The OnStar GPS Tracking Service, the iPads and Harassment

This post examines an opinion from the Court of Appeals of Minnesota:  Boggs v. Boggs, 2015 WL 1961179 (2015).  As the caption suggests, the case involves spouses who were in the process of divorcing when the events that produced this suit arose. Boggs v. Boggs, supra.  As the Court of Appeals explained,

[m]arried for twenty years, the parties begin divorce proceedings in March 2014. They have two residences, one in Minnesota and one in Arizona. At the time of the HRO [harassment restraining order] proceedings, husband lived in Arizona with the parties' minor son, and wife lived in Minnesota with the parties' minor daughter.

[Husband] owns the Minnesota property but agreed that [wife] would reside there until May 2014. [His] business operates a horse farm with stables in the vicinity of and at the Minnesota residence. Several vehicles are titled in the business name, including the one driven by [wife]. S.O. is an employee of the business and is responsible for maintaining the stables and vehicles and caring for the horses. In the winter and during times relevant to this matter, there were no horses at the stables. The horses were in Arizona.

Boggs v. Boggs, supra.  David is the husband and Terry Ann is the wife to whom the opinion respectively refers to in the passage above. 

The court goes on to explain that on May 2014, Terry ann filed a petition for 

an HRO against [David]. [She] alleged that [he] physically assaulted her, had S.O. follow and stalk her, monitored her social life, had a tracking device attached to the vehicle she used, made threats to her, and frightened her with threatening behavior. [She] stated in the petition that the conduct made her feel like she was `being persecuted and followed, and treated like a fugitive. I have no privacy or protection from [him]. I do not feel safe being alone at my home anymore.’ The district court granted an ex parte HRO. [David] contested the order.

Boggs v. Boggs, supra. 

The Wright County District Court Judge who had the case then held an

evidentiary hearing on the HRO with testimony from both parties and one other witness. [Terry Anne] testified that, during an argument in May 2014, [David] grabbed her arms, she elbowed him, they both fell, and she sustained bruises. [Terry Anne] also testified that employee S.O. came to her Minnesota residence without her knowledge or consent on multiple occasions in March and April 2014, that his presence was pursuant to the direction of [David], and that [David] was tracking her vehicle through the use of OnStar Family Link GPS services. [Terry Anne] further pointed out that she had a male friend and that [David] attempted to monitor her activities with that individual and restrict his presence at the Minnesota residence.

[David] testified that as the owner he had a legitimate business interest in the use, care, and maintenance of the Minnesota residence and nearby stables, that S.O. frequently goes to the Minnesota residence because his job requires that he maintain the property and stables, and that as the owner he communicated with S.O. regarding the premises. [David] stated that he did not intend for S.O. to engage in any stalking of [Terry Anne]. [He] also testified that all of the business vehicles had OnStar services and that the vehicle used by [Terry Anne] was not treated differently.

Boggs v. Boggs, supra. 

The District Court Judge “granted [Terry Anne] an HRO, finding that [David] did not physically assault [her] but that [he] `intentionally engaged in repeated incidents of intrusive or unwanted acts.’”  Boggs v. Boggs, supra.  David then appealed.

The Court of Appeals began its analysis of his appeal by explaining that it reviews

the District Court's grant of an HRO for abuse of discretion. Kush v. Mathison,683 N.W.2d 841 (Minnesota Court of Appeals 2004). . . . To find an abuse of discretion, we `must conclude that the district court erred by making findings unsupported by the evidence or by improperly applying the law.’ State v. Underdahl, 767 N.W.2d 677 (Minnesota Supreme Court 2009). The district court's findings of fact `shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.’ Minnesota Rules of Civil Procedure Rule 52.01.

An HRO may be granted if `there are reasonable grounds to believe that the [subject of the HRO] has engaged in harassment.’ Minnesota Statutes § 609.748, subd. 5(b)(3) (2014). Harassment includes `repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another.’ MinnesotaStatutes § 609.748, subd. 1(a)(1) (2014).

To sustain an HRO petition, the petitioner must prove `objectively unreasonable conduct or intent on the part of the harasser’ and `an objectively reasonable belief on the part of the [harassed] person’ that such conduct has a substantial adverse effect on her safety, security, or privacy. Peterson v. Johnson, 755 N.W.2d 758 (Minnesota Court of Appeals 2008) (quotations omitted). Here, the district court found [David] `intentionally engaged in repeated incidents of intrusive or unwanted acts’ that established the `objectively unreasonable’ requirements. The court cited four incidents to support the issuance of the HRO.

Boggs v. Boggs, supra. 

The first incident occurred in March of 2014, when David

instructed S.O. to investigate the area around [Terry Anne’s] residence after S.O. reported motorcycles were at the house and there were signs of a party. [David] testified that S.O.'s report of motorcycles and other indications that a party was occurring at the Minnesota residence led him to worry that `there may be alcohol or damage to my property.’ [David] testified that it was part of S.O.'s job `to check on the property on almost a daily basis. . . . Horses eat on holidays, so you're on properties and work 24/7 in the horse business.’

[Terry Anne] testified that the horses were in Arizona for the winter, that the stables were empty in March and April, and that normally `employees do not come to the Minnesota home anytime over the winter. There's zero reason for them to do that.’ The district court found that with the horses in Arizona, some of S.O.'s presence on the property and communications with [David] constituted harassment monitoring by [David] of [Terry Anne] and of her residence.

Boggs v. Boggs, supra. 

As to the second incident, the Judge found that

S.O. reported to [David] that a `strange vehicle’ was leaving the Minnesota residence on the evening of April 23, 2014, and [David] instructed S.O. to go to the property to look around. [David] testified that while S.O. was `checking on the property, or going by or something,’ S.O. called [David] to inform him that a strange car was in the driveway. [David] testified that he asked S.O. to obtain the license-plate number of the strange car and S.O. subsequently told [him] that the car belonged to a friend of the parties' minor daughter. After dark, while S.O. was investigating the car, the daughter saw him in the shrubbery and became frightened that an intruder was on the property. . . .

[David] stated that he did not intend for S.O. to stalk [Terry Anne]. [She] testified that her daughter called her at 9:00 p.m., crying and scared because of `a car in the driveway that had followed her friends and then returned to the driveway.’ [Terry Anne] testified that her daughter then observed S.O. hiding between two trees in front of the garage. [Terry Anne] testified that it frightened her to learn S.O. was following her daughter's friends. The district court found [David’s] testimony that S.O. `just happened to be in the area . . . when he saw the strange vehicle’ was not credible and found [David] directed S.O. to observe the property and respondent and report his observations back to [him].

Boggs v. Boggs, supra. 

With regard to the third incident, Terry Anne testified that the next day S.O. was

`checking out the property’ and reported to [David] that there was `a strange white van’ at the residence. [David] asked S.O. to get the license-plate number or find out why it was there. S.O. reported . . . that [Terry Anne] had requested a security-system firm come to work on the locks at the residence. [David] testified that `there was no need for her to change any locks’ because [she] was vacating the residence in May. [Terry Anne] testified that she requested security maintenance because `the actual security alarm to the home hadn't been working . . . and the children had asked me for their security to please reconnect the security system.’ [Terry Anne] testified that the security-system employee called her saying S.O. had told him to leave and had followed him down the road. . . .

The district court found that [David] sent S.O. to the property to monitor [Terry Anne’s] activities and report back to him. The district court found that [David’] testimony that he was simply concerned for his property was not credible. The district court again found [Terry Anne’s] testimony credible, that S.O. did not need to be at the property during the winter months, and that it was reasonable that [she] felt it was unsettling, undermining, and scary to know that S.O. was monitoring the property and herself.

Boggs v. Boggs, supra. 

As to the fourth incident, the District Court Judge found that in April of 2014, David,

or someone at his direction, arranged for the activation of the OnStar Family Link GPS tracking service on the vehicle [Terry Anne] was driving. [David] testified that his assistant, N.W., used OnStar `to know where the vehicle was’ because it belonged to his business, and the intent was not to follow [her]. [Terry Anne] testified that she spoke to an OnStar representative, who informed her that [David] arranged to have the OnStar Family Link GPS tracking service activated on April 8, 2014. 

[She] testified that she was scared and felt violated by [David] tracking her movements. The district court found that [his] business owned the vehicle but that [Terry Anne] had exclusively driven the vehicle except for two occasions. The district court found [David] `had no reason to activate the OnStar Family Link other than to track [her] movements.’ The district court found that tracking [Terry Anne’s] movements by using the OnStar capabilities invaded [her] privacy.

Boggs v. Boggs, supra. 

Finally, in his appeal, David also objected to the trial judge’s considering

evidence of text messages between [him] and N.W. to show that [David] tracked the vehicle's location. [He] argued that [Terry Anne] illegally intercepted the text messages without [his] knowledge. Both parties testified that [David] owns two iPads and that [Terry Anne] uses [his] older iPad. The older iPad uses the data plan associated with [David’s] mobile phone and receives text messages intended for [him].

When this occurs, [Terry Anne] sees the text messages without [his] knowledge. [Terry Anne] testified that she usually told N .W. when she saw text messages to or from [David], but when she received the text messages between [David] and N.W. that indicated [David] was tracking respondent's movements in her vehicle, she did not tell N.W.

Boggs v. Boggs, supra. 

On appeal, David argued that the 

Federal Electronic Communications Privacy Act (ECPA) prohibits [Terry Anne’s] receipt of the text messages, and therefore the district court erred by relying on the text-message evidence to find that [David] harassed [her] through tracking the vehicle. [David] did not make this argument to the district court. This court will not consider matters not argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580 (Minnesota Supreme Court 1988). 

Even if this issue were properly before us, the ECPA prohibits the intentional interception of an electronic communication. 18 U.S. Code § 2511 (2012). Nothing in the record here demonstrates that [Terry Anne] intentionally obtained [David’s] electronic communication or that she intercepted the text messages. Instead, the district court found that `the text messages automatically “pop up” when [respondent] is working on the iPad,’ which indicates that [Terry Anne] inadvertently received the text messages. In these circumstances, the district court did not err in considering the testimony regarding the text messages when it found that [David’s] tracking of [her] vehicle was an intrusive or unwanted act.

Boggs v. Boggs, supra (emphasis at the original).

For these and other reasons, the Court of Appeals held that

[b]ecause the record supports the district court's findings and because its findings support the conclusion that [David] intentionally engaged in repeated incidents of intrusive or unwanted acts that had a substantial adverse effect on [Terry Anne’s] safety, security, or privacy, we conclude that the district court did not abuse its discretion in issuing the HRO.

Boggs v. Boggs, supra.  

The Facebook Posts, Cyberstalking and "Substantial Emotional Distress"

This post examines a recent opinion from the Florida Court of Appeals that involves domestic violence and “cyberstalking.”  Horowitz v. Horowitz, 2015 WL 1443223 (District Court of Appeals of Florida – Second District 2015).  The best explanation of how the case arose appears in the brief Sammie D. Horowitz filed in appealing a judge’s entry of an “injunction for protection against domestic violence” against him.  Horowitz v. Horowitz, Initial Brief of Appellant, 2013 WL 7101921 District Court of Appeals of Florida – 2d District 2013). 

The brief explains that Maureen P. Horowitz filed a petition for the entry of such an injunction against Sammie on July 1, 2013, {alleging cyberstalking, abuse of alcohol, violence in the household, and pornography.”  Horowitz v. Horowitz, Initial Brief, supra.  It also explains that the judge who had the case held an evidentiary hearing on July 9, 2013. Horowitz v. Horowitz, Initial Brief, supra.  The brief goes on to explain that at the hearing, Maureen

spent a considerable amount of time testifying as to events relating to her allegations of cyberstalking and a brief discussion of alcohol use, pornography, and violence in the home.

Shane Taylor, [Maureen’s] witness, testified that he examined [her] computer. . . . The examination revealed that the computer contained a key logger, which tracks the strokes on a keyboard thereby allowing someone to ascertain what is being typed. . . . To obtain information from the key logger, one would have to have access to the computer at the home or have remote access. . . . Mr. Taylor was unable to determine whether this key logger was installed or whether it had been placed on the computer through a virus obtained using the Internet. . . .

Horowitz v. Horowitz, Initial Brief, supra. 

Next, Maureen testified as to the

events alleged to be cyberstalking, abuse of alcohol, and violence in the household. [Maureen] testified that [Sammie] knew what she was doing on the computer because he had told her he paid someone to check up on her computer use. . . . However she did not know what exactly [he] had done to check up on her. [Maureen] believed this to be happening because [Sammie] would tell her what songs she listened to and, in particular, posted on his Facebook an eighties song, `Secret Lovers’, she had watched earlier on YouTube, in the privacy of her own home. . . . [Maureen] also stated that [Sammie] had posted to his Facebook copies of her Facebook messages. . . . Further, she gathered Internet provider (`IP’) addresses that had accessed her email. . . . By entering the IP addresses she did not recognize as her own into a Google search, she was able to ascertain the IP addresses coordinates and narrow down a geographic location. . . . One of the coordinates was [Sammie’s] mother's house, where he was living. . . .

[Sammie’s] alcohol use, weapons, pornography, and violence were addressed briefly. [Maureen] testified that, over the past several years, [he] drank sixteen ounces of rum nightly and occasionally consumed beer in conjunction with the liquor. . . .  What particularly bothered [her] is that [he] attempted to drive their daughters around after drinking. . . .

[Maureen] testified about [Sammie’s] weapons, saying he had numerous. . . .  She stated that [Sammie] would position his hand like a gun, point it at her, and say, `til death do us part.’ . . . Although she mentioned an incident she observed between [him] and her friend during which [Sammie] held a gun to her friend's head, [Maureen] did not claim [he] ever used the weapons against her. . . . Next [Maureen] briefly addressed what she referred to as [Sammie’s] pornography problem. . . . She stated that he does not respect their daughters' privacy and will enter the bathroom when they are taking a shower. . . .

Horowitz v. Horowitz, Initial Brief, supra. 

Sammie then took the stand and

denied the allegations. . . . He testified that he did not install a key logger or hire anyone to do so. . . . Rather, when [Maureen] asked whether he had someone following up on her, he responded that he did, although it was not true. . . . All the information that [Maureen] alleged was obtained through a key logger on her personal computer was in fact obtained on their family computer that they shared and had key loggers on previously. . . . [Sammie] testified that when he reviewed the key logs it was evident that [Maureen] was having an affair. . . .

When [his] counsel attempted to introduce evidence of an affair to show [Maureen’s] motivation to fabricate these incidents to prevent [Sammie] from revealing her affair, the Judge sustained [her] objection. . . . Sammie testified that he posted lyrics on his Facebook page and inadvertently posted a message meant for his brother on his Facebook page, but quickly deleted it. . . .

Horowitz v. Horowitz, Initial Brief, supra. 

Sammie also testified that he

would pass out vitamins on a nightly basis to his daughters and he did not walk in on them without first knocking and asking permission. . . . He stated that on one occasion he was going to drive his daughter to the store after having a beer several hours earlier, but instead rode along because his wife had an issue with it. . . . In addition, he testified that he did not regularly consume the exorbitant amount of alcohol that was claimed. . . .

Horowitz v. Horowitz, Initial Brief, supra. 

After the hearing, the judge “granted a permanent injunction for a twenty-four month period.” Horowitz v. Horowitz, supra.  The propriety of that order is, of course, the issue the Court of Appeals is examining in this opinion.

The court began its analysis of that issue by explaining that in her initial

petition for an injunction, [Maureen] alleged both that she was the victim of domestic violence, namely cyberstalking, and that [Sammie] had engaged in behavior that led her to believe she was in imminent danger of becoming a victim of domestic violence. As this court explained in Branson v. Rodriguez–Linares, 143 So.3d 1070 (Florida Court of Appeals – 2d District 2014), either basis, when proved by competent, substantial evidence, would support issuance of the injunction.

After an evidentiary hearing, the trial court found [Maureen] had presented sufficient evidence to support the allegations in her petition and granted the injunction. However, the trial court did not specify whether it was granting the petition because [she] established that she actually was a victim of domestic violence or because she established that she had reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence. Thus, we address both bases.

Horowitz v. Horowitz, supra. 

It went on to analyze the issue of “cyberstalking,” explaining that it is

a form of domestic violence against which a person may obtain an injunction. Branson v. Rodriguez–Linares, supra.

`”Cyberstalk”’ means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.’

Horowitz v. Horowitz, supra (quoting Florida Statutes § 784.048(1)(d) (2013)).

The Court of Appeals then explained that Maureen claimed she was the

victim of cyberstalking based on two posts on [Sammie’s] Facebook page. The first post contained the lyrics to Atlantic Starr's 1985 single `Secret Lovers.’ The second of [Sammie’s] posts contained the text of a private message conversation [Maureen] had with a third party via her own Facebook account. [She] testified that these posts showed [Sammie] either `hacked’ her computer or was somehow spying on her because she had recently been listening to `Secret Lovers’ on her personal computer in the privacy of her own home and because her private message conversation would have only been observable by accessing her personal Facebook account.

She also testified that unbeknownst to her, there was a keylogger program, which would track her computer use, installed on her personal computer and that [Sammie] told her he had someone watching her. She did not present any evidence that [he] actually installed the keylogger.

Horowitz v. Horowitz, supra. 

It then found that Maureen’s

Facebook posts do not meet the statutory definition of cyberstalking for two reasons. First, the posts were not `directed at a specific person.’ § 784.048(1)(d). The testimony showed that [Sammie] posted the information to his own Facebook page. Screenshots of the posts admitted into evidence confirm that they were posted to [his]s page and that [Maureen] was not `tagged’ or mentioned, nor were the posts directed to her in any obvious way. Unlike email communication, which this court considered to be cyberstalking in Branson v. Rodriguez–Linares, supra, posts to one's own Facebook page are not directed at a specific person but are instead posted for all of the user's Facebook `friends’ to see, depending on the user's privacy settings.

The testimony adduced at the hearing showed that [Maureen] was able to view the posts by visiting [Sammie’s] Facebook page because the two were still `friends’ on the social networking website. Although [Maureen’s] assertions that [Sammie] somehow `hacked’ into her Facebook account are disconcerting, that behavior alone does not amount to cyberstalking as it is not an electronic communication. See Young v. Young, 96 So.3d 478 (Florida Court of Appeals – 1^st District 2012) (`Ms. Young's acts in the case at bar, which consisted of changing her husband's password, appropriating his emails, and including them in a filing in their divorce proceeding, do not amount to cyberstalking, because they were not electronic communications by her of ‘words, images, or language . . . directed at’ Mr. Young’).

Even considering the posts in the context of [Sammie’s] statements that he had someone watching Mrs. Horowitz, they do not qualify as cyberstalking. See Arnold v. Santana, 122 So.3d 512 (Florida Court of Appeals – 1^st District 2013) (reversing injunction where `Appellant sent [Appellee] text messages in which he warned her to change her passwords because he was tracking everything she was doing, and informed her that he was also following her’).

Horowitz v. Horowitz, supra. 

The court also found that Maureen had

failed to show that the posts caused her `substantial emotional distress.’ § 784.048(1)(d). She testified that the posts were `a matter of concern’ to her and that they `prevented [her] from having any privacy within [her] own home.’ The record is devoid of any other mention of [Maureen’s] reaction to the posts. Because her testimony as to her reaction to the posts was `conclusory and vague’ it was insufficient to show that she had been a victim of domestic violence. See Alderman v. Thomas, 141 So.3d 668 (Florida Court of Appeals – 2d District 2014) (reversing injunction where petitioner testified `that she feels “insecure and unsafe with” [respondent] and that he scares her’).

Horowitz v. Horowitz, supra. 

The Court of Appeals then took up the other issue in the case, explaining that

[h]aving concluded that [Maureen] failed to show that she was the victim of domestic violence, we now turn to the issue of whether she established that she had reasonable cause to believe she was in imminent danger of becoming a victim of domestic violence. We conclude that she did not.

Horowitz v. Horowitz, supra. 

It pointed out that

[i]n attempting to show she was in danger of becoming a victim of domestic violence, [Maureen] testified as to three instances of past physical abuse on the part of [Sammie], the most recent of which occurred no less than fifteen years prior to the filing of the petition.

She further testified that `a few times over the years’ he held his hand in the shape of a gun, pointed it at her, and stated `til death do us part.’ She added that [Sammie] would `routinely’ stand in the doorways of rooms she was in and block her from leaving, which she found to be intimidating. [Maureen] could not provide a specific time or place that [Sammie] engaged in these behaviors.

Near the end of her direct examination, the following exchange occurred:

[Counsel]: Are you afraid of this man?

[[Maureen]: Yes.

[Counsel]: Are you afraid he'll hurt you physically?

[Maureen]: Eventually, yes.

Horowitz v. Horowitz, supra. 

The Court of Appeals then held that the

physical incidents identified by [Maureen] are too remote to be considered reasonable cause to believe that she was in imminent danger of becoming a victim of domestic violence. See Gill v. Gill, 50 So.3d 772 (Florida Court of Appeals – 2d District 2010) (`[A]n isolated incident of domestic violence that occurred years before a petition for injunction is filed will not usually support the issuance of an injunction in the absence of additional current allegations’); Jones v. Jones, 32 So.3d 772 (Florida Court of Appeals  - 2d District 2010) (reversing injunction where petitioner presented evidence of a pushing incident occurring three years prior and a statement from the respondent that he was not threatening wife `yet’).

Likewise, the allegations regarding [Sammie’s] `finger-gun’ gesture, his habit of `routinely’ blocking [Maureen’s] path, and her statement that she was afraid he would eventually hurt her, although troubling, are too vague to provide competent, substantial evidence supporting the injunction. See Alderman v. Thomas, supra.

Horowitz v. Horowitz, supra.  It therefore reversed the trial judge’s entry of the permanent injunction. Horowitz v. Horowitz, supra.  

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 plaintiff. A 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. 

The Lawyer, the Lawsuit and "Excusable Neglect"

As the Utah Court of Appeals explained in a recent opinion, Kaveh and Cindy Aghdasi filed a lawsuit

against Payam Saberin and City Cab after "Saberin, a cabdriver who leased his cab from City Cab, physically attacked Kaveh Aghdasi, another cabdriver." Aghdasi v. Saberin, 2015 WL 1352420 (2015). 

The opinion does not explain what cause or causes of action the Aghdasis based their lawsuit on, but I think it is logical to assume that their cause(s) of action probably included assault and battery as defined by Utah law.  According to an opinion in an older decision by the Utah Court of Appeals, in Utah the elements of a civil cause of action for assault are:

1. The defendant acted, intending to cause harmful or offensive contact with the plaintiff, or imminent apprehension of such contact; and

2. As a result, the plaintiff was thereby put in imminent apprehension of [harm] [contact].

3. The plaintiff suffered injuries proximately caused by the defendant's actions.

Model Utah Jury Instructions 10.18 (1993) (emphasis added). If the defendant's acts of assault result in actual touching or striking of plaintiff, they constitute battery.  D.D.Z. v.

Molerway Freight Lines, Inc., 880 P.2d 1 (Utah Court of Appeals 1994).  You can, if you are interested, read more about civil assault and battery here.

Getting back to the Aghdasis’ lawsuit, the opinion says that, after they filed the suit and

[f]ollowing discovery, City Cab filed a motion for summary judgment and a supporting memorandum using the district court's electronic filing (e-filing) system. The district court received a `Return of Electronic Notification’ indicating that the Aghdasis' attorney had received the electronic notice of the motion for summary judgment via email at 2:46 p.m. on October 24, 2013. The court also received a notice confirming the attorney's receipt of the supporting memorandum at 2:49 p.m. the same day.

The Aghdasis did not respond to the motion. City Cab filed a request to submit the summary judgment motion for decision, and court records indicate that the Aghdasis' attorney received electronic notice of this request at 11:20 a.m. on December 12, 2013.

Aghdasi v. Saberin, supra.  

In a footnote, the Court of Appeals explains that, at the oral argument on the motion to set aside the summary judgment, “the Aghdasis' attorney indicated that he had received the electronic notice of the request to submit for decision on December 12 but that he did not immediately open it.” Aghdasi v. Saberin, supra. 

As Wikipedia explains, a motion for summary judgment asks the judge who has the case to grant judgment for the party filing the motion on the basis that there are “no issues of material fact” that need to be resolved at a trial.  The purpose of a trial is to resolve disputed issues of fact, so if there are no disputed issues of fact, it is appropriate for the trial judge (the “district court judge” in this case) to issue judgment as a matter of law. And that is what City Cab’s motion asked the judge to do. Aghdasi v. Saberin, supra. 

And as the Court of Appeals went on to explain, the

[district court granted the motion for summary judgment on December 13. A copy of the ruling was sent to the Aghdasis' attorney electronically on December 23. On December 24, the Aghdasis filed a 60(b) motion to set aside the summary judgment on grounds of excusable neglect. See Utah Rules of Civil Procedure 60(b). The motion was supported by the affidavit of the Aghdasis' attorney, in which he claimed that he never saw the electronic notices and was unaware of the motion for summary judgment until he received the district court's order granting it.

The attorney speculated that the motion for summary judgment and supporting memorandum must have been accidentally deleted or sent to a spam folder. The district court denied the motion, determining that the court's records demonstrated that the Aghdasis' attorney had received the motion for summary judgment and supporting memorandum and that the attorney had failed to adequately explain why he was unaware of the filings. The Aghdasis appeal.

Rule 60(b) of the Utah Rules of Civil Procedure say, among other things, that a court's granting summary judgement can be set aside for "excusable neglect."  Aghdasi v. Saberin, supra.  And in a footnote, the Court of Appeals explains, that when this court heard oral argument on the issues in the case, the Aghdasis' lawyer said that "he had received the electronic notice of the request to submit for decision on December 12 but that he did not immediately open it." Aghdasi v. Saberin, supra. 

The Court of Appeals went on to explain that, in their appeal, the Aghdasis

first assert that the district court erred in denying their Rule 60(b) motion. We review a district court's denial of a Rule 60(b) motion for abuse of discretion. Katz v. Pierce, 732 P.2d 92 (Utah Supreme Court 1986) (per curiam).  `A district court abuses its discretion only when its decision was against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice . . .  [or] resulted from bias, prejudice, or malice.’ Jones v. Layton/Okland, 2009 UT 39, ¶ 27, 214 P.3d 859 (Utah Supreme Court 2009). . . .

Aghdasi v. Saberin, supra.

The Court of Appeals went on to point out that

`there is no specific legal test for excusable neglect.’ Jones v. Layton/Okland, supra.  Rather, `[t]he equitable nature of the excusable neglect determination requires that a district court be free to consider all facts it deems relevant to its decision and weigh them accordingly.’ Jones v. Layton/Okland, supra.  See also id. at ¶ 17 (`By their nature, equitable inquiries are designed to be flexible, taking into account all relevant factors in light of the particular circumstances’). Nevertheless, `excusable neglect requires some evidence of diligence in order to justify relief.’ Jones v. Layton/Okland, supra at ¶ 20.

Although we have not yet had the opportunity to consider whether excusable neglect exists where an attorney claims to have misplaced an e-filed document, `Utah courts have found no abuse of discretion in a trial court's denial of a motion to set aside a default judgment where the only excuse offered by a party for its untimely response was that the motion requiring the response was inadvertently misplaced within a counsel's office.’ Stevens v. LaVerkin City, 2008 UT App 129, 183 P.3d 1059 (Utah Court of Appeals 2008) (citing Mini Spas, Inc. v. Industrial Comm'n, 733 P.2d 130 (Utah Supreme Court 1987) (per curiam) (rejecting counsel's excuse `that the notice was “inadvertently stuck together in the [plaintiff]'s drawer”’)); see also id. ¶ 28 (the disappearance of a motion within an attorney's office did not justify setting aside a summary judgment on grounds of excusable neglect). We see little difference between the inadvertent loss or misplacement of an electronic document and the inadvertent loss or misplacement of a physical document.

Aghdasi v. Saberin, supra.

The Court of Appeals also explained that

[o]ther courts that have considered this issue have been largely unsympathetic when faced with attorneys attempting to blame failures on computer glitches. See W. Kelly Stewart & Jeffrey L. Mills, E–Filing or E–Failure: New Risks Every Litigator Should Know, For the Defense, June 2011, at 28 available at http://www.jonesday.com/files/Publication/efd9d946–2272–44 93–9bb6–312e53bb8419/Presentation/Publication Attachment/9398f37a–c4a0–4338–8a4e–35cdf2d69900/FTD–1106–StewartMills.pdf  (collecting cases relating to a variety of e-filing errors, including case where a party sought relief on grounds of excusable neglect).

For example, when the U.S. Court of Appeals for the D.C. Circuit was faced with an excusable neglect argument based on counsel's failure to receive electronic notice of the defendant's motion to dismiss, that court deemed the excuse, `an updated version of the classic “my dog ate my homework” line,’ concluding that, `[i]mperfect technology may make a better scapegoat than the family dog in today's world, but not so here.’ Fox v. American Airlines, Inc., 389 F.3d 1291 (U.S. Court of Appeals for the District of Columbia Circuit 2004) (determining that, `[r]egardless whether he received the e-mail notice,’ the plaintiffs' attorney, `remained obligated to monitor the court's docket’).

Aghdasi v. Saberin, supra.

The court then pointed out that

[i]t is clear from the court's records that the Aghdasis' attorney received the emails, even if he did not actually see or read them. The fact that the attorney then misplaced the emails either through accidental deletion or due to spam settings on his email account does not demonstrate the exercise of diligence on the part of the attorney, particularly in light of the fact that the attorney apparently misplaced at least two separate emails and admittedly neglected to read a third.

The attorney had received e-filings in connection with this case before the motion for summary judgment was filed and electronically received the request to submit and the court's order granting the summary judgment motion, but for whatever reason, he missed the emails notifying him of the summary judgment motion and memorandum in support. The attorney should have made the same effort to be aware of incoming electronic filings as he would have with paper filings.

We cannot say that the court's rejection of the Aghdasis' excusable neglect argument, under the circumstances of this case, `was against the logic of the circumstances’ or `so arbitrary and unreasonable as to shock one's sense of justice.’ See Jones v. Layton/Okland, supra.  

Aghdasi v. Saberin, supra.

Finally, it explained that the Aghdasis also argued that

City Cab's counsel violated his obligations under the Utah Standards of Professionalism and Civility by failing to notify the Aghdasis' attorney of a potential `default' summary judgment and that the district court abused its discretion by failing to address the violation. See Utah R. Jud. Admin. 14–301(16) (`Lawyers shall not cause the entry of a default without first notifying other counsel whose identity is known, unless their clients' legitimate rights could be adversely affected’). However, even assuming that City Cab's counsel violated these standards, they are not mandatory and provide no basis for the Aghdasis to challenge the court's decision.

`Our standards of professionalism and civility often promulgate guidelines that are more rigorous than those required by the Utah Rules of Civil Procedure and the Utah Code of Professional Conduct. . . .The rules of civil procedure establish minimum requirements that litigants must follow; the standards of professionalism supplement those rules with aspirational guidelines that encourage legal professionals to act with the utmost integrity at all times.’

Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, 238 P.3d 1035 (Utah Supreme Court 2010) (emphasis added).  

Aghdasi v. Saberin, supra.

And with regard to whether City Cab’s lawyer violated the standards outlined above, the Court of Appeals said, in a footnote, that

[i]t is possible that counsel for City Cab considered his obligation fulfilled when he received confirmation that the Aghdasis' counsel had received electronic notice of City Cab's request to submit the summary judgment motion for decision.

Aghdasi v. Saberin, supra.  It also went on to explain that,

[w]hile compliance with the Utah Standards of Professionalism and Civility is encouraged of all attorneys, an attorney's failure to comply is not grounds for setting aside a judgment. See Arbogast Family Trust v. River Crossings, supra, encouraging lawyers to comply with the Standards and suggesting that failure to comply may leave lawyers open `to bar complaints or other disciplinary consequences’ when that failure runs afoul of the Utah Rules of Professional Conduct).

Aghdasi v. Saberin, supra.

The Court therefore held that,

[i]n sum, the district court did not abuse its discretion in ruling that the attorney's misplacing the electronic notices did not constitute excusable neglect. We further conclude that the district court was not required to consider the Utah Standards of Professionalism and Civility in determining whether to set aside summary judgment. Accordingly, we affirm.

Aghdasi v. Saberin, supra.