Baidoo v. Blood-Dzraku and Service by Facebook

The case of the day is Baidoo v. Blood-Dzraku (N.Y. Sup. Ct. 2015). Zhandra Marín first noted the case at Cartas Blogatorias. The case involves service of process by Facebook.

The holding of the case was that, in a divorce proceeding where the wife lacked a physical address or even an email address for her husband, service by Facebook was proper under New York law, where the wife was able to show that the husband logged on to his Facebook account regularly and where she had a mobile phone number for him and would be able to call or text him to let him know to check his Facebook account for the documents.

So far so good, with the usual caveat that because the husband’s address was unknown, there was no question about the Hague Service Convention (though it’s not even clear from the decision that the husband was abroad—he might well have been living in New York). So don’t cite this case to show that service by email is permissible when the Convention applies!

The decision is most notable for Judge Matthew Cooper’s dicta. The judge noted that electronic communication has largely supplanted communication by mail, and yet the rules of service of process have not changed accordingly. The implication is, maybe, that they should change, which I’m not sure is right. For those of you readers who are students: one day soon you’ll receive your degree, which will be evidenced by a diploma. Should the diploma be e-mailed to you? Who’s in favor of admitting a will that exists only in a computer file to probate? In short, I believe there’s still a place for paper for our most formal communications, and surely a summons falls into that category, even if the documents submitted to the court once the lawsuit is underway do not.

But the judge had another dictum, with which I am in much greater agreement. Why not simply serve process by publication, which is expressly authorized by New York law (and the law of many other states)? The judge pointed out that service by publication is really just fictional service—there is little or no expectation that the defendant will ever see the legal notice. But with Facebook, at least on an appropriate evidentiary showing (e.g., a showing that the defendant regularly checks his Facebook account), there is good reason to think that the service will reach him. So we should prefer service by Facebook or other social media forums to service by publication, even though service by publication is obviously the more traditional. I agree with this view entirely, again leaving aside cases where the Service Convention applies.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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