In a recent case, a New York judge authorized the use of Facebook as the only required means to deliver a summons to the defendant.
The plaintiff brought a divorce action against her husband, but (a) the only address she had was not current and he left no forwarding address, (b) the department of motor vehicles did not have his address, (c) he had no known regular place of business, (d) his pre-paid cell phone had no address attached to it, (e) he stated to the plaintiff that he had no regular residence and no regular employment, and (f) the private investigation firms hired by the plaintiff could not find him. Despite all these efforts to disappear, the overwhelmingly powerful lure of social media caused him to maintain his Facebook account on which he posted regularly and which he used to communicate with the plaintiff. He also communicated with her by texting.
The plaintiff therefore asked the judge to approve alternative service through a Facebook private message. Judge Matthew F. Cooper reviewed the plaintiff’s submissions to ensure, among other things, that other service was not possible and service by Facebook complied with due process. Judge Cooper found that no other New York methods of service were possible other than newspaper publication, which was less likely to reach the defendant. Also finding the evidence supported that the Facebook account belonged to the defendant (as opposed to an imposter or the plaintiff herself) and that he regularly used it, Judge Cooper authorized service to be made as follows: once a week for three consecutive weeks, the plaintiff’s attorney (since litigants cannot serve another litigant under New York Law) had to log into the plaintiff’s Facebook account and send a private message to the defendant; the attorney would identify himself as an attorney, notify the defendant of the suit, and include a link or image of the summons; and, after the first message, the attorney and the plaintiff had to call and text the defendant and inform him that a summons had been served on him through Facebook.
The increasing prevalence of technology and social media should result in more examples of online service because many other states have statutes that allow judges to craft remedies for service when customary methods are insufficient. Federal courts and many state courts allow electronic service of non-case initiating documents and, in our experience, judges have become more amenable to allowing complaints to be served electronically as long as it appears that the defendant’s email address or other account is current. As Judge Cooper noted, “In this age of technological enlightenment, what is for the moment unorthodox and unusual stands a good chance of sooner or later being accepted and standard, or even outdated and passé.”