Earlier this month, a U.S. District Court judge for the Southern District of New York (S.D.N.Y.) ruled that the Federal Trade Commission (FTC) could serve foreign defendants located in India through Facebook messages, as long as the defendants were also served by email. Judge Paul Engelmayer’s order appears to be the first in the U.S. to allow any service through Facebook and the court’s reasoning may have opened the door for judges to allow service on foreign parties through social media. However, that door may be only slightly ajar.
In Federal Trade Commission v. PCCare247 Inc., No. 12 Civ. 7189 (PAE) (S.D.N.Y. March 7, 2013), the court emphasized several important facts before endorsing service by social media:
(1) in September 2012, the FTC made good-faith efforts to serve the Summons and the Complaint using Federal Express, a process server, and the traditional procedures under the Federal Rules of Civil Procedure 4(f)(1) and the Hague Convention, but as of March 2013, the Indian Central Authority had not effectuated service or responded to inquiries;
(2) the FTC’s motion to use email and Facebook was limited to serving documents other than the Summons and the Complaint; and
(3) the defendants had received actual notice of the case.
Despite these factual underpinnings, the court’s reasoning for allowing service by social media is noteworthy. Building on jurisprudence permitting service by email where a plaintiff demonstrates that the email is likely to reach the defendant, the court allowed service by Facebook because the FTC provided sufficient facts to give the court “ample reason for confidence” that the identified Facebook accounts were actually operated by the defendants, demonstrating that service by Facebook message would likely reach the defendants.
To show there was a strong likelihood that the identified Facebook accounts belonged to the defendants and that service by Facebook would reach the defendants, the FTC offered several facts:
(1) the defendants ran an internet-based business and frequently communicated using email;
(2) the Facebook accounts were registered to the emails through which the defendants conducted that business;
(3) the job titles listed on those accounts matched the defendant’s job titles at the defendant company; and
(4) these accounts were “friends” with each other on Facebook.
In granting the FTC’s motion, Judge Engelmayer relied on Federal Rule of Civil Procedure 4(f)(3), which allows a court to fashion service on foreign parties as long as the method of service is (1) not prohibited by international agreement, and (2) comports with constitutional notions of due process. The court concluded that electronic service did not violate international agreements, and that service by email and Facebook comported with due process where defendants ran an online business, communicated with customers via email, and advertised their business on their Facebook pages. The court summed up its own opinion well:
“The Court acknowledges that service by Facebook is a relatively novel concept, and that it is conceivable that defendants will not in fact receive notice by this means. But, as noted, the proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant at his, or its, known email address. And history teaches us that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.”
The court distinguished these facts from an earlier S.D.N.Y. decision denying a motion for service via Facebook (Fortunato v. Chase Bank USA¸ No. 11 Civ. 6609 (JFK), 2012 WL 2086950, at *2 (S.D.N.Y. June 7, 2012)). There, the plaintiff failed to offer any facts giving the court a degree of certainty that the Facebook profile was maintained by the defendant.
The reasoning in this case opens the door for plaintiffs to argue that foreign defendants should be subject to service by Facebook as long as the plaintiff can give the court ample confidence that the Facebook account is actually maintained and operated by the defendant. Given that information such as name, employment title, and email addresses, among others, may be clearly visible on Facebook and elsewhere, this may not be a difficult burden to meet.