In Baidoo v. Blood-Dzraku, 2015 Slip Op 25096, the Supreme Court for New York County granted plaintiff’s petition to serve a divorce complaint via Facebook as a method of alternative service pursuant to New York’s statute for service of process (CPLR 308).
In considering whether alternative service of process via social media would be allowed, the court assessed whether the statutorily prescribe methods of service (in-person, substitute service, or “nail and mail” service) would prove impracticable. Based on the fact that the plaintiff had demonstrated that the traditional forms of service were not available to the plaintiff, the court turned to the question of whether service of process by social media (in this case Facebook) should be permitted.
The court indicated that in order for it to authorize service via Facebook, the plaintiff had the burden to prove that the proposed method of service of process was “reasonably calculated to apprise defendant that he is being sued for divorce.” The court further noted that past judicial precedent posed two additional challenges that needed to be addressed before it could approve service of process via social media: (1) only a handful of courts have ruled on the issue of whether to permit service of process by social media; and, (2) when approved it has been on the condition that service via social media be supplemented by an additional method of service.
The court concluded that the plaintiff met her burden by demonstrating that the Facebook page to which the notice would be sent actually belonged to her husband. This was done by plaintiff’s submission of an affidavit verifying that the Facebook page belonged to her husband along with copies of exchanges that took place between her and her husband through the Facebook page. Plaintiff additionally met the court’s concern about whether her husband would receive the notice in a timely fashion (that would allow him to respond to the complaint) by demonstrating through her affidavit that her husband regularly logs into his account. This timeliness concern was also addressed by the plaintiff’s ability to send a voice mail or text message to defendant, via a mobile phone, alerting him that a divorce action had been commenced and that he should check his Facebook page in order to acquire a copy of the complaint.
Regarding the paucity of past precedent and requiring a second method of service in addition to notice being sent via Facebook, the court found that the plaintiff demonstrated a “compelling reason” for Facebook to be the sole means of service. In embracing the use of social media for service of process, the court used forward thinking language and pointedly noted “[i]n this age of technological enlightenment, what is for the moment unorthodox and unusual stands a good chance of sooner or later being accepted and standard, or even outdated and passé. And because legislatures have often been slow to react to these changes, it has fallen on courts to insure that our legal procedures keep pace with current technology.” Further, the court was dismissive of requiring service by a secondary method, such as by email, mailing to a last known address, or by publication. Plaintiff did not have an email address for her husband and she demonstrated that she does not have a viable last known address. Further, the court was dismissive of requiring service by publication by stating: “[t]he problem, however, with publication service is that it is almost guaranteed not to provide a defendant with notice of the action for divorce, or any other lawsuit for that matter.”
Based on the facts as presented, the court found that service by Facebook would most comport with due process standards by being reasonably calculated to provide notice to the defendant that he was being sued for divorce, and “every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him.”
This is a case that provides a nice framework for the process a court will use to assess whether social media should be allowed for service of process, and it certainly has implications beyond divorce proceedings.
This decision can be found at the following link: http://www.courts.state.ny.us/reporter/3dseries/2015/2015_25096.htm
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