Service of process on a foreign defendant can be a major headache for U.S. plaintiffs, but social media is proving to be a creative solution when traditional methods have been demonstrated to fail.
We previously covered a New York federal court’s ruling that permitted the Federal Trade Commission to serve the Indian defendants, operating under the name PCcare, by email and Facebook. We also discussed a Kansas federal court’s ruling that denied service via Facebook as the sole means of service.
Since our last update, a federal trial court in Virginia has ruled in favor of allowing service by social media, adding to a growing trend in the U.S. federal courts.
In a trademark infringement suit against a defendant operating a business in Turkey, a federal court in Virginia found that service by email, Facebook, and LinkedIn were all appropriate under the U.S. rules regarding service of process on a foreign defendant. WhosHere, Inc. v. Gokhan Orun. International enforcement of trademark and other intellectual property rights can be challenging, especially when potential infringers are difficult (if not impossible) to locate.
In the U.S., Federal Rule of Civil Procedure 4(f) provides three methods of serving a person in a foreign country:
- by an internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention;
- if there is no internationally agreed means, then by means reasonably calculated to give notice; or
- by other means not prohibited by international agreement, as the court orders.
To serve process on an individual in a foreign country, a federal plaintiff must comply with both Rule 4(f) and the constitutional notice requirements of due process. To satisfy due process, the method of service must “provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”
Rule 4(f)(3) has been interpreted to permit any means of service as long as it provides reasonable assurance that a defendant will be notified of the lawsuit and is not prohibited by international agreement. The ultimate decision whether to allow alternative service of process is within the discretion of the court.
In WhosHere, the defendant’s social media accounts were under his own name and contained information about the trademarks at issue in the case. The defendant himself provided his social networking pages and email address to the plaintiff. The accounts were regularly viewed and maintained by the defendant. In addition, communications between plaintiff and defendant indicated that the defendant was already aware that there was a lawsuit pending against him. For these reasons, the court approved service by Facebook, LinkedIn, and email.
Is Service by Social Media a Last Resort?
The court in WhosHere noted that Rule 4(f) does not establish a hierarchy among the three methods of serving process on foreign defendants. Rather, the court can order service by alternative means without requiring a plaintiff to first attempt service by other methods (subject to the requirements of international agreements). Rule 4(f)(3) is neither a last resort nor extraordinary relief. It is merely one option among several that enable service of process on an international defendant.
Service by social media has a growing body of supporting case law and will likely become more widely accepted by federal judges. Plaintiffs in U.S. federal court would be wise to keep social media in mind when attempting to serve process on a foreign defendant.