United States: You've Been (Virtually) Served; From Facebook Friend To Process Server: Service Of Process Via Facebook Messenger

Last Updated: August 27 2015
Article by Lauren Patten

It is no secret that social media has changed the face of the world in the last decade. Just ask Grumpy Cat. What is less evident, although no less true, is how social media has impacted the practice of law in the same amount of time. Just ask Victor Sena Blood-Dzraku.

Victor Sena Blood-Dzraku was married to Ellanora Arthur Baidoo in 2009. See Ellanora Arthur Baidoo v. Victor Sena Blood-Dzraku, 48 Misc.3d 309, 2015 N.Y. Misc. LEXIS 977 (N.Y. Sup. Ct. Mar. 27, 2015). The couple never lived together, however, and as of spring 2015, Ms. Baidoo only had spoken to her husband via telephone on a few occasions. Id. at *11.

In March 2015, Ms. Baidoo wanted a divorce; however, neither she nor her attorney could locate Mr. Blood-Dzraku to serve him with a divorce summons in order to initiate divorce proceedings. Id. at *5. The last address Ms. Baidoo had for her husband was from 2011, and when she had spoken with him, Mr. Blood-Dzraku informed his wife that he had no fixed address and no place of employment. Id. Equally frustrating, the post office had no forwarding address for Mr. Blood-Dzraku, and the New York Department of Motor Vehicles had no record of him either. Id. Eventually, Ms. Baidoo's attorney hired an investigation firm, which also was unable to locate Mr. Blood-Dzraku. Id. Running out of options, Ms. Baidoo petitioned the Supreme Court of New York, New York County for permission to serve her husband with the divorce summons through Facebook – and only Facebook. Id.

The court addressed the issue of whether Ms. Baidoo could serve her husband with a divorce summons solely through Facebook in Ellanora Arthur Baidoo v. Victor Sena Blood-Dzraku, 5 N.Y.S.3d 709 (N.Y. Sup. Ct. Mar. 27, 2015). In beginning its analysis, the court listed the various methods through which service of process could be effectuated in New York. Id. at *4. The court noted, however, that pursuant to Section 308(5) of the Civil Practice Law and Rules of New York, a plaintiff could make an ex parte application with the court such that the court may "devise a method that fits the particular circumstances of the case." Id. Ms. Baidoo asked the court to do just that and to find that her service of the divorce summons via Facebook Messenger constituted an appropriate form of alternative service.

In evaluating Ms. Baidoo's application, the court noted that she must demonstrate (1) that she was unable to have the summons personally served on her husband; (2) that it would be "impractical" to serve him by "substitute" service; and (3) that sending the summons via Facebook could reasonably be expected to give her husband actual notice that he was being sued for divorce. Id. at *5.

According to the court, Ms. Baidoo "easily met" the first and second requirements, given that she had no found residential address, no employment address, and no forwarding address for her husband. Id. at *5. Additionally, Ms. Baidoo's private investigators had been equally unsuccessful. Consequently, according to the court, serving Mr. Blood-Dzraku personally or by substitute service most likely would be impossible. Id.

As to whether Facebook could reasonably be expected to give Mr. Blood-Dzraku actual notice that he was being sued for divorce, the court framed the question: If the summons for divorce is sent to Mr. Blood-Dzraku's Facebook account, is there a good chance he will receive it? Id. at *9.   In answering that question, the court looked to three elements: (1) does the Facebook profile actually belong to Mr. Blood-Dzraku; (2) is Mr. Blood-Dzraku diligent in logging in to his Facebook account; and (3) whether a backup means of service should be required under the circumstances. Id. at *10.

In answering these questions, Ms. Baidoo submitted an affidavit, to which she attached copies of exchanges she had had with her husband via Facebook Messenger as well as photographs from his Facebook profile, in which she identified Mr. Blood-Dzraku as the subject of the photographs. Id. The photographs confirmed Mr. Blood-Dzraku as the owner of the account, while Ms. Baidoo's exchanges with her husband evidenced the regularity with which Mr. Blood-Dzraku logged in to his account. Id. In reviewing Ms. Baidoo's affidavit and the accompanying documentation, the court was convinced that the Facebook account identified by Ms. Baidoo was that of Mr. Blood-Dzraku and that he checked it regularly. Id.

As to the third concern, whether a backup means of service was required under the circumstances, the court answered the questions in the negative. Id. at *12-13. According to the court, given the facts of the case, while service of process via Facebook Messenger is "novel and non-traditional, [it] is the form of service that most comports with the constitutional standards of due process. Not only is it reasonably calculated to provide defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him." Id.

In reconciling its holding with the current state of the law, the court explained:

That a concept is new to the law is something that may very well require a court to exercise a high degree of scrutiny and independent legal analysis when judicial approval is sought. But a concept should not be rejected simply because it is novel or non-traditional. This is especially so where technology and the law intersect. In this age of technological enlightenment, what is for the moment unorthodox and unusual stands a good chance of sooner or later being accepted and standard, or even outdated and passé. And because legislatures have often been slow to react to these changes, it has fallen on courts to insure that our legal procedures keep pace with current technology.

 Id. at *8-9.

If Mr. Blood-Dzraku's experience in divorce court is any indication, courts may lead the way in dragging various anachronistic legal processes and procedures in to the twenty-first century.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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