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#youvebeenserved: service of process over social media

The surge of social media allows unparalleled opportunity to communicate quickly and efficiently with people regardless of distance.

In particular, it provides new opportunities to serve an out-of-state defendant who is unable to be located or (gasp!) actively dodging service. When combined with more traditional methods of service by publication, service over social media (such as Facebook or Twitter) increases the probability of giving actual notice to the defendant and avoiding the removal of a default later on.

When a defendant in the state cannot be located to be served, the court may allow alternative services of process “in such manner as it may order.” G.L.c. 227, §7.

Similarly, when a defendant outside the commonwealth cannot be located, service may be made “as directed by the court” so long as the method of service is “reasonably calculated to give actual notice” to the defendant. G.L.c. 223A, §6(a)(5).

These statutes apply to the U.S. District Court as well: Fed. R. Civ. P. 4(e)(1) permits servi-ce by “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 … .” The broad language of the state statutes permits the court to allow service of process through social media such as Facebook and Twitter.

There is understandable concern that serving process over social media may not actually reach the defendant. Thus, when moving for alternative service of process using social media, it is best to supplement your request to ask for a more traditional method of alternative service, such as service by publication.

In a case I litigated recently, the defendant, a Florida resident, was unable to be served in a federal court action. She did not respond to two requests to waive service of process, and two process servers could not serve her because she did not reside at the addresses we were given.

We did know, however, the defendant’s Twitter handle and email address. Both were valid; the defendant tweeted regularly and had recently responded to emails sent to that address.

The District Court granted a motion for alternative services of process. It permitted us to serve the defendant by sending her a copy of the summons and complaint by email, sending a private message (a communication visible to the user but not to the general public) to her Twitter account containing a link to download a PDF of the summons and complaint, and publishing a notice of the filing of the case in a Florida newspaper for three consecutive weekdays. Proof of service was by affidavit attesting that we had complied with the court’s order.

The stunning speed with which communication is evolving makes it possible to foresee the day when process can be served entirely online, but for now it’s best to combine new media with the old. It’s also another reason to keep an eye on your inbox.

Patrick M. Groulx practices at Grolman LLP in Boston.

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