Now here’s a good one for Facebook: a New York judge has permitted a woman to serve her elusive husband by using a private Facebook message.
In a decision in Baidoo v Blood-Dzraku, 2015 NY Slip Op 25096 , decided on March 27, 2015, Manhattan Supreme Court Justice Matthew Cooper held that Ellanora Biadoo could file for divorce from Victor Sena Blood-Dzraku using a private Facebook message.
Judge Cooper wrote: “[P]laintiff is granted permission to serve defendant with the divorce summons using a private message through Facebook. 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.”
According to an article I read on npr.com, the marriage, between two Ghanaians, took place as a civil ceremony, was never consummated, the parties communicated only by phone and Facebook, and the wife cannot locate the husband because he is incommunicado in Ghana.
No state, including New York, that I could find specifically permits email or any type of social media as a statutorily authorized method for service of process. New York may now permit it as a form of alternate service.
According to the Court, “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. In this matrimonial action, the issue before the court, by way of plaintiff-wife’s ex parte application, is whether she may serve defendant-husband with the divorce summons solely by sending it through Facebook by private message to his account.”
CPLR 308(5) permits a court, upon a plaintiff’s ex parte application, to direct the manner of alternative service if statutorily authorized service cannot be made. Case law imposes the requirement that the method devised by the court be one that is “reasonably calculated, under all the circumstances, to apprise [the defendant] of the pendency of the action” (Hollow v Hollow, 193 Misc 2d 691, 696 [Sup Ct, Oswego County, 2002] [quoting Mullane v Cent. Hanover Bank & Trust Co., 339 US 306, 314 (1950)]).
Judge Cooper decided that “[u]nder the circumstance presented here,” i.e., that newspaper publication in New York would be inadequate since the defendant was most likely in Ghana, “service by Facebook, albeit novel and nontraditional, is the form of service that most comports with the constitutional standards of due process. Not only is it reasonably calculated to provide defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him.”
Judge Cooper required the plaintiff to address several concerns, and she did so to the Judge’s satisfaction. They are all relevant:
- Did the defendant’s purported Facebook account actually belong to defendant. The court noted that there can be fake Facebook accounts, because anyone can make a fake Facebook account, and required plaintiff to submit a supplemental affidavit to verify that the Facebook account she referenced was indeed that of the defendant.
- Did the defendant regularly log into his Facebook account so that he would see the summons before the time to respond had expired. The plaintiff’s affidavit showed that defendant regularly logged on to Facebook.
- Did plaintiff have a backup means of service. Here, defendant’s email address and phone number could not be found. Thus, the Court said, “plaintiff has a compelling reason to make Facebook the sole, rather than the supplemental, means of service, with the court satisfied that it is a method reasonably calculated to give defendant notice that he is being sued for divorce.”
As the court noted, under the circumstance presented, service by Facebook, albeit novel and nontraditional, is the form of service that most comports with the constitutional standards of due process.
