We’ve written before about potentially allowing service of process via social media accounts, and it appeared that it may be getting close—earlier this year Texas considered a bill allowing service through social media accounts, and a federal court allowed Facebook service for a foreign defendant. But in a recent federal case from Kansas, Magistrate Judge James O’Hara suggests that Facebook service still has some distance to go before courts find that it comports with due process requirements.
In the copyright infringement case, Joe Hand attempted to serve Carrette at his last known place of business, which was vacant, and his last known residence, which was also vacant. After exhausting the normal means of service, the plaintiff stumbled upon Carrette’s purported Facebook page. With little other options, Joe Hand asked the court to authorize service through Facebook private message.
FRCP 4(e) and (h) authorize various means of service, such as personal and abode. Although the court recognized that Joe Hand “exhausted all conventional methods of service,” the court remained unconvinced that an unconventional method—like Facebook—would “comport with traditional notions of due process.” The court recognized that some courts have allowed service by email but noted that the plaintiff must demonstrate that the email is likely to reach the defendant:
In order to satisfy due process, the court must be sure that the method of service is likely to reach the defendant, so that the defendant may have an opportunity to present his case. This is a legitimate concern when serving a defendant via Facebook message, as the court can rarely be certain that the information has actually reached the intended recipient.
The court addressed F.T.C. v. PCCare247, a recent case out of New York, which allowed Facebook service in addition to email service. The court noted that in F.T.C. the defendants were online businessmen, regularly communicated through email, and the same email they used to communicate with customers was used to register their Facebook.
However, the court did not find any of the same assurances in this case and could not even find that the account was active. Because of the inability to authenticate the account, the court “decline[d] the invitation . . . to ‘like’ Facebook as the suggested sole means of substituted service. . . .”
Despite this blow to Facebook service, there remains hope for the future:
Allowing service via Facebook message clearly would be unconventional as of today—plaintiff cites no legal authority for this as the sole means of service of process. Of course, the court readily acknowledges that, assuming for the sake of discussion Facebook does not become obsolete and get replaced by another medium with more bells and whistles in the next few years, service of process via that medium may become as legally acceptable as service via email.