Private Message or Process Server – Service Through Facebook?

Revolutions have started through the use of it.

Marriages have started through the use of it.

Opinions (informed and uninformed) are shared on it.

So why should a lawsuit not start through its use?

What is it? Why Facebook and potentially other social media platforms, of course. In a recent divorce case, Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096, Mar. 27, 2015), the New York County Supreme Court permitted a wife to serve her husband solely with a summons via private message to the husband’s account on Facebook.  While recognizing that Facebook is not a statutorily permitted method of service, the Court asked and answered several relevant questions in making its way to its conclusion that service in this fashion was proper.

The Court first asked whether the standard form of personal service was at all possible. It reasoned that since the couple had never resided together, the last known address the wife had for the husband was from an apartment he left in 2011, and the husband told her he had no fixed address or employment, it was an impossibility to personally serve the husband.

The Court next had the wife show that statutorily permissible “substitute service” of serving on someone of suitable age and discretion or through “nail and mail” would also be unavailable under the circumstances.  The Court quickly rejected the possibility of substitute service since such service is premised upon knowledge of the husband’s actual place of business or home address.

The Court further insisted that the wife demonstrate that sending the summons through Facebook would be a way to reasonably expect he would receive actual notice. The Court noted that whether the method used would comport with due process was the “ultimately determinative” factor.

To ensure that the Court’s order was constitutionally reasonable, the Court required the wife to submit a supplemental affidavit verifying the husband’s Facebook account, including copies of exchanges between the husband and wife on Facebook and the identification of husband in certain photographs. The wife’s affidavit also showed that husband regularly logged into the account.  Finally, the Court determined that service by publication would be useless and costly in these circumstances, finding that publication was almost guaranteed not to provide husband with notice of the action.

The Court concluded that the wife’s attorney would log into her account, message the husband by first identifying himself, and either include an image of the summons or a hyperlink to the summons.  Additionally, the attorney would have to repeat the message once each week for three weeks or until husband acknowledged service, and after the initial transmittal, the wife and the attorney would have to call and text message the husband to inform him of the Facebook message.

Baidoo is not the only case to contemplate service by Facebook.  But could service by Facebook extend outside of cases for divorce or between individuals?

Just two years before Baidoo, the Federal Trade Commission, in alleging “that the defendants operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers,” requested leave to serve five India-based companies by means of both email and Facebook.  F.T.C. v. PCCare247 Inc., No. 12 CIV. 7189 PAE (S.D.N.Y. Mar. 7, 2013).  While the Court noted that Facebook and email were not within the scope of Article 10 of the Hague Convention on Service, it also noted that India had not objected to the use of Facebook and email as a means of service such that the Court could authorize service by those means. In turn, the Court found that the FTC’s proposal to serve defendants by both email and Facebook satisfied due process, stating that “[w]here defendants run an online business, communicate with customers via email, and advertise their business on their Facebook pages, service by email and Facebook together presents a means highly likely to reach defendants.” This holding was followed several months later in F.T.C. v. Pecon Software Ltd., No. 12 CIV. 7186 PAE (S.D.N.Y. Aug. 7, 2013).

Given these cases and the fact that the cost of publication is increasing while the likelihood of notice by publication is decreasing, service only by Facebook on even corporate defendants could be a thing of the relatively short-term future. However, given the effort that must be exerted before a court will permit such service, it will likely be a long time before service by Facebook on either individual or corporate defendants is something that is commonplace. While there may be a shot for Facebook, a search of service by other social media platforms, including Twitter, Tumblr, Instagram, and Snapchat, has not produced any results to date.

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