Service of Process – Redefining Traditional Methods of Service to Include Social Media

By Dennis J. McGrath, J.D. Class of 2017 Touro Law Review Senior Staff Member

Our legal system requires that proper service of process be conducted in order for the court to initially establish personal jurisdiction over a defendant. While each jurisdiction in state court has rules establishing proper service of process, Rule 4 of the Federal Rules of Civil Procedure governs cases filed in the United States district courts.[1]

In a lawsuit recently filed this past June in a U.S. District Court in California, the court determined that service by social media, namely a Twitter account, would satisfy the service of process requirements.[2] The plaintiffs were seeking damages against a Syrian national named Hajjaj bin Fahd al-Ajmi.[3] The plaintiffs were having a difficult time trying to locate the defendant in order to properly serve him personally.[4] Upon the realization that the defendant had an active account and large following on Twitter, the plaintiffs sought court authorization to serve the defendant via the Twitter account.[5]

The plaintiffs relied on rule 4(f)(1) of the Federal Rules of Civil Procedure, which dictates that service to foreign defendants can be made by “any internationally agreed means reasonably calculated to give notice.”[6] The U.S. Magistrate hearing the motion, Judge Laurel Beeler, determined that the defendant did have an active Twitter account and that service by this method was likely to be effective.[7] It was her opinion that service by Twitter would satisfy the service of process requirements.[8]

The concept of using social media for service of process on a domestic defendant has produced mixed decisions as to whether this method is proper. In 2012, a New York Family Court allowed a father, who was seeking termination of child support but was unable to locate his ex-wife, to serve legal process through Facebook.[9] Support Magistrate Gliedman ruled that it was “impracticable” to serve the defendant personally and therefore, “despite the absence of a physical address, [Biscocho, plaintiff] does have a means by which he can contact [Antigua, defendant] . . . namely the existence of a social media account.”[10]

The United States District Court for the Southern District of New York decided differently in a similar case. In Fortunato v. Chase Bank USA, N.A. the plaintiff sought permission to serve the defendant by email and Facebook.[11] The court held that not enough proof had been provided that the defendant actively maintained the email or Facebook account in order to make a reliable method of service upon the defendant.[12] The court was also concerned about the potential for fraud when it stated, “anyone can make a Facebook profile using real, fake, or incomplete information.”[13] The court’s concern about social media being a reliable method of service is distinguishable from the other cases discussed, as those courts determined that social media was a reliable method only to reach those defendants after other traditional methods of service had failed.

While some courts seem to be embracing social media as a tool for service of process, the courts have been slow to embrace this new technology as a reliable method. The United States Supreme Court has held that due process requires that service of process be “reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”[14] In order to pass muster, a plaintiff must show that the use of social media is “reasonably calculated” to notify the defendant of the legal proceeding, and traditional methods of notification must have previously failed.

Currently, the courts are not liberally allowing the use of social media as a substitute for traditional methods of personal service. It appears that it is only being considered in cases where the traditional methods have proven ineffective or impracticable, and where social media seems to be the only remaining reliable option of notice.[15] A district court in the Southern District of New York wrote about service by social media saying “[H]istory teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.”[16] If the courts embrace this opinion, we will probably be seeing a broadening of what might be considered acceptable service of process beyond Facebook and Twitter in the years to come.

[1] Fed. R. Civ. P. 4.

[2] James Billington, You’ve been Served: Lawsuits Can Now Be Delivered Over Twitter, International Business Times (Oct. 7, 2016), http://www.ibtimes.co.uk/youve-been-served-lawsuits-can-now-be-delivered-over-twitter-1585344.

[3] St. Francis of Assisi v. Kuwait Finance House, et. al., Case No. 3:16-cv-3240-LB, 2016 WL 5725002 (N.D. Cal. Sept. 20, 2016).

[4] Billington, supra note 2.

[5] Id.

[6] Fed. R. Civ. P. 4(f).

[7] Steven Nelson, Evildoers of Twitter Beware: You can now be Served in a Tweet, U.S. News & World Report (Oct. 6, 2016), http://www.usnews.com/news/articles/2016-10-06/accused-terror-financier-can-be-served-lawsuit-via-twitter-judge-rules.

[8] Id.

[9]Julai Marsh et al., Judge OKs Serving Legal Papers Via Facebook, New York Post (Sept. 18, 2014)http://nypost.com/2014/09/18/judge-oks-serving-legal-papers-via-facebook/.

[10] Id.

[11] Fortunato v. Chase Bank USA, N.A., No. 11 Civ. 6608 (JFK), 2012 WL 2086950 (S.D.N.Y. June 7, 2012).

[12] Id.

[13] Id.

[14] Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

[15] St. Francis of Assisi, Case No. 3:16-cv-3240-LB, 2016 WL 5725002; Marsh, supra note 8.

[16] Federal Trade Comm. v. PCCare247, Inc., No. 12 Civ. 7189 (PAE), 2013 WL 841037 (S.D.N.Y. Mar. 7, 2013).

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