Just as some courts have allowed service of process through social media when defendants are located within the United States (see TrendingLawBlog.com, Feb. 12, 2018), courts are also increasingly permitting service to be made through social media accounts when a defendant is outside of the country. Rule 4(f) of the Federal Rules of Civil Procedure governs “serving an Individual in a Foreign Country,” and Rule 4(f)(3) expressly allows courts to order service “by means not prohibited by international agreement.” Several courts have relied on Rule 4(f)(3) to allow service through a social media account under certain circumstances.
One of the first cases to permit service internationally through a defendant’s social media account is Shinde v. Nithyananda Foundation, 13-00363, 2014 WL 12597121 *7 (C.D. Cal Aug. 25, 2014), a case in which the court ruled that “service through a Facebook account was permissible on a defendant located in India, a signatory to the Hague Convention” and comported with due process. In Shinde, the court reasoned that because “service by Facebook is . . . outside the scope of Article 10 [of the Hague Convention]” and “India has not objected to service by Facebook, and the Court knows of no international treaty prohibiting such means,” service of process through Facebook was a permissible alternative under Rule 4(f)(3). Id. at *7.
With regard to due process, the Shinde court held that to meet this constitutional requirement, “the method of service crafted by the district court must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. The court found these due process concerns were satisfied because other courts had held that service through social media comported with due process and, in connection with the motion seeking leave to serve the defendant through Facebook, the moving party offered a Declaration which specifically identified the defendants’ Facebook pages. Id.
Several courts since Shinde have similarly applied Rule 4(f) to permit service through social media when such service comports with the due process and is not prohibited by international agreement. See, e.g., United States v. Mohammad, 249 F. Supp. 3d 450, 454 (D.D.C. 2017) (defendant residing in Egypt served through Facebook following government’s successful motion for substituted service of process); Juicero, Inc. v. iTaste Co., 17-1921, 2017 WL 3996196 (N.D. Cal. Jun. 5, 2017) (permitting service through active Facebook account on two China-based defendants); St. Francis Assisi v. Kuwait Finance House, 16-3240, 2016 WL 5725002 (N.D. Cal. Sept. 30, 2016) (authorizing service on a defendant located in Kuwait through his active Twitter account);; Lipenga v. Kambalame, 14-3980, 2015 WL 9484473 (D. Md. Dec. 28, 2015) (permitting service through Facebook on a defendant from Malawi residing in Zimbabwe).
Service of process through social media was unheard of ten years ago, but the concept is gaining more acceptance with the courts when defendants are evasive and/or hard to find because they are in a foreign country. In such cases, counsel should determine whether international agreements prohibit or allow alternate methods of serving a difficult-to-serve defendant located in a foreign country and, if permitted, give serious consideration to using the defendant’s social media account as a way to effect service, provided counsel can establish a reasonable foundation for the authenticity of the social media account and comport with the requirements of due process.
For any questions relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.