U.S. Federal Judge Permits Service of Process Through Social Media

In the United States, there is a requirement that notice of a lawsuit against a party be served on that party with a reasonable likelihood that the notice will be received so that the party may respond to it.  A federal plaintiff must comply with both constitutional due process notice requirements and Rule 4(f) of the Federal Rules of Civil Procedure.  In order to satisfy due process, the methods of service must provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co, 339 U.S. 306, 314 (1950).  Often, that is done by having a process server hand the defendant the lawsuit papers (“personal service”), typically a summons and a complaint.  Other methods may include serving the agent of the party or leaving the papers at the person’s dwelling with a person of suitable age.

However, should location of the defendant prove difficult for service, the rules also allow a plaintiff to ask the court for an order allowing service by alternative means. Modernly, service of lawsuit papers has occasionally been allowed by notice through social media.  Such service has been approved in at least Australia, New Zealand and in England.  In 2009, service of an injunction was allowed on Twitter.  In 2012, the English High Court approved service of a lawsuit via Facebook.  See article here.

In a case in U.S. District Court in Alexandria, Virginia, the plaintiff, WhosHere, Inc., asked Magistrate Judge Thomas Rawles Jones, Jr. for an order permitting it to serve lawsuit papers on defendant Gokhan Orun, a resident of Turkey, by way of e-mail, Facebook and LinkedIn.  Plaintiff brought the underlying lawsuit against Mr. Orun, alleging among other things trademark infringement, unfair competition and cybersquatting.

Rule 4(f)(1)-(3) of the Federal Rules of Civil Procedure governs service of process on an individual in a foreign country and provides three mechanisms of service:  (1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; (2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by [certain specified means outlined in the Rule] reasonably calculated to give notice . . .; or (3) by other means not prohibited by international agreement, as the court orders.

Plaintiff had presented to the Court certain facts of earlier attempts at service. Plaintiff attempted to serve the lawsuit by e-mail and by the Hague Convention, but both attempted methods were unsuccessful.

Recent decisions establish that courts applying Rule 4(f)(3) can order any means of service so long as it provides reasonable assurance that defendant will be notified of the lawsuit and is not prohibited by international agreement.  See Rio Props. v. Rio Int’l Interlink 284 F.3d 1007, 1016-17 (9th Cir.2002); BP Prods. N. Am., Inc., 232 F.R.D. at 265 (E.D. Va. 2005).

Judge Jones considered plaintiff’s motion and the facts presented.  In addition to acknowledging plaintiff’s previous attempts at service, he found no international agreement with Turkey that forbid service of process via e-mail, Facebook or LinkedIn.  Accordingly, in an order dated February 20, 2014, Judge Jones granted plaintiff’s motion to allow service upon Mr. Orun at his two e-mail addresses and his Facebook and LinkedIn accounts.  Order here.  Should one be a prospective defendant, a record of social media communications can result in effective service of process and actual or constructive notice of the lawsuit.

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About Craig McLaughlin

I am an intellectual property attorney and trial lawyer with an office in Southern California. I enjoy representing clients and also enjoy flyfishing, skiing, golf, writing this blog and photography (see blog header). My website is: http://www.smartpropertylaw.com
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