Service of process is the procedure by which one party to a lawsuit gives notice of the commencement of a legal action to the party being sued so the court can exercise jurisdiction over that party. New Jersey Court Rule 4:4-4 and Federal Rule of Civil Procedure 4(c) set forth the various ways process may be served on a defendant. Traditional manners of service include personal service by a process server, mail service, substituted service or service by publication.
Recently, courts have permitted litigants to serve process via email, so it is not surprising that litigants are now also seeking to use a defendant’s social media account to serve process after traditional means prove ineffective or impossible. Indeed, one New York court noted “it would appear that the next frontier in the developing law of the service of process over the internet is the use of social media sites as forums through which a summons can be delivered.” Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709, 711 (N.Y. Sup. Ct. 2015). A New Jersey trial court recently took up the service-by-social media gauntlet and did, in fact, allow a defendant to be served with process via his Facebook account.
In K.A. v. J.L., 450 N.J. Super. 247 (Ch. Div. 2016), the court allowed the plaintiffs to serve process on a defendant through Facebook after service by traditional means proved ineffective. The Court stated as follows:
If, however, a plaintiff’s reasonable, good-faith attempt to effectuate personal service proves unsuccessful, the plaintiff may then attempt to effectuate service using the secondary methods prescribed in Rule 4:4-3(b). The Rules also provide that, as a tertiary, and last resort, “If service cannot be made by any of the modes provided by this rule, any defendant may be served as provided by court order, consistent with due process of law.” Rule 4:4-4(b)(3).
Id. at 252.
The K.A. court held that service of process via Facebook could in certain circumstances establish personal jurisdiction over a defendant. In this case, none of the last known addresses for the defendant were good and the court found that notice by newspaper publication would be futile because the injunctive relief sought by plaintiff required the defendant to receive the pleading and to know of the restraint being requested. Because the defendant had communicated with a plaintiff through his Facebook account, the court held that “permitting service in this case through Facebook meets the due process requirement.” Id. at 253, 255.
Other courts have also found circumstances in which service was allowed through a defendant’s social media account. In Baidoo v. Blood-Dzraku, 5 N.Y.S.3d at 716, the court permitted a divorce summons to be served solely by private message to the spouse’s account on Facebook. The court found that such service “is the form of service that most comports with the constitutional standards of due process” after the plaintiff established that the account belonged to her husband, that he regularly logged onto the account and that she did not know his email or street addresses (which made personal delivery and substitute service impossible and impractical).
Courts have also denied applications to effect service through a defendant’s social media account when the plaintiff failed to establish a basis for employing the alternative means of service. In Miller v. Native Link Const., LLC, No. 15-1605, 2016 WL 247008 at *3 (W.D. Pa. Jan. 21, 2016), the court denied a request to permit service through defendant’s LinkedIn account because plaintiff failed to show that service could not be made in accordance with the methods set forth in Pennsylvania’s rules of procedures and because he failed to describe with sufficient detail the efforts made to effect service, why service could not be made and to establish that service through LinkedIn would be reasonably calculated to apprise defendant of the action and afford him an opportunity to respond to it.
Similarly, in Qaza v. Alshalabi, 43 N.Y.S.3d 713, 717 (N.Y. Sup. Ct. 2016), the court denied an application to effect service through Facebook because plaintiff could not establish that the defendant’s Facebook account was still being used by the defendant at the time of the lawsuit, calling into doubt whether service through Facebook would have actually put the defendant on notice of the action filed against him.
The foregoing discussion suggests that, under the right set of circumstances, courts will grant requests to use a defendant’s social media account as an alternative means of effectuating service. Therefore, counsel should give serious consideration to researching a defendant’s social media presence as part of any pre-suit investigation of the case’s facts because such information may prove beneficial if the defendant later seeks to avoid service when efforts are made to serve process in more traditional ways.
For any questions relating to this article please contact Robert B. Nussbaum, Esq. at Saiber LLC.