April 11, 2016 (Date Decided) MAY 10, 2017 (DATE APPROVED FOR PUBLICATION)
FOR PLAINTIFF: James M. Miskowski.
FOR DEFENDANT: Pro se.
Plaintiffs moved for leave to serve process upon defendant through Facebook. Plaintiffs’ action sought to enjoin defendant from holding himself out as the father of plaintiffs’ adopted son, Z.A., and from contacting plaintiffs and Z.A., and to compel defendant to remove information about Z.A. that defendant had allegedly published online. Plaintiffs asserted that they had not had any contact with defendant prior to the events giving rise to this litigation, and that defendant initiated contact with them by sending plaintiff K.A. a Facebook friend request, which K.A. denied. Plaintiffs alleged that defendant then contacted Z.A. through Instagram, telling Z.A. that he had been adopted and that defendant was his biological father. Plaintiffs further alleged that defendant took a photo of Z.A. from K.A.’s Facebook profile, and incorporated that picture into an image comprised of two other photographs of different individuals, posting the composite image on Facebook and holding it out as an image of defendant’s children. Plaintiffs’ counsel certified that he mailed cease and desist notices to defendant’s two last known addressed, both by certified and regular mail, and that the certified mailings were returned as unclaimed. Due to their inability to contact defendant by mail, plaintiffs sought leave to effectuate substituted service of process upon defendant via Facebook. In ruling on plaintiffs’ motion, the court first held that it could exercise personal jurisdiction over defendant, as defendant’s act of reaching out to plaintiffs and their family, who lived in New Jersey, meant that any resulting harm would be concentrated in the state. However, the court noted that to exercise personal jurisdiction over defendant, service of process had to be effectuated upon him. The court further noted that if attempts to personally serve a party were unsuccessful, a plaintiff could attempt service by secondary methods, or, as a tertiary and last resort, by any method provided by court order. The court held that the only viable method of service available to plaintiffs was Facebook, since they were unable to locate a good address for defendant and therefore could not serve personally or by mail; the court further held that since plaintiffs were seeking an injunction to prohibit contact, service by newspaper publication was futile. The court further ruled that service by Facebook would not violate due process requirements, since defendant had contacted plaintiffs through Facebook, which meant there was a substantial likelihood that defendant would receive the complaint.