New Facebook Friend? Be Careful or You Might Find Yourself Served!

Written by Muthena Alsahlani and Edited By Wassem M. Amin

Social networking site likes Facebook and Twitter play a significant role in society and in most people’s daily life. So big, in fact, that a court ruled that Service of Process via Facebook is permissible under Federal Rules of Civil Procedure 4(f) .

Facts of the Case

The Defendants allegedly operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers. This scheme was operated in large part out of call centers located in India.

The U. S. District Court of Southern District of New York issued a temporary restraining order on the defendants’ business practices. On September 27, 2012, the Federal Trade Commission (FTC) submitted the Summons, Complaint, and related documents to the Indian Central Authority for service on defendants, in accordance with Federal Rule of Civil Procedure 4(f)(1) and The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention” or “Convention”). The FTC also sent these documents to defendants by three alternative means: (1) by email to defendants’ known email addresses; (2) by Federal Express (“FedEx”); and (3) by personal service via a process server.

The FTC moved for leave to effect service by alternative means, mainly email and Facebook, on five of the defendants. The defendants sought a preliminary injunction to prevent this method of service.

Holding

The District Court enjoys discretion of whether to order service of process under Rule 4(f)(3) . Both the United States and India are signatories to the Hague Service Convention, mentioned in Rule 4(f). Article 10 of the Hague Convention allows for service of process through alternative means, provided the destination state does not object to those means. Thus far, service by email and Facebook are not among the means listed in Article 10 and India has not specifically objected to them. As well, service via email comports with due process where a plaintiff demonstrates that the email is likely to reach the defendant.

The District Court noted that if the plaintiff proposed serving the defendants only through Facebook, without a supplemental form of service, then a substantial question of due process would arise. However, the FTC’s proposal does not suffer that defect. The FTC proposes service via Facebook in conjunction with traditional email. The plaintiffs were able to establish that the Facebook accounts identified are actually operated by the defendants. Thus, there is a likelihood that the message will be received.

Important to note that Facebook is routinely used to serve claims in Australia, New Zeland, and Britain to a lesser extent.

Implications

Foreign defendants can be served process via Facebook, in addition to email, provided that the message will likely reach its intended target, under Fed. Rule of Civil Procedure 4(f). The Court did not that “[H]istory teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.”

It’s only natural to wonder: will this open the door for an eventual change in Federal Rule of Civil Procedure, which applies to service of process for defendants residing in the U.S.? It’s plausible the traditional rules of service may evolve in order to appropriately reflect the technological shift. Electronic service is more effective and the more common mode of communication in many respects. The challenge, of course, is establishing receipt or acknowledgment of electronic service. Given the struggles of the U.S. Postal Service and the uncertain future of traditional mail, there may not be an option but to evolve and accommodate.

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