Monday, May 18, 2015

Divorce, the Summons and Facebook

This post examines a recent opinion from the Supreme Court, New York County, New York that analyzes an issue involving divorce procedure.  Baidoo v. Blood-Dzraku, 2015 WL 1486978 (2015).  The issue involves the process of “serving” a divorce summons on the spouse who is not in the process of suing the other spouse for a divorce.  As one website explains, the purpose of the divorce summons is to
assure the court where the divorce was filed that the respondent is aware that a divorce action has been commenced by the plaintiffA divorce summons is a document that generally states the names of the parties to the case, the court where the case was filed, a brief description of the type of case filed, and instructions for the respondent on how long he or she has to respond or when he or she must appear for court. In essence, it serves to `summon’ the recipient to court.
That brings us back to Baidoo v. Blood-Dzraku.  The Supreme Court begins its opinion by explaining that
[a]s recently as ten years ago, it was considered a cutting edge development in civil practice for a court to allow the service of a summons by email. Since then, email has all but replaced ordinary mail as a means of written communication. And while the legislature has yet to make email a statutorily authorized method for the service of process, courts are now routinely permitting it as a form of alternative service.

The past decade has also seen the advent and ascendency of social media, with websites such as Facebook and Twitter occupying a central place in the lives of so many people. Thus, it would appear that the next frontier in the developing law of the service of process over the internet is the use of social media sites as forums through which a summons can be delivered. In this matrimonial action, the issue before the court, by way of plaintiff-wife's ex parte application, is whether she may serve defendant-husband with the divorce summons solely by sending it through Facebook by private message to his account.
Baidoo v. Blood-Dzraku, supra.  As Wikipedia explains, in
most [U.S.] states a person to serve the process simply must be 18 years of age or older and not a party to the litigation.

Most jurisdictions require or permit process to be served by a court official, such as a sheriff, marshal, constable, or bailiff. There may be licensing requirements for private process servers, as is the case in New York City, Alaska, Arizona, California, Illinois, Montana, Nevada, and Oklahoma. . . .

Other jurisdictions, such as Georgia, require a court order allowing a private person to serve process. Many private investigators perform process serving duties. Texas and Florida also have a required training course which must be completed prior to certification.
In other words, service of process, including a divorce summons, has traditionally been accomplished by having an adult who is not a party to the litigation personally serve the summons on the defendant or defendants.  As the judge in this case explained, the
standard method -- or perhaps better stated, the method of first resort -- for serving the summons in a divorce action is personal delivery to a defendant (New York Domestic Relations Law [DRL] § 232[a]). This reflects the great emphasis that this state places on insuring that a person who is being sued for divorce—a proceeding that can have immeasurable financial and familial consequences—be made aware of and afforded the opportunity to appear in the action.

The problem with personal service, of course, is that it in order for it to be accomplished, a plaintiff must be able to locate the defendant. Even where a defendant's whereabouts are known, there are times when it is logistically difficult, if not impossible, for a process server to gain the close proximity necessary for personal delivery.
Baidoo v. Blood-Dzraku, supra.
The judge went on to explain that
[f]ortunately, the Domestic Relations Law provides a remedy for a person who is seeking a divorce but faces the prospect of being unable to effect personal service. DRL § 232 permits plaintiffs to request permission to utilize one of the alternative methods allowed under the Civil Practice Law and Rules (CPLR) that does not require `in-hand’ delivery to the defendant.

One such method, often referred to as `substitute service,’ involves delivering the summons to a person of `suitable age and discretion’ at the defendant's `actual place of business, dwelling or usual place of abode’ (CPLR 308[2]). Another method, known as `nail and mail’ service, requires affixing the summons to the door of a defendant's `actual place of business, dwelling or usual place of abode’ (CPLR 308[4]), and then, as with `substitute service,’ mailing a copy to the defendant's `last known address’ or `actual place of business.’

A third method is `publication service,’ where the summons is printed in a newspaper designated by the court and which can be granted upon a showing that `service cannot be made by another prescribed method with due diligence’ (CPLR 315).
 Baidoo v. Blood-Dzraku, supra.
He also noted that under
CPLR 308(5), a court, upon a plaintiff's ex parte application, may direct the manner by which service is to be made. This allows a court to go beyond any of the specifically prescribed methods of service and devise a method that fits the particular circumstances of the case. An application for alternative service under CPLR 308(5) can be granted only upon a sufficient showing that personal service, `substitute service,’ or `nail and mail’ service would prove `impracticable.’

Case law . . . further imposes the requirement that the method devised by the court be one that is `reasonably calculated, under all the circumstances, to apprise [the defendant] of the pendency of the action’. (Hollow v. Hollow, 193 Misc.2d 691, 747 N.Y.S.2d 704 [Supreme Court, Oswego County, 2002]  [quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)]).
Baidoo v. Blood-Dzraku, supra.
The judge then explains that Baidoo was asking the court to find that service of
the divorce summons via a social media site, in this case Facebook, constitutes an appropriate form of alternative service under CPLR 308(5). Moreover, contending that she has no other way to reach defendant, she requests that this judicially-crafted method of service be designated the only means by which notice of the divorce action is given. 

In order for her application to be granted, plaintiff must first demonstrate that she is unable to have the summons personally served on defendant, the method of service initially prescribed by DRL § 232(a). Next, she must show that it would be `impracticable’ to serve him by `substitute service’ on a person of suitable age and discretion (CPLR 308[2]) or by using `nail and mail’ (CPLR 308[4]). Finally, she must show that sending the summons through Facebook can reasonably be expected to give him actual notice that he is being sued for divorce.
Baidoo v. Blood-Dzraku, supra.
He went on to find that Baidoo had
easily met the requirement of demonstrating that she will be unable to effect personal service on [Victor Sena Blood-Dzraku]. Although the parties married in 2009, they never resided together, and the last address [she] has for [him] is an apartment that he vacated in 2011. Plaintiff has spoken with defendant by telephone on occasion and he has told her that he has no fixed address and no place of employment. He has also refused to make himself available to be served with divorce papers.

As detailed in her attorney's affirmation, the investigative firms plaintiff hired to assist in locating defendant have all been unsuccessful in their efforts, the post office has no forwarding address for him, there is no billing address linked to his pre-paid cell phone, and the Department of Motor Vehicles has no record of him. Inasmuch as plaintiff is unable to find [him], personal delivery of the summons to him is an impossibility.
Baidoo v. Blood-Dzraku, supra.
The judge also pointed out that Baidoo had shown that it would be
an exercise in futility to attempt the two alternative service methods provided for by CPLR 308. Both `substitute service’ and `nail and mail’ service require knowledge of the defendant's `actual place of business, dwelling or usual place of abode’ (CPLR 308[2],[4]). The record establishes that plaintiff has been unsuccessful in obtaining either a business or home address for [him], even though she has diligently sought that information. As a result, she has met her burden of demonstrating that it would be impracticable to attempt to serve [him] by either of these methods (see Franklin v. Winard, 189 A.D.2d 717, 592 N.Y.S.2d 726 [1st Dept.1993]).
Baidoo v. Blood-Dzraku, supra.
Having reviewed the arguments for allowing Baidoo to utilize Facebook service of the divorce summons, the judge then turned to the arguments to the contrary.  Baidoo v. Blood-Dzraku, supra.  He began by noting that Baidoo had demonstrated a
sound basis for seeking alternative service pursuant to CPLR 308(5), [she] must now show that the method she proposes is one that the court can endorse as being reasonably calculated to apprise defendant that he is being sued for divorce. This hurdle poses a number of challenges.

First, there are only a handful of reported decisions, mostly from federal district courts, that have addressed the issue of service of process being accomplished through social media, with there being an almost even split between those decisions approving it and those rejecting it (compare Fed. Trade Commn. v. PCCare247 Inc., 2013 WL 841037 [U.S. District Court Court for the Southern District of New York, 2013] [allowing service of process in part by social media]; media]; WhosHere, Inc. v. Orun, 2014 WL 670817 [U.S. District Court for the Eastern District of Virginia, Feb. 20, 2014] [same]; Noel B. v. Anna Maria A., 2014 N.Y. Misc. LEXIS 4708 [Family Court Richmond County 2014] [same] with Fortunato v. Chase Bank USA, N.A., 2012 WL 2086950 [U.S. District Court for the Southern District of New York, June 07, 2012] [denying service by Facebook]; Joe Hand Promotions, Inc. v. Shepard, 2013 WL 4058745 [U.S. District Court for the Eastern District of Missouri, Aug. 12, 2013 [same]; In re Adoption of K.P.M.A., 341 P.3d 38 [Oklahoma Supreme Court 2014] [same]).

Second, as will be further discussed, the cases permitting such service have done so only on condition that the papers commencing the lawsuit be served on the defendant by another method as well. Thus, in seeking permission to effectuate service of the divorce summons by simply sending it to defendant through a private Facebook message, plaintiff is asking the court . . . to venture into uncharted waters without the guiding light of clear judicial precedent.
Baidoo v. Blood-Dzraku, supra.
The judge went on to explain that it was also necessary to consider the
fact that the way plaintiff proposes to provide defendant with notice of the divorce represents a radical departure from the traditional notion of what constitutes service of process. Even decisions from as recently as 2012 and 2013 have referred to the use of Facebook messaging for the purpose of commencing a lawsuit as being a `novel concept’ (Fed. Trade Comm v. PCCare247 Inc., supra [permitting it as a supplemental method of service]) and `unorthodox to say the least’ (Fortunato v. Chase Bank, supra) [rejecting it as a means of service] .

That a concept is new to the law is something that may very well require a court to exercise a high degree of scrutiny and independent legal analysis when judicial approval is sought. But a concept should not be rejected simply because it is novel. . . . 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.

And because legislatures have often been slow to react to these changes, it has fallen on courts to insure that our legal procedures keep pace with current technology (see New England Merchants Natl. Bank v. Iran Power Generation & Transmission Co., 495 F. Supp. 73 [U.S. District Court for the Southern District of New York 1980] [`Courts cannot be blind to changes and advances in technology’]). As noted by the U.S. Court of Appeals for the 9th Circuit in Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (2002), one of the earliest cases authorizing service of process by email, the `broad constitutional principles’ upon which judicially devised alternative service is based `unshackles . . . courts from anachronistic methods of service and permits them entry into the technological renaissance.’
Baidoo v. Blood-Dzraku, supra.
The judge, though, ultimately found that
constitutional principles, not the lack of judicial precedent or the novelty of Facebook service, will be ultimately determinative here. The central question is whether the method by which plaintiff seeks to serve defendant comports with the fundamentals of due process by being reasonably calculated to provide defendant with notice of the divorce. Or more simply posed: If the summons for divorce is sent to what plaintiff represents to be defendant's Facebook account, is there a good chance he will receive it?
Baidoo v. Blood-Dzraku, supra.
He explained that, for this question “to be answered in the affirmative, plaintiff must address a number of the court’s concerns.”  Baidoo v. Blood-Dzraku, supra.
The first is that the Facebook account plaintiff believes is defendant's might not actually belong to him. As is well known, the Facebook profile somebody views online may very well belong to someone other than whom the profile purports it to be. This has led courts to observe 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 Facebook page belongs to the defendant to be served’ Fed. Trade Comm v. PCCare247 Inc., supra (quoting Fortunato v. Chase Bank, supra).

As a result, this court required plaintiff to submit a supplemental affidavit to verify that the Facebook account she references is indeed that of the defendant. Plaintiff submitted such an affidavit, to which she annexed copies of the exchanges that took place between her and [him] when she contacted him through his Facebook page, and in which she identified [him] as the subject of the photographs that appear on that page. While it is true that plaintiff's statements are not absolute proof that the account belongs to defendant -- it being conceivable that if plaintiff herself or someone at her behest created defendant's page, she could fabricate exchanges and post photographs -- plaintiff has nevertheless persuaded the court that the account in question does indeed belong to defendant.
Baidoo v. Blood-Dzraku, supra.
The judge’s second concern was that if Blood-Dzraku was not “diligent” in logging on to
his Facebook account, he runs the risk of not seeing the summons until the time to respond has passed. Here too, plaintiff's affidavit has successfully addressed the issue. Her exchanges with defendant via Facebook show that he regularly logs on to his account.

In addition, because plaintiff has a mobile phone number for [him], she and her attorney can speak to him or leave a voicemail message, or else send him a text message alerting him that a divorce action has been commenced and that he should check his account (WhosHere, Inc. v. Orun, [`Courts have taken into consideration whether defendant already possessed knowledge of suit or that he may be the subject to a suit’]).
Baidoo v. Blood-Dzraku, supra.
And the third concern was whether “backup means of service” were required under
the circumstances. Although . . . other court decisions have endorsed using Facebook as a means of service, they have done so only where Facebook was but one of the methods employed, not the only method. As the court stated in Fed. Trade Comm v. PCCare247 Inc., supra,`“[t]o be sure, if the [plaintiff] were proposing to serve defendants only by means of Facebook, as opposed to using Facebook as a supplemental means of service, a substantial question would arise whether that service comports with due process.”’

In that case, and as well as in WhosHere, Inc., the other federal court decision authorizing Facebook service, the court stressed that it was allowing the use of a social media site only in conjunction with notice being sent to the defendants by email. In Noel B., 2014 N.Y. Misc. LEXIS 4708, at *4, the only decision from a state court permitting service via Facebook, the petitioner was required to mail a copy of the child support summons and petition to the respondent's `previously used last known address.’
Baidoo v. Blood-Dzraku, supra (emphasis in the original).
Unfortunately, Baidoo did not have an email address for Blood-Dzraku and had
no way of finding one. Nor does she have a street address for [him] that could constitute a viable `last known address;’ [his] last known address dates back at least four years and the post office confirmed that [he] no longer resides there and left no forwarding address. Thus, plaintiff has a compelling reason to make Facebook the sole . . .  means of service, with the court satisfied that it is a method reasonably calculated to give defendant notice that he is being sued for divorce.
Baidoo v. Blood-Dzraku, supra.
For these and other reasons, the judge therefore held that under the circumstances,
service by Facebook . . . 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.

In light of the foregoing, plaintiff is granted permission to serve defendant with the divorce summons using a private message through Facebook. Specifically, because litigants are prohibited from serving other litigants, plaintiff's attorney shall log into plaintiff's Facebook account and message the defendant by first identifying himself, and then including either a web address of the summons or attaching an image of the summons. This transmittal shall be repeated by plaintiff's attorney to defendant once a week for three consecutive weeks or until acknowledged by the defendant. Additionally, after the initial transmittal, plaintiff and her attorney are to call and text message defendant to inform him that the summons for divorce has been sent to him via Facebook.
Baidoo v. Blood-Dzraku, supra. 

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