In what has become more and more common in recent years, a New Jersey court recently had to decide whether to allow a plaintiff to serve a defendant over Facebook rather than in person or through other more traditional means. In 252 Main NM, LLC v. John R. Heywang, Lauran Heywang, and American Express Centurion Bank, the trial court’s ruling was a mix of the old and the new. It held that plaintiff could serve defendant via Facebook, but that plaintiff also had to serve defendant via publication in a local newspaper.
In 252 Main, plaintiff sued defendant to foreclose on a tax lien. Plaintiff’s counsel attempted to locate defendant’s address so it could serve him with the complaint. Counsel performed an internet search for defendant’s address; arranged for a skip trace search; submitted an Open Records Act request for defendant’s voter registration records; and submitted an inquiry to the New Jersey Motor Vehicle Commission. All of these efforts yielded the same address in Teaneck, New Jersey. Defendant owned that property at one time, but lost it to foreclosure in June 2018 and was evicted in January 2019.
“Having exhausted traditional modes to locate defendant,” plaintiff’s counsel turned to social media. He located a Facebook account for defendant, which included pictures of defendant. The Facebook page indicated that defendant was from Teaneck and was living in Cancun. But defendant’s only post on the page was from January 2016.
After discovering the Facebook page, plaintiff’s counsel sent a copy of the summons and complaint to defendant through Facebook Messenger. Counsel also texted the summons and complaint to a cell phone number defendant had previously provided to his counsel, and to three email addresses for defendant that plaintiff’s counsel located on Spokeo.com. Counsel received notification that one email was rejected, but the other efforts – through Facebook, text, and email – yielded neither a rejection nor a response.
After the fact, plaintiff asked the court to deem service by Facebook Messenger, text, and email complete and to permit service of process in the future to be made in the same manner. .
Under New Jersey law, personal service on a defendant is the primary method of obtaining jurisdiction over that defendant. When this is impossible despite “diligent inquiry” into a defendant’s whereabouts, then other methods can be used, including service by mail outside of the State, publication of a notice in a newspaper in the county where the case is venued, or any other method approved by a court.
In 252 Main, the court acknowledged that counsel had “exercised all reasonable means to determine defendant’s whereabouts, thereby satisfying the ‘diligent inquiry’ standard.” The question was whether service by Facebook, text, and email was a better option than service by publication in a local newspaper.
To resolve this issue, the court looked to two prior decisions, one involving attempted service via email and one involving service via Facebook. (I wrote about the Facebook case here.)
In the case involving service by email, Modan v. Modan, plaintiff moved for permission to serve defendant, who lived in Pakistan, by publication. But plaintiff failed to mention in his certification of diligent inquiry, that he regularly communicated with defendant by email. The court criticized him for this, and ruled that he should have served both by publication and email because the latter would have provided “actual notice to defendant in addition to the jurisdictional requirement of service by publication.”
In the case involving service by Facebook, K.A. v. J.L, plaintiffs, the parents of a minor child, sought to prevent defendant from communicating with them or their child on Facebook. Plaintiffs tried to serve defendant via certified mail, but the mailings were returned undelivered. Because defendant was active on Facebook and because social media was the “sole conduit[ ] of the purported harm,” the court permitted plaintiffs to serve defendant via Facebook.
In 252 Main, the court distinguished both of these cases. First, it held that defendant was not active on Facebook, unlike the defendant in K.A., so there was no reason to conclude that “service by this mode alone would be effective.” And, in Modan, service by email was “guaranteed to be effective” because plaintiff and defendant had communicated regularly by email. That was not the case in 252 Main, where plaintiff and defendant never communicated by email. Unlike these two cases, the communications by Facebook and email in 252 Main were “a one-way street.”
And, unlike those two cases, there was some evidence that defendant in 252 Main “visits or resides, or otherwise maintains contacts in the State of New Jersey.” He lived in Teanack as recently as January 2019 and paid to restore his New Jersey driver’s license in June 2019.
Based on all of this, the court concluded:
In sum, it is almost certain that secondary service of process by social media will, in the near future, be the norm rather than the exception. Yet, it is equally certain due process will require such service to comport with the “reasonably calculated, under all circumstances, to apprise,” standard . . . Given the facts in this matter, the court cannot conclude plaintiff’s service of the summons and complaint through social media alone satisfies defendant’s due process rights.
Therefore, the court held that service should be made by publication in a local newspaper, and through Facebook Messenger. And, “until defendant acknowledged service and provides a mailing address, subsequent pleadings and documents shall be served by Facebook Messenger.”