When Can Plaintiffs Serve Process Via Online Methods? ¯\_(ツ)_/¯

February 13, 2021 · by Venkat Balasubramani · in General

This post recaps three recent decisions dealing with service of process via alternative means (e.g., email or social media). The rulings arise in different contexts so they are useful illustrations of how courts deal with alternative service under different rules.

The Noco Co v. Zhejiang Ouingyou Electronic Commerce Co.: This is a patent infringement case brought by The Noco Company against foreign sellers who allegedly sold infringing products via Amazon’s platform. Noco sought leave to serve various defendants via email and “the messaging centers of Facebook and Amazon.” However, the court denied this request as to a particular defendant (Shenzhen Aojie Technology, Ltd.) because at the time Noco made the request to serve via alternate means, Noco had some sort of address for Aojie. Noco had sent a packet to this address requesting the recipient to sign a waiver of service. It since discovered that the address in question had nothing to do with Aojie. Noco received an email from someone was signed as the “CEO” of “Shenzhen Aojie Technology Co., Ltd.” who received the packet Noco sent via mail. This person professed no knowledge of products similar to those at issue in the lawsuit. The email said the company who received the lawsuit materials “is a professional dental equipment manufacturer in Shenzhen . . . .” Noco asks the court to reconsider its earlier ruling.

The court says that this message demonstrates that the waiver of service package sent to the physical address listed on Aojie’s Amazon page was “undeliverable,” and therefore Aojie’s physical address is “unknown”. The court says that prior cases have authorized service via alternate means where a defendant’s business takes place online. While service via Amazon’s “messaging center” is not the same as service via email, numerous cases have permitted service via email. And some other courts have permitted service through online “messaging interfaces” including specifically Amazon’s. Accordingly, it authorizes service via the Amazon messaging platform.

Searles v. Archangel: Plaintiff Searles sought an anti-harassment order against Defendant Archangel but did not have a street address for Archangel. Searles alleged that Archangel did not have an address but was active online. The statute authorizing an anti-harassment order permits an order to be issued ex parte, but requires personal service of the petition and order and a hearing within a certain amount of time. Searles could not serve Archangel personally because Archangel did not maintain a physical address. She presented evidence that Archangel took steps to actively avoid being served and sought leave to serve Archangel by posting the documents on her social media platforms. The court denies Searles’ request to serve Archangel via alternate means, despite Searle’s argument that Archangel was trying to evade service of the paper documents. In doing so, the court takes a look at the development of rules regarding alternate service and why alternatives to traditional service make sense in light of technological changes. It nevertheless denies Searles’ request:

The question before us, however, is not whether it would be a sound policy development to permit the superior court to authorize service by social media, at least in those circumstances where service by publication in a newspaper is now deemed sufficient, let alone whether it should be permitted in civil harassment restraining order cases, where personal service of the petition and notice of hearing is now required. If it were, our answer to the first of those questions would be a qualified yes. As Justice Cooper wrote in Baidoo, “[A] concept should not be rejected simply because it is novel or nontraditional. This is especially so where technology and the law intersect. In this age of technological enlightenment, what is for the moment unorthodox and unusual stands a good chance of sooner or later being accepted and standard, or even outdated and passé.” (Baidoo v. Blood-Dzraku, supra, 48 Misc.3d at pp. 313-314.)

We encourage the Legislature and the Judicial Council, which have already authorized extensive use of electronic service of notice (see Code Civ. Proc., § 1010.6; Cal. Rules of Court, rule 2.251; see also Prob. Code, § 1215, subd. (c)), to consider developing pilot programs to test the efficacy of utilizing new technologies as an approved method of service of process. But as the superior court properly ruled in this case, current law requires personal service of the petition, TRO and notice of hearing in civil harassment restraining order cases and does not permit the court to approve alternative methods of service.

The court also rejects Searles’s argument that California Civil Code 413.30–which allows a court to authorize service in a manner “reasonably calculated to give actual notice”–permits service via social media. This section only applies where “no provision is [otherwise] made for service of summons.” While some federal courts have relied on this provision to authorize email service in civil cases, the court finds a pair of contrary district court rulings persuasive. In the court’s view, the legislature has “expressly mandated” personal service in the context of anti-harassment orders and therefore section 413.30 does not apply.

Wrinkled Surface Enterprises LLC v. Gurianov: This was a copyright lawsuit that where the plaintiff had filed a DMCA takedown notice and the defendant, who was in Ukraine, filed a counternotice. A DMCA counternotice requires the following:

The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

The question was whether the italicized language means that a person submitting the counternotice can be served at the address contained in the counternotice without otherwise meeting the requirements for service. Specifically, the plaintiff argued that a party submitting a counternotice “must consent to service by email when it files the counternotice.”

The court disagrees. “Accepting service” does not necessarily mean consenting to electronic service. The Hague Convention also has a provision dealing with “accepting service,” and it means that a party agrees to “informal service.” In the context of the Hague Convention, “accepting service” means that the documents do not have to be translated into the local language and service can be effected by “any consented-to method of delivery.” The court says this interpretation makes more sense.

Rule 5 of the Federal Rules of Civil Procedure deals with electronic service but does not apply to initial pleadings. Rule 4 does not have a mechanism for “accepting” or “consenting to” electronic service. It allows a party to “waive” service, but this is not the same thing. This interpretation is in accord with international law and comity.

Courts in other cases have looked beyond the Hague Convention but only where Rule 4 allows them to do so. For example, in Epic Games v. Mendes, a California court allowed email service, but only after determining that Russia had stopped completing service of process from U.S. Courts, and therefore service through the Hague Convention was impossible. Unfortunately for plaintiff, the court requires it to effect “informal service” under the Hague Convention (“[t]he delivery of documents . . . by the local Department of Justice”).

Service of process has historically required “personal” service of the summons and complaint initiating a lawsuit. However, many states allow some alternatives to this, such as service by publication and, in some cases, service via mail. Email was slow to catch up, but is allowed in certain circumstances. In federal court, Rule 4 provides for service via alternative means. Courts have permitted email service against foreign defendants under this rule. But email isn’t available as a standard under Rule 4, and as one of the decisions mentioned above reflects, when a rule or statute ties service to the Hague Convention, this further complicates email service.

Some courts have also permitted service of process via social media. See “Federal Court Authorizes Service of Process via Twitter” (discussing St. Francis Assisi v. Kuwait Fin. House). This is often true where a defendant is active on social media. But the decisions tend to be fact-specific, and it’s tough to say that courts authorize service via social media in certain types of cases or settings. The same goes for service via a “messaging platform” (such as Amazon). I posted last year about a court in Northern District of Ohio denying leave to serve via Amazon’s messaging center: “Court Rejects Service of Process Via Amazon Messaging–Noco v. Chang“. The Noco case in this post involved the same plaintiff as one of the cases above, and in that case it was able to convince the judge to allow to serve via Amazon’s messaging function. Interestingly, in the prior order, the court forced it to try to serve via the Hague Convention, and upon showing it was unsuccessful, allowed it to serve via Amazon’s messaging function. On some platforms, a party registering is ostensibly required to provide contact information that’s valid and current (such as when registering a domain name or participating in the Amazon marketplace). In these instances, it makes more sense to allow a party to be served via alternate means if the address in question turns out to be non-existent or incorrect.

The court in the Searles case notes that Texas has authorized service of process via alternative means and in response to legislation authorizing such service, the State Supreme Court adopted a rule addressing service of process via social media. It also notes some key elements as being relevant where service of process is permitted via social media:

The social media site must “provide a platform consistent with service of process”. This means that the site “should offer a non-connected user a means of contacting another user through private message.”
The plaintiff should make reasonable efforts to verity the account.
Finally, there should be some assurance that defendant is actually using the site, and will thus receive the notice.

The first point is interesting as a practical matter. Does the process server contact the defendant via social media to initiate service? Eric alluded to the technical issues in our post on the St. Francis Assisi case:

Because of Twitter’s unique technological configurations, it’s possible that the plaintiff cannot send a direct message to al-Ajmi and any @message will never reach al-Ajmi. Assuming the court nevertheless accepts the plaintiff’s service of process and allows the case to proceed, al-Ajmi may have good grounds to challenge any ensuing court verdict if he eventually chooses to fight in court.

Case citations:

Noco Company, Inc. v. Zhejiang Quingyou Electronic Commerce Co., Ltd., 1:2020cv01170 (N.D. Ohio; Feb. 3, 2021) [Justia page]

Searles v. Archangel, No. B296011, 2021 Cal. App. LEXIS 56, at *1 (Ct. App. Jan. 22, 2021)

Wrinkled Surface Enterprises LLC v. Gurianov et al., No. 1:2019cv08882 (S.D.N.Y. Jan. 15, 2021)

Federal Court Doesn’t ‘Like” Service of Process via Facebook — Joe Hand Proms. v. Carrette

Bank Can’t Use Facebook for Service of Process — Fortunato v. Chase Bank

Federal Court Authorizes Service of Process via Twitter