New York Court Rejects Services of Process Via Facebook
In a recent decision, a New York trial court has rejected a plaintiff’s application for service of a summons via Facebook, on account of plaintiff’s failures to demonstrate that the defendant maintains and currently uses the identified Facebook profile. See Qaza v. Alshalabi, 2016 WL 7109698, at *3 (Sup. Ct., King’s Cnty. Dec. 5, 2016) (Sunshine, J.). During this “age of social media,” the Court exercised its discretion to chart a realistic, reasonable and constitutional approach to the use of social media to provide at least “some semblance of due process notice.” Id.
In Qaza, the plaintiff filed her divorce action against, and sought to serve the summons upon, the defendant, who the plaintiff contended had been deported and who, she believed, was living in Saudi Arabia. 2016 WL 7109698 at *1. The plaintiff argued that, despite her “every effort to locate” the defendant and serve him personally, she had been unable to do so. Id. She asserted that she only discovered that the defendant was in Saudi Arabia because he maintained two Facebook profiles, listing Saudi Arabia as his location. See id. She also argued that, because Saudi Arabia is not a signatory to the Hague Convention, she could not ensure service upon the defendant in that jurisdiction, nor could she afford the relatively high costs of serving the defendant via alternate means (e.g., via publication). See id.
After observing that it was vested with the discretion to direct an alternative method of service, the Court emphasized that “due process is not . . . a mechanical formula or a rigid set of rules” and that “in modern jurisprudence, the term has come to represent a realistic and reasonable evaluation of the respective interests of plaintiffs, defendants and the state under the circumstances of the particular case.” Qaza, 2016 WL 7109698 at *2, quoting, Dobkin v. Chapman, 21 N.Y.S.2d 490, 502-03 (1968). After all, “what might be inadequate in one kind of situation will amount to due process in another.” Id.
In light of these principles, the Court concluded that:
[P]laintiff has failed to sufficiently authenticate the Facebook profile as being that of defendant and has not show[n] that, assuming arguendo that it is defendant’s Facebook profile, that defendant actually uses this Facebook page for communicating. As such, plaintiff has not demonstrated that, under the facts presented here, service by Facebook is reasonably calculated to apprise the defendant of the matrimonial action.
2016 WL 7109698 at *2. The Court then suggested that a divorce action – perhaps more than other plenary actions – introduces “a multitude of ancillary affects on the rights and liabilities of the parties.” Id. at *3. In such an action, at issue are “economic responsibilities and rights” and “rights to property, inheritance and most importantly the Constitutional right to custody and visitation.” Id. Given the importance generally attached to constitutional rights to due process, however, it should not be presumed that the Court’s holding, in Qaza, is limited to the divorce context or that its reasoning and conclusion need not be carefully considered by a plaintiff faced with the prospect of serving a putative defendant who maintains and uses social media.