The Use of Service Via Facebook in Matrimonial Law

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service via FacebookIn an article recently published by the New Jersey Law Journal, we lay out the increasing use of service via Facebook in matrimonial cases. For those of you who don’t have an account for the NJLJ, below is the full-text.

by Amanda Sexton and Bari Weinberger, Esq.

You’ve been served—by Facebook. Not a phrase you’d expect to hear, but the approval of service by Facebook in a number of matrimonial law cases is proving it could eventually become more common.

Facebook as an Alternate Method of Service

Sometimes one spouse simply walks out on a marriage without providing a new address. This can make both personal service and mail service difficult to accomplish. Courts have started allowing service by email in this type of situation, but if someone truly doesn’t want to be found, they may change their email address as well. If the person remains active on social media, this provides an additional option for contact.

When attempting to serve someone living in a foreign country, special forms may be required, papers may need translating, parties may need to consult with foreign counsel to determine exactly what kind of service will be acceptable, and the foreign central authority may charge a fee for service. These factors may make service by social media particularly appealing. After all, as the court noted in Noel B. v. Anna Maria, there are no geographic limitations on Facebook. At last count, Facebook has a billion active daily users, with more than 84 percent located outside of the United States and Canada.

In Baidoo v. Blood-Dzraku, the application for alternative service was made under a New York rule that allowed a court to direct any method of service that fit the particular circumstances of a case, after demonstrating that other options were “impracticable.” New Jersey Court Rules similarly provide that if service cannot be made by any mode specifically provided for in the rules, the court can order another method, consistent with due process of law.

Due process requires any service method devised by a court to be reasonably calculated to notify the defendant of the court proceedings. As noted in Baidoo, publication service, though it has long been permitted, usually does not provide a reasonable probability of actual notice. New York Supreme Justice Matthew Cooper commented on the common use of publication in the Irish Echoand New York Law Journal in New York County in his opinion, saying, “If that were to be done here, the chances of defendant, who is neither a lawyer nor Irish, ever seeing the summons in print, either in those particular newspapers or in any other, are slim to none.”

Given that reality, when service by publication is the last available option, it becomes a fair question whether service via social media might actually be a superior choice.

Requesting Alternate Service

In New Jersey, a family court plaintiff can ask the court for permission to use an alternative method of service if a spouse has no known address. This is usually either “substituted service” on a third party who can give the divorce papers to the defendant; or service by publication, usually in a newspaper in the county where the action is filed. Before a court will grant such a request, the plaintiff must submit an “affidavit of diligent search,” demonstrating completion of specific efforts to locate the spouse. These efforts include sending letters and self-addressed, stamped envelopes, by regular and certified mail, to the spouse’s family members, friends or past employers who might know his or her address; and by regular mail to the Motor Vehicle Commission in the state where the spouse last held a driver’s license; all branches of the U.S. military; and the post office in the town of the spouse’s last known residence.

Once the inquiries are sent and generally after a reasonable amount of time has passed to receive a reply, the plaintiff can request an order permitting substituted service. If there is no appropriate third party to be served, the plaintiff will request service by publication. All of this requires substantial paperwork and considerable expense. The cost of publication can easily run into hundreds of dollars.

But for those optimistic that a client with limited funds will soon be able to serve all documents over Facebook, don’t get your hopes up just yet. Personal service has remained the preferred method of service in each of these cases. If there is a known address or ability to conduct an investigation to locate a new address for an individual, the court is still going to require the traditional steps related to due process to be followed prior to granting service via Facebook.

Pursuing Service by Facebook

In all cases where service via Facebook was permitted, the judges made clear they saw the value of this method and were unopposed to incorporating technology into the practice of law where it made sense.

In each of the approved cases, there are several things a court will look for prior to approving service (if they decide to approve it all):

• How do we know it’s the right individual?

Many objectors to social media service point out the relative ease with which one can create a fake account portraying the individual being served

Be prepared to submit affidavits of communications with the subject through that account or some concrete evidence it’s indeed that individual. Think consistent pictures of day-to-day activities or postings with information that isn’t common knowledge.

• Why would we serve it by Facebook and not another method?

This goes back to the need to attempt personal service first. If the person can be served at their home address where they’ve lived for the past 15 years, why should the court allow service by Facebook? This type of service will only be approved once other options have been exhausted.

In Baidoo v. Blood-Dzraku, the wife was seeking a divorce from her husband whom she didn’t live with or see for five years after the marriage. Serious efforts were made to locate the husband. After moving in 2011, the post office had no forwarding address for him, so his pre-paid cell-phone company was contacted and an investigator was hired to locate him. All of these efforts failed to produce an address for the husband. In this type of situation where there is clearly no other way to effectuate service, service by Facebook seems an almost logical next step given the wife and husband communicated regularly through its messaging system.

• How can we be sure they will receive notice?

Receiving notice and establishing jurisdiction are key components of service of process, which means the courts want to see the individual is likely to receive the documents. Proof should be presented that the subject is using their social media account with some level of frequency, whether through direct communication, posting updates or liking statuses or pictures.

Account Authentication Is Key

A potential problem with Facebook service is the proliferation of fake accounts. The Baidoo court addressed this by requiring the plaintiff to submit an affidavit verifying that the defendant owned the account in question. She attached copies of messages between herself and the defendant, and identified photos of the defendant on the account. While this was not absolute proof of ownership, the court found it sufficiently persuasive. The court also required her to demonstrate that the defendant logged into the account on a regular basis, and the order required the notice to be posted three times, at weekly intervals. The plaintiff also had an active mobile phone number for the defendant, making voice mail and/or text available as a backup notification method.

Certainly the work required in authenticating account ownership and ongoing use is considerable. It does not, however, seem to be more prohibitive than the work involved in getting approval for and completing service by publication, and in most cases at least, it is probably more effective.

Potential Pitfalls of E-Service

The possibility that an account is fake, that the owner will not log in, or that the wrong person might receive the message, are all potential drawbacks to Facebook service. The safeguards implemented in Baidoo provide some security. It’s also important to note that the method under discussion is Facebook’s private instant messaging service, not a public post.

When a private message is read, Facebook provides a “seen” message with the time of day the message was received. It is of course still not possible to prove that the person who saw it was the account owner, as opposed to a family member or friend, for example. This is also the case with email. For these reasons, e-service is inherently less reliable than either personal service or mail service with return receipt requested. Even allowing for the imperfections, however, notification by instant message appears far more reliable, in this day and age, than notification by publication.

Not all cases are going to get approved. Just look at Fortunato v. Chase. Fortunato claimed the credit card debt in her name was actually racked up by her estranged daughter. In an attempt to implead the daughter on the suit, Chase was unable to locate an address and sought to effect service through Facebook. Yet the court denied the request, stating there wasn’t sufficient evidence that the profile belonged to the correct individual and “the Court’s understanding is that anyone can make a Facebook profile using real, fake or incomplete information.”

Looking Forward

Service of process via Facebook as an alternate service method is still not widely accepted, but its recent use in matrimonial law cases highlights its benefits as a potentially more effective option than service by publication. Prior to pursuing this service method however, be prepared to prove due diligence in attempts at personal service as well as proof of ownership of the Facebook account and frequent use.

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Thanks for helping us celebrate!

Posted by | DGR News | No Comments

We want to give a big thank you to everyone who participated in our 35th Anniversary Giveaway and helped us celebrate 35 years of providing process service to the legal community!

We gave away tons of great prizes including free service certificates, Rocky Mountain Chocolate baskets, Bluetooth speakers, an iPad and an Apple watch. It was easy to tell from their responses how excited our winners were and we were happy to be able to add that little something extra to their day!

Here’s the winner of our iPad with his prize – clearly much appreciated!

Jeff

We’ve had a blast giving away these 35 prizes, giving us the chance to celebrate each of the years we’ve been in business while making someone’s day.

In these 35 years the industry has changed dramatically and so has DGR, going from the owner Jerry Colasurdo running everything as one-man show to an established company with over 85 employees. Looking forward to seeing what the next 35 years brings for DGR!

DGR 35th Anniversary

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Beware of Paper Brokers: Do You Know Who Your Process Server Is?

Posted by | Process Server Standards | No Comments

paper broker

Do you know whose really handing your process service?

Many companies are popping up within New Jersey and across the country, claiming to be experts in the process service industry. Often offering to handle your services for a low rate or with no charge for a non-serve, these companies act simply as the middle man between accepting your services and then distributing them to independent contractors they have little control over.

The Issue

The largest problem with this type of business practice is the number of individuals who are handling service without training and specific knowledge of the rules and laws.

By the very legal definition of independent contractors, those who use them cannot implement training or specifications as to how they should complete their work. This means these independent contractors can’t be told how to serve, when to serve or what ethical grounds to stand on.

Beyond the issue of the independent contractors being utilized by these paper brokers, these type of companies also lack the in-house knowledge to catch any errors before service is sent out.

There are times when service packets are sent in without all of the proper documents. With an experienced process service company, the office should catch these issues and relay them back to you prior to the service being sent out. This saves considerable time and provides a safety net when it comes to making sure services are considered valid and will be accepted by the court.

Without training and knowledge of the service rules and nuances related to due diligence, the quality of service is considerably lessened and also puts at risk the ability for private process servers to effectuate service. Should these process servers complete improper sewer service, the court could see this as a reason to put into place stricter rules surrounding the use of private process servers, as New York has done.

How To Tell

How do you know if a company is actually handling the services themselves or simply farming the work out to independent contractors?

One tell-tale sign is the lack of information about the history of the company or the people behind the operations on a website. Another is having a PO Box listed as the business address or a 1-800 number as the only listed phone number.

 

Be sure you know who is truly handling your process service. Is it a paper broker using independent contractors or an experienced process service company with employees?

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What You Need In A New Jersey Process Server

Posted by | Process Server Standards | No Comments

New Jersey process serverNew Jersey process servers play an important role in protecting due process rights and establishing jurisdiction in a case.

If you’re using a New Jersey process server, make sure they:

Know the rules

Getting a service completed quickly is always a good thing, but when it’s done within the rules and laws of proper service, you can run the risk of the court rejecting the service. This can result in missing deadlines, needing to re-file motions or even the entire case or having statutes of limitations expire.

Utilize employees, not independent contractors

Many process service companies not just in New Jersey but across the country utilize independent contractors rather than employees. The issue with companies utilizing independent contractors mean that according to the legal definition of what one can or cannot do when dealing with an independent contractor, these servers are not allowed to be trained, told how to serve or when to serve.

If you use a company like DGR who has employees on staff (and who are all Certified Process Servers), you can be sure they are trained and are sure to give you the best service possible.

Are ethical

Being ethical is always important when it comes to any profession, but in situations where legal matters are being decided it can be of even greater importance. For example, if a process server attempts service at a residence and the individual who answers the door says the subject hasn’t lived there in three months, the process server can’t simply serve the papers because they believe the person lives there. What if the subject truly did move? To serve the papers simply because that is the easy thing to do is a violation of the subject’s due process rights – and extremely unethical.

Always choose a process server that will make the ethical decision, and one that will stand up in court, every time.

Get the job done quickly

Your process server should be aware of timelines and the necessity to serve documents as quickly and efficiently as possible. No matter what type of law you practice this applies.

Getting the job done quickly not only ensures you are meeting deadlines for documents such as subpoenas and motions, but also that your clients are satisfied with the timeline of the case.

Are responsive and customer service oriented

No matter what your question, your process server should respond in a timely fashion. If you have as question or a matter which needs attention, then it is an important item which should be addressed immediately. You shouldn’t feel your bothering your process server when you call or need to call more than once to get a status update on a file.

 

With DGR, we have everything you need in your New Jersey process server. Ethical employees who make sure your service is completed quickly are ready to help with any service you might have. Contact us to get started.

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What Attorneys Should Know About International Process Service

Posted by | International | No Comments

international process service for attorneysInternational process service is something not every attorney deals with. But should you have to, here’s what you should know:

Not every country can be served the same way.

There are three primary ways to complete service internationally:

  • The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents
  • Letters Rogatory
  • Service via agent

You should expect a considerable timeline.

International service generally takes anywhere from a few months to a year. As most individuals and corporations would like to see legal matters resolved as quickly as possible, this isn’t a timeline many want to accept. But there is no way around it if you want to complete service in a manner that will hold up in a court of law.

Why does it take so long? It all comes down to the amount of time it takes for the documents to flow from our court system to that of another country, have service completed, then have the documents sent back through the proper channels.

You should also expect a higher cost than service within the US.

Fees for international services are considerably higher than traditional service within the US due to charges by the courts, the amount of effort included in completing service and translation requirements.

 Service type matters.

Looking to enforce a judgment? Be aware that service via agent will probably not stand up in a foreign court, especially when you are looking to enforce on one of their residents. Foreign courts will expect you to complete service in the specific manner prescribed by the country, whether it is it through the Hague Convention or Letters Rogatory.

Some countries will also have translation requirements depending on not only the native language of the country, but the language specific to the region of the country where service is being effectuated.

 Not all international process servers are created equal.

Failure to follow the proper procedures and translation requirements which vary from country to country can result in a court declaring service improper and dismissing it. After spending a substantial amount of time and money on service, no client wants to hear the service has been deemed improper and needs to be completed all over again.

Be sure to choose a process server who has considerable knowledge and expertise when it comes to international service.

 

Looking for an international process server? DGR has over 35 years of experience serving in every country around the world. Contact us today for more information.

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NYSPPSA Joins Article 78 Proceedings Against DCA

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NYC-Department-of-Consumer-Affairs-DCA-logo1In response to burdensome rules and requirements put into place by the DCA, the New York Professional Process Servers Association (NYSPPSA) will be joining Article 78 proceedings being filed against the Department of Consumer Affairs.

The association will not be putting forward any costs for the proceedings. Attorney Myra Sencer will be handling the submission of the Article 78 proceeding, which will go above the Department of Consumer Affairs (DCA) to the courts asking them to review the situation regarding process servers in NYC. Article 78 proceedings are usually only filed once the party has attempted to reconcile the issue through the agency. In this situation however, NYSPPSA feels the proceeding is more than warranted.

Since 2010 New York process servers have been dealing with the DCA’s newly imposed rules and requirements in the wake up a massive scandal which resulted in over 100,000 collection cases being overturned due to sewer service.  But NYSPPSA says the DCA keeps provoking to the point of no choice.

Getting around the rules

NYSPPSA and many other process servers believe the DCA has essentially created their own way around past settlement agreements through “legislation by coercion”.

In December 2010 the DCA opened the floor for comments in regard to the newly imposed rules. Despite testimony from numerous process servers, including the President of the New York State Professional Process Servers Association, the DCA rejected the proposed rules and changes.

In response to burdensome cost and time requirements put into place that would effectively create too high a barrier for many to continue working as a process server in New York City, NYSPPSA filed a lawsuit against the agency.

Months into the lawsuit in April the DCA acquiesced to some of the proposed rule changes. The revised rules were ones NYSPPSA felt every process server could live by and dropped the lawsuit.

Shortly after process servers began getting consent orders from the DCA which would supersede the settlement agreement from the lawsuit. The message in the consent orders was clear to the process servers who received them: sign and approve the consent orders or have your license revoked.

Lack of industry knowledge

Part of the problem, says Larry Yellon, President of NYSPPSA, is those who are putting the fines into place have no knowledge of the industry or its rules and nuances.

For example, he received a phone call from a woman who owns an agency. The DCA was fining her because her server didn’t describe the color of the hallways when he did a nail and mail. Yet the residence was a private home – there were no hallways.

The agency owner ultimately won when she contested the fine, but only after spending money and time to do so. This is just one of many instances of such fines.

The fines are so frequent some agencies have taken on the expense of hiring a compliance officer to make sure every I is dotted and every t crossed to avoid fines. The cost to do so isn’t one many process service companies can afford though.

The result? Many mom and pops are being pushed out of the business.

Renewals

The recent renewal period for NYC process server and agency licenses has highlighted the difficulties NYC process servers encounter when dealing with the DCA and a lack of clarity.

Back in January, the DCA sent out letters a month and half prior to the end of the license term on February 28th requesting every agency to fill out a report. Based on this report, the DCA decided 46 agencies did not quality for renewed licenses.  They did however give out temporary letters for a renewed license.

But there are discrepancies between what these agencies are being told. Some were told their license would be good until May 31st while others were simply told their licenses wouldn’t be renewed.

The worst part for those who were denied licenses? The DCA can do so without provided a hearing, unlike every other type of industry regulated by the agency.

Looking forward

The Article 78 proceedings have yet to be filed. Once filed, NYSPPSA is hopeful for a thorough review of the DCA’s proceedings against process servers by the court.

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The NY Ruling Every Attorney & Process Server Should Be Paying Attention To

Posted by | Process Server Standards | No Comments

Process serving ruling

An investigation into $800 million of default judgments entered because of fraudulent affidavits of service has resulted in a ruling that attorneys all over the country should be paying close attention to.

The bottom line: as an attorney, you and your firm can be held responsible if a process server handling your service files a false affidavit of service.

In addition to a $59 million settlement in a class-action lawsuit and a major network of collectors being barred from continuing the practice, the process service company responsible for the fraudulent affidavits, Samserv Inc., has been required to start paying process servers the same amount for unsuccessful attempts as successful ones.

Why did the court do that and what does this mean for attorneys?

The court and advocates have stated that the unfair pay rates put pressure on the process servers to lie if the notice was actually served.

While not being charged for a non-serve sounds great, the court has recognized the problem this pay-scale encourages. If the company isn’t getting paid for a non-serve, then the process server isn’t either. The law firm which used SamServ was personally named as a defendant in the class-action lawsuit, holding them accountable for utilizing a process service company  who engaged in false service.

The fraudulent affidavits involved individuals who hadn’t lived at a particular address for more than ten years, subjects who had been deceased for years and others who had been at work with viable alibis at the time of service.

Law firms and attorneys need to be careful when choosing a process server who doesn’t pay their process servers equal pay for served and non-served notices. The results of this practice in New York ignited a class-action lawsuit and a resulted in a $59 million settlement, a long list of compliance requirements for NYC process servers and overturned over 100,000 judgments.

Buyer beware.

Check out the full New York Times article that discusses the case and the impact of non-payment for a non-serve has on the quality of process service: click here.

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NJ Process Servers Seek Immunity From Trespass

Posted by | Uncategorized | No Comments

immunity from trespass process serverNJ process servers are seeking to gain immunity from trespass through another already existing bill, SB 2545, which would allow communities to be able to appoint receivers for vacant and abandoned foreclosures in order to expedite the process.

According to the New Jersey Professional Process Servers Association:

“There exists a statute, N.J.S.A. 2A:50-53. et seq, that allows for mortgage lenders to seek expedited mortgage foreclosures for residential properties that are determined to be vacant or abandoned.  Those determinations are often done by process servers.  In so doing, there is a risk that the person conducting those inquiries may be exposed to trespass allegations, especially when looking into a home that is actually occupied.”

NJPPSA is joining with the Community Associations Institute (CAI-NJ) to support the bill.

“In our efforts to seek protection for private process servers in New Jersey, we have joined CAI-NJ in its efforts, and have submitted recommendations to Senator Ronald Rice that the bill be further amended to include an immunity from trespass provision for persons, including process servers, who conduct those inquiries.  We ask you to join CAI-NJ, and NJPPSA, in support of those amendments by communicating to Senator Rice.  Please mention that his proposed bill should include immunity from trespass as recommended by NJPSSA.

Help New Jersey process servers in their efforts to gain immunity from trespass in foreclosures. Contact Senator Rice in support of the bill of be sure to mention the bill should include immunity from trespass for process servers.

 Contact Senator Rice 

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Two New York Process Server Bills Pass Senate

Posted by | Legislation/Bills | No Comments

New York process server billTwo bills affecting process servers have passed the New York Senate – one which would remove the logbook requirement and another which would make assault against a process server a Class D felony.

The bill concerning logbooks , SB 4916 (same as A-05656), was passed by the Senate on March 22, 2016 and sponsored by Senator Martin J. Golden. The goal of the bill is:

“To eliminate the mandated redundancy and duplication of efforts in record keeping by a process server that has incurred since the inception of NYC municipal laws that now mandate a digital record requirement.”

The bill looks to the states’ requirements of general business law Sec. 89-cc to build its justification, citing that the requirement to record the same information twice in both digital and handwritten formats is an undue burden without any clear benefit to any regulatory authority.

The other bill, SB 2991 (same as A01250), would make assault a process server a Class D felony in assault of the second degree.  This bill would grant New York process servers additional protection while out serving and goes so far as to include the releasing of an animal upon a process server as grounds to be charged with a felony.

The bill will amend the penal law in relation to assaults upon process servers to include:

“ With intent to prevent or obstruct a process server, as defined in section eighty-nine-t of the general business  law,  from  performing  a lawful  duty  pursuant  to  article  three of the civil practice law and rules, or intentionally, as retaliation against such  a  process  server for  the  performance  of  the  process server’s duties pursuant to such article, including by means of releasing or failing to control an animal evincing the actor’s intent that the  animal  prevent  or  obstruct  the lawful  duty of the process server or as retaliation against the process server, he or she causes physical injury to such process server.”

The New York State Process Servers Association (NYSPPSA) has seen the same assault legislation bill pass the Senate last year. With the bill not passing Senate until June 11th and the session closing on June 19th, there wasn’t enough time for it to make it to the Assembly floor before the session closed.

It is the hopes of the New York State Professional Process Servers Association that both bills will pass without issue in the Assembly.

For full text of the logbook Senate bill go here.
For the full text of the assault Senate bill go here.

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4 Signs of a Quality Messenger Service Company

Posted by | Courier Service | No Comments

Quality-messenger-service-truckIf you’re in the legal industry, you know how important it can be to have a quality messenger service you can depend on. There are times when a quality messenger service can make or break you missing a filing deadline. Here are four things you should look for when choosing a messenger service to make sure you’re getting the best:

  1. Constant communication

You should never be left wondering what the status of your package is. A reliable messenger service company will let you know as soon as the package has been delivered, along with who signed for it.

  1. Professional appearance and demeanor

Your package for delivery is an important one to you or else you wouldn’t be having it hand delivered.  Why trust anyone who isn’t a professional with the task? An employee with a quality messenger service should arrive neatly dressed in uniform and treat their job and you with professionalism.

Professional doesn’t necessarily have to mean not fun, but the messengers should always be knowledgeable and courteous.

  1. Knowledge of routes and courthouses

Part of being a professional is having the knowledge to complete your job well. For messengers, this means knowing the best routes to take, accounting for factors like time of day and construction. For example, going through a school zone at 3pm is sure to lose some time on delivery so an alternate route should be used.

If your messenger’s destination is a courthouse, having a rapport with the staff and knowing exactly where they need to get to in the building could be the difference between your package being delivered or missing the deadline. When you have a package going from one side of the state to the other at 3pm for a 4pm deadline, you’re going to want a messenger who knows the best parking location for a quick entry and where the judges’ chambers are in the courthouse.

  1. Always follows instructions

You want a messenger who will follow your exact instructions. If the instructions were important enough for you to give, then they’re important enough for the messenger to follow.

If you have two packages and want one delivered to the courthouse two counties away before the second one is delivered to your adversary located right down the street from you, your messenger should do exactly that.

Choosing a messenger service shouldn’t be underestimated. Explaining to your boss or a partner why the delivery didn’t happen as expected isn’t something anyone wants to undertake. Pick a messenger service you can depend on.

Contact us today for our New Jersey messenger service rates!

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