There has recently been much discussion regarding service of legal process–things like complaints, writs and subpoenas–via Facebook and other social media. You may recall some hyperbolic media reporting earlier this year around the case of the FTC v. PCCare247, Inc., No. 12 Civ. 7189 (PAE), (S.D.N.Y. March 7, 2013), where a federal district court did in fact authorize service via Facebook and email. What seems to have been lost in the chatter is that the PCCare247 decision provided for service via Facebook in addition to service by regular mail. Facebook and email service were approved in PCCare247, moreover, only after the court had been satisfied that it was “highly likely” the defendants would actually receive service at their email addresses and/or Facebook pages, largely because of evidence that the defendants regularly used the email addresses and Facebook pages for business.
The importance of this “highly likely to receive service” test was recently driven home in an opinion issued by the same court in a companion case. While not widely reported, the decision in the FTC v. Pecon Software, Ltd., prevented the FTC from utilizing Facebook and email service for certain defendants. Specifically, while the court again approved email service where the FTC made a showing that it was “highly likely” those defendants would receive email at the propsoed email service address, the FTC did not demonstrate that other email addresses it proposed to use for service actually belonged to the defendants in question because they were “among many” the defendant used. Similarly, the court refused Facebook service because the FTC did not provide it with actual screenshots of the defendants’ Facebook pages. Because the service names were “common”, the court found it necessary to review the actual screenshots and invited the FTC to resubmit the Facebook service request with additional documentation.
In another recent case from the District of Kansas, Joe Hand Promotions, Inc., v. Mario Carrette et al., No. 12-2633, the plaintiff sought permission to serve a complaint via Facebook alone. The plaintiff, an Ultimate Fighting Championship (UFC) promoter, alleges that Mario Carrette and partners in a restaurant/bar enterprise illegally pirated pay-per-view broadcasts of UFC events. The problem for plaintiff is that the restaurant/bar is now shuttered, and they cannot seem to physically locate Mr. Carrette for service. He still has an extant Facebook page, however, and the plaintiff sought to serve him there. The court rejected the request. It did not reach the question of whether Facebook service alone could satisfy constitutional due process because, unlike the facts in PCCare247, the plaintiff could not show that the Facebook page it proposed to serve was “current, active, or authentic”.
The takeaway appears to be that courts are willing to consider verifiably authentic Facebook pages as an alternative means of service where such service compliments other alternative means of service and is highly likely to result in actual service upon the individual or entity in question. Nonetheless, it looks like it will be a long time before any court authorizes Facebook or other social media as a sole means of service–let alone the rules will be amended to allow for such service as a matter of course.