Courts Confront the Question of Service by Facebook

December 18, 2012 | Professional Liability | Complex Torts & Product Liability | Intellectual Property

Under New York law, service of process may be effected by: (1) personal service; (2) delivery to “a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served” and mail; (3) service on an agent; or (4) so-called “nail and mail” service.[1] Where service according to these traditional methods proves “impracticable,” however, service may be made “in such manner as the court, upon motion without notice, directs.”[2]

Does that include service by Facebook?  Several months ago, the U.S. District Court for the Southern District of New York, applying New York law, decided that it does not. While not necessarily surprising, the court’s decision in Fortunato v. Chase Bank USA, N.A.,[3] is yet a further indication that the judicial system is trying to come to grips with a vast array of technological developments that affect the practice of law and the judicial system itself.  Indeed, one might reasonably believe that the continuing stream of new technology and social media applications will undoubtedly lead to service by Facebook becoming an accepted practice in New York in the future – and, perhaps, even in the near future.

Background

The Fortunato case arose when Lorri J. Forunato sued Chase Bank USA, alleging that another person had fraudulently opened a Chase credit card account in her name and had proceeded to incur debt without her knowledge or authorization. When the debt went unpaid, Chase initiated collection proceedings against the plaintiff in N.Y. Supreme Court by completing service of process at an address in Carmel, N.Y. The bank obtained a default judgment against the plaintiff and began proceedings to garnish her wages. The bank eventually satisfied the full amount of the default judgment through garnishment of the plaintiff’s wages. In her action against Chase, the plaintiff alleged that she had never lived at the address where Chase attempted to serve her notice of the action, and she sought damages for violation of the Fair Credit Reporting Act, abuse of process, and conversion.

During the course of the suit, Chase sought and was granted leave to implead Nicole Fortunato, the plaintiff’s estranged daughter. In a third party complaint, Chase alleged that Nicole Fortunato had opened the credit card account in her mother’s name, had listed her own address in Carmel, N.Y., in the account application, and had proceeded to charge $1,243.09, which was the amount Chase ultimately garnished from the plaintiff’s wages. Chase asserted claims against Nicole Fortunato for contribution, indemnification, breach of contract, account stated, fraud, and unjust enrichment.

Chase’s process server made five attempts on three separate days over the course of about one week to serve Nicole Fortunato at an address in Shandaken, N.Y. The process server, however, reported that there were “no obvious signs that the premises were being regularly accessed.”

The bank also hired an investigator to try to locate Nicole Fortunato, but the investigator was unable to locate her or to obtain a physical address at which she lived. The investigator searched Department of Motor Vehicles records, voter registration records, New York State Department of Corrections records, publicly available wireless phone provider records, and social media websites. Based on these searches, the investigator initially uncovered four potential addresses for Nicole Fortunato: the Shandaken address, and addresses in Patterson, Wingdale, and Newburgh – all in New York.  Upon further research, it became clear that the Patterson address did not exist, the Wingdale address was where the plaintiff resided (without Nicole Fortunato), service could not be completed at the Shandaken address, and Nicole Fortunato was not the owner of the Newburgh address.

The investigator also found something else: a Facebook profile that she believed belonged to Nicole Fortunato. The Facebook profile included a personal email address and listed her location as Hastings, N.Y. With that information in hand, Chase asked the court to authorize service of process by email, Facebook message, publication, and delivery to the plaintiff – Nicole Fortunato’s mother.

The Court’s Opinion

In its decision, the court first focused[4] on the “impracticability” requirement of C.P.L.R. 308(5), observing that its meaning depended on the facts and circumstances of the particular case.[5] It then stated that Chase had demonstrated “numerous attempts” to effect personal service as well as diligence in its search for an alternate residence where Nicole Fortunato might be served. This, coupled with what the court characterized as her “history of providing fictional or out of date addresses to various state and private parties,” led the court to rule that service of Chase’s third party complaint pursuant to the traditional methods provided by C.P.L.R. 308 was impracticable.

The court then explained that, in shaping a method of alternate service, it had to keep in mind that constitutional due process required that service of process be “reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” It then held that service by private Facebook message, email to the address listed on the Facebook profile, and delivery of the summons and complaint to the plaintiff were not all reasonably calculated to notify Nicole Fortunato of the bank’s third party complaint.

The court pointed out that service by Facebook was “unorthodox to say the least.” It found that Chase had not set forth “any facts” that would give it “a degree of certainty” that the Facebook profile its investigator located was in fact maintained by Nicole Fortunato or that the email address listed on the Facebook profile was operational and accessed by her. Indeed, the court added, it understood that “anyone can make a Facebook profile using real, fake, or incomplete information,” and thus it declared that there was no way for it to confirm whether the Nicole Fortunato the investigator found was in fact the third party defendant to be served.

It should be noted that the court also had concerns about the portion of the plan that involved delivery of the summons and complaint to the plaintiff, finding that it was not “reasonably calculated to apprise Nicole [Fortunato] of the proceedings against her” because, by all accounts, the plaintiff and her daughter were estranged, the plaintiff had not been in touch with her daughter for years, and the plaintiff did not have any recent contact information for her daughter. Moreover, the court added, it did not believe that service on the plaintiff was appropriate where she and the individual to be served essentially were counterparties in the lawsuit.

Interestingly, the court decided to approve an alternative method of service – one that it suggested would, under the circumstances, be the most likely means by which to apprise Nicole Fortunato of the third party complaint: service by publication. It noted that C.P.L.R. 316(a) provides for service by publication “in two newspapers, at least one in the English language, designated in the order as most likely to give notice to the person to be served, for a specified time, at least once in each of four successive weeks.” The court reasoned that although the purported Facebook page of Nicole Fortunato listed her location as Hastings, N.Y., that location was at least 50 miles away from any of the four physical addresses the bank’s investigator had found. Thus, it ruled, it would authorize service of the third party complaint by publication, but it directed Chase to do so in local newspapers in the four cities where the investigator thought Nicole Fortunato could be living, as well as in Hastings.

Other Jurisdictions

There have been courts outside the United States that have permitted service by Facebook,[6] but no reported U.S. cases have authorized it. Indeed, earlier this year, a federal district court in California ruled that Facebook itself, as the plaintiff in a trademark infringement case, could serve international and domestic defendants by email while not even addressing the question of service by Facebook.[7]

The essential ingredient in the California decision and similar cases authorizing service by a non-traditional method such as email is that the movant supplied the court “with some facts indicating that the person to be served would be likely to receive the summons and complaint.”[8]  If the objections raised by the court in Fortunato can be addressed technologically, it would seem that New York courts would very likely be willing to permit service by Facebook where the circumstances require it.

Of course, that leads to the next question:  Can service by text message[9] or Twitter[10] be far behind?



[1] N.Y. C.P.L.R. 308.

[2] Id. at 308(5).

[3] No. 11 Civ. 6608 (JFK) (S.D.N.Y. June 7, 2012).

[4] The court looked to the C.P.L.R. because Rule 4(e) of the Federal Rules of Civil Procedure provides for service of process on an individual in the United States according to the laws of the state where the district court is located.

[5] See, e.g., S.E.C. v. HGI, Inc., No. 99 Civ. 3866 (S.D.N.Y. Nov. 8, 1999).

[6] See, e.g., MKM Capital Property Ltd. v. Carbo, No. SC 608 of 2008 (Australia Cap. Terr. Sup Ct., Dec. 12, 2008).

[7] Facebook, Inc. v. Banana Ads, LLC, No. C–11–3619 YGR (N.D. Cal. March 27, 2012). Other courts, including the U.S. District Court for the Southern District of New York, also have authorized service by email. See, e.g., Philip Morris USA Inc. v. Veles Ltd., No. 06 Civ. 2988 (S.D.N.Y. Mar. 12, 2007)(denying motion to dismiss for improper service where the court authorized service by email and fax because the plaintiff “showed that defendants conduct business extensively, if not exclusively, through their Internet websites and correspond regularly with customers via email. Furthermore, defendants do not disclose their physical addresses or location of incorporation. Through its investigation, plaintiff has shown that email and fax correspondence are likely to reach defendants”).

[8] Philip Morris USA Inc. v. Veles Ltd., supra.

[9] See Claire M. Specht, “Text Message Service of Process – No LOL Matter: Does Text Message Service of Process Comport with Due Process?,” 53 Boston College L.Rev. 1929 (2012).

[10] See “You’ve Been Served…Via Twitter,” available at http://www.jetlaw.org/?p=8646.

Reprinted with permission from the December 18, 2012 issue of the New York Law Journal.  All rights reserved.

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