesn’t mean it’s the best option for effecting service. It’s also important to note that the services I discussed in this post were allowed by court order, not by statute.
I do expect that to change, and frankly I’m an advocate of such change, as long as the service is effected by a disinterested third party, e.g. a process server. Technology is forcing many of us to adapt, and the legal field is certainly not immune. As I’ve heard many times in my 35-plus years in the legal industry, judges want to hear the case on its merits. They generally don’t like it when people evade service. So, if a court can get the party under its jurisdiction in a more creative manner, it should. Seems logical, doesn’t it? Perhaps as a first step here in the Golden State, we tackle our antiquated service via publication statute and allow for publication via social media? In any case, before we all start touting the benefits of service via social media I believe we need to better understand the pitfalls that lie therein and realize that service via Facebook is the exception, not the rule.
I’d love to know your thoughts. Please email me or comment on this post