In the modern age, where communication can be done by way of text, tweet, email, or swipe, the ancient requirement to hand-serve a summons and complaint on a defendant seems quite anachronistic. Courts and legislatures have been moving over time to reduce the burden of hand-serving new lawsuits. In a new and somewhat surprising case, a New York court has allowed service by way of Facebook.
New York, like most states, has allowed for some time alternate ways to serve a new complaint other than hand delivery.
One method is “substitute service” which requires delivering the summons to a person of “suitable age and discretion” at the defendant’s “actual place of business, dwelling or usual place of abode.” See CPLR § 308(2). A second method is referred to as “nail and mail” where the summons is affixed to the defendant’s door at their “actual place of business, dwelling or usual place of abode” and then, a copy of the summons is mailed to defendant’s “last known address” or “actual place of business.” See CPLR § 308(4). A third method, referred to as service by publication occurs where the summons is printed in a newspaper designated by the Court and is granted by a showing that “service cannot be made by another prescribed method with due diligence.” See CPLR § 315.
Under CPLR § 308(5), the Court—upon a party’s ex-parte request—may direct the manner of service. In its determination of which method to prescribe the Court may go beyond the above-referenced methods of service and “devise a method that fits the particular circumstances of the case.” Baidoo v. Blood-Dzraku, 48 Misc. 3d 309, 311 (Sup. Ct., N.Y. Co. 2015). An application of this kind is only granted upon a sufficient showing that personal service, substitute service, or nail and mail service “would prove ‘impracticable.’” Id. at 311.
In Baidoo, the plaintiff applied to the Court to find that service of a divorce summons via Facebook, a social media site, constituted an appropriate form of service under CPLR § 308(5). The plaintiff contended that she had no alternative way to reach the defendant. Plaintiff established, through an attorney-affidavit, that: (i) investigative firms hired by the plaintiff were unsuccessful in locating the defendant; (ii) the post office has no forwarding address for an apartment defendant vacated years prior; (ii) there is no billing address for defendant’s pre-paid phone bill; and (iii) the Department of Motor Vehicles has no record of defendant.
In analyzing whether Facebook was an appropriate method for service of the summons the Court synthesized the analysis as follows: “If the summons for divorce is sent to what plaintiff represents to be the defendant’s Facebook account, is there a good chance he will receive.” Stated more eloquently, “[t]he central question is whether the method by which plaintiff seeks to serve defendant comports with the fundamentals of due process by being reasonably calculated to provide defendant with notice of the divorce.” Id. at 314.
Interestingly, the Court discussed the notion that plaintiff would be better met by simply serving defendant by publication. Noting the obvious problem, the Court stated that which publication by service it almost guaranteed that defendant would not be provided with notice. The Court observed as follows:
In divorce cases brought in New York County, plaintiffs are often granted permission to publish the summons in such newspapers as the New York Law Journal or the Irish Echo. 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. The dangers of allowing somebody to be divorced and not know it are simply too great to allow notice to be given by publication, a form of service that, while neither novel or unorthodox, is essentially statutorily authorized non-service. This is especially so when, as here, there is a readily available means of service that stands a very good chance of letting defendant know that he is being sued. Id. at 316.
The Court held that service by Facebook, although relatively new and non-traditional, was the form of service that comported most to the due process standards set for the under the law. This method of service was held to be reasonably calculated to provide defendant with notice that he is being sued for divorce. This service method will likely achieve the objective of service which is actual delivery of the summons to the defendant.
As an aside the Court placed some additional requirements on plaintiff in permitting that service be made via Facebook. Plaintiff’s counsel was ordered to log-in to plaintiff’s Facebook account, identify himself, and provide the summons on a weekly basis for a defined frequency. Plaintiff and her counsel were also ordered to text message and call defendant to inform him that the summons for divorce was served via Facebook.
It is unclear whether this decision will have a wide ranging effect. It is noteworthy in that Baidoo recognizes that e-mail has “all but replaced ordinary mail as a means of communications” such that the statutorily prescribed methods of service and it is incumbent on the legislature to play catch-up as the courts are now routinely permitting it as a form of alternative service.