In these days of social distancing, shelter-in-place orders, during the Covid-19 epidemic, being able to serve process upon a defendant has become a difficult issue. Many lawyers express concern about this. Some years ago, I had to achieve service of process in Thailand upon a defendant in a divorce and custody case. I was fortunate to find a then-recent case that explained a process calculated not only to give the trial judge authority to issue an ex parte order authorizing such alternative service of process, but also to provide a framework or process by which the plaintiff could then provide the Court with screenshots showing definitively that service of process had actually been achieved.
The case upon which I relied in filing the motion is Baidoo v. Blood-Dzraku, 2015 NY Slip Op 25096 (N.Y. Sup. Ct., 2015). You can download it below. I've also attached in WORD, a copy of the Order that was entered, redacted for privacy of the parties.
In Baidoo v. Blood-Dzraku in March 2015, Justice Matthew Cooper, ruled that a woman could serve her husband his divorce papers via Facebook message, with her lawyer’s assistance. She couldn’t find a current address for her husband. The only means she had to contact him was through Facebook and the phone.
Judge Cooper ruled: “Under the circumstance presented here, service by Facebook, albeit novel and non-traditional, is the form of service that most comports with the constitutional standards of due process.” The judge said, “Not only is it reasonably calculated to provide [the] defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him.” Cooper also noted in his decision, serving papers via email has been periodically permitted by courts for about a decade.
Due Process: Service of process is primarily concerned with making sure the defendant is aware that a legal process is going on. The means of notifying people are the ones that have been deemed most effective in the past are either personal service—handing the notice face-to-face, or nailing it to the person’s front door, for example. Today’s world is a lot different. Often, the best way to contact somebody is online.
You can download Judge Cooper’s decision below. Pay special attention to the discussion about what proofs might be required to be attached to your motion to support the parties' request/claim that service by Facebook or other social media and/or email will actually reach the defendant. Make screenshots that show that your client has previously and/or recently been able to communicate via email and/or Facebook. In other words, demonstrate that the person to be served has an active email account and/or Facebook account. Then attach Judge Cooper's opinion to your motion for alternative service and also follow the general strategy he recommends in terms of your "Return of Service," which will be your affidavit showing that service was made. You might send the judge's court administrator a proposed Order with proposed findings of fact on the face of the Order that via Affidavit, the Plaintiff has established that Facebook and/or email (or both) are reasonably calculated to give notice of the pending litigation and is deemed by the Court to give the defendant notice and suitable due process.
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