Category: Service of Process

Court lets FTC serve litigation documents by Facebook

Decision discusses how courts should allow use of technology of “then-recent vintage”

FTC v. PCCare247 Inc., 2013 WL 841037 (S.D.N.Y. March 7, 2013)

The Federal Trade Commission filed suit against a number of Indian defendants alleging they operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers. (Ars Technica provided some entertaining background on this industry last fall.)

After some difficulty in effecting service of the summons and complaint on the defendants in India, the FTC asked the court for leave to serve the remainder of the documents in the case (e.g., additional pleadings, motions, notices) via email and Facebook. The court granted the FTC’s motion.

The Federal Rules and Alternative Service

Under Federal Rule of Civil Procedure 4(f)(3), a court may fashion means of service on an individual in a foreign country, so long as the ordered means of service (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process. Under Rule 4(f), service of process on foreign corporations may be made in the same manner as on individual defendants.

Not Prohibited By International Agreement

The court noted that the United States and India are signatories to the Hague Service Convention. Article 10 of that Convention allows for service of process through alternative means such as “postal channels” and “judicial officers,” provided that the destination state does not object to those means. India has objected to the means listed in Article 10, although that objection is specifically limited to the means of service enumerated in Article 10.

The court found that service by Facebook is outside the scope of Article 10. And since India has not objected to service by email or Facebook, the court held that international agreement did not prohibit such service.

Comports With Due Process

Quoting Mullane v. Cent. Hanover Bank & Trust Co., the court spelled out that “constitutional notions of due process require that any means of service be ‘reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'” Here, the court found, service by email and Facebook were reasonably calculated to provide defendants with notice of future filings in the case.

The FTC had set forth facts that supplied ample reason for confidence that the email and Facebook accounts identified were actually operated by defendants. Two of the defendants had registered their Facebook accounts with email addresses that were independently verifiable. And another of the email accounts was the one used to register one of the defendants’ domain names. The court could also glean information as to the Facebook accounts’ legitimacy by noting that a number of the defendants were Facebook friends with each other.

Service Via Technological Means of “Then-recent Vintage”

The court acknowledged that Facebook service was a relatively novel concept, and that defendants conceivably might not in fact receive notice by that means. But the Facebook service was merely a backstop to email service. (The court observed that “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.”)

It noted that as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means “of then-recent vintage,” rather than dismissing them out of hand as novel. In 1980, in allowing service of Iranian defendants via Telex, a judge from the same court remarked in New England Merch. Nat’l Bank v. Iran Power Generation and Transmission Co. that courts should not “be blind to changes and advances in technology. No longer do we live in a world where communications are conducted solely by mail carried by fast sailing clipper or steam ships.” Twenty-two years later, the Ninth Circuit, in Rio Properties, Inc. v. Rio Int’l Interlink, saw itself “tread[ing] upon untrodden ground” to allow service of process via email.

In this case, taking a cue from Rio Properties to be “unshackled” from “anachronistic methods of service” and, through the due process inquiry be permitted “entry into the technological renaissance,” the court found email and Facebook service to be proper. This was particularly true where defendants were shown to have “zealously embraced” the technologies, and already had knowledge of the lawsuit.

See also:

Social media activity proved employee could be served with process

Clint Pharmaceuticals v. Northfield Urgent Care, LLC, 2012 WL 3792546 (Minn. App., September 4, 2012)

Appellant, a healthcare clinic organized as an LLC in Minnesota, got sued in Tennessee. It never showed up to defend itself, so the Tennessee court entered a default judgment against it. When the plaintiff sought to have the Tennessee judgment recognized in Minnesota, the clinic challenged the underlying lawsuit, claiming that the court in Tennessee did not have personal jurisdiction over the clinic, as it had not been properly served with the civil “warrant”.

these leaves are intertwined, just like the employee in this case was with the healthcare clinic

In this case, the court found that the clinic had been properly served because the papers were opened by the wife of the clinic’s owner. The court found she was “intertwined” with the clinic, and should have known what to do with the papers, based in part on the fact that she was “prominently displayed” on the clinic’s website and interacted with commenters on the clinic’s Facebook page.

Photo courtesy Flickr user jenny downing under this Creative Commons license.

Court allows service of complaint and summons via Yahoo email account

U.S. Commodity Futures Trading Com’n v. Rubio, 2012 WL 3614360 (S.D.Fla., August 21, 2012)

The government filed a civil suit against defendant for violation of the federal Commodity Exchange Act and related regulations. Try as it may, the government could not successfully serve the complaint and summons by traditional means. So the government asked the court for leave to file the papers via defendant’s Yahoo email account. The court granted the motion.

email at the beach

During an earlier state investigation, defendand had provided a Yahoo email address while testifying under oath. The government claimed that it had sent several messages to the same account, each time getting a confirmation receipt indicating the message had been read on a Blackberry using the Digicel network. The evidence in the record showed that Digicel is a provider of network services in the Caribbean, Central and South America.

Federal Rule of Civil Procedure Rule 4(f)(3) authorizes a court to order an alternate method for service to be effected upon defendants located outside the United States, provided that such service (1) is not prohibited by international agreement and (2) is reasonably calculated to give notice to the defendant consistent with its constitutional due process rights.

In evaluating whether email service in this case would run afoul of international law, the court found that the Hague Convention did not apply because defendant’s precise location was not known — the only information in the record was that he was in the Caribbean, Central or South America. The Inter-American Convention on Letters Rogatory did not prohibit email service in this case, as that Convention would not necessarily preclude service by means outside the scope of its terms.

The court found that email service was also reasonably calculated to give notice to defendant, based on the facts in the record. Here, the government showed that the still-active Yahoo email address about which defendant swore under oath was reasonably calculated to give notice of the action against him and an opportunity to respond.

See also:

Federal court permits service of process on Australian defendants by e-mail

Service of process by e-mail allowed for foreign defendants

Court rejects request for permission to serve process by e-mail

Photo credit: Flickr user Giorgio Montersino under this Creative Commons license.

Service of process by e-mail allowed for foreign defendants

Williams-Sonoma Inc. v. Friendfinder Inc., No. 06-6572, 2007 WL 1140639 (N.D.Cal. April 17, 2007).

Williams-Sonoma, the well-known purveyor of kitchen and other household goods, and owner of the POTTERY BARN trademark, filed suit against a number of defendants, seeking ot prevent those defendants from using the POTTERY BARN mark in meta tags and in HTML on certain sexually-explicit websites. Many of the defendants were foreign, and a number of them listed incorrect contact information, which foiled Williams-Sonoma’s attempts to serve process in the traditional manner.

Undaunted, Williams-Sonoma asked the court for an order authorizing it to serve process in the manner in which Williams-Sonoma had already been able to communicate with the defendants – by e-mail. The court granted the request.

To determine whether service of process by e-mail was proper, the court looked at some of the more interstitial parts of Fed. R. Civ. P. 4, which deals with service of process. Rule 4(h) says that foreign businesses may be served in the same manner as individuals not within any judicial district of the United States. Rule 4(f) provides the procedure for that, and allows service “by other means not prohibited by international agreement as directed by the court.”

The court determined that the circumstances of the case warranted service by alternative means. Nodding to Rio Properties, Inc. v. Rio Intern. Interlink, 284 F.3d 1007 (9th Cir. 2002), the court found that Williams-Sonoma had established that e-mail was an effective means of communication with the defendants, and that messages sent to the defendants would serve the purposes of notifying them of the pending litigation. Moreover, there was no indication that service in that manner would contravene any international agreement.

Defendant bails, “nail and mail” fails, so e-mail of summons prevails

Service of process by e-mail allowed where traditional methods “impracticable.”

Plaintiffs Tishman and Wilkinson filed a lawsuit against defendant Pine, but had difficulty serving Pine with the summons. The plaintiffs tried the conventional methods of service under New York law, such as personal delivery. They even tried the “nailing and mailing” method by affixing a copy of the summons to the door of Pine’s residence, then sending a copy in the mail.

Tishman and Wilkinson had information, however, that led them to believe Pine was out of the country. Knowing this, they wanted to be sure that service was properly effected. Accordingly, they petitioned the court for permission to serve Pine by e-mail, pursuant to N.Y. C.P.L.R. §308(5), which allows service by such manner as the court directs, when the more conventional methods are “impracticable.”

The court allowed service of the summons to an e-mail address Pine had used in a classified ad listing his house for sale. The court held that given the uncertainty about the success of the attempted “nailing and mailing” effort, and the fact that the Pine’s attorneys wouldn’t give a clear answer as to where Pine was living, alternative service by e-mail was appropriate.

Tishman v. The Associated Press, (Slip Op.) 2005 WL 288369 (S.D.N.Y. February 6, 2006).

Federal court permits service of process on Australian defendants by e-mail

A recent case from the U.S. District Court for the Northern District of West Virginia addresses the novel question of when a plaintiff can obtain service of process over a defendant in another country by e-mail.

Plaintiff Williams sued numerous defendants whom she alleged conspired to defame her. Three of the defendants were residents of Australia, and Williams’s efforts of obtaining service by traditional means were unsuccessful. She petitioned the court to allow her to obtain service by alternate means, including e-mail, pursuant to Fed. R. Civ. P. 4(f)(3). Because Williams had demonstrated her good faith efforts to serve the Australian defendants by traditional means, and because her proposed efforts of service through e-mail were reasonable, the court granted the motion.

The court went through a two-step process to determine that service of process by e-mail would be proper. First, it concluded that given the “particularities and necessities” presented from the near impossibility of serving the evasive defendants, alternate means of service were warranted. The court then “examined the contours” of Rule 4(f)(3) to determine which alternate means would satisfy due process concerns.

Rule 4(f)(3) provides three general means for effecting service of process on defendants outside the United States. Paraphrased, these means are:

  • Any internationally agreed means, such as the Hague Convention
  • Any manner authorized by the laws of the foreign country
  • Any means not prohibited by international agreement and directed by the court

Adopting the standard first applied in the Ninth Circuit decision of Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002), the court held that “Rule 4(f) does not denote any hierarchy or preference of one method of service over another.” Because Australia and the U.S. have no agreement between them regarding service of process, the court was free to consider any means for service reasonably calculated to alert the defendants of the action.

Given that the defendants were “sophisticated participants in e-commerce,” and that plaintiff had established the reliability of e-mail addresses used by the defendants, alternate service by e-mail was permissible. The reliability of service by e-mail was enhanced by Williams’s proposal to use an online service that provided encryption and digital confirmation of delivery.

Williams v. Advertising Sex LLC et al., — F.R.D. —, 2005 WL 2837574 (October 25, 2005).

Google and the reasonable person

You may recall a posting on this site from a few weeks ago about an Indiana court that concluded a plaintiff who hadn’t consulted the Internet failed to exercise due diligence in locating a defendant for service of process. A court in West Virginia has taken the centrality of Google in everyday life one step further. The judge in the case of Plemons v. Gale, 2005 WL 1798335, (S.D.W.Va., Jul 27, 2005) equates doing a Google search with the “reasonable person standard.” Here’s an extensive quote from the case:

“In the ‘time, place, and circumstances’ of this case, one who actually wanted to inform Ms. Plemons that her house was to be conveyed because of a failure to pay roughly $3,000 in taxes and fees would not have looked for her in the dusty corners of the Kanawha County record room. In the age of telephones, internet search engines, online newspapers, online people-finders, and readily available credit reports, most people can easily find someone. Thus, if a reasonable person were charged with the duty of locating Ms. Plemons in the relatively small city of Charleston, West Virginia, it is my belief that he would be likely to employ ‘Google’ to find her name, call information to learn her telephone number, contact her lending bank, or call her ex-husband. Instead, Advantage searched the public records for Ms. Plemons’ address and mailed written notices to two of the addresses contained therein. When the notices were found to be undeliverable, Advantage did nothing further. I continue to believe that those efforts failed to meet the constitutional standards of due process.” [Emphasis added.]

Court rejects request for permission to serve process by e-mail

In the case of Ehrenfeld v. Bin Mufouz, the U.S. District Court for the Southern District of New York has refused Ehrenfeld’s request to allow service of process on Bin Mufouz, a Saudi Arabian national, by e-mail. Although service of process by e-mail is permissible in certain circumstances, Ehrenfeld failed to show that in this case correspondence by e-mail would be reasonably calculated to notify Bin Mufouz of the action.

Ehrenfeld wrote a book about the evils of funding terrorism. Bin Mufouz, a resident of Saudi Arabia, took offense to statements Ehrenfeld made about him in the book and filed a defamation lawsuit in the U.K. Ehrenfeld never appeared in that action, and Bin Mufouz threatened to enforce a default judgment against Ehrenfeld.

In response to those threats, Ehrenfeld filed this suit in federal court in New York, seeking a declaratory judgment that Bin Mufouz could not enforce the U.K. default judgment against her. Being unable to obtain service of the complaint and summons, Ehrenfeld filed a motion for leave to obtain service by alternate means pursuant to Fed. R. Civ. P. 4(f)(3). Rule 4(f) provides for service on foreign individuals, and Rule 4(f)(3) specifically allows service by “means not prohibited by international agreement as may be directed by the court.”

The court noted that there is no international agreement addressing service of process on persons in Saudi Arabia. Thus, service could be made in any manner the court would approve. Ehrenfeld proposed various ways in which service might be made, including via e-mail to an address found on Bin Mufouz’s website.

The court refused to allow service of process by e-mail. It noted that “although courts have upheld service via e-mail, those cases involved e-mail addresses undisputedly connected to the defendants and that the defendants used for business purposes.” In this case, Ehrenfeld had not persuaded the court that Bin Mufouz maintains the website on which the e-mail address was found, that he checks that e-mail account, or that he would be likely to receive information transmitted to that e-mail address. The court found that the e-mail address was used only as an informal means of accepting requests for information rather than for receiving important business communications.

Ehrenfeld v. Bin Mufouz, 2005 WL 696769 (S.D.N.Y., March 23, 2005).

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