Joseph Rossi*
Alternate service is service of a party in a court proceeding through means other than direct personal service. Amanda Sexton, DGR Serves First Instances of Service via Social Media Through LinkedIn & Instagram, DGR Legal (Oct. 18, 2017), https://www.dgrlegal.com/electronic-service-of-process/service-via-social-media-linkedin-instagram/. Often, courts must grant motions for alternative service due to either difficulties in obtaining current information for a party, or because of a party’s evasion. Erdal Turnacioglu, Facebook Notification: You’ve Been Served!, L. Prac. Today (Nov. 13, 2015), https://www.lawpracticetoday.org/article/facebook-notification-youve-been-served/. This entails posting the summons at a known address, placing the summons in well-known publications, or using a public posting at a local courthouse. Sexton, supra. Alternative service has greatly evolved over time as new ways to serve and new issues in service have arisen. See Turnacioglu, supra. For example, in auto-tort cases, a party’s insurance carrier, which would be aware of its policy holder’s most current address, may be served rather than the policy holder themselves. Md. Code Ann., Ins. § 4-107 (West 1997). Fifteen years ago, service through email in certain instances was approved for the first time. Sexton, supra; Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002). In a modern era with the growth of social media there has been a question of, when all else fails, whether social media can be a proper way to serve a party. Turnacioglu, supra.
With more than two billion active users on Facebook, many people have some sort of social media presence online. Sexton, supra. When troubles arise while attempting to serve a party, either because of a lack of information or evasion, the party to be served might have some sort of ongoing social media presence that they continue to nurture. Sexton, supra. It then follows that there may be an opportunity to serve the party via this social media where there previously was none.
The case of Baidoo v. Blood-Dzraku,is one of the eminent cases that discusses the strengths and shortcomings of service through social media. Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709, 712 (2015). In that case, the plaintiff sought a divorce from the defendant. Id. at 712. Immediately after the end of their marriage, the defendant disappeared. Id. The parties had never lived together, and the defendant’s last known address was an apartment that he vacated in 2011. Id. He had no place of employment, he did not have an address attached to his prepaid phone, the Department of Motor Vehicles had no record of him, and the Post Office had no forwarding address for him. Id. As such, the plaintiff sought to serve him with divorce papers via his Facebook account. Id. Personal service is always the preferred method of service, but once the plaintiff had shown that personal service was impossible, the court had to determine whether service via social media was appropriate. Id. The three areas of concern that the judge identified included: authenticity of the profile, the chance the defendant would see the service, and whether there was a better service option. Id. at 714–15.
Verifying the authenticity of a profile is the chief concern of most justices in these cases. See Sexton, supra; see also Baidoo, 5 N.Y.S.3d at 714. Social media profiles are easily forged, especially in domestic matters where the adversarial party likely has a large collection of pictures and information of the party being served. See Sexton, supra. In Baidoo, the plaintiff submitted a lengthy affidavit detailing her Facebook interactions, and the large collection of photos on the profile including the plaintiff and events before the parties met. Baidoo, 5 N.Y.S.3d at 714–15. The second consideration was also satisfied by this same evidence, which showed that the defendant frequently updated his page, as well as recent conversations between the two parties. Id. at 714. Finally, because of the lack of any other information about the defendant, service by mail, by posting, or by publication were extremely unlikely to reach the defendant, making social media the best option. Id. at 714.
Some other jurisdictions have investigated social media service in similar circumstances, and their concerns are identical to those in Baidoo. See Turnacioglu, supra. In one case, a defendant’s Facebook page had not been updated in years, and much of the information on it was out of date. Fortunado v. Chase Bank USA, N.A., No. 11 Civ. 6608, 2012 WL 2086950, at *7, *8 (S.D.N.Y. June 7, 2012). This did not convince the court that the page definitively belonged to the defendant, or that service was even likely to reach the defendant, and the motion for alternative service was ultimately denied. Id.
Although the issue of service via social media has been gaining recognition and feasibility since the Baidoo ruling, it was at first believed that service through social media was only applicable to family law cases. Sexton, supra. However, service through social media was recently approved in a case involving trouble serving an agent of an insurance company. See Harleysville Ins. Co. v. Mega Sec., L-000378-17, West (N.J.Super. Ct. Law Div. Jan. 13, 2017); seealso Sexton, supra. This case appears to have opened up the possibility of social media service becoming more accepted in a variety of legal matters.
Family law was the clear starting point for service through social media because of the close relationship adversarial parties usually have. Sexton, supra. One can expect married couples to be able to identify and authenticate Facebook or Twitter profiles of significant others, or conversely, to prove they are forged. Id. In most family-related issues, involved parties are also likely the most knowledgeable about each other’s social media presence. See id. Applying Baidoo to a civil tort action against the agent of a company is a very significant step towards normalizing service through social media. See id.
If more widely accepted, service through social media could drastically change service-related issues in court. See Clare Arthurs, Alternative Service Methods, Social Media and the Courts, Pennington Manches LLP, https://sites-penningtons.vuturevx.com/37/842/landing-pages/alternative-service-methods–social-media-and-the-courts.asp (last visited Oct. 25,2018). From wealthy defendants who flee to other countries, to smaller collection cases at the lowest court level, issues of proper service could become greatly diminished as social media platforms continue to grow. Should social media service continue to gain traction in more jurisdictions, the question of if service through social media should be codified like other popular alternative service methods, such as posting or publication, will need to bead dressed. While many concerns will surely complicate that question, such as what platform to use and for what types of cases, it is apparent that if service through social media becomes more widely accepted, it has the chance to drastically alter an important procedural step in the litigation process.
*Joseph Rossi is a second-year student at the University of Baltimore School of Law, where he is a staff editor for the University of Baltimore Law Review. He is also a Law Scholar for Professor Amy Sloan’s ILS/Torts course. He spent this past summer as an intern for both Murphy, Falcon & Murphy and the Hon. Mark F. Scurti in the Maryland District Court for Baltimore City.
University of Baltimore Law Review 