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Wednesday, September 24, 2014

Your Next Facebook Message Could Contain Notice of a Lawsuit

 Facebook. Google +. LinkedIn. SnapChat. Instagram. Twitter.

More than ever, our social and professional lives are exposed on the internet. Logging on to check your Facebook after work, notice of a lawsuit is the last thing you would expect.

Not anymore.  In some, albeit rare, instances, service via social media has been approved. 

Ordinarily, upon the filing of a lawsuit, a plaintiff must serve the defendant and give him notice of the case against him.  Normally, the defendant is served via personal service or by mail.  If those methods fail, the third option entails service by publication.

Now, service by Facebook message might be an option.

Just last week a judge in New York ruled that a man could provide notice of his intent to stop paying child support (due to the child reaching the age of 18) by Facebook message.  After his ex-wife moved and left no forwarding address, she was seemingly unreachable by traditional methods. Although her physical location was concealed, the ex-wife’s internet presence was evident.  After noticing Facebook activity on the ex-wife’s page, the plaintiff’s attorney asked the judge for permission to serve by Facebook message. In an unprecedented move, permission to serve via social media was granted.

A few months ago, a judge in Virginia federal court allowed service by social media was allowed in the case of Whoshere, Inc. v. Gokhan Orun.  In a trademark infringement case, a Turkish defendant was particularly difficult to serve.  Prior to the filing of the lawsuit, plaintiff Whoshere, Inc. emailed the defendant, Gokhan Orun, notifying him of the possible legal issues.  Orun responded, thus confirming the validity of his e-mail address, and provided his usernames on other social media sites, such as LinkedIn and Facebook.

When Orun proved especially difficult to serve by traditional methods,  the plaintiff asked the court to grant permission for alternative means of service.

Because the defendant himself provided his e-mail address and social media information, the judge ruled that notice by social media networking sites and e-mail was permissible because it was reasonably calculated to provide notice of the lawsuit.

Due to the defendant’s foreign residence, electronic notice in this case is less alarming.

So What Does This Mean For You?

In most cases, it is highly unlikely that service will be allowed via social media networking sites.  Although a case may be made for e-mail service, that seems unlikely at this juncture.

Nevertheless, when the defendant’s physical presence simply cannot be ascertained, a court has the power to allow alternative methods of service, as long as those methods are “reasonably calculated” to provide the defendant with notice of the lawsuit.

Can Oklahomans be Served Notice of a State Court Lawsuit via Social Media or Email?  

Probably not.

Oklahoma law under Title 12 § 2004(C)  authorizes service on an individual through (1) personal service, (2) mailing, or (3) publication.

In order to provide notice by publication, the Court must first grant the plaintiff permission.  The plaintiff must show the court that, after diligent attempts to serve the defendant through regular means (personal service/mail), the plaintiff has been unable to locate the defendant. This normally requires an affidavit by the plaintiff’s attorney and the process server, outlining the failed attempts at service.

If granted permission, service by publication is accomplished by publishing a notice in an authorized newspaper in the county where the petition was filed one (1) day a week for three (3) consecutive weeks. If the defendant lived in another county, or failed to read the legal notice section of the newspaper, s/he could easily miss notice of the lawsuit.

Failure to receive notice of a lawsuit results in a failure to file a response, which can have devastating consequences to a defendant.  For instance, if no response is filed within a certain amount of time, the plaintiff may move for a default judgment—this renders judgment in the plaintiff’s favor solely because no timely response was filed.

Although at first glance, notice through social media sites seems outrageous, this nontraditional method has some redeeming qualities.  For instance, notice by publication is expressly allowed, but who actually reads the legal notice section of a newspaper? Who even knows what newspaper publishes legal notices?

Can you imagine your new Sunday morning routine? Here, honey- pass the maple syrup--- let’s check the legal notice section! ---- said no one ever.

An argument can be made that service via social media actually benefits a defendant, because although s/he may have a harder time dodging service, his/her due process rights are served because s/he is much more likely to check e-mail or Facebook than a small section in a local newspaper. So, the defendant could actually be prepared to defend a lawsuit against him, instead of blind ignorance leading to default judgments.  Additionally, in cases where default judgments are granted because of failure to answer or otherwise respond, executing the judgment presents another hurdle; service by electronic means may very well promote judicial economy.

Of course, on the other hand, the thought of checking your Twitter feed to find out that you’ve been served (in 140 characters) seems simply preposterous.  Notice by electronic means is not an easy answer.  How do you verify that the defendant actually maintains that particular social media account? What if the e-mail goes in the spam folder? What happens when a defendant responds to that electronic notice in the same manner--- is his Facebook response considered a responsive pleading or acknowledgement?

Who knows where technology will take us.   All I know is that if I ever get served via electronic means, I hope the notice includes emojis.

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For a more in-depth analysis of the Whoshere, Inc. case, check this out:

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