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I'm sure you've heard of those defendants that are incredibly difficult to track down to serve with legal papers, often because they've been up to no good.

Why New York's Courts May, in Some Cases, Allow for Different Methods of Service

Under those circumstances, New York's legislature empowered the courts to come up with some creative solutions for means by which service of papers can be effectuated even if you can't hand the papers to the defendant personally. The governing statutory provision for this is Civil Practice Law & Rules Section 308(5), which allows a court to direct another method of service where the customary means of personal service is "impracticable."

The significance of this section becomes apparent when you consider that plaintiffs typically have a limited time within which to serve the complaint, and that actions are bound by statutes of limitations.

In other words, if the complaint isn't timely served, you run the risk that your case could be dismissed.

While the courts do allow for some creativity in effectuating service (such as by publication in local newspapers) after the plaintiff has demonstrated to the Court's satisfaction that its diligent efforts to personally serve the complaint had proven unsuccessful, it is not without bounds.

Where the Courts May Draw the Line in Order to Assure Proper Service is Made

In that vein, a few years back, a Federal judge held in Fortunato v. Chase Bank USA that the complaint could not be served on the defendant via the social network site Facebook, stating as follows:

"Service by Facebook is unorthodox to say the least, and this Court is unaware of any other court that has authorized such service. Here, Chase has not set forth any facts that would give the Court a degree of certainty that the Facebook profile its investigator located is in fact maintained by [defendant] or that the email address listed on the Facebook profile is operational and accessed by [her]. Indeed, the Courts understanding is that anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm whether the [defendant] the investigator found is in fact the third-party Defendant to be served."

How Different Courts Across the Country Have Viewed Service via Social Media

To that end, over the last few years, numerous courts across the country have split as to whether service of papers via social media can suffice, and even those courts that permitted such service, only did so as a supplemental means of serving the papers, rather than allowing such service to suffice on its own. See, e.g., Fed. Trade Commn. v PCCare247 Inc., 2013 U.S. Dist. LEXIS 31969, 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 U.S. Dist. LEXIS 22084, 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 U.S. Dist. LEXIS 80594, 2012 WL 2086950 [SD NY, June 07, 2012, No. 11 Civ. 6608 (JFK)] [denying service by Facebook]; Joe Hand Promotions, Inc. v Shepard, 2013 U.S. Dist. LEXIS 113578, 2013 WL 4058745 [ED Mo, Aug. 12, 2013, No. 4:12cv1728 SNLJ] [same]; In re Adoption of K.P.M.A., 2014 OK 85, 341 P3d 38 [Okla, 2014][same]). 

One NY Court Allows Service of Papers Via Facebook

On the other hand, in Baidoo v. Blood-Dzraku, a New York matrimonial matter where the plaintiff demonstrated that it was impossible and/or completely impractical to effectuate service of the divorce papers on the defendant in any other manner, the Court 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."

The Takeaway

I, for one, am convinced that the Court was right in both of these cases. Before allowing service through this untraditional means, each court went to great lengths to assure that the defendant was given the best opportunity to be apprised of the lawsuit - which is precisely the entire point of service.

A Word of Caution

That being said, it is also important to note that even in Baidoo, the only reason the court allowed service via social media as a primary and stand-alone, rather than ancillary, form of service, was because the plaintiff demonstrated conclusively that all other methods of service had proven futile. Accordingly, and at the risk of stating the obvious, you should not assume that a court would simply allow you, out of convenience, to serve legal papers on your adversary via social media.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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