Issues to Watch

#youvebeenserved: Court Holds Twitter as an Acceptable Method of Service of Process


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#youvebeenserved: Court Holds Twitter as an Acceptable Method of Service of Process

Julie Giardina*

On September 30, 2016, U.S. Magistrate Judge Laurel Beeler granted a motion to serve process by alternative means, holding that the plaintiff could use Twitter to serve process on the defendant.  St. Francis Assisi v. Kuwait Fin. House, No. 3:16-CV-3240-LB, 2016 WL 5725002, at *2 (N.D. Cal. Sept. 30, 2016).  Plaintiff, nonprofit organization St. Francis Assisi, sued three defendants for damages “arising from the defendants’ financing of the terrorist organization known as the Islamic State of Iraq and Syria (ISIS), which resulted in the targeted murder of Assyrian Christians in Iraq and Syria.”  Id. at *1.  St. Francis Assisi was unable to locate one of the three defendants, Hajjaj al-Ajmi, a Kuwaiti resident, and thus was unsuccessful in serving him via traditional methods of service of process.  Id.  St. Francis Assisi filed a Motion to Serve Process by Alternative Means, requesting permission to serve al-Ajmi on the social media site Twitter.  Id.  The court granted the nonprofit organization’s motion, stating that service via Twitter is “reasonably calculated to give notice[,]” is the “method of service most likely to reach” the defendant due to his active use of Twitter as a means of communicating with his audience, and is a method not prohibited by international agreement.  Id.

To put St. Francis Assisi into context, “[a]s recently as ten years ago, it was considered a cutting edge development in civil practice for a court to allow the service of a summons by email.”  Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709, 711 (N.Y. Sup. Ct. 2015).  Although the legislature has yet to set email as a statutorily acceptable method of service of process, courts have routinely permitted service via email.  Id.  As publication service becomes a less effective alternative method for service of process and social media becomes a bigger part of an individual’s everyday life, it only makes sense that social media becomes an acceptable alternative means of service of process when a defendant is unable to be located.  See id.

What Constitutes Service of Process?

Under Federal Rule of Civil Procedure (FRCP) 4, after commencing a lawsuit and filing a complaint, a plaintiff must serve a copy of the complaint to all defendant parties in the suit.  Fed. R. Civ. P. 4(c).  Under FRCP 4(e), acceptable means of service of process include delivering a copy of the summons and complaint personally, leaving a copy at the individual’s dwelling or with someone of suitable age who resides there, or delivering a copy to an authorized agent.  Fed. R. Civ. P. 4(e).

The Federal Rules of Civil Procedure provide for different methods of acceptable service of process for a defendant of a foreign country.  Fed. R. Civ. P. 4(f).  FRCP 4(f) provides that a plaintiff can serve a defendant of a foreign country:

(1) [B]y an internationally agreed means of service that is reasonably calculated to give notice, such as those provided by the Hague Convention; (2) if there is no international means or no means specified then by means reasonably calculated to give notice; or (3) by other means not prohibited by international agreement, as the court orders. St. Francis Assisi, 2016 WL 5725002, at *1.

However, “[s]ervice of process under Rule 4(f)(3) is neither a last resort nor extraordinary relief.  It is merely one means among several which enables service of process on an international defendant.”  Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 115 (S.D.N.Y. 2010).

Social Media as an Acceptable Means of Service of Process

The ruling in St. Francis Assisi is not the first time courts have held social media to be an acceptable method of service of process on a defendant residing in a foreign country.  In F.T.C. v. PCCare247 Inc., No. 12 CIV. 7189 PAE, 2013 WL 841037, at *6 (S.D.N.Y. Mar. 7, 2013), the court allowed the plaintiff to serve the defendants via email and Facebook after unsuccessful attempts by the plaintiff to submit service of process through the Indian Central Authority.  The court held that service by email and Facebook was authorized because of the plaintiff’s good faith efforts to serve via other means and the need for the litigation to move forward.  See id.  Additionally, in WhosHere, Inc. v. Gokhan Orun, the court authorized service of process on a defendant residing in Turkey via email, Facebook, and LinkedIn.  No. 1:13-CV-00526-AJT, 2014 WL 670817, at *1 (E.D. Va. Feb. 20, 2014),  The court granted plaintiff’s request to serve via email, Facebook, and LinkedIn because notice through the social media accounts was reasonably calculated to notify the defendant of the action and the proposed means were not prohibited by international agreement.  See id. at *3–4.

Courts have held social media as an acceptable means not only in suits where the defendants are located in foreign countries, but also in various domestic proceedings.  In Baidoo v. Blood-Dzraku, the Supreme Court of New York held that the plaintiff could serve the defendant with a divorce summons via private message on Facebook.  See Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709, 716 (N.Y. Sup. Ct. 2015).  The court stated that under the circumstances, the plaintiff had no other reasonable means of serving the defendant because there was no known address or place of employment for the defendant, and even an investigative firm hired by the plaintiff could not locate the defendant.  Id. at 712, 715.  Although publication process is a method of alternative service that could have been used by the plaintiff, the court stated that publication process has been proven to no longer be effective in that it is “almost guaranteed not to provide a defendant with notice of [an] action.”  Id.  Furthermore, in Ferrarese v. Shaw, the court granted the plaintiff’s motion requesting to serve the defendant via regular mail, email, and Facebook.  164 F. Supp. 3d 361, 368 (E.D.N.Y. 2016),  The court allowed service via Facebook because of the defendant’s “persistent effort to evade service.”  Id. at 367.

Issue to Watch

Although this was not the first time the courts approved social media as an acceptable method of service of process, the ruling in St. Francis Assisi is the first time the court approved service of process via only social media.  See St. Francis Assisi v. Kuwait Fin. House, No. 3:16-CV-3240-LB, 2016 WL 5725002, at *2 (N.D. Cal. Sept. 30, 2016).  The previous decisions required additional methods of service on top of the social media platforms.  See WhosHere, Inc. v. Gokhan Orun, No. 1:13-CV-00526-AJT, 2014 WL 670817, at *1 (E.D. Va. Feb. 20, 2014) (allowing service of process via email, Facebook, and LinkedIn); F.T.C. v. PCCare247 Inc., No. 12 CIV. 7189 PAE, 2013 WL 841037, at *6 (S.D.N.Y. Mar. 7, 2013) (allowing service of process via email and Facebook); Baidoo, 5 N.Y.S.3d at 716 (allowing service of process via a private message on Facebook, but requiring plaintiff and her attorney to call and text defendant to inform him of the summons sent via Facebook); Ferrarese, 164 F. Supp. 3d at 367  (“[T]he proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant”).  The court order does not specify whether the summons will be served via a Twitter direct message or a tweet to the defendant’s Twitter page; however either way is groundbreaking.  See St. Francis Assisi, 2016 WL 5725002, at *1–2.  Santa Clara University law professor Eric Goldman stated in his blog post: “[f]or all of those clamoring for social media sites to censor terrorists more vigorously, the court’s approval of service of process via social media provides an important counter-narrative about the value of keeping communication lines open.”  Venkat Balasubramani, Federal Court Authorizes Service of Process via Twitter, Tech. & Marketing L. Blog (Oct. 1, 2016), http://blog.ericgoldman.org/archives/2016/10/federal-court-authorizes-service-of-process-via-twitter.htm.  The acceptance of service of process via Twitter will aid in the fight against terrorism and speed up the process of adjudication for defendants in foreign countries.

*Julie Giardina is a second-year law student in the evening program at the University of Baltimore School of Law. She currently serves as a staff editor for Law Review. Ms. Giardina is a paralegal at Womble Carlyle Sandridge & Rice in the Baltimore office, where she works in the Business and IP Litigation practice group

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