The Scope of Service: Can Courts Hail Parties Into Court by Using Facebook?
May 31, 2017
Jennifer Vorih, Esq.
Ty Hyderally, Esq.
Many New Jersey employees use Facebook, and they now may be able to serve employers or others via Facebook, if necessary, under certain circumstances. Nearly 79 percent of online Americans use Facebook, and 76 percent of those users report that they check their accounts daily. Pew Research Center, 2016. Although most people use Facebook to communicate with friends and acquaintances, there is a growing trend allowing social media to be used for other purposes.
The Appellate Division of New Jersey’s Superior Court recently held that, under certain circumstances, parties can be served through Facebook. K.I.A. v. J.L., 2016 N.J. Super. LEXIS 166. In the case, after defendant contacted plaintiffs through Facebook and Instagram, plaintiffs moved to stop defendant from contacting them on Facebook, and to force defendant to remove information from Facebook pertaining to the plaintiffs. After the plaintiffs were unsuccessful in serving the defendant through regular mail, they sought to serve defendant with the order to show cause and complaint through Facebook.
Before assessing the proper mode of service, the court noted that the defendant’s addresses were from out of state. This barred the New Jersey court from asserting its jurisdiction unless the defendant conducted activities in New Jersey. Courts have found that a defendant’s intentional contact with an in state resident via the internet may be sufficient to establish jurisdiction. The Court found defendant’s acts of intentionally reaching out to the plaintiffs, whom he knew to be New Jersey residents, via Facebook, justified a finding of specific jurisdiction over causes of action related to that contact. However, there was no showing of the continuous and systematic contact which is required to establish general jurisdiction, as the defendant engaged in just a few interactions via Facebook targeted at the plaintiffs.
In order for the Court to have personal jurisdiction over defendant, the defendant must be properly served, in addition to having sufficient contact with New Jersey. The Court considered several factors in analyzing whether service via Facebook was appropriate. First, was the defendant able to be served by conventional means? The plaintiffs had attempted to serve defendant by using mailing addresses, to no avail. Second, was service by publication appropriate? As plaintiffs were seeking an injunction, the Court found that service by publication was improper. And third, would defendant’s due process rights be protected if this type of service were permitted? The defendant demonstrated through their conduct with the plaintiffs that Facebook was effective means of providing him with adequate notice to prepare for litigation.
If service cannot be made by using the modes provided by the court, a party may be properly served by another method, upon a court order. As discussed, since defendant demonstrated that he was active on Facebook by contacting the plaintiffs through the website, the Court reasoned that service through Facebook would provide him with adequate notice and opportunity to defend against the plaintiffs’ claims. Moreover, Facebook’s messaging feature incorporates a read receipt notification, which confirms when a party has seen the contents of the message. Further, the Court noted that in this particular case, defendant had actually participated in a hearing by telephone, removing any doubt as to whether the Facebook account was his.
What does this case mean for New Jersey employees who are Facebook users? If a conflict arises – regarding employment or another issue – New Jersey residents can properly serve active Facebook users under certain circumstances.
The Firm also thanks its Law Clerk, Chantal Guerriero, a third year law student at Rutgers Law School, for her contribution to this blog.
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