There is an interesting ruling out of Manhattan where Manhattan Supreme Court Justice Matthew Cooper has allowed nurse Ellanora Baidoo to serve her elusive husband, Victor Sena Blood-Dzraku (left), with divorce papers via a Facebook message due to her husband’s lack of a current address. Cooper noted in his opinion: “The past decade has also seen the advent and ascendency of social media, with websites such as Facebook and Twitter occupying a central place in the lives of so many
people. Thus, it would appear that the next frontier in the developing law of the service of process over the internet is the use of social media sites as forums through which a summons can be delivered.”
Cooper runs through the various options in cases where service is not possible:
“DRL § 232 permits plaintiffs to request permission to utilize one of the alternative methods allowed under the Civil Practice Law and Rules (CPLR) that does not require “in-hand” delivery to the defendant. One such method, often referred to as “substitute service,” involves delivering the summons to a person of “suitable age and discretion” at the defendant’s “actual place of business, dwelling or usual place of abode” (CPLR 308 [2]). Another method, known as “nail and mail” service, requires affixing the summons to the door of a defendant’s “actual place of business, dwelling or usual place of abode” (CPLR 308[4]), and then, as with “substitute service,” mailing a copy to the defendant’s “last known address” or “actual place of business.” A third method is “publication service,” where the summons is printed in a newspaper designated by the court and which can be granted upon a showing that “service cannot be made by another prescribed method with due diligence” (CPLR 315).”
The court notes that “although the parties married in 2009, they never resided together, and the last address plaintiff has for defendant is an apartment that he vacated in 2011.” It also noted that her husband has refused to make himself available to be served with divorce papers and private investigators failed to locate him. The Department of Motor Vehicles has no record of him. Accordingly, the court ruled:
Specifically, because litigants are prohibited from serving other litigants, plaintiff’s attorney shall 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.
This process wouldn’t meet most state laws pertaining to process serving – it’s not exactly like a newspaper ad with FB’s privacy filters and not exactly like the USPS mail, FedEx, UPS, etc. (which professional servers use with electronic tracking to confirm receipt).
Ross – I think the judge is testing the law.
Paul, Darren, DBQ
There is no problem in proving that the husband read the Facebook post. The NSA can easily forward a video of the husband reading the Facebook post from the camera they have installed in the system. You know the cameras in the computers, the microphones in the bushes.
Remember air mail stationary that was made of super thin paper to reduce the cost by reducing the weight. It was really easy to read the contents by holding it up to the light. They’ve been at it a long, long time.
Returns of service could be an issue here.
Assuming that I have a facebook account that someone could send a notice to, or an old old inactive email account (I have several) which I never look at……how do you prove that the notice was not just received into the account but was actually viewed. Just because the message fell into my email bucket or defunct Facebook account, doesn’t mean that I actually am aware of it or have read or received it.
I know they can do this but it would require a great deal of effort and likely a court order as Darren suggests.
Returns of service could be an issue here. I would imagine a petitioner might in some cases need to provide some form of documentation to the court that Facebook actually received the service and (preferably) delivered it to the respondent. Facebook will likely comply on it but they will require a court order to provide the metadata.
When service by publication is used in our state, that is for newspapers, the petitioner must return to the court a copy of the a declaration of service from the transmitter, a copy document of the receipt from the newspaper, and a copy of the document as printed in the newspaper. Service by US Certified Mail requires a declaration of service along with copies of the postal return of service (or a notice of non-delivery)
I can envision I respondent claiming false service because the petitioner did not show proof of service simply by providing a screen shot of a sent message.
Nevertheless it might be an issue to be settled by the courts if it becomes prone to issues.
Also, the ease for which someone could spoof a service is very easy and thus possibly tempting, leading to some cases of barratry.
Darren – you would have to do a screen shot of the summons and complaint with the date(s).
When we were discussing RFRA myself and others discussed biz professionals turning down clients or biz for all types of reasons, but no explanation needed. Process service was one of the first assignments I stopped taking when I got successful. It sucks! I agree w/ MikeA. For a boilerplate divorce, I see no reason why this won’t suffice. And, many divorces fit that profile. You should not need an attorney for one of these simple divorces. But if custody, property, finances are an issue, a proper personal service would be needed.
Mike A….I have to agree with you on this one. Once a spouse has made all possible attempts at “service” by any means necessary, the court should simply grant the divorce decree sans any remuneration…which would be only cosmetic since the other spouse is unavailable anyway. You could at the least stop the credit abuse by the decree, which you should publish to all credit agencies.
It’s better than a paragraph in the legal notice section of a newspaper that no one reads.
This is fundamentally a due process issue. All states provide alternative methods of service for situations in which personal delivery of a summons on the defendant is impossible. However, in the absence of personal service, or substitute service on someone of legal age residing in the same household, the jurisdiction acquired by the court is limited. In this instance, service on Facebook may be sufficient for granting a divorce decree, but I do not believe that the court would have the power to award alimony or other financial relief. From the story, however, it appears that the petitioner simply wants an order terminating the marriage.
This, in some ways, might fall into the category of some Constitutional right of sorts that anything can be published about anybody, mugshots, civil actions, etc. Here, as it should be, the intention is included in the decision to use Facebook.
News has always included ‘getting the dirt’ on someone with a high profile and providing pulp for the paper, sometimes causing irreversible damage to the subject of the scandal. However, as most people who know the wife probably already know about the divorce and most people who know the husband probably know about it as she apparently tried to contact him, then this would not come under the ‘dirty laundry’ heading.
If it is published on Facebook and if he responds then job done. If he can prove that his rights have been violated then there is more grist for this never ending discussion on this or that right. Myself, I look forward to hearing his argument, if and when he presents one.
The woman does have a position to protect. As long as some residue of their marriage can be crafted by an attorney, at a later date when she might be worth some money, he can make her life miserable. One would think there would be another procedure other than Facebook. Then again, this could be part of the procedure, the only real value of Facebook.
Paul – I assumed that the divorce summons was sent via a Facebook private message, which would not be visible to any of his FB friends. I hope they didn’t post a message on his timeline. Well, wait, if I were her I would have been angry enough to be tempted to do just that, plus it would have guaranteed that even if he didn’t check his FB page, he would have heard about the summons from his circle of acquaintance.
How do they know this man is still alive? HIs name sounds like a Dothraki from Game of Thrones. Maybe he was overthrown by another Khal.
Karen – I did not know there was a private message on Facebook. 🙂
Although I was shocked by the title, it appears that this was a reasonable last resort. A relative of mine, a good man, had to publish his divorce summons in a newspaper where they lived, as well as a newspaper where her mother lived. I think he had to do it twice, with a length of time in between, after showing he had made a concerted effort to locate her. She was in Europe with her boyfriend, while he was in the US with all of the astronomical bills she ran up planning her lavish exit. When the spouse doesn’t want to be found, there is no way to prove that they received the summons, but on the other hand, their actions imply they are not interested in being involved in the process.
If he never responds to the summons, I suppose he’ll get out of his alimony and child support obligations, if applicable, and his wife will struggle to get by on Welfare while he lives the single life. It would be on his credit, but he won’t get caught as long as he stays under the radar.
Since they never lived together, it sounds like they had issues from the beginning. Sad situation for the wife.
I think the idea here is, like publication, a service of last resort. This is a service that can be fought at a later date and then things get really messy. If he can prove he never uses his account or rarely uses his account, like I do, he would have a good case to overturn the service. Also, the judge is carving new ground which opens the way for litigation on appeal.
I think it raises another issue, though. Serving the individual means that only the individual knows they have been served and the issues in the divorce. This opens up the divorce to all the people connected to his account. It is true that under ordinary circumstances, were he served, you could go to the courthouse and read all the messy details of the divorce, but you would have to work for it. Now it is just THERE. On the other hand it could make reading some of the Facebook posting more fun if more of them were legal summons and complaints. 😉
How does the court prove he received the summons?
Good question.
As I understand it, the method of last resort, when the party being served was successful in dodging the server, was to publish the summons or process of serving (if that is the correct term) in a newspaper that would be widely published. At least they could hope that the person might be able to be reached.
Well…., now that most people don’t read an actual paper, much less the legal notices in the back of the paper, that method is really ineffective. In addition you can publish a notice in the Toledo Blade, but that doesn’t mean that the person being served is in the area of Toledo or has the opportunity to even read that particular paper.
They need to rethink this process and get into the 21st century where people are more mobile and not as connected to place as they were when we had horse and carriage.
I’m a Facebook ex-user as well, for the same reasons DBQ lists.
How does the court prove he received the summons?
This is crazy. I have a facebook account that I open up several years ago so I could visit my daughter’s facebook page. Upon realizing the evil that is facebook, how they track you, watch you, distort your news feed for their own purposes, channel advertising……I attempted to delete the page.
I THINK it is gone/inactive but I am not really sure. SO, I do not ever look at my page nor do I ever “sign in using Facebook”…..no thanks. If someone refers me to look at a Facebook page….I won’t do it.
If I were to be sent an important document via Facebook or be “served”, I would be totally unaware of it.
When you are being “served” important papers there can be NO substitute for actually serving those papers upon the actual, not virtual, body of the person being served.
And then Facebook can continue to track him forever…
Wouldn’t Facebook then be bound by 1st and 4th Amendment restraints also? Essentially acting as an arm of the government.
What if FB delayed, intercepted or censored the court’s legal notice? What if the notice were hacked?
Reblogged this on The World Around Us.
I knew that Facebook was good for something.
Reblogged this on rennydiokno.com.