The issue regarding whether some kind of service of process may be used other than personal service by a process server or service by publication arises today in a query from a colleague. In 2015, this writer had a case involving a defendant who lived in Thailand. Not only did the wife not have a mailbox to which certified mail with restricted delivery could be sent, but also, she was then living with a new boyfriend—and her address was unknown. Thailand was not a signatory to the Hague Service Convention. Husband had access however to her Facebook and he also had two email addresses for her.
Fortunately, a New York court had just decided a case involving similar facts—a case so new that it was then only available in a slip opinion. Fortunately, that case was published. For your easy reference, the citation is Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709 (N.Y.Sup.Ct. 2015). In Baidoo, the defendant was served using Facebook. The plaintiff wife in that case lacked a physical address or even an email address for her husband. However, she did have the ability to contact him through Facebook. Thus in my 2015 case, I asked the trial judge to permit service of process by Facebook--but (perhaps a little over-kill) also by the two email addresses.
New York, like Michigan and likely many other states, a court rule allowed for service of process and papers through an order allowing alternative service. It is necessary to make a proper showing that the party to be served has been actually served by the alternative service. In the case under discussion, counsel needed to show that the defendant logged on to his or her Facebook account regularly and to show that the other party has a mobile phone number would be able to call or text the opposing party to let him or her know to check his/her Facebook account for the documents. I showed that by an affidavit showing images of Facebook and email contact.
In a case where both parties wish to be divorced, it makes perfect sense to permit service of process by alternative means. I make no guarantees that service by Facebook would be valid where the other party lives in a country that is a partner to the Hague Service Convention. Note that service by Facebook might also be available within the 50 U.S. states if a judge grants a motion for alternative service of process.
Of course, court rules also provide for service by publication. However, it seems to this writer that such publication might be even less likely to effectuate service. There are several problems with service by publication: (a) What if the proposed recipient doesn’t subscribe to a local newspaper? (b) Which local newspaper would be the one most likely to be accessed by a litigant—especially in current times where many (if not most) readers subscribe to online editions where a legal notice would likely not be accessible? (c) Service by publication is expensive and time-consuming. The whole purpose is to notify the opposing party of the divorce litigation. Why not use a method of notification that is more certain to work among millennials?
In the 2015 case of which I speak, the New York judge was quite particularly in laying out a roadmap to follow in order to show that, in fact, the Facebook posting had been made, received and acknowledged. Using the Microsoft snipping tool, it is easy to make images that show each step of the process, including these steps:
- An affidavit to show that the intended recipient regularly uses his/her Facebook account with images copied and pasted using the snipping tool and showing images over a span of time (e.g., from last month to the current week);
- Once the court grants the motion, then the litigant should send a text and/or instant message through Facebook (again documenting by images pasted into a Word or word-processing program document, asking the proposed recipient to check his/her Facebook for messages. This is Step One to be shown in a “Proof of Service.”
- The Proof of Service should then in Step Two show the upload of the necessary documents (e.g., summons and complaint).
- Step Three: The Proof of Service should who that the defendant has accessed the documents sent by “Instant Message” and has acknowledged (signed an acknowledgment) and sent it back by digital means (this could be an Instant Message or text message).
- The point is to make clear to the Court that the defendant has been notified of the divorce, had accepted service of process, and has responded by sending any responses via email or regular mail—or once notified, has defaulted. Personally, I’d rather prove acknowledgment and be able to provide the Court with a Consent Judgment signed by the defendant.
I requested permission from the Court to serve by both Facebook and email. The defendant had two email addresses, and I served her at both. The Affidavit showing service of process (redacted) is attached to this post so that you will have a good example to follow. Download Sample-Affidavit_Service_of_Process
See also the New York court’s decision. Download Baidoo_v._Blood-Dzraku
