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Kids These Days: Federal Court Dislikes Service Via Facebook

Just when it looked like Facebook was set to be the next big thing in service of legal process, one federal court is having none of it.

In an order dated June 7, 2012, U.S. District Judge John Keenan denied a request by Chase Bank to use Facebook to serve legal process on an alleged identity thief, according to this report at paidContent.

In February, we discussed how a British High Court judge had allowed service of process via Facebook in a commercial dispute.?á And we asked: Will U.S. courts follow?

The answer, at least in this case in the Southern District of New York, is forget about it.

Instead, the court instructed the Chase Bank to use the decidedly old-media method of placing ads in local newspapers in and around the town of Hastings, New York.?á ?Ç£A local newspaper is the most likely means by which to apprise [the accused thief],?Ç¥ the court wrote.

According to paidContent:

The case turned on Nicole Fortunato who reportedly used her mother?ÇÖs identity [sic] to obtain a credit card from Chase and run up charges of $1,243. The mother, Lorri, claimed she and her daughter are estranged and filed a lawsuit against Chase after the bank garnished her paychecks to recover the debt.

Now, Chase is trying to sue Nicole but can?ÇÖt find her. The bank hired a detective who found four possible addresses as well as a Facebook profile that lists a Nicole Fortunato in Hastings, New York. After failing to find Nicole at any of the addresses, Chase asked the judge for permission to use alternate methods to serve her (normally, courts allow only a few ways to perform ?Ç£service?Ç¥ ?Çö the process that lets a court know a defendant is aware of a lawsuit).

Applying New York state law governing service of process, the court found that the bank had indeed exhausted the traditional means of service.?á But the court found that Chase hadn?ÇÖt made a sufficient showing that the Facebook profile belonged to the correct Nicole Fortunato and that ?Ç£the Court?ÇÖs understanding is that anyone can make a Facebook profile using real, fake or incomplete information.?Ç¥

It is a valid point, though one might question whether a posting in a regional newspaper is an effective means of reaching a young person in an era in which the average age of the American newspaper reader is 55 and rising.

It remains to be seen whether service via social media will gain traction in the United States, as it has in other countries.

In 2008, the Sydney Morning Herald reported that an Australian court ordered that a default judgment could be served on defendants by notification on Facebook.?á In 2010, the Herald reported that another Australian court permitted a paternity test order to be served via Facebook.

For now, in the U.S., according to Judge Keenan?ÇÖs ruling, ?Ç£Service by Facebook is unorthodox to say the least.?Ç¥

UPDATE (8/9/2012): A South African court has ruled that a defendant in a civil dispute could be served via a message to the defendant’s Facebook account.?á According to a report by South African news service Independent Online, the plaintiff had argued that a Facebook message should be indistinguishable from e-mail under the law.?á Notably, in allowing service via Facebook, the court also required the plaintiff to post notice in the local newspaper.

David Bell is a partner in the Dallas, TX office of the law firm of Haynes and Boone, LLP. He is the chair of the firmΓÇÖs Social Media Practice. He may be reached at david.bell@haynesboone.com or 214.651.5248. Follow David on Twitter or add him to your LinkedIn network.

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June 2012