We previously covered a court ruling that the Federal Trade Commission was permitted to supplement actual service of a complaint with Facebook service. “Service of Process Via Facebook,” Apr. 4, 2013.

On July 9, a federal trial court in Kansas faced the issue of whether service via Facebook was acceptable as the sole means of service under Rule 4 of the Federal Rules of Civil Procedure. Joe Hand Prods., Inc. v. Carrette, No. 12-2633-CM (D. Kan. July 9, 2013).

The case involved a copyright dispute.  The plaintiff was a television distributor of pay-per-view and closed circuit special events. The plaintiff claimed that defendants unlawfully pirated a broadcast of an Ultimate Fighting Championship match.  Plaintiff attempted to serve the copyright infringement complaint upon the defendants in person, but the defendants’ place of business was vacant, and service on one defendant’s last known residence also failed.  Plaintiff found “a Facebook profile that supposedly belongs to defendant” and moved to serve the complaint via a Facebook message.

The court found that plaintiff “presented no facts as to the Facebook profile’s authenticity.” Slip op. at 5 (footnote omitted). The court ruled that, on “the present state of the record, the court cannot conclude that the subject Facebook profile is current, active, or authentic.” Slip op. at 6. Therefore, the court concluded:  “It would be unfair to allow service through this alternative means unless the court could be reasonably sure that this service would reach the defendant.” Slip op. at 4-5. The unauthenticated Facebook profile did not meet the court’s test for acceptable alternate service under the Constitutional requirement of due process:  “In order to satisfy due process, the court must be sure that the method of service is likely to reach the defendant, so that the defendant may have an opportunity to present his case.”

In short, “on account of constitutionally imposed considerations of due process, the court respectfully declines the invitation in this copyright infringement case to ‘like’ Facebook as the suggested sole means of substituted service of process under Rule 4 of the Federal Rules of Civil Procedure.” Slip op. at 1.

Would the outcome have been different if the defendants had an official Facebook page that was “current, active or authentic”?  Does your company have such a page?

Sue Ross (susan.ross@nortonrosefulbright.com / +1 212 318 3280) is a lawyer in Norton Rose Fulbright’s US intellectual property practice.