For a judgment to be entitled to full faith and credit, the defendant must be served in a way that’s reasonably calculated to give actual notice of the proceedings and an opportunity to be heard. Milliken v Meyer (1940) 311 US 457, 463. But how do you serve a defendant you can’t find? Personal service and service by mail are obviously off the table. You’re left with service by publication. Newspapers were the standard for this method, but Twitter and other social media platforms may be the modern version of the local paper.
When it appears to the satisfaction of the court that a party can’t with reasonable diligence be served by another specified method, a plaintiff may affect service by publication. CCP §415.50. This is done by having the summons published in a newspaper that’s most likely to give notice to the party to be served. But if you have no idea where the party to be served is living, what newspaper would be more likely to give notice?
It may be that newspapers aren’t the best way to give actual notice anymore. The San Francisco Chronicle describes a case that “highlights just one of many ways the legal system finds itself rapidly adjusting to the spread of electronic messaging.” In that case, a California nonprofit serving refugees planned to sue a purported Kuwaiti terrorist financier, Hajjaj al Ajmi. The nonprofit’s attorney unsuccessfully tried to serve al Ajmi; he reportedly tried contacting his local attorney and the Kuwaiti government to no avail. So he decided to use Twitter, where al Ajmi was a frequent user.
A Magistrate Judge of the Northern District of California granted the nonprofit permission to tweet a summons and complaint, which it did. Al Ajmi retweeted another user’s message about the notice; that retweet indicated al Ajmi was likely aware of the tweet.
This isn’t the first case to use social media for service. A New York judge allowed service of divorce papers via Facebook private messaging.
But service via social media has serious challenges with regard to notice. You need to ensure that
- the social media account is active, and
- there’s some indication that the intended recipient saw the tweet or message.
And as with any service by publication, you’ll need a court order before you can proceed. See CCP §415.50(b). Not all courts are ready to embrace service through social media. Be prepared to show that the party to be served actively uses the social media platform you want to use for service and that it would be an effective way to give that party actual notice.
For everything you need to know about how to serve a summons, turn to CEB’s California Civil Procedure Before Trial, chap 17.
Other CEBblog™ posts you may find interesting:
- How to Authenticate a Social Media Post
- You Don’t Own Me—Is it Employer or Employee Social Media Content?
- Snapchat as Evidence
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Filed under: Civil Litigation, Legal Topics, New Legal Developments, Social Media | Tagged: foreign defendant, service by publication, service of process, serving the complaint, social media, summons, twitter |