My colleague Adam Rafsky’s astute post last week on Manhattan Commercial Division Justice Shirley Werner Kornreich’s recent reminder regarding the importance of proper service and claim viability when seeking a default judgment under CPLR 3215 reminded me of another default decision last fall from the same judge also addressing issues of service.
In Wimbeldon Fin. Master Fund, Ltd. v Weston Capital Mgt. LLC, Justice Kornreich denied the plaintiff’s motion because it had served the defendant “in a jurisdiction where he did not work or reside.” However, because of the defendant’s “apparent evasion of service,” as well as the undisputed fact that he “ha[d] clearly been aware of this action for some time,” the court sua sponte and “in the interest of justice” granted the plaintiff leave to serve the defendant “by alternative service,” including electronically by the court’s NYSCEF system.
Under CPLR 308 (5), a court may direct service by alternative means in certain circumstances, provided that the statutorily-prescribed methods are otherwise “impracticable” and the alternative method complies with constitutional due process – i.e., is reasonably calculated to apprise a defendant that an action is pending against him.
What caught my eye in Justice Kornreich’s Wimbeldon decision was a line in a footnote, noting that “courts have increasingly recognized the wisdom of permitting electronic service that is reasonably calculated to apprise defendant that he is being sued, even on social media networks.”
Justice Kornreich cited a non-commercial, Manhattan Supreme Court decision from 2015, Baidoo v Blood-Dzraku, in which the court discussed at length service of process in “the advent and ascendency of social media” and, after considering an affidavit verifying regular social media exchanges between the plaintiff and the on-the-lam defendant, directed alternative service “by Facebook, albeit novel and nontraditional, [a]s the form of service that most comports with the constitutional standards of due process.”
The court in Baidoo even went so far as to direct the specific procedure for effectuating such service:
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 either including a web address of the summons or attaching an image of the summons. This transmittal shall be repeated by plaintiff’s attorney to the defendant once a week for three consecutive weeks or until acknowledged by the defendant.”
A quick Google Scholar search for New York cases involving “service of process” by “social media” since Baidoo revealed just two federal court decisions from 2016 and 2017 out of the Eastern and Northern Districts of New York. In Ferrarese v Shaw, the Eastern District allowed service of a summons and petition by Facebook as a “backstop” to simultaneous service by certified mail on the defendant’s last known address. And in Baez v City of Schenectady, the Northern District, after repeated nonparty witness no-shows, required that court-ordered deposition subpoenas be prepared, issued, and “transmitted to the witnesses via any known social media (i.e. Facebook), email, or text address.”
Nevertheless, according to the Baidoo court, “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 citing Baidoo in her recent Wimbeldon decision, Justice Kornreich appears to have “recognized the wisdom” of allowing for such service. Look for the development of the law in this area in Commercial Division jurisprudence in the near future.
**Nota Bene** – January 24, 2018: Don’t miss this year’s Commercial and Federal Litigation Section Annual Meeting Program and Luncheon at which Manhattan Commercial Division Justice Charles E. Ramos will be honored with the Stanley H. Fuld Award for Outstanding Contributions to Commercial Law and Litigation.