In July, the United States District Court for the District of Kansas was presented with a question -- the first of its kind in the 10th Circuit: Can Facebook be used as the sole method of substitute process pursuant to Rule 4 of the Federal Rules of Civil Procedure?
Interesting question since Facebook has over 1 billion users worldwide. From what we can see, only three opinions address this issue: two from the Southern District of New York and one from the District of Kansas. Let's see where they stand -- and where they will take us.
Fortunato v. Chase Bank USA -- Southern District of New York
In Fortunato, the court had to determine whether Facebook was an acceptable way to deliver a summons and complaint, after traditional means had been exhausted. The court held that it was not because
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 [third-party defendant] or that the email address listed on the Facebook profile is operational and accessed by [third-party defendant].
The court further noted the relative simplicity in creating a fake Facebook account, and the court's inability to verify the owner of the Facebook account.
FTC v. PCCARE247, Inc. -- Southern District of New York
Less than a year later, the same issue was before the court with a slight deviation -- the court had to determine whether service by means of email and Facebook was an acceptable means of alternative service. The court held that it was because of four factual distinctions to Fortunato: (1) the Facebook accounts were created with email addresses that were known as the defendants' emails; (2) the jobs listed on the Facebook accounts matched the defendants' actual job titles; (3) much of defendants' business was conducted online; and (4) defendants advertised their business on Facebook.
The court did temper its decision by noting: "To be sure, if the FTC were proposing to serve defendants only by means of Facebook, as opposed to using Facebook as a supplemental means of service, a substantial question would arise whether that service comports with due process."
Joe Hand Promotions, Inc. v. Carrette -- District of Kansas
In Joe Hand Promotions, the court had to determine whether Facebook, as the sole means of service, met the standards of due process. The court found that it did not, citing Fortunato and FTC. Specifically, the court noted the inability to verify the Facebook account owner because there was no email address, job title or "other indication of authenticity."
Since the means of meeting the requirements of due process are constantly changing, it's only a matter of time until Facebook is an accepted means of alternative service, so long as the identity may be verified. And it may not be too long in the future, the High Court in the U.K. has already accepted Facebook and Twitter as means of service of process. We wouldn't be surprised if we were soon to follow -- it's just a matter of time before courts "like" Facebook.
Related Resources:
- Is Legal Service by Facebook Coming Soon? (FindLaw's Technologist)
- Should Judges Consider Facebook Posts at Sentencing? (FindLaw's Technologist)
- Social Media Fishing Expedition Denied in NY Court (FindLaw's Technologist)
- Federal Court Doesn't 'Like" Service of Process via Facebook (Eric Goldman Technology & Marketing Law Blog)
