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By Michael Loatman
April 7 — A woman who is seeking a divorce and whose husband lacks a fixed address or place of employment may have her attorney serve him through a private Facebook message, the New York Supreme Court, New York County, ruled March 27.
Justice Matthew F. Cooper wrote that Ellanora Arthur Baidoo's attorney had permission to serve a divorce summons on Victor S. Blood-Dzraku through Facebook. Cooper said the attorney must first send a message using Baidoo's Facebook account, identifying himself as her attorney. The attorney then should send Blood-Dzraku a Web address of the divorce summons or attach an image of the summons to the message.
The court said the attorney should continue this process for three consecutive weeks or until Blood-Dzraku responds that he received the summons. The court also ordered Baidoo and her attorney to call and text Blood-Dzraku that he was sent a divorce summons through Facebook.
“In this age of technological enlightenment, what is for the moment unorthodox and unusual stands a good chance of sooner or later being accepted and standard, or even outdated and passé,” the court said, explaining its decision to permit the alternate method of service.
Peter S. Vogel, a partner with Gardere Wynne Sewell LLP in Dallas, told Bloomberg BNA April 7 that a New York state court judge previously approved the use of service by Facebook “to allow notice that child support obligations had ended for a divorced spouse who could not otherwise be found.” Vogel added that service by Facebook “has been common practice for many years in Australia, Canada, and New Zealand, among other countries.”
He said it remains to be seen how “appellate courts will rule if a party claims they did not get served properly”.
The court said that a New York civil procedure law permits it to fashion an alternate method of service only when the plaintiff can show that personal service, “substitute service” or “nail and mail” service are “impracticable.” Substitute service refers to delivering a summons to a person of “suitable age and discretion” at a defendant's home or place of business. Nail and mail service, the court said, means affixing a summons to the door of a defendant's home or office. Both substitute service and nail and mail service also require mailing a copy of the summons to the defendant's last known home address or workplace.
The court held that the plaintiff showed she was unable to locate a physical or business address for the defendant, making these statutory methods of service impossible or impracticable.
“Plaintiff has spoken with defendant by telephone on occasion and he has told her that he has no fixed address and no place of employment,” it said. “As detailed in her attorney's affirmation, the investigative firms that plaintiff hired to assist in locating defendant have all been unsuccessful in their efforts, the post office has no forwarding address for him, there is no billing address linked to his pre-paid cell phone, and the Department of Motor Vehicles has no record of him.”
The court said the plaintiff also had to show that “the method she proposes is one that the court can endorse as being reasonably calculated to apprise defendant that he is being sued for divorce.” It explained that U.S. courts have split on whether to permit service by social media sites, citing in part FTC v. PCCare247 Inc., No. 1:12-cv-07189, 2013 BL 60684 (S.D.N.Y. Mar. 7, 2013) (allowing service in part by social media) and Fortunato v. Chase Bank USA, N.A., No. 1:11-cv-06608 (S.D.N.Y. June 7, 2012) (rejecting service by Facebook).
The court said prior rulings had raised concerns about fake Facebook profiles, but it concluded that the plaintiff adequately addressed that issue in this case by filing a supplemental affidavit where “she annexed copies of the exchanges that took place between her and defendant when she contacted him through his Facebook page, and in which she identified defendant as the subject of the photographs that appear on that page.”
The court concluded, “While it is true that plaintiff's statements are not absolute proof that the account belongs to defendant—it being conceivable that if plaintiff herself or someone at her behest created defendant's page, she could fabricate exchanges and post photographs—plaintiff has nevertheless persuaded the court that the account in question does indeed belong to defendant.”
It said there also were concerns about whether the defendant regularly logged into his Facebook account. However, the court held, Baidoo addressed that issue in her supplemental affidavit because her exchanges with her husband showed he regularly logged into the account.
The court said New York's civil procedure law permitted notice by publication as a means of service, which it added was “probably the method of service most often permitted in divorce actions when the defendant cannot be served by other means.”
The court rejected requiring notice by publication as the sole or backup method to service by Facebook. Such service is “almost guaranteed not to provide a defendant with notice of the action for divorce, or any other law suit for that matter,” the court said.
“The dangers of allowing somebody to be divorced and not know it are simply too great to allow notice to be given by publication, a form of service that, while neither novel or unorthodox, is essentially statutorily authorized non-service,” it added.
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