Avenues of communication have dramatically expanded over the past few decades, with email, social media, the proliferation of mobile phones, and text messaging making it easier and easier to make contact with the vast majority of people. Whether they want to be in contact with us or not.
Rules for service of process in most jurisdictions were written long before these developments. It remains the rule that when serving process (notifying a defendant that a lawsuit has been filed against him/her/it), personal service (hand delivery) is required. And that requirement is not likely to go away anytime soon, for the simple reason that there is no more effective way to ensure that someone is informed that he/she/it is being sued than to deliver the lawsuit into that person’s hands.
But sometimes a process server can’t find the defendant for personal service. If the plaintiff has made a diligent search for the defendant and still can’t find him/her/it, the rules in most jurisdictions allow for substitute service of process, where service of process can be transmitted to the defendant by some means other than in-person delivery.
In the realm of substitute service of process, the reality that so many forms of communication are now available is beginning to have an impact. Despite that rules of court have not changed, courts are now taking into account the availability of modern forms of communication when considering both whether a plaintiff has made sufficient efforts to locate the defendant before resorting to substitute service of process, and the means that should be used to deliver the lawsuit to the defendant when substitute service of process is appropriate.
Coastal Capital Venture, LLC v. Integrity Staffing Solutions, Inc., a recent decision of Florida’s Second District Court of Appeal (2nd DCA) in Lakeland, Florida, illustrates how modern forms of communication have impacted the search a plaintiff must make before resorting to substitute service of process. In that case (in which Bushell Appellate Law, P.A. represents the defendants/appellants) the plaintiff obtained a default judgment after using substitute service of process by mailing a copy of the lawsuit to the Secretary of State.
The plaintiff contended that substitute service of process was appropriate, because it had conducted a diligent search. It had tried multiple times to serve the defendants at a condominium they owned, and had hired an investigator to conduct a “skip trace,” which did not uncover another address for them.
But the defendants/appellant argued, and the 2nd DCA agreed, that the search was inadequate because the plaintiff had failed to look to the most obvious source to find out where the defendants could be served. Here’s where modern communication came into play: the plaintiff’s president and one of the defendants (who was the principal of the two corporate defendants and the husband of the other individual defendant) had been exchanging text messages during the time period when the plaintiff was trying to serve process. And despite text messages from the defendant saying he was in California, the plaintiff didn’t ask the defendant where he could be located and served with process.
Coastal Capital stands as a lesson that if a plaintiff has a defendant’s cellphone number (as is frequently true in commercial and family litigation and some other types of disputes), the plaintiff must try calling and texting the defendant before resorting to substitute service. And there is no reason to think that the result would have been different if the plaintiff had had the ability to contact the defendant via social media rather than text messaging.
On the other side of the coin are some recent decisions on how substitute service should be carried out. The goal of service of process, after all, is to make sure the defendant has notice of the lawsuit. So courts have understandably begun recognizing that communication via social media can be an effective way to accomplish substitute service of process. For example, a New York family court judge recently issued an order allowing service of process to be made via Facebook (in conjunction with service by regular mail to the last known physical address) after attempts to locate the defendant at her last known physical address were unsuccesful.
And a few federal court decisions have also authorized substitute service of process via email and social media, but so far they have been confined to substitute service on international defendants. One such decision authorized substitute service of process via Facebook in conjunction with email, while another authorized substitute service via Facebook and Linkedin in conjunction with email.
Service of process rules may not have changed as means of communication have expanded. But as court are increasingly recognizing, newer means of communication should not be ignored when deciding whether substitute service is appropriate, or in deciding the best way to effectuate substitute service when it is appropriate.