Oct
23
Should We Be Friends?
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It wasn’t so long ago that Facebook, Instagram, and social media lay far, far in the future.  In terms of civil procedure, such things were – and to a certain extent, still are – light years away.  When someone becomes a defendant in a lawsuit, be it a matrimonial action, a civil lawsuit for breach of contract, or a personal injury suit for a slip and fall, the court needs to obtain jurisdiction over that person.  There are very specific rules as to obtaining jurisdiction.  A New York resident, for example, is for the most part always subject to jurisdiction in New York State (where in New York State and what county is a different question of “venue”).  A person who owns real property in New York, but lives out of state, is also usually subject to jurisdiction.  For other, perhaps more tenuous matters, if someone causes an injury in the state (ie, a New Jersey resident hits someone with their car on the New York side of the GW bridge), they are subject to jurisdiction in New York for injuries arising out of that incident.

Jurisdiction is only part of the puzzle.  Service of process is another.  Even though jurisdiction may lie over a person, when someone commences a legal action, they have to effectuate service of process on that person.  This means serving them with a summons and complaint in the action.  There are very specific rules to service of process; you can’t simply mail the summons and complaint.  Usually, it must be delivered in person by someone who is not a party (or interested) in the action.  And, service must be effectuated by 120 days after the complaint is filed, otherwise you must re-file the proceeding (and pay an additional filing fee) if you don’t get an extension from the court.

What happens, then, when someone dodges service?  This can be very frustrating The New York rules allow for a plaintiff to ask the court to approve an alternate type of service.  Over the years, with the evolution of technology and electronic communications, many courts have permitted service by email, usually with another “backup” method of service (ie registered mail).

What is more unusual and still in its infancy in terms of recognition as a form of service is service by Facebook.  Recently, however, a New York judge authorized service by Facebook.  In order to ensure actual notice, the court specifically delineated the exacting steps for the plaintiff and her attorney to take, which included follow-up communications after the facebook attempts – Specifically, the court required the plaintiff’s attorney to

“log into Plaintiff’s Facebook account and message the defendant by first identifying himself, and then including either a web address of the summons or attaching an image of the summons. This transmittal shall be repeated by plaintiff’s attorney to defendant once a week for three consecutive weeks or until acknowledged by the defendant. Additionally, after the initial transmittal, plaintiff and her attorney are to call and text message defendant to inform him that the summons for divorce has been sent to him via Facebook.”

Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709 (Sup. Ct. N.Y. Co. 2015).

Much more will likely be needed in order to establish that service by Facebook is needed – and court’s are not likely to authorize it absent a showing that service through traditional means was first attempted several times and thwarted.

Posted under: Divorce, Social Media

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