Service by Social Media

Social media may offer another avenue to effectuate a lawsuit when formal process service proves difficult.    

A civil lawsuit is commenced by filing a summons and complaint with the court. The summons and complaint “may be served within the United States or its Territories by any person whose age is eighteen years or older, not a party to the action.” C.R.C.P. 4(d) The summons and complaint may be served upon a “natural person whose age is eighteen years or older by delivering a copy thereof to the person, or by leaving a copy thereof at the person's usual place of abode, with any person whose age is eighteen years or older and who is a member of the person's family, or at the person's usual workplace, with the person's supervisor, secretary, administrative assistant, bookkeeper, human resources representative or managing agent; or by delivering a copy to a person authorized by appointment or by law to receive service of process. “C.R.C.P. 4(e)(1).

If in spite of a Plaintiff’s best efforts, they cannot locate the Defendant and cannot find the Defendant’s place of employment, home address, phone number or any other means of contacting the Defendant, obtaining service may seem impossible. Historically, if a Plaintiff cannot effectuate personal service on a defendant pursuant to C.R.C.P. 4(e), the Plaintiff’s only other option for obtaining service of the summons and complaint, was if the court granted an order for substituted service. Pursuant to C.R.C.P. 4(f) and (g) substituted service was limited to service by mail or publication. In addition, substituted service is only allowed in actions affecting specific property or status or other proceedings in rem.

However, as the court in Mpafe v. Mpafe, Hennepin County, MN No. 27-FA-11-3453, recognized “the traditional way to get service by publication is antiquated and is prohibitively expensive.” The court further stated that “Service is critical, and technology provides a cheaper and hopefully more effective way of finding respondent.” Id.

Colorado courts have not yet recognized substitute service through means other than mail and/or publication as is authorized in C.R.C.P. 4(f) and (g). The Federal Rules of Civil Procedure are a bit less confined. F.R.C.P. 4(f)(3) allows for service of an individual in a foreign country “by other means not prohibited by international agreement, as the court orders.” Substitute service, in limited circumstances, through social media has been allowed in Australia, Canada, New Zealand, United Kingdom, and most recently, in the United States.

A recent New York Supreme Court decision examined the problem with personal service when, in order for service to be accomplished, a Plaintiff must be able to locate the Defendant. The Court in Baidoo v. Blood-Dzraku, 2015 NY Slip Op 25096 - NY: Supreme Court 2015, noted that “even where a Defendant's whereabouts are known, there are times when it is logistically difficult, if not impossible, for a process server to gain the close proximity necessary for personal delivery.”

The Court in Baidoo further noted that “The past decade has also seen the advent and ascendency of social media, with websites such as Facebook and Twitter occupying a central place in the lives of so many people. Thus, it would appear that the next frontier in the developing law of the service of process over the internet is the use of social media sites as forums through which a summons can be delivered.” Id.

The court in Baidoo discussed several factors that should be considered when determining whether or not to allow social media as either an additional or exclusive method of service. The court in Baidoo held that “Plaintiff must first demonstrate that she is unable to have the summons personally served on Defendant, the method of service initially prescribed by DRL § 232(a). Next, she must show that it would be ‘impracticable’ to serve him by ‘substitute service’ on a person of suitable age and discretion (CPLR 308[2]) or by using ‘nail and mail’ (CPLR 308[4]). Finally, she must show that sending the summons through Facebook can reasonably be expected to give him actual notice that he is being sued for divorce.” Id.

As the court inBaidoo recognized, “there are only a handful of reported decisions, mostly from federal district courts, that have addressed the issue of service of process being accomplished through social media, with there being an almost even split between those decisions approving it and those rejecting it (compare Fed. Trade Commn. v PCCare247 Inc., 2013 WL 841037 [SD NY, Mar. 7 2013, No. 12 Civ. 7189(PAE)] [allowing service of process in part by social media]; WhosHere, Inc. v Orun, 2014 WL 670817 [ED Va., Feb. 20, 2014, Civ. No. 1:13-cv-00526-AJT-TRJ] [same]; Noel B. v Anna Maria A., 2014 2014 NY Misc LEXIS 4708 [Fam Ct, Richmond County 2014] [same] with Fortunato v Chase Bank USA, N.A., 2012 WL 2086950 [SD NY, June 07, 2012, No. 11 Civ. 6608 (JFK)] [denying service by Facebook]; Joe Hand Promotions, Inc. v Shepard, 2013 WL 4058745 [ED Mo, Aug. 12, 2013, No. 4:12cv1728 SNLJ] [same]; In re Adoption of K.P.M.A., 341 P3d 38 [Okla, 2014][same]).” Baidoo v. Blood-Dzraku, 2015 NY Slip Op 25096 - NY: Supreme Court 2015. The cases permitting service through social media have all been condition on the Plaintiff’s use of an additional approved method of service.

The court inBaidoo specifically stated that “a concept should not be rejected simply because it is novel or non-traditional. This is especially so where technology and the law intersect. 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. And because legislatures have often been slow to react to these changes, it has fallen on courts to insure that our legal procedures keep pace with current technology (seeNew England Merchants Natl. Bank v Iran Power Generation & Transmission Co., 495 F Supp 73, 81 [SD NY, 1980] ["Courts cannot be blind to changes and advances in technology."]).”Id.

The court inBaidoo expressed its concern that if the Defendant is not diligent in logging on to his Facebook account, he runs the risk of not seeing the summons until the time to respond has passed.  The court’s concerns were overcome by the Plaintiff’s affidavit which indicated that her exchanges with the Defendant via Facebook showed that the Defendant regularly logged on to Facebook. In addition, because the Plaintiff had the Defendant’s cell phone number, she could call or leave the Defendant a message telling him to check his Facebook account. 

The court’s next concern was whether a backup means of service was required under the circumstances and whether that service comports with due process. In Federal Trade Commission v. PCCare247, Inc., 2013 WL 841037, at 5, the Federal Court decided that service through Facebook was permitted only in conjunction with notice being sent to Defendants using email as well.

The court inBaidoo ultimately held that “Under the circumstance presented here, service by Facebook, albeit novel and non-traditional, is the form of service that most comports with the constitutional standards of due process. Not only is it reasonably calculated to provide Defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him.” Id.   The court specifically rejected requiring the Plaintiff to serve the Defendant using an additional “backup” method of substitute service, such as publication, because the cost of running a weekly notice is substantial and the chances of the notice actually been seen by the Defendant are infinitesimal.

Colorado courts have not yet adopted the use of social media as an additional or exclusive method of achieving substitute service.  But, the New York Supreme Court’s decision in Baidoo has clearly set the framework for this developing frontier.