When you get your mail out of the mailbox, have you ever received a small, orange, or other bright-ish colored paper notice indicating that they tried to deliver certified mail to you? Sometimes the mailman will make another attempt to deliver it to you, but more often than not, the certified mail will sit on a shelf at your local post office, until (a) you come pick it up, or (b) if nobody comes to claim it, then it’s returned to the sender, after a week or ten days . Depending on the state where you live, you could receive notice of a lawsuit via certified mail, but more often than not, people use certified mail so they can have proof you received whatever they sent you. Contrary to popular belief, certified mail has no other significance, or independent legal effect—it doesn’t obligate the recipient to do anything they weren’t already required to do—it essentially just keeps the recipient from avoiding the bad news by saying, “I never received it; it must’ve been lost in the mail!”
When certified mail is sent to a place of business, or even a post office box, it’s oftentimes very effective, but certified mail addressed to residential recipients gets returned to sender all the time, because most people have jobs, and aren’t home when the mailman knocks, and then don’t have the time to make a special trip to the post office—which is usually closed before people get home from work anyway—to get something they probably didn’t want to receive anyway. That is one reason many courts still require “personal service” to give proper notice that you’re suing them. Personal service is when you send a professional courier, known as a process server, to hand deliver the papers to the addressee. But what if you have no idea where to find the person to serve them, but you know they are active on social media, could you serve them with process by sending it in a tweet, poke, or Facebook message? Until recently, such a notion was laughable, but not anymore.
In 2015, a New York state family court judge allowed a woman to serve her estranged husband with notice that she’d filed for divorce via private Facebook message. Noting that “anyone can make a Facebook profile using real, fake, or incomplete information…there is no way for the Court to confirm whether the Facebook page belongs to the defendant to be served,” the judge was satisfied that this was not an issue because the woman had proof of back-and-forth messages with the defendant at the same Facebook profile. The judge also noted two secondary concerns associated with this unconventional method of process service—whether the defendant would login to his Facebook account and receive the official notice within the time prescribed by law, and whether the notice should also be sent to the defendant by alternate means.
Under the circumstance presented here, service by Facebook, albeit novel and non-traditional, is the form of service that most comports with the constitutional standards of due process. Not only is it reasonably calculated to provide defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him.
Relying on the NY court decision in Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709, 716 (N.Y. Sup. Ct. 2015), a New Jersey court has recently allowed service by Facebook under similar circumstances. The case, Axberg v. Langston, No. MRS-C-157 (Morris Cty. Chancery Div. 2016) is unpublished and has not been made available to the public. Although this was an unpublished decision by a trial court judge, this is a significant step in the right direction, especially for the New Jersey state judiciary, which has been struggling to implement technological advances that other state courts have been using for years.