A federal court in Virginia recently allowed service of the summons and complaint in a lawsuit via Facebook, LinkedIn and e-mail. While that lawsuit involves trademark infringement, the implications are far-reaching and indicative that some courts have begun to get cozy with the central role of social media and technology in our rapidly changing society.
After having first notified him of his infringement by Skype and e-mail, the plaintiff in the Virginia case sued an app developer in Turkey, but was unable to get an answer. The Turkish Ministry of Justice returned the summons and complaint to the United States, reporting that it could not locate the defendant at the address provided.
As a last resort, the plaintiff asked the court for permission to use alternate contacts through social media to reach the defendant.
The judge who ruled in this decision cited to other courts that have been flexible in applying Federal Rule of Civil Procedure 4(f)(3) to allow service by e-mail and social networking sites. He noted that in this case, the alternative means of service satisfied due process because they were reasonably calculated to provide notice under the circumstances.
The defendant had responded to a contact through one of the identified e-mail addresses, and had provided the plaintiff with the additional e-mail address. His Facebook and LinkedIn accounts seemed to match his identity.
Some concerns have been raised with regard to service via social media: namely, that sometimes, persons registering a social media account are not the person he or she claims to be, and that infrequent users of social media may not receive actual notice. However, service by publication and public posting have been commonly accepted alternative means of service, neither of which provide actual notice to a defendant.
This development brings one more court in line with a growing number of jurisdictions allowing service of process by social media.
A state court in Minnesota permitted service in a divorce proceeding via Facebook when the defendant was believed to have left the United States. The court found that service by Facebook was a less costly and potentially more effective means of service than traditional methods.
Early last year, the U.S. District Court for the Southern District of New York permitted a plaintiff to effectuate service of documents in the case, not including the summons and complaint, on five defendants located in India.
However, the same federal court a year earlier denied a request for service via Facebook when the party was unable to establish that the Facebook account to be served was actually owned or controlled by the party to be served.
This trend might very well serve plaintiffs and their counsel well, where there is always an eye toward cost-effectiveness in litigation.