Service of Process, 2.0

The judicial system in the United States has kept up with technological change in many ways. We have electronic filing, websites for federal courts, and Internet streaming court coverage. But there is one way that courts have not been as quick to adapt electronically – service of process.

Last month, the U.S. District Court for the Southern District of New York denied a request to allow service of process via social networking site (in this case, Facebook). The case, Fortunato v. Chase Bank U.S.A., involved Chase Bank's attempts to locate and serve process on a third-party defendant who fraudulently charged up multiple credit cards and gave a false physical address. The judge called the request "unorthodox," and found that Chase Bank had not given the court "a degree of certainty" about the defendant's alleged Facebook profile and the email address attached to that profile that would ensure that the defendant would receive and read the notice. However, the judge did allow for alternative service by general publication in local newspapers.  

So why are judges reluctant to allow electronic service of process? 

Service of process is one of the first steps in a legal proceeding; documents asserting a claim are "served" on a defendant, thereby giving him legal notice and imposing a requirement to respond. This process is a cornerstone of the American judicial system because it gives a court jurisdiction over the defendant and satisfies the due process requirements of the Fourteenth Amendment. Service of process in federal courts is governed by Rule 4 of the Rules of Civil Procedure; Fed. R. Civ. P. 4(e), which covers domestic service, states:

(e) SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE UNITED STATES.  Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been filed-may be served in a judicial district of the United States by:

1. following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or 
2. doing any of the following:

   (A) delivering a copy of the summons and of the complaint to the individual personally;

   (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

The inclusion of methods of service recognized under state law widens the range of options, but electronic service remains outside of the norm. That said, when traditional methods of service have failed, courts may permit "alternative service of process." In 1950, the Supreme Court in Mullane v. Central Hanover Trust set forth the standard for alternate service of process when "due diligence" had been exhausted to serve a defendant: "To be sure, the Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond."

The United States has in fact allowed for electronic service of process as an alternative, but exclusively in the international context. Fed. R. Civ. P. 4(f)(3), which governs service internationally, allows for international service "by other means not prohibited by international agreement, as the court orders." A 2002 Ninth Circuit decision, Rio Properties, Inc. v. Rio International Interlink, discussed international email service's inherent pros and cons, stating that constitutional principles of notice and opportunity to respond "unshackles the federal courts from anachronistic methods of service and permits them entry into the technological renaissance." Meanwhile, in an unusual case that should be read in context of the sensitive time period, the Southern District of New York in December 2001 approved service of process via television (including the Turkish version of CNN and BBC World) on Osama Bin Laden, the Taliban, and others for deaths resulting from 9/11 attacks. Some state courts have also allowed electronic service in limited circumstances. For example, a Minnesota state court in May 2011 allowed service of process via Facebook in a divorce proceeding, when the wife could not contact her absentee husband, who was believed to have returned to Africa's Ivory Coast. </