Can Service of Process Be Effected Via Facebook?

by Mike Mintz on August 1, 2012 · 0 comments

in Civil Procedure,Litigation,

In Fortunato v. Chase Bank, 11 CV 6608 (S.D.N.Y. 2012) the court had to decide the relatively novel issue of whether to allow service of a complaint via Facebook.


In the underlying lawsuit, plaintiff alleged that someone opened a credit card account in her name and proceeded to incur debt without her knowledge and authorization.  Chase subsequently started collection proceedings against the plaintiff when the debt remained unpaid.  Chase attempted to serve the papers on plaintiff at an address in New York but Fortunato claimed that she never lived at that address.  Chase subsequently obtained a default judgment against her and proceeded with garnishment of her wages.  Chase eventually recovered the full amount of the debt from plaintiff. Plaintiff brought the instant action against Chase for its alleged violation of the Fair Credit Reporting Act, abuse of process and conversion.

Chase subsequently impleaded plaintiff’s estranged daughter who allegedly was the one to open the credit card account in her mother’s name and use her own mailing address in the application. Chase was unable to locate a physical address for plaintiff’s daughter and asked the court to allow it to effect service via process by e-mail, Facebook message, publication, and delivery to the mother—plaintiff Fortunato.


F.R.C.P. Rule 4(e) allows service of process on an individual according to the laws of the particular state where the district court is located. New York allows for service of process by: personal service; delivery to a person of suitable age and discretion at the actual place of business, dwelling or usual place of abode and mail; service on an agent; or “nail and mail” service. N.Y.C.P.L.R. 308.  If service under these methods is impracticable, service can be made in such a manner as the court, upon motion, directs.   One does not have to show due diligence in making prior attempts at service before moving the court for alternative means of service. Whether service proves to be “impracticable” depends on the circumstances of each particular case.

Chase’s process server made several attempts to serve Fortunato’s daughter– with no luck.  Chase also hired a private detective to locate her. None of their searches proved fruitful.  However, the detective did uncover her purported Facebook page which contained an e-mail address.

The court concluded that Chase exhibited diligence in its search and that it made numerous attempts to effect service.  Working against them was the daughter’s propensity for providing fake or out-of-date addresses.  Hence the court was convinced that service pursuant to the usual methods prescribed by C.P.L.R. 308 was impracticable.

In designing an alternative method of service, the court must be mindful of the constitutional due process requirements which require that service of process be reasonably calculated to apprise parties of the pendency of the action and give them an opportunity to present their objections.

Chase contended that service via private Facebook message and e-mail and giving a copy of the pleadings to the mother, is reasonably calculated to notify the daughter of the proceedings.  The court disagreed.  The court described the suggestion of service via Facebook as “unorthodox, to say the least” and the court was unaware of any other court that has authorized service in this manner.

Moreover, in those cases where service via e-mail was allowed, the moving party provided facts showing that the person to be served would be likely to receive the summons and complaint at the specified e-mail address.  Chase failed to set forth any such facts.  In fact, it is not even certain if the Facebook profile the detective uncovered was for the same person Chase wanted to serve in the lawsuit. In fact, Facebook profiles can be made using partial or even fake information. Chase also failed to prove that the e-mail address provided in the Facebook page is operational and accessible by the potential third-party defendant. Hence, there was no way for the court to be certain that the Facebook page was for the correct person.  The court also rejected Chase’s suggestion that it be allowed to serve the mother, noting that the mother and daughter were estranged and that the mother did not have any recent contact with the daughter. Also, the interests of the mother and daughter in the lawsuit are conflicting.  Thus there were no guarantees that the mother would even give the daughter the pleadings.

The only remaining method of alternate service is via publication.  C.P.L.R. 316(a) allows for service by publication if service is placed in two newspapers, at least one in English, a minimum of once in each of four consecutive weeks. The court reasoned that publication in local newspapers was the most likely way to apprise the daughter of the third-party complaint.  The court did allow Chase more time to effect service, taking note of its time-consuming strenuous attempts to locate the third-party defendant, with no success.

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