#serviceofprocess @socialmedia: Accepting Social Media for Service of Process in the 21st Century

Author:Keely Knapp
Position::J.D./D.C.L., 2014, Paul M. Hebert Law Center, Louisiana State University
Pages:547-579
 
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#serviceofprocess @socialmedia: Accepting Social
Media for Service of Process in the 21st Century
“To be sure, the Constitution does not require any particular
means of service of process, only that the method selected be
reasonably calculated to provide notice and an opportunity to
respond. In proper circumstances, this broad constitutional principle
unshackles the federal courts from anachronistic methods of service
and permits them entry into the technological renaissance.”1
INTRODUCTION
Service of process has always been tricky business.2 Today,
providing notice of suit to a defendant can be even more diffi cult
than in decades past. Advancements in technology and travel have
made evading service much easier than when society was
considerably less mobile. Nevertheless, some of these same
advancements in technology have opened up a whole new world of
possibilities for alternative methods of service of process.
Sometimes, a plaintiff may have to attempt service through
multiple means, especially in instances where he or she is suing an
evasive defendant.3 Often in these instances, the defendant cannot
be located for means of personal service, has no permanent address,
and has not authorized anyone to accept service of process for him
or her. This frustrating situation is a problem for which new
technology offers an ideal solution: service of process through social
media. The plaintiff could find the defendant’s social networking
profile and, by using the personal information listed on the profile,
confirm that it belongs to the defendant. The plaintiff could then
have a process server issue service attached to a message sent to the
Copyright 2014, by KEELY KNAPP.
1. Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1017 (9th Cir. 2002)
(citations omitted).
2. Service of process is the formal means by which a plaintiff desiring to sue
notifies the defendant of the action being brought against him. Service is required
by both the U.S. Constitution and the Federa l Rules of Civil Procedure. U.S.
CONST. amend. XIV, § 1; FED. R. CIV. P. 4(e).
3. See Toler v. City of Cookeville, 952 S.W.2d 831, 832 (Tenn. Ct. App.
1997) (concluding that the defendant was attempting to evade service when he
was in his condo while the plaintiff’s attorney’s paralegal attempted to serve him
but would not open the door; was living in the condo where service was
attempted; and was the man who ran into the home when approached by the
paralegal); Stephanie Francis Ward, Our Pl easure to Serve You: More La wyers
Look to Social Networking Sites to Notify Defendants, ABA J. (Oct. 2011) (“You
would be surprised at how many people evade service but update their Facebook
profile on a near daily basis . . . .”).
548 LOUISIANA LAW REVIEW [Vol. 74
inbox associated with the defendant’s profile. A feature unique to
social media would then allow a “read receipt” to be issued, listing
the date and time the message was read.4
Because of social media’s pervasiveness, the legal system would
be doing itself an injustice to ignore this new technology as a means
to effectuate service when other methods fail. This Comment argues
that the legal system should recognize the value of social media and
allow service to be accomplished through it.5 Part I provides an
overview of the historical development of service of process and
surveys the development of modern communication and technology,
the development of social media, and the development of electronic
documentation in the legal system. Part II discusses how in the story
of alternative service of process, service through social m edia is the
next chapter. This Part also reviews the constitutionality of service
of process through social media and investigates due process
concerns, while arguing that social media are as good as or better
than the currently utilized alternative methods. Part III explains the
technicalities of how service through social media would be
accomplished and suggests factors courts should weigh in deciding
when social media service of process would be permissible.6
Ultimately, this Comment suggests that social media are a viable
alternative for effectuating service in the 21st century and beyond.
I. SURVEYING SERVICE OF PROCESS AND THE SHIFT IN ELECTRONIC
COMMUNICATION
Overall, communication has advanced far beyond what it was a
century, half a century, or even a decade ago.7 Examining the
development of service and the development of technological
4. See infra Part III.C discussing “read receipts.”
5. This Comment is not advocating that service through social media should
replace any of the traditional methods of service.
6. To be clear, this Comment proposes service could be permissible through
social media sites generally. Presently, Facebook is the only site that contains a
platform and structure suitable to service of process under the requirements listed
infra Part III.B. It should be noted, however, that new social media sites, or even
currently existing sites, might become suitable media for effectuating service in
the near future.
7. See GHN: About, IEEE GLOBAL HIST. NETWORK, http://www.ieeeghn
.org/wiki/index.php/GHN:About (last visited Nov. 8, 2013) (providing statement
about society and technology from the Institute of Electrical and Electronic
Engineers (IEEE), a non-profit organization committed to the advancement of
technology). “Electrical, electronic, and computer technologies dramatically
transformed the world during the 19th and 20th centuries. Today they are the
cornerstones of humanity’s material existence, and they will continue to be
powerful force s shaping lives in the 21st ce ntury.” Id.
2014] COMMENT 549
communications, it seems that service of process methods have
coincided with developing technology.8
This Part first explains how courts assess service of process and
what is required for permissible service. Next, it discusses the
evolution of service of process, focusing on alternative service
methods while showing major technological advancements
throughout the development of service. Finally, it discusses changes
in the legal system, which evidence an embrace of new technology
and communication.
A. “Poking” into How Courts Assess Service of Process
In the context of litigation, service of process is essential to the
initiation of a suit.9 The U.S. Supreme Court stated that “[i]n the
absence of service of process, a court ordinarily may not exercise
power over a party the complaint names as defendant.”10 The Fifth
and Fourteenth Amendments to the U.S. Constitution provide that
no state shall “deprive any person of life, liberty, or property without
due process of law.”11 In the context of serving notice of suit, due
process has been interpreted to mean that every person must be
apprised of the litigation against him or her and be afforded an
opportunity to be heard.12
Therefore, to assess the legalit y of service, a court assesses
whether the method of service used is reasonably calculated to give
8. See infra Part I.B.
9. Hatfield v. King, 184 U.S. 162, 166 (1902) (“Before any proceedings
[can] rightfully be taken against the defenda nts it [is] essential that either they be
brought into court by service of process, or that a lawful appearance be made on
their behalf.”). See also Murphy Bros., Inc. v. Michetti Pipe Stringing Inc., 526
U.S. 344, 350 (1999) (“Service of process, under longstanding tradition in our
system of justice, is fundamental to any procedural imposition on a named
defendant. . . . [Based on this requirement,] one becomes a party officially, and is
required to take action in that capacity, only upon service of a summons or other
authority-asserting measure stating the time within which the party served must
appear and defend.”).
10. Murphy Bros., Inc., 526 U.S. at 350 (1999). See also Omni Capital Int’l
Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a . . . court may
exercise personal jurisdiction over a defendant, the procedural requirement of
service of summons must be satisfied.”); Mississippi Publ’g Corp. v. Murphree,
326 U.S. 438, 444–45 (1946) (“[S]ervice of summons is the procedure by which a
court . . . asserts jurisdiction over the perso n of the party served.”).
11. U.S. CONST. amend. XIV, § 1; U.S. CONST. amend. V.
12. Greene v. Lindsey, 456 U.S. 444, 449 (1982). See also Pennoyer v. Neff,
95 U.S. 714, 741–43 (1877), overruled in part by Shaffer v. Heitner, 433 U.S 186
(1977).

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