How do you serve someone you cannot find? We have had service of process by alternative means for decades, but is service by a Facebook message an effective alternative means of service? Fortunato v. Chase Bank USA, N.A., 2012 U.S. Dist. LEXIS 80594 (S.D.N.Y. June 7, 2012).
One Federal Judge in New York Court said no.
In Fortunato v. Chase Bank USA, N.A., Chase bank obtained a default judgment and garnished wages from a woman for allegedly not paying a credit card bill. Fortunato, at *1-2.
The woman brought suit, claiming someone else opened the credit card account. Additionally, the Plaintiff never lived at the address listed on the application. Fortunato, at *2.
Chase impleaded the Plaintiff’s estranged daughter into the case, claiming the daughter opened the account with her mother’s name, but listed one of her own addresses on the account. A total of $1,243.09 was charged to the account, which ultimately was garnished from the Plaintiff. Fortunato, at *2-3.
Chase brought a motion for alternative service of process on the estranged daughter, because their investigator could not locate the daughter’s whereabouts. Fortunato, at *3.
The Defendants acted diligently in trying to serve the estranged daughter, including four service attempts at one address. The process server noted that there were “no obvious signs that the premises were being regularly accessed.” Fortunato, at *4.
The Defendant’s investigator searched DMV records, voter records, NY State Department of Corrections records, publicly available wireless phone provider records, and social media websites. Fortunato, at *4-5.
The investigator learned that the four potential addresses for the daughter had different deficiencies: one did not exist; one was the mother’s address; service could not be completed at one; and the other the daughter did not own. Fortunato, at *5.
The investigator did locate a possible Facebook profile of the daughter, which included an email address and listed a city in New York. Id.
The Defendant proposed four alternative service of process on the estranged daughter:
Delivery to the estranged daughter’s mother.
Fortunato, at *3.
The Court did not agree that service by a Facebook message, email to the address listed on the Facebook profile, and delivery of the summons and complaint to the mother were all reasonably calculated to notify the estranged daughter of the litigation. Fortunato, at *6-7.
The Court stated the following:
Service by Facebook is unorthodox to say the least, and this Court is unaware of any other court that has authorized such service. Furthermore, in those cases where service by email has been judicially approved, the movant supplied the Court with some facts indicating that the person to be served would be likely to receive the summons and complaint at the given email address. Here, Chase has not set forth any facts that would give the Court a degree of certainty that the Facebook profile its investigator located is in fact maintained by Nicole or that the email address listed on the Facebook profile is operational and accessed by Nicole. Indeed, the Court’s understanding is that anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm whether the Nicole Fortunato the investigator found is in fact the third-party Defendant to be served.
Fortunato, at *6-8.
The Court also did not believe that serving the mother was reasonably calculated to provide notice of the case to the daughter. Fortunato, at *8.
The Court explained that the mother and daughter had been estranged for years. Moreover, the Court noted that the mother and daughter were to be counterparties in the lawsuit, so it was inappropriate to serve the mother. Fortunato, at *8.
The Judge agreed service by publication was appropriate in the given situation. As such, the Court ordered publication in the four cities based on the investigator’s research and the city listed on the Facebook profile. Fortunato, at *9-10.
Bow Tie Thoughts
Service by a social media profile may be appropriate under certain circumstances, but there are challenges in determining the profile is actually maintained by a prospective party. In the current case, the Court wanted something more to show the profile actually belonged to the prospective party.
What would a Court require to show a social media profile belongs to whom a party claims it belongs to? If it is a public profile, perhaps there are status messages and recent photos that might provide those additional facts to satisfy a Court. Alternatively, such information might be enough to give a party enough information to personally serve the prospective party.
Given the number of social media profiles that include location data in their posts, it is a matter of time before we have service of process cases involving social media posts.