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Finding Foreign Service Difficult? Look for the Defendant on Facebook

Client Alert

Authors: A. Christopher Young and Katherine B. Puccio

10/23/2017
Finding Foreign Service Difficult? Look for the Defendant on Facebook

Your company has entered into a contract with a smaller, foreign company to do business. While your relationship starts off strong, it quickly sours when you discover that the smaller company’s quality standards do not meet the requirements of the contract. Worse still, you prepaid for future work and the company refuses to do any more work for you. Left with no other choice, you are forced to initiate a lawsuit. Unfortunately, your troubles do not end there. You seek to serve the corporate officers of the company, who are overseas, but they are nowhere to be found. You have attempted service through process servers, sheriffs, and other traditional methods, but the officers have evaded service every time. What do you do?

Just 15 years ago, you may have been out of luck. A court likely would have required you to continue to try to serve the defendant through traditional means until it determined that the defendant had sufficient notice of the lawsuit. Only then would a court enter default judgment against the defendant. Still, your judgment likely would have been open to future challenges from the defendant about notice. Now, in just the past decade, courts have begun to permit service via email — and even service via Facebook — when a defendant has actual notice of the lawsuit but continually evades service. This makes serving a difficult defendant much easier than before, although there still are some challenges to service via electronic means.

Some courts have permitted service of overseas defendants via email only when a defendant had actual notice of a lawsuit and was known to be evading service. In August, a federal court in Wisconsin permitted an international defendant to be served via email and Facebook after the plaintiff had exhausted attempts at traditional means of service.1 The plaintiff attempted to serve the defendant in Mexico by delivering a petition to the Central Authority in Mexico, a means of service authorized by the Hague Convention. The plaintiff also attempted service in New York and via personal email to an officer of the defendant. All attempts failed. The court permitted the plaintiff to effectuate service via an email address on the defendant’s website and also via its Facebook page. The court noted that the Hague Convention did not prohibit service via email and that the defendant maintained a very active Facebook page. “Moreover and of significance here, [the defendant] has actual notice of the Petition.”

Other courts have permitted service of international defendants via social media when the defendant had no known address. In K.A. v. J.L., 161 A.3d 154, 157-58 (N.J. Super. Ct. Ch. Div. 2016), the New Jersey Superior Court Chancery Division permitted service via Facebook for a variety of reasons, including the fact that Facebook was a conduit of the alleged harm, the defendant was known to have an active Facebook account/page, Facebook has a feature allowing a sender to know whether a message has been opened, and because the plaintiffs could not locate a valid address for the defendant. The totality of these circumstances, according to the court, made service via Facebook permissible.

Not every court has permitted service via Facebook.2 For example, a federal court in New York denied a request to serve via Facebook because the petitioning party did not demonstrate to the court with any degree of certainty that the Facebook profile in question actually was the Facebook profile of the party to be served.3 Because a Facebook profile could be created using real, fake or a mix of information, there was “no way” for the court to confirm whether the profile actually was the profile of the third-party defendant to be served.

Utilizing these same principles, a New York state court posed this question to a woman who wished to serve divorce papers to her husband via Facebook: “If the summons for divorce is sent to what plaintiff represents to be defendant's Facebook account, is there a good chance he will receive it?”4 The court ran through the litany of concerns associated with Facebook accounts: Is the Facebook page actually operated by the person to whom it is attributed? Does the account holder diligently log in to his Facebook? Is a backup means of service available? Addressing the third concern, the court noted that most federal courts have permitted service via Facebook in conjunction with service via email. In the unique case before the court, the married parties had never met, and the woman had neither a physical address nor email address for her husband. The court found that service via Facebook was permitted and that the woman did not need to publish notice of divorce in a newspaper, as that was cost prohibitive. Further, the woman’s attorney was to log in to the woman’s Facebook account and send a private message to the husband, doing so for at least three consecutive weeks. Following the first communication, the woman and her attorney were to call and text message the defendant to inform him of the Facebook message.

Although service via email has been sanctioned by state and federal courts in the United States and some overseas courts, issues may still remain with obtaining judgment if service is delivered via Facebook or email. This particular problem may arise in countries whose courts have not had occasion to consider whether service via email, Facebook or other social media platforms meets the requirements of the laws of that jurisdiction. While a dodgy defendant who is in another jurisdiction likely presents more significant problems than service of process, it is still important to keep in mind that not every jurisdiction has considered whether service via email, Facebook or other social media is proper.

Further, no court has sanctioned domestic service via Facebook or email alone. When a domestic defendant is difficult to serve, service by publication is generally accepted. However, given an environment where print newspaper is slowly dying and fewer people get their news from a hardcopy news source, service via electronic means may replace service via publication. In years to come, we may see a shift to permit service via Facebook or other electronic means as a replacement or in addition to service by publication.

Endnotes

1 Cree, Inc. v. BHP Energy, LLC & BHP Energy Mexico S. DE R.L. DE C.V, 2:16-cv-01508-NJ, Doc. No. 62 (Aug. 14, 2017).

2 See, e.g., Joe Hand Promotions, Inc. v. Shepard, No. 4:12cv1728 SNLJ, 2013 U.S. Dist. LEXIS 113578, at *8 (E.D. Mo. Aug. 12, 2013) (denying request for service via Facebook because “[i]f plaintiff is unable to serve process via e-mail, it certainly has not shown that it can properly serve process via Facebook.”); Andrews v. McCall (In re K.P.M.A.), 341 P.3d 38, 52 (Okla. 2014) (“Mother allegedly informing Father of her pregnancy via a Facebook message was insufficient to satisfy the notice requirement of due process.”).

3 Fortunato v. Chase Bank USA, N.A., 2012 U.S. Dist. LEXIS 80594, at *6-8 (S.D.N.Y. June 7, 2012).

4 Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709, 714 (N.Y. Sup. Ct. 2015)

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.