April 2013 Bar Bulletin
 
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April 2013 Bar Bulletin

You Have 14 Likes, 9 Comments and 1 New Lawsuit: Serving Lawsuits Via Social Media

By Chris Pothering

 

Can you imagine signing into Facebook or Twitter and being notified that you had been served with a lawsuit? That idea may not be too far out of the realm of possibility.

Courts in several countries, including Canada, Australia, New Zealand and the United Kingdom have already allowed or, in some cases, even encouraged the use of social media sites, including Facebook, as a means of alternative service of notice.

In Washington, to serve someone with notice of a lawsuit, you follow the requirements of RCW 4.28.080 and Civil Rule 4, and serve the copy of the summons and complaint on the defendant personally. Alternatively, if, after reasonable diligence, the defendant cannot be served personally, you leave a copy of the summons and complaint at their residence, and also mail a copy by first-class mail to the residence or to their known place of employment. Washington does have a statute that provides for service by publication, but its applications are more limited.

CR 4(h) does provide the court additional flexibility. The rule states, "At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued." Presumably, a court could allow service via social media if it decided that there would be no material prejudice to the party being served by amending the process.

Last year, a federal district court considered whether a party could use Facebook to serve a third party with a complaint. In Fortunato v. Chase Bank,1 Chase was unable to locate a person to add to the case. After an exhaustive search by a private investigator and many unsuccessful attempts to physically locate the party, Chase asked the court for permission to serve her with notice by sending a message to her Facebook account.

Chase argued that service through Facebook, as an alternative service, would meet the due process requirements just as well as publishing notifications in the local newspapers because the message was reasonably calculated to apprise her of the claims against her. The court was unconvinced and denied the motion.

The court pointed out that it was not convinced that Chase would be able to prove that the account was in fact a real account or if it had been opened by another person, using the same name or under a fake name. In short, authenticity of the social media account was a key factor in the court's decision to reject Chase's argument for its requested alternate method of service.

Fast forward less than a year and now a lawmaker in Texas has proposed a bill that would allow people to be served notice of a lawsuit via social media. Texas has a similar (although not identical) manner for service of process as Washington, including the use of publication for alternative service. The current rules in Texas also provide that a judge is allowed to authorize service "in any manner that the evidence ... shows will be reasonably effective to give the defendant notice of the suit." This is a more lenient standard than Washington's rule, which requires a court to make sure that the party being served is not materially prejudiced by a court's amendment to the process of service.


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