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In a case of first impression in New Jersey, a Chancery Division Court in Morris County dealt with the issue of service of process through social media and, in particular, Facebook. The court held that when service of process cannot be served on a defendant by traditional means, such as by personal delivery, mail or publication, then the rules of civil procedure authorize a court to permit an alternate form of service, like Facebook, provided it comports with constitutional due process of law. Specifically, it must be reasonably calculated, under all the circumstances to appraise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Over the past decade, international courts have been permitting service of process on foreign defendants through social media including Facebook. See Federal Trade Comm. v. PCCare247, No.12Civ.7189 (PAE) 2013 (Lexis 31969 IS, D, N.Y. March 7, 2013).

Domestically, state courts only recently have been permitting alternate means to serve process under their Rules for Civil Procedure. New Jersey’s rules have a catchall provision that permits alternate forms of service when traditional modes are unavailable, by court order. R. 4:4-4(b)(3). The rule is intended to fill a gap in the rules permitting the court to direct service to be made in a particular manner where service cannot be effected pursuant to the other provisions of the rule. Service by mail is recognized as method being in compliance with constitutional due process. Service by publication was also held to comply. See, Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950); O’Connor v. Altus, 67 N.J. 106 (1975).

A new trend is emerging to serve domestic defendants utilizing the experience of the courts internationally. In 2015, a New York family court for the first time permitted the use of Facebook in a divorce action. Baidoo v. Blood-Dzraka 5 N.Y.S.3rd 709 (2015). It involved a wife attempting to file for divorce against her husband with a summons and complaint. After diligent attempts, the court was satisfied her husband had no permanent address, was not employed and could not be found. The family court granted permission to serve defendant with the divorce summons using a private message through Facebook, with a backup method of service by e-mail. This reported decision is noteworthy due to its analysis of three issues courts may have to address in the use of Facebook. First, whether the Facebook account that plaintiff believes is defendant’s might not actually belong to him. Second, whether defendant is diligent in logging on to his Facebook account in order that he can respond to the summons within the time frame required by the summons. Third, whether any backup means of service is required under the circumstances.

Service by e-mail was also commented upon in the Baidoo the case saying:

As recently as ten years ago, it was considered a cutting edge development in civil practice for a court to allow the service of a summons by e-mail. Since then, e-mail has all but replaced ordinary mail as a means of written communication. And while the legislature has yet to make e-mail a statutorily authorized method for the service of process, courts are now routinely permitting it as a form of alternate service …. The past decade has also seen the advent and ascendency of social media with websites such as Facebook and Twitter occupying a central place in the lives of so many people …. [It] would appear that the next frontier in developing law for the service of process over the internet is the use of social media sites as forms through which a summons can be delivered.

Id. at 709.

In the instant matter, Axberg v. Langston, Docket No. MRS-C-157 (2016), Judge Stephan C. Hansbury, Morris County P.J. Ch (ret.) entered into this next frontier within the context of a post-adoption matter. Research disclosed that there were no published or unpublished decisions in New Jersey to date, and the decision would be the first in the state and perhaps the third in the country dealing with state civil procedure and domestic defendants.

Plaintiffs brought the case before the Chancery Division, by way of an order to show cause and a verified complaint. The plaintiffs requested emergent restraints against the defendant involving unwanted contact with the plaintiffs and/or their son through social media. The social media platforms used by the defendant were Facebook and Instagram.

Upon reviewing the contents set forth in the verified complaint together with exhibits, affidavits, certifications, legal briefs, etc., the court held it appeared that immediate and irreparable injury will probably result before notice can be given and a hearing held.

The court ordered temporary restraints against defendant, enjoining and restraining him from holding himself out as the biological father of plaintiffs’ son and posting any information to that effect to persons known to him or the public. Furthermore, he was enjoined from contacting plaintiffs and their son, friends or relatives through social media and other forms of digital communication over the Internet, by phone or personal contact. Lastly, he was compelled to remove information pertaining to plaintiffs’ son that he had published online.

Plaintiffs are the parents of a teenage son whom they adopted at birth. Defendant was an unknown man and complete stranger to them and their son. In November 2015, defendant located the plaintiff-father’s Facebook profile and made a “friend request.” Having never heard of this man before, nor knowing the identity of this person, plaintiff did not accept the request. Notwithstanding not being accepted into the account, defendant allegedly copied their son’s picture from his father’s Facebook profile and posted a copy on defendant’s own Facebook profile in a collage of pictures with his two sons.

The next day, defendant contacted plaintiffs’ son via Instagram. The boy asked him who he was and what did he want. Defendant identified himself as his “real father”; that he was adopted; that he knows his “real mother”; provides her name and reports he seeks contact with him now and continuing in the future. He further encouraged him to go to defendant’s Facebook profile and view his alleged brothers and sister in their family pictures. The boy declined and asked him if he was attempting to steal his identity or kidnap him. There was no response by defendant, and the boy hung up.

The boy told his mother, who reported it to her husband and the local police. She also informed the high school authorities. The next day, searching for means to contact this person, plaintiffs reviewed defendant’s Facebook profile and were shocked to find their son’s picture in a collage of pictures with defendant’s children. They noticed their son’s picture was side by side with his two sons and publishing online that he was another one of defendant’s children.

The local police spoke to the county prosecutor’s office, who indicated that no crime had been committed yet and there was little they could do. The police and school authorities agreed to watch out for strangers in their vicinity, and plaintiffs contacted the parents of their son’s friends to advise them of the situation. The plaintiff-father closed his Facebook account, as did his sister who also received a friend requestfrom defendant. Both used their accounts for their own businesses.

Plaintiffs had no idea of his current whereabouts. There was no telephone number or e-mail address posted on defendant’s profile site. The site did have two former addresses. Plaintiff’s counsel attempted to validate those addresses by mailing a cease-and-desist notice to each address for the defendant to receive. The certified and regular mail came back unclaimed and closed without any forwarding addresses.

Not knowing where he lived in the United States or elsewhere, there was no reasonable way of serving him by traditional means. Service by publication was ruled out by virtue of the fact the relief sought, an injunction, made newspaper publication futile. See R. 4:4-5(a)(3). Defendant had to receive the actual pleading and know of the restraint, if the contact was to be stopped.

The court addressed the three-prong test: a) authenticate ownership of the account; b) whether it was in active use by defendant; and c) whether supplemental forms of service were required. As to authentication, it was satisfied by a review of photographs, messages, tagged friends and defendant’s frequent updating of his personal picture profile. As to the activity of the account by him, it again was proved by the activity Timeline on his Facebook page. The pattern of conduct on the page satisfied that he was logging in on a regular basis. Finally, as to whether supplemental means of service should be ordered, the court held under the circumstances, service by Facebook was the only means available to provide service. This is the first known case where Facebook was not used only as a supplemental form of service. Rather, it stood alone as an acceptable means to serve process.

The court ordered service either by personal service or Facebook within the next five days. The documents and attachments totaled 63 pages. Plaintiff’s counsel served all the documents through his firm’s Facebook account. This eliminated any contact between the parties in violation of the restraints imposed by the order to show cause. Furthermore, this permitted the firm to monitor prior and present activity during the service of process.

Plaintiff’s counsel’s Facebook page showed the exact date and time the documents were sent, received and viewed. Four days later, plaintiff’s counsel received a private message from defendant, along with his picture profile, saying, “I will see you in court.” A copy of the screenshot was filed with the court as proof of service.

Defendant appeared telephonically on the return date of the order to show cause and entered his appearance. The court continued the restraints as initially ordered. A final hearing was held, and the court issued a final restraining order on the defendant as originally prescribed.

Under the circumstances, service via Facebook proved to be a reasonable and adequate alternate means to serve process on defendant. As more cases like this come before state courts, perhaps Facebook will be used routinely, similar to service by e-mail, and spearhead this new frontier in developing law for the service of process through social media.•

Next Week…

Bankruptcy Law

In a case of first impression in New Jersey, a Chancery Division Court in Morris County dealt with the issue of service of process through social media and, in particular, Facebook. The court held that when service of process cannot be served on a defendant by traditional means, such as by personal delivery, mail or publication, then the rules of civil procedure authorize a court to permit an alternate form of service, like Facebook, provided it comports with constitutional due process of law. Specifically, it must be reasonably calculated, under all the circumstances to appraise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Over the past decade, international courts have been permitting service of process on foreign defendants through social media including Facebook. See Federal Trade Comm. v. PCCare247, No.12Civ.7189 (PAE) 2013 (Lexis 31969 IS, D, N.Y. March 7, 2013).

Domestically, state courts only recently have been permitting alternate means to serve process under their Rules for Civil Procedure. New Jersey’s rules have a catchall provision that permits alternate forms of service when traditional modes are unavailable, by court order. R. 4:4-4(b)(3). The rule is intended to fill a gap in the rules permitting the court to direct service to be made in a particular manner where service cannot be effected pursuant to the other provisions of the rule. Service by mail is recognized as method being in compliance with constitutional due process. Service by publication was also held to comply. See, Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306 ( 1950 ) ; O’Connor v . Altus , 67 N.J. 106 ( 1975 ) .

A new trend is emerging to serve domestic defendants utilizing the experience of the courts internationally. In 2015, a New York family court for the first time permitted the use of Facebook in a divorce action. Baidoo v. Blood-Dzraka 5 N.Y.S.3rd 709 ( 2015 ) . It involved a wife attempting to file for divorce against her husband with a summons and complaint. After diligent attempts, the court was satisfied her husband had no permanent address, was not employed and could not be found. The family court granted permission to serve defendant with the divorce summons using a private message through Facebook, with a backup method of service by e-mail. This reported decision is noteworthy due to its analysis of three issues courts may have to address in the use of Facebook. First, whether the Facebook account that plaintiff believes is defendant’s might not actually belong to him. Second, whether defendant is diligent in logging on to his Facebook account in order that he can respond to the summons within the time frame required by the summons. Third, whether any backup means of service is required under the circumstances.

Service by e-mail was also commented upon in the Baidoo the case saying:

As recently as ten years ago, it was considered a cutting edge development in civil practice for a court to allow the service of a summons by e-mail. Since then, e-mail has all but replaced ordinary mail as a means of written communication. And while the legislature has yet to make e-mail a statutorily authorized method for the service of process, courts are now routinely permitting it as a form of alternate service …. The past decade has also seen the advent and ascendency of social media with websites such as Facebook and Twitter occupying a central place in the lives of so many people …. [It] would appear that the next frontier in developing law for the service of process over the internet is the use of social media sites as forms through which a summons can be delivered.

Id. at 709.

In the instant matter, Axberg v. Langston, Docket No. MRS-C-157 (2016), Judge Stephan C. Hansbury, Morris County P.J. Ch (ret.) entered into this next frontier within the context of a post-adoption matter. Research disclosed that there were no published or unpublished decisions in New Jersey to date, and the decision would be the first in the state and perhaps the third in the country dealing with state civil procedure and domestic defendants.

Plaintiffs brought the case before the Chancery Division, by way of an order to show cause and a verified complaint. The plaintiffs requested emergent restraints against the defendant involving unwanted contact with the plaintiffs and/or their son through social media. The social media platforms used by the defendant were Facebook and Instagram.

Upon reviewing the contents set forth in the verified complaint together with exhibits, affidavits, certifications, legal briefs, etc., the court held it appeared that immediate and irreparable injury will probably result before notice can be given and a hearing held.

The court ordered temporary restraints against defendant, enjoining and restraining him from holding himself out as the biological father of plaintiffs’ son and posting any information to that effect to persons known to him or the public. Furthermore, he was enjoined from contacting plaintiffs and their son, friends or relatives through social media and other forms of digital communication over the Internet, by phone or personal contact. Lastly, he was compelled to remove information pertaining to plaintiffs’ son that he had published online.

Plaintiffs are the parents of a teenage son whom they adopted at birth. Defendant was an unknown man and complete stranger to them and their son. In November 2015, defendant located the plaintiff-father’s Facebook profile and made a “friend request.” Having never heard of this man before, nor knowing the identity of this person, plaintiff did not accept the request. Notwithstanding not being accepted into the account, defendant allegedly copied their son’s picture from his father’s Facebook profile and posted a copy on defendant’s own Facebook profile in a collage of pictures with his two sons.

The next day, defendant contacted plaintiffs’ son via Instagram. The boy asked him who he was and what did he want. Defendant identified himself as his “real father”; that he was adopted; that he knows his “real mother”; provides her name and reports he seeks contact with him now and continuing in the future. He further encouraged him to go to defendant’s Facebook profile and view his alleged brothers and sister in their family pictures. The boy declined and asked him if he was attempting to steal his identity or kidnap him. There was no response by defendant, and the boy hung up.

The boy told his mother, who reported it to her husband and the local police. She also informed the high school authorities. The next day, searching for means to contact this person, plaintiffs reviewed defendant’s Facebook profile and were shocked to find their son’s picture in a collage of pictures with defendant’s children. They noticed their son’s picture was side by side with his two sons and publishing online that he was another one of defendant’s children.

The local police spoke to the county prosecutor’s office, who indicated that no crime had been committed yet and there was little they could do. The police and school authorities agreed to watch out for strangers in their vicinity, and plaintiffs contacted the parents of their son’s friends to advise them of the situation. The plaintiff-father closed his Facebook account, as did his sister who also received a friend requestfrom defendant. Both used their accounts for their own businesses.

Plaintiffs had no idea of his current whereabouts. There was no telephone number or e-mail address posted on defendant’s profile site. The site did have two former addresses. Plaintiff’s counsel attempted to validate those addresses by mailing a cease-and-desist notice to each address for the defendant to receive. The certified and regular mail came back unclaimed and closed without any forwarding addresses.

Not knowing where he lived in the United States or elsewhere, there was no reasonable way of serving him by traditional means. Service by publication was ruled out by virtue of the fact the relief sought, an injunction, made newspaper publication futile. See R. 4:4-5(a)(3). Defendant had to receive the actual pleading and know of the restraint, if the contact was to be stopped.

The court addressed the three-prong test: a) authenticate ownership of the account; b) whether it was in active use by defendant; and c) whether supplemental forms of service were required. As to authentication, it was satisfied by a review of photographs, messages, tagged friends and defendant’s frequent updating of his personal picture profile. As to the activity of the account by him, it again was proved by the activity Timeline on his Facebook page. The pattern of conduct on the page satisfied that he was logging in on a regular basis. Finally, as to whether supplemental means of service should be ordered, the court held under the circumstances, service by Facebook was the only means available to provide service. This is the first known case where Facebook was not used only as a supplemental form of service. Rather, it stood alone as an acceptable means to serve process.

The court ordered service either by personal service or Facebook within the next five days. The documents and attachments totaled 63 pages. Plaintiff’s counsel served all the documents through his firm’s Facebook account. This eliminated any contact between the parties in violation of the restraints imposed by the order to show cause. Furthermore, this permitted the firm to monitor prior and present activity during the service of process.

Plaintiff’s counsel’s Facebook page showed the exact date and time the documents were sent, received and viewed. Four days later, plaintiff’s counsel received a private message from defendant, along with his picture profile, saying, “I will see you in court.” A copy of the screenshot was filed with the court as proof of service.

Defendant appeared telephonically on the return date of the order to show cause and entered his appearance. The court continued the restraints as initially ordered. A final hearing was held, and the court issued a final restraining order on the defendant as originally prescribed.

Under the circumstances, service via Facebook proved to be a reasonable and adequate alternate means to serve process on defendant. As more cases like this come before state courts, perhaps Facebook will be used routinely, similar to service by e-mail, and spearhead this new frontier in developing law for the service of process through social media.•

Next Week…

Bankruptcy Law