Service of Process by E-Mail on a Foreign Defendant

In a case that was heard in the UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA, Judge Jeffrey S. White ordered the following:

"Although the Court does not find that the service already effectuated by Plaintiffs was improper, in an abundance of caution and considering that the WikiLeaks Defendants may be foreign  parties, the Court ORDERS Plaintiffs to re-serve the amended complaint and summons and all TRO-related papers, including this Order, on the WikiLeaks Defendants at their listed email addresses by no later than 3:00 p.m., today, February 13, 2008."

This is an example that the world we live in is getting smaller or perhaps more local.  This is in large part thanks to the power of the internet and its ability to bring things that were once far away or difficult to gain access to directly to our desktops.

The power of the internet and the technology that enables it is making easier  to communicate in ways that were not even contemplated just a few short years ago.   This power to communicate is spilling over into the world of litigation and more specifically the act of giving notice to a party of a pending action or Service of Process.  

This blog has in part called to your attention numerous examples of courts worldwide that have come to recognize that sometimes the most effective manner for providing legal notice of a pending action is by electronic means.  In the past the only alternative for effecting service on a party that could not be located was publication. Now we are seeing service by Twitter, Facebook, and email more and more frequently.  

Is this a much ado about nothing as some in positions of power in the process serving community have suggested or is this yet another example of trend that seems to be gaining momentum?  

You be the judge. 

District of Court Permits International Service of Process via Email

MR Printing Equipment, Inc. and MR Sales and Service, Inc

-v-

Dietmar Potscher

Case Number: 10cv00937

Filed: February 10, 2010

Court: Illinois Northern District Court

U.S. District Judge John W. Darrah permitted Plaintiff, MR Printing Equipment, Inc., to serve a complaint and summons on Austrian defendant, by e-mail. This is yet another example of a continuing trend in federal litigation in the US and courts globally.

The case, MR Printing Equipment, Inc. v. Potscher, is pending in the United States District Court

in Illinois. Upon motion of the MR Printing the court permitted the defendant, to be served via e-mail under Rule 4(f)(3) of the Federal Rules of Civil Procedure.

The fact that the defendant resides in Austria which is not a signatory to the Hague Convention and the permissive language of the Federal Rules related to the service of process, allowed the Judge to permit international Service of Process via email.

Below is the Judges Minute Order on the Plaintiff's Motion to allow International Service via email and the Proof of Service filed in the case indicating the manner of service.



Canadian Judge Allows Service of Process Via Facebook

Cyber-service ‘a new frontier’

Story Source - By Michael McKiernan | Publication Date: Monday, 25 October 2010

An Ontario judge has urged lawyers to be creative with electronic methods of service after allowing a litigant to do it using Facebook in a family law case. 

This makes five or six cases worldwide that this blog has chronicled in the last year.  Admittedly this form of alternative service continues to be authorized when other forms of service have failed. 

That said, check out one Canadian lawyer said about service of process in the digital age.

For him, Facebook is a much better option than traditional methods of substituted service, such as placing an ad in a newspaper. He has also considered creating a web site using the name of a defendant with originating documents available for download.

“The chances of someone Googling themselves is probably higher than somebody catching a legal notice in the Toronto Star directed to them,” he says. “It’s not a great way of serving someone but compared to putting an ad in the newspaper, it’s much better.”

“We need some reform in the Rules to allow for more efficient service. There are many ways the lawsuit could come to that person’s attention without having to have a third party go and knock on that person’s door at the dinner hour.”

New York Attorney General Shuts Down Another Process Serving Company

In July of this year New York Attorney General Andrew M. Cuomo filed a complaint against SERVES YOU RIGHT, INC and DAVID WARSHALL. The complaint alleged that the defendants engaged in fraudulently business practices, making false representations on affidavits of service throughout Long Island and New York City.

Seven days later, a Consent Order and Judgment was entered in this case permanently enjoining the defendants from being involved in or being employed by any process serving companies or process serving activities. SERVES YOU RIGHT, INC was required to immediately cease operations within 60 days of the Order. DAVID WARSHALL was also ordered to pay a fine to the NY AG's office in the amount of $50,000.00 within ten (10) days of the order.

The complaint can be found at this link. The Consent Order and Judgment can be found at this link.

This action is part of an ongoing investigation by Attorney General Cuomo into unlawful debt collection practices. Since commencing the statewide initiative in May 2009, Cuomo has shut down more than a dozen debt collection and affiliated process serving companies and required others to reform their deceptive practices.

Singapore's Supreme Court Considers Service via Social Media

Process Servers have a sometimes difficult sometimes easy job to perform. This task "the service of civil process" has remained largely unchanged for more than 100 years. This Blog was dedicated to chronicling the many challenges the process serving profession currently faces.

On several occasions in the last year this Blog has cited examples of how modern technologies are impacting or posing threat to the traditional role of process servers.



For those the follow this Blog you know that I have cited several examples of social media already being used to effect the service of process most notably in Australia (twice), New Zealand, Canada and the United Kingdom.


The Singapore Supreme Court is exploring how to leverage social media platforms for the benefit of the civil litigation process. Specifically, the high court has published a document titled USE AND IMPACT OF SOCIAL MEDIA IN LITIGATION.


This twenty-six page document explores the opportunities and challenges associated of the use and impact of social media in civil litigation. The document proposes several best practices for both personal and substituted service discovery, exchange of documents between parties and other applications for social media platforms.


The Supreme Court is inviting public comment on these best practices and proposals. The due date for comments is September 15, 2010.   The document can be found here. 

On occasion I have accused of “promoting” electronic service of process. That is not the case; all I have been doing is calling attention to the issue in the hopes that NAPPS and all private process servers will one day have a meaningful and productive conversation about what these challenges mean to our profession.


Unless we want to be like the pony express (extinct) we had better find a way to insure that a disinterested third party (process server) retains a role in an electronic world.

What are process servers going to do when there is a proposal at the federal level that seeks to leverage today’s technologies in a way that marginalizes our role? It will happen; it is only a matter of time.


I am not saying the sky is falling. I am saying it is time to acknowledge these types of changes challenge our very existence and these types of challenges are presenting themselves with ever increasing frequency.

The fundamental question is; what if anything are process servers going to do to ensure that they remain relevant? The notaries figured it out… why can’t process servers? If we do not figure it out, social media and email may well fill the void. Then where are we?


I might be wrong, but I doubt it.

Eviction Notice Served via Email - Will That Work?

That depends... In a recent California Appellate Case the issue of giving notice by email came into question.

In Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, 185 Cal. App. 4th 744 (2010), the court found that the landlord in a commercial lease had failed to give proper notice of failure to pay rent to the tenant even though the tenant admitted receiving notice of default from the landlord by email.

The signed lease provided for the notice by hand delivery, regular mail, and facsimile. In an apparent effort to to keep pace with technology, the lease also allowed for notice by Email.

The court found that notice was not properly given and the default must start over. The court cited that even thought the lease had an electronic transmission provision; the provision was not specific enough to satisfy the court that actual notice was given. Had the lease provision actually listed the tenants email notification address and the landlord could show that it the email was delivered to the physical address designated in the lease the electronic notice provision would have been sufficient.

Moral of the story if you are going to have an electronic notice provision in your lease be sure to consult counsel who should be able to draft language that makes clear that electronic notice via email is effective whether or not addressee actually opens or reads the email notice and any attachments.

India Supreme Court Allows Process to be Served via Email

Last month, The Supreme Court of India acknowledged that over half of the cases before it are delayed by the act of process serving. As a result the Supreme Court ruled as follows:

[i] In addition to normal mode of service, service of Notice(s) may be effected by E-Mail for which the advocate(s) on-record will, at the time of filing of petition/appeal, furnish to the filing counter a soft copy of the entire petition/appeal in PDF format;

[ii] The advocate(s) on-record shall also simultaneously submit E-Mail addresses of the respondent(s) Companies/Corporation(s) to the filing counter of the Registry. This will be in addition to the hard copy of the petition/appeal;

[iii] If the Court issues notice, then, in that event alone, the Registry will send such an additional notice at the E-Mail addresses of the respondent(s) Companies/Corporation(s) via E-Mail;

[iv] The Registry will also send Notice at the E-Mail address of the advocate(s) for respondent(s) Companies/Corporation(s), who have filed caveat. Advocate(s) on-record filing caveat shall provide his/her E-Mail address for effecting service; and

[v] Within two weeks from today, Cabinet Secretariat shall also provide centralized E-Mail addresses of various Ministries/Departments/ Regulatory Authorities along with the names of the Nodal Officers, if already appointed, for the purposes of service.

It is worth noting that the mode of service typically used that is causing the delays is service via the Postal Service, return receipt required.  Without the proper safeguards and requirements service via email is arguably less reliable than service via postal service.  Maybe if these notices were served by private process servers these delays would not exist...
Regardless this ruling is yet another example of technology having an impact on the practice and procedures associated with the act of giving notice to the parties/litigants to a case.

For a copy of the order click here.

Evasive Subject Served via Facebook

In yet another example of how social media is creeping into every aspect of our lives, last month Australian Court in Adelaide ordered that the social networking site Facebook be used again to serve legal documents on an alleged father in a child support case.

This is the fourth instance of Facebook being allowed/ordered for the Service of Process that I am aware of. Australia, New Zealand and Canadian judges have all signed orders allowing a defendants to be served by posting the Notice of the Action to the defendants Facebook account.

Clearly judges around the world see social networks as being at least as reliable a means for giving notice if not more so than publication when all other methods have failed. I have to admit that I would agree that in certain circumstances service of process via social-networks or by other electronic means makes more sense than service by publication.

I would not dismiss these recent developments as being a fad or a trend. They are important and I believe they demonstrate that the courts and our customers are more and more willing to consider alternate manners of service that only a few short years ago where unthinkable.

As I write this post I am researching a ruling from the Supreme Court of India that appears to have ruled that Service of Process via email is now an acceptable manner of service for certain case types.

Stay tuned, more to follow.

FTC Final Report of Debt Collection Industry

FTC Issues Report on Reforming Debt Collection Litigation and Arbitration; Recommends Steps to Protect Consumers and Repair a Broken System

Process Servers are called Out as Part of the Broken System.   The Report Recommends Four Steps to Help Insure Proper Notice.   The Recommendations though well meaning, will only serving to make the act of service of process more cumbersome and expensive.  

They will not stop those that chose to break the law regardless of the rules and regulations.   

A new Federal Trade Commission report concludes that the system for resolving consumer debt collection disputes is broken, and recommends significant litigation and arbitration reforms to improve efficiency and fairness to consumers.

The report, “Repairing A Broken System: Protecting Consumers in Debt Collection Litigation and Arbitration,” reflects information gathered at roundtable discussions the FTC held throughout the country in 2009, as well as public comments and the FTC’s experience in debt collection matters. The roundtables followed a February 2009 report that identified some concerns with debt collection litigation and arbitration, but concluded that more information was needed about certain debt collection litigation and arbitration practices before further recommendations could be made.

The Commission therefore recommends state and local governments consider making a variety of reforms to service of process, pleading, and court rules and practices to increase the ability of consumers to defend or otherwise participate in debt collection litigation.

The FTC’s 2009 report found that debt collection litigation raised concerns about collectors failing to properly notify consumers of suits they have filed, collectors filing suits based on insufficient evidence of indebtedness, courts frequently granting default judgments against consumers who do not appear or defend themselves, collectors seeking to recover on debts beyond the statute of limitations, and banks freezing funds in bank accounts that are exempt from garnishment by law. In its new report, the Commission’s principal recommendations to address these concerns in litigation are:

States should consider adopting measures to make it more likely that consumers will defend themselves in litigation, decreasing the prevalence of default judgments.

Service of process may be inadequate or improper for many reasons. For example, process may fail to reach the consumer if it is delivered to an old or otherwise incorrect address or it is delivered to the wrong person, such as someone with a similar name. Some process servers may simply not serve the consumer but falsely assert that they have done so.

States should require collectors to include more information about the alleged debt in their complaints.

The FTC committed to closely monitor debt collection arbitration and evaluate whether creditors and arbitration forums provide consumers with meaningful choice and a fair process. The Commission also said that, as appropriate, it will report its views on new debt collection arbitration models to policymakers, industry, consumer groups, and the general public.

The FTC believes that reforms such as those discussed in the report should be made to ensure that the debt collection litigation and arbitration systems adequately protect consumers without unduly burdening the debt collection system, which helps to keep credit prices low and helps to ensure that consumer credit remains widely available.The Commission vote to issue the report was 5-0. Commissioner Julie Brill issued a concurring statement in which she urged Congress to enact a temporary ban on the mandatory arbitration of consumer debt collection disputes. “Such a ban should remain in place until the arbitration process can be shown to be fair, transparent, and as affordable as traditional litigation, and until consumers have a meaningful opportunity to opt out of pre-dispute arbitration without losing access to the credit services they seek,” she said.

Many consumer advocates and judges who adjudicate debt collection cases stated that inadequate or improper service occurs frequently. One local official reported that her agency’s comprehensive investigation of process servers in New York City revealed that “many are not performing service. They are filling out false affidavits of service. They are not going to the addresses. They are not sufficiently checking the addresses.” A Chicago judge explained similarly that one of his colleagues had conducted a “spot audit” of one process server and found that he “claimed to be in areas thirty miles apart in the Chicago-land area within minutes . . . . And we [asked,] ‘Is he Superman?’”

Nevertheless, the very high rate at which consumers do not appear and the service of process problems documented in some jurisdictions give the Commission a sufficient basis to conclude that efforts to improve service of process in debt collection litigation would benefit consumers in many locations.

An electronic version of the report text is available at http://www.ftc.gov/os/2010/07/debtcollectionreport.pdf

Superpoked and Served: Service of Process via Social Networking Sites

Whether professional process servers like it or not increasingly courts worldwide are leveraging technology and social media outlets to provide parties with a method of service that is reasonably calculated to provide actual notice over other forms of alternative service. I submit that this trend is part of a natural evolution of the Service of Process and that service by electronic means is more reliable and predictable than Service by Publication or by the Postal Service.

In 2009 the University of Richmond Law Review Article was published regarding the use of Social Networks to affect Service of Process. I have to admit that I somehow missed its publication. It is yet another example of logical and practical thinking coming from the legal community related to the evolution of Service of Process.

The following are a few key points made in the Law Review article I found worthy of mentioning here...

The fact that the Hague Convention does not expressly permit service of process through social networking sites is not detrimental; the Convention does not expressly permit service through other technological means such as fax and e-mail, but these methods have been approved by a number of courts and were even endorsed by the Hague Commission.

Rule 4 - Courts have held that service of process can be effectuated by electronic means when foreign defendants are evasive. At least one commentator has suggested that electronic service should be permitted in domestic cases, even though doing so would require amending the current Federal Rules. Absent an amendment to the Federal Rules, the only logical prong under which service of process via Facebook might suffice is Rule 4(f).

Technological advancement often presents difficult barriers for courts to overcome in the application of traditional law,” but service of process is “so fundamental to the operation of law that historically [it has] been more open to adaptability and change.” Courts are beginning to find electronic service constitutionally permissible under Mullane, and the trend toward electronic service is “a logical step forward in the evolution of civil procedure and reflects the popular use of new technologies in common communication.” Facebook is one such new technology.

If you would like to read the entire law review article I have posted it to my Google documents page that can be found here.