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June 13, 2012
Bank Can't Use Facebook for Service of Process -- Fortunato v. Chase Bank
[Post by Venkat Balasubramani]
Fortunato v. Chase Bank USA, N.A., 2012 WL 2086950 (S.D.N.Y.; June 7, 2012) [pdf]
Fortunato was an apparent victim of identify theft--her estranged daughter allegedly opened up a Chase credit card in her name and racked up $1,243.09 in charges. Chase went after Fortunato, obtained a default judgment and garnished her wages. Furtunato turned around and sued Chase, alleging abuse of process, conversion, and a violation of the Fair Credit Reporting Act. Chase impleads Fortunato's estranged daughter, but runs up against a snag. It can't find her and thus cannot effect service of process.
Chase engages the service of investigators who dig around and find four possible addresses for the daughter. After repeated efforts and dead end leads, the process server still can't serve the daughter, so Chase asks for permission to serve by (1) "private Facebook message"; (2) to the email address listed on the Facebook profile; and (3) delivery of the summons and complaint to Fortunato (the estranged mom). I'm guessing Chase's costs in conducting this investigation and attempts at service have well exceeded the amount of the initial debt, but that's neither here nor there.
The court looks to New York state rules for service of process, as constrained by Due Process restrictions. While courts have authorized service by email, the court says that in those cases, the party seeking to serve via email made a showing that the parties
conduct[ed] business extensively, if not exclusively, through their internet websites and correspond[ed] regularly with customers via email. [Additionally, the parties did] not disclose their physical address or location of incorporation.
In contrast, here, Chase did not offer any such evidence, and did not offer any evidence that the Facebook profile in question was the daughter's. The court adds:
The Court's understanding is that anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm whether the Nicole Fortunato [the daughter] the investigator found is in fact the third-party Defendant to be served.
The court orders Chase to effect service by publication. The court says that it's unclear which local newspaper is best suited to get the word out to the daughter, so Chase should publish notice in the four locales where the daughter was thought by the investigator to reside.
Email service is expressly authorized by the federal rules, but the rules authorize such service only on foreign defendants. This rule requires prior authorization by the court. State court rules authorize service by certain types of postal mail, so this is a possibility under the federal rules as well (Federal Rule 4(e) incorporates state authorized methods of service of process.)
Procedural quirks aside, the big question is whether there is a bit of Facebook exceptionalism going on here. If a court has some discretion to authorize service in a manner reasonably calculated to provide a party of notice of the lawsuit, does it make sense for the court to deny the request on the basis that "anyone can create a Facebook profile?" Does it make sense to rely on postal mail--that someone may or may not come across, or pick up--while discounting a tool that most of the population uses on a somewhat regular basis? The court also surprisingly orders service by publication . . . in a newspaper. As between notice in a newspaper where they are not sure of the daughter's geographic location and a private message to a Facebook account that there's some reason to believe is the daughter's, which has the greater chance of providing notice? (Who, other than retro hipsters, even reads the classifieds anymore?)
Over time, courts will warm up to service via Facebook, but as in the cases involving service via email, fax, or other means, will require some sort of showing that the account actually belongs to the party in question. Where the allegedly wrongful act is perpetrated via a Facebook account, this showing will be relatively easy to make, but in a situation like this where someone looks like they're off the grid, parties will have a tougher time convincing a court that service via Facebook is appropriate.