About 15 years ago, you were greeted with, "You’ve got mail," when you turned on your computer. For better or worse, the use of electronic communication has expanded dramatically since the early days of AOL and this newfound reliance upon technology has certainly had a profound impact on the law. Now, in some jurisdictions, what was once a welcome greeting is dangerously approaching a different message: "You’ve been served."
Texas House Bill 1989
On February 27, Texas state Representative Jeff Leach introduced HB 1989 to the Texas Legislature. His proposed bill permits service of process through alternate means, namely, Facebook, Twitter and other forms of social media, which are now routinely utilized by the public. Service through social media has been the subject of only sporadic judicial consideration over the past several years, although in Utah it is already allowed. If HB 1989 were to become law, it would be the next step in the formalization of laws governing service through social media in the United States.
In pertinent part, HB 1989, titled "Substituted Service Through Social Media Website," provides that "if substituted service of a citation is authorized under the Texas Rules of Civil Procedure, the court may prescribe as a method of service under those rules an electronic communication sent to the defendant through a social media website if the court finds that:
• The defendant maintains a social media page on that website;
• The profile on the social media page is the profile of the defendant;
• The defendant regularly accesses the social media page account; and
• The defendant could reasonably be expected to receive annual notice if the electronic communication were sent to the defendant’s account."
According to HB 1989, a party could not serve a defendant with legal papers via social media without exploring other traditional means of service first. Specifically, the Texas Rules of Civil Procedure require traditional means of service be attempted initially — this includes personal delivery of legal papers, publication of notice in area newspapers and certified and regular mailings of legal papers. However, Leach’s proposed bill will address those situations where service cannot be completed using the standard methods. In those scenarios, HB 1989 permits a party to seek authority from the court to employ service by social media.
Acceptance of Alternate Service
The substance of HB 1989 is not altogether novel, although it is has never before been so expressly delineated. In fact, Texas would be only the second state to adopt such a rule. The proposed bill, in many respects, echoes Utah’s Rule of Civil Procedure 4(d)(4), which states as follows:
"Where the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence, where service upon all of the individual parties is impracticable under the circumstances, or where there exists good cause to believe that the person to be served is avoiding service of process, the party seeking service of process may file a motion supported by affidavit requesting an order allowing service by publication or by some other means. The supporting affidavit shall set forth the efforts made to identify, locate or serve the party to be served, or the circumstances which make it impracticable to serve all of the individual parties."
Notably, the Utah State Courts website includes a form to be submitted in conjunction with an application to utilize alternate service and the form includes a check box designating Facebook, Twitter and text message as accepted methods for service once traditional means are exhausted.
Alternate service through social media was recently explored in the U.S. District Court for the Southern District of New York in two cases: Fortunato v. Chase Bank USA, 11 CIV. 6608 JFK (S.D.N.Y. June 7, 2012), and Federal Trade Commission v. PCCare247, 12 CIV. 7189 PAE (S.D.N.Y. Mar. 7, 2013). In Fortunato, defendant Chase Bank sought leave of court to serve a third-party complaint via alternate methods of service after numerous failed attempts by an investigator to serve the third party. Despite Chase Bank’s numerous efforts to serve the third party, the court denied the bank’s application for service by alternate means, opining that "service by Facebook is unorthodox to say the least, and this court is unaware of any other court that has authorized such service. … Here, Chase has not set forth any facts that would give the court a degree of certainty that the Facebook profile its investigator located is in fact maintained by [the third party] or that the email address listed on the Facebook profile is operational and accessed by [the third party]. Indeed, the court’s understanding is that anyone can make a Facebook profile using real, fake or incomplete information, and thus, there is no way for the court to confirm whether the [third party] the investigator found is in fact the third-party defendant to be served."
In Federal Trade Commission, the plaintiff filed a motion for leave to effect service by email and Facebook. The court concluded that service by email "comports with due process where a plaintiff demonstrates that the email is likely to reach the defendant." With respect to simultaneously serving the defendants via Facebook, the court distinguished this matter from Fortunato when it concluded that the FTC had set forth ample facts instilling "confidence that the Facebook accounts identified are actually operated by the defendants." The Federal Trade Commission court confirmed that service of process by Facebook alone would not have been permitted, but after traditional service failed, the combination of email and Facebook service was sufficient under the law.
Thus far in Pennsylvania, there is little reason to think that the applicable rules are moving toward electronic service of process via Facebook. Like Utah, the state statute governing alternative service permits plaintiffs to move for a special order directing a method of service when a potential party cannot be found, per Pa.R.C.P. No. 430(a). However, in these cases, Pennsylvania law seems to favor print publication as the standard method of alternative service, per Pa.R.C.P. No. 430(b), which details the procedure where alternative service is authorized and explains the procedure for service by publication alone. Only one case, In re Porovne, 436 B.R. 791, 801 (W.D. Pa. 2010), has addressed alternative means aside from publication, noting briefly that federal courts applying Pennsylvania law have discretion to issue orders authorizing "some alternative method" of service. However, Porovne arose out of a bankruptcy dispute and does not deal with original service as commencement of a civil action.
As the courts in our country continue to evolve and move toward the acceptance of alternate service methods, courts around the world have faced similar issues. In 2012, the High Court of England issued an opinion in AKO Capital v. TFS Derivatives permitting service through Facebook. While lower courts in England reached similar opinions previously, this was the first time such a ruling was issued by England’s highest court. In support of this decision, the court relied upon the record, which showed that the Facebook account was known to be in use because (1) there were recently accepted "friend requests"; (2) the prospective party was "friends" with other individuals connected to the litigation, demonstrating he was the proper target; and (3) the account was deemed active and in use. In addition to England, courts in New Zealand, Australia and Canada have also permitted alternate service by means of Facebook.
The Future of Alternate Service
Service of legal papers via Facebook, while affording litigants an additional measure to effectuate service, is not without pitfalls. There will always be practical concerns regarding the authenticity of the social media account and whether the individual served is in fact the individual intended to be served. Moreover, even if it is the correct individual who was served electronically, perhaps that individual does not regularly use the account or simply overlooks the Facebook message intended to effectuate service. These concerns must be counterbalanced against a diligent party that has exhausted all traditional measures of service and is entitled to an opportunity to litigate its claims, which may only arise following service through social media.
The exponential growth of social media use will likely quicken the pace with which alternate service grows in the legal profession. With this continued development, one can only hope that safeguards will be set in place to confirm the accuracy of service. HB 1989 continues a trend slowly moving toward the adoption of Facebook as a means of alternate service and the language of the bill endeavors to establish strict criteria that will confirm that the proper party is served. This bill has not yet been acted upon by the legislature, but there is little doubt that it may serve as the precedent upon which future social media service requirements are based. •
Michael B. Pullano is a partner and Matthew G. Laver is an associate with Weber Gallagher Simpson Stapleton Fires & Newby in Philadelphia. They defend clients in professional liability matters with a focus on the defense of lawyers. Pullano can be reached at 215-972-7909 or firstname.lastname@example.org. Laver can be reached at 267-519-4979 or email@example.com.