By: Michael L. Fox, Esq.

Another court has recently weighed-in on the question of whether one party to a legal proceeding can serve process on another party by using social media, such as Facebook, as “substituted service” when no other means of serving the party appear to be effective and viable.

By decision dated September 12, 2014, Staten Island Family Court Support Magistrate Gregory Gliedman issued an order in the case In the Matter of the Support Proceeding Noel B. v. Anna Maria A., F-00787-13/14B. In that decision, Support Magistrate Gliedman assessed the Petitioner’s application to the Court seeking to serve his ex-wife via Facebook because no other method of service was available in the matter. The Petitioner was seeking to modify the order of child support based upon an alleged emancipation of the child that was the subject of the child support. The Petitioner presented the Court with an affidavit in which the affiant stated that they had search for the Respondent at the Respondent’s last known address, but the occupant of that last known address, who was a tenant there of one month, had no knowledge of the Respondent. Petitioner also attempted to contact his 22 year old daughter to inquire about the Respondent’s location, but received no reply. The Petitioner called their son, as well – who was the subject of the Petition – requesting information about the Respondent’s location and again Petitioner received no response. Petitioner had further performed a search on Google and was unable to find any location for the Respondent.

The Court further noted that the Support Collection Unit had Respondent’s last known address on file, so that all correspondence concerning the funds received for child support were being sent to that address. The address had been provided by the Respondent to the Court in March of 2013.

Interestingly, the Petitioner stated to the Court that he knew that the Respondent maintained an active social media account on Facebook, because Petitioner’s current spouse had a Facebook account with photos posted to it and the Respondent had “liked” photos on the Petitioner’s Spouse’s Facebook account as recently as July of 2014.

The Court discussed what Facebook is and what “liking” is on Facebook, and then discussed the provisions of CPLR 308, which deals with service of process on parties. The Support Magistrate determined that actual personal service, service upon a person of suitable age and discretion at the residence of the person to be served, and affixing and mailing service, were all not viable in this matter pursuant to CPLR 308. The Support Magistrate also noted that while he was not aware of any other New York State courts authorizing service of process by social media, courts in other jurisdictions have permitted such service including the Federal Court in the Eastern District of Virginia and the Federal Court in the Southern District of New York (in the case of Federal Trade Commission v. PCCare247 Inc.).

The Support Magistrate directed that substituted service upon the Respondent be undertaken pursuant to CPLR 308(5) and that the Petitioner was to send a digital copy of the Summons and Petition to the Respondent via Facebook, and then follow that service by mailing the same documents to the previously used last known address of the Respondent. The Support Magistrate stated that the Respondent could receive communications via Facebook, although the physical location of the Respondent was still unknown and uncertain.

Certain other courts, as referred to above, have also waded into the warming waters of substituted service via social media. For instance, in the earlier-referenced case of F.T.C. v. PCCare247, Inc., No. 12 Civ. 7189(PAE), 2013 WL 841037 (S.D.N.Y. Mar. 7, 2013), although foreign service of the summons and complaint was accomplished by submitting them to the Indian Central Authority for service on the defendants, in accordance with Federal Rule of Civil Procedure 4(f)(1) & The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (as well as by three alternative means), the F.T.C. then sought leave to serve other documents by Facebook and e-mail. The District Court granted the application, evaluating the jurisprudence surrounding FRCP Rule 4(f)(3). The proposed means of service were not barred by international agreement, and did comport with notions of due process.

However, one should be aware that commentators and critics have weighed-in on the PCCare247decision. One commentator has argued that the Hague Convention requires service according to its provisions, and there is no provision for Facebook or e-mail. Another commentator has stated that enforcement of judgments in foreign nations may require the assistance of foreign officials and courts, who may not recognize the award if they do not believe proper procedure was followed. There are also those courts that have decided against substituted service by social media. In Fortunato v. Chase Bank USA, 2012 U.S. Dist. LEXIS 80594 (S.D.N.Y. June 7, 2012) (Keenan, D.J.), the defendant filed a motion seeking, in part, leave of the Court to serve a third-party complaint via methods including Facebook private message and e-mail to the address on the Facebook profile of the served party. The district judge, though, denied that portion of the motion. The Court held that service must be reasonably calculated to provide notice and apprise parties of the pendency of litigation – and the Court found no showing of that in the Fortunato case for Facebook.

Finally, however – although not cited by the Staten Island Family Court Support Magistrate in the Noel B.decision above – the Fourth Department of the New York State Supreme Court, Appellate Division, in the case of Safadjou v. Mohammadi, 105 A.D.3d 1423 (4th Dep’t 2013), recently approved additional service by e-mail, when other forms of service were not possible. The defendant was located in Iran. The Appellate Division affirmed the judgment of divorce, rejecting a challenge to the efficacy of the e-service. The Court specifically found that the parties had communicated by e-mail for several months before service, the defendant used two e-mail addresses that were utilized for the service, and the defendant acknowledged following the e-service that she received an e-mail from the plaintiff’s attorney that the attorney sent to the two known e-mail addresses.

Ultimately, continuing the trend of social media having great impact on the world of litigation, these decisions make clear that some courts are slowly becoming more comfortable with service of process via Facebook or other social media means when more traditional means of service are unavailable or unavailing. These cases have their place in the lead position of a short but growing line of cases to permit service of process via social media.