In 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.”
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.