Modern Service of Process

By Maximillian (Max) H. Matthies posted 07-16-2018 16:01

  

The vast majority of Americans use the Internet, e-mail, and Facebook. It is entirely likely that the defendant in your newly filed complaint is somewhere online. But can you legally serve the person online? Some courts are saying maybe.

As early as 2008, the Civil Court of New York allowed service of process to the only address the plaintiff had: e-mail. The opinion goes on to discuss additional conditions placed on the plaintiff to help ensure that “cyber-notice” would be as reliable as traditional methods of service.

Earlier this year, a Canadian lawyer who was unable to serve a defendant in traditional ways found her defendant on Instagram. On motion, the court allowed service via Instagram and LinkedIn. Interestingly enough, the court did not require any form of “read receipt” after the defendant was served via private message on Instagram.

In 2011, in Mpafe v Mpafe, a Minnesota court allowed service of divorce proceedings via e-mail, Facebook, Myspace, or any other social networking site, stating that the “traditional way to get service by publication is antiquated.”

In 2014, a New York family court allowed a man to serve his ex-wife via Facebook. While she and the couple’s adult children could not be found, she was active on Facebook, having recently “liked” some photos posted by the man’s second wife.

In contrast, at least one federal court in Michigan has been hesitant to allow it. Despite that early case, there is movement in Michigan to provide for service of process electronically. MCL 600.5718 was amended in 2015 to provide landlords the ability to serve eviction notices via “electronic service” if that provision has been negotiated and both parties agree in writing. 

For service of notice and court papers in domestic relations cases, in September 2017, MCR 3.203 was amended to allow alternative electronic service via e-mail and text message. Ultimately, the goal of service is to get a summons to a defendant so a court can get jurisdiction. To get the summons there, you have to go to where the defendant is, and it appears that all but the Luddites are online. I would guess it is more likely that a defendant will find out he or she is being sued online (maybe even through an Internet search of his or her own name) than from a casual stroll through postings at a circuit or district court or by reading a local newspaper, the alternate services of old. 

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