As reported by Law360 and several other  sources, on June 7, 2012, in Fortunato v. Chase Bank, a federal district court ruled that defendant Chase Bank could not use Facebook to serve a third-party defendant with the complaint that Chase had filed against her.

In Fortunato, plaintiff Lorri Fortunato sued Chase Bank, alleging that the defendant had unlawfully garnished her wages to pay a credit card debt that, according to the plaintiff, was actually incurred by her estranged daughter, Nicole (who the plaintiff alleged had lied on a credit card application in order to open an account in her mother’s name).  Chase sought to implead Nicole in the matter, but was having a difficult time physically locating her; indeed, as the court noted, Nicole apparently had a “history of providing fictional or out of date addresses[.]”

Chase hired a private investigator, who “searched . . . [Department of Motor Vehicles] records, voter registration records, . . . Department of Corrections records, publicly available wireless phone provider records, and social media websites” for a way to contact Nicole.  The private investigator’s search turned up four possible addresses for Nicole in four different towns, but the defendant remained unable to physically locate her at any of those locations.

The private investigator did, however, find what she believed to be Nicole’s Facebook profile, which listed a contact email address and a location in yet a fifth town.  In view of this discovery, and given that Chase’s “numerous attempts to effect personal service” and “diligen[t] . . . search for an alternate residence where Nicole might be served” had not succeeded, the bank suggested a novel alternative to the court:  serving Nicole with notice by sending her a message on Facebook.

Chase argued that service through Facebook would meet due process requirements because it was “reasonably calculated to apprise” Nicole of the claims against her (echoing the words of the U.S. Supreme Court in Mullane v. Central Hanover Bank & Trust Co.), and that it should therefore be an acceptable alternative means of service.  Although the court agreed as an initial matter that some form of alternative service would be appropriate, the court rejected Chase’s argument, ruling that service by Facebook would not be sufficiently “reasonably calculated to apprise” Nicole under the circumstances.  Noting that “anyone can make a Facebook profile using real, fake, or incomplete information,” the court found that “[Chase] ha[d] not set forth any facts that would give . . . a [sufficient] degree of certainty that the Facebook profile . . . [was] in fact maintained by Nicole[.]”  The court then ordered Chase to publish notifications in the local newspapers for all five towns that its private investigator had identified as possible residences for Nicole.

The Fortunato court prefaced its analysis by remarking that “[s]ervice by Facebook is unorthodox to say the least,” and that the court was “unaware of any other court that ha[d] authorized such service.”  But, as it turns out, at least a handful of courts—in the United States and abroad—appear to have done just that.  In May 2011, a local state court in Minnesota permitted service of a petition for divorce by Facebook (or, indeed, “[any] other social networking site”), finding that, compared to the “antiquated . . . and prohibitively expensive” traditional means of publishing notifications in local newspapers, service through social media would be both cheaper and more likely to actually reach the party at issue.  (And, although not a ruling on the issue, official form documents on the Utah State Court system’s website can be read to suggest the use of Facebook and Twitter as possible alternative means of service.)

Outside of the United States, several courts—including courts in New ZealandAustralia, Canada and the United Kingdom —have affirmed or even endorsed the use of Facebook and other social media sites as acceptable alternative means of serving counterparties with notice of the claims brought against them.

The Fortunato court’s approach does not necessarily contradict these examples, given that the Fortunato court did not categorically reject service by Facebook or other social networks.  Rather, the court concluded that service through Facebook would not be appropriate under the circumstances of the case at issue.  Which begs the question:  what might the right circumstances be?

As a general matter, the law still favors traditional personal service as its preferred and primary method—the often-depicted “you’ve been served” moment of physically handing a summons and complaint to a party to be served.  Statutes in U.S. jurisdictions also typically expressly authorize other traditional means of service, for example, delivery to a party’s residence or agent.  When these methods prove impractical, statutes typically authorize courts to allow some sort of appropriate alternative means of service.  But in a case like Fortunato, assuming that the complainant has demonstrated that alternative service should be permitted, what might need to be shown in order to demonstrate to the court’s satisfaction that service through social media would be appropriate?

The Fortunato court expressly identified a first major hurdle, which some have termed “authentication.”   In order to demonstrate a reasonable likelihood that the counterparty is actually going to receive notice, the complainant needs to be able to convince the court that the social media profile in question really does belong to the party to be served, and is not under the control of a different person with the same or a similar name (or even, perhaps, an impersonator).  This has some parallels to the issues raised when trying to use social media evidence in the context of a trial.

A second hurdle, somewhat less explicit in the Fortunato court’s ruling, is whether—even if the social media profile does belong to the party to be served—the profile’s owner regularly (or ever) logs in to or checks that profile.  Being able to demonstrate this fact could help support an argument that “the person to be served would be likely to receive the summons and complaint” through his or her social media profile, which, as the Fortunato court noted, was important in cases where service by email has been accepted.

Cases from various countries, coupled with some creative thinking, provide helpful guidance for how a party that wants to serve notice through social media could surmount the hurdles above.  For example, a party could try to demonstrate:

  • That the personal biographical details listed in the profile match the party to be served’s basic personal information (e.g., date of birth, educational history and/or work history);
  • That recent photos of the party to be served have been posted to the profile;
  • That the profile’s “friend” or contact list corresponds with the party to be served’s known real-world acquaintances;
  • That updates, posts and other interactions on the profile’s “wall” identify the user as the party to be served;
  • That the profile’s user has responded to recent friend requests, wall posts or private messages; and
  • That third-party testimony corroborates the assertion that the profile belongs to the party being served.

Depending on the applicable social media profile’s privacy settings, much of this information may be readily accessible to the general public.  (Yes, people do still leave their social media profiles wide open.)  Of course, practitioners should keep in mind ethical rules when using social media to obtain information.

In the long run, service through social media and other Internet-based means of communication could become a viable alternative to personal service, given that electronic service may have certain distinct advantages over the traditional means of alternative service used where no physical address is available (i.e., publication in local newspapers and posting of public notices).  First, as noted in the Minnesota case described above, electronic notice can be far quicker, cheaper and easier.  Second, as the Minnesota court also noted, notice may actually be more likely to reach the intended recipient if delivered through social media than if communicated through those more traditional means.  And third, some means of Internet communication enable senders to confirm electronically that their messages have been opened or received by the intended recipients.

Given the likelihood that attempted service through social media will be around for a while, we look forward to keeping you posted on future developments.