Substance, no matter how eloquent, can never defeat procedure. Each of us could draft an argument that could change laws and progress our society forward, but if the procedure is neglected, it will never see the light of day. Thus, it is paramount that procedure is followed to ensure that an argument can change the legal landscape. To proceed with litigation, a plaintiff must notify the defendant of a pending action against them—a principal embedded in our constitution in the Due Process Clause.
Under Rule 4 of the Federal Rules of Civil Procedure, when serving an individual, they may be served by a summons either: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with some of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or law to receive process. See Fed. R. Civ. P. 4(e)(1). In many cases, personal service is not a problem and happens seamlessly.
But that is not always the case for those who frequent Dismissals for Want of Prosecution hearings. When personal service is not available, service by alternative means is necessary. One alternative is publication, serving the defendant through the newspaper; however, courts who have already frowned on service by publication now have outright contempt for it. In the courts’ defense, it is probably rare to find a person who wakes up in the morning, cracks open the daily newspaper, and looks to see if they have been sued. Publication, in many cases, does not notify the defendant of the pending lawsuit; while it is necessary in some cases should be avoided. In 2020 the Texas legislature made changes to the Rules of Civil Procedure; notably, within the rules, the legislature added serving an individual via social media and any other technological means that shows it will be reasonably effective to give the defendant notice of the suit. See Tex. R. Civ. P. 106(b)(2). While progressive and provides the litigator with another tool in the preverbal tool belt, it also comes with challenges, but if done right can be a valuable tool to make sure the case moves along.
The way to seek and successfully obtain an order for alternative service via social media tends to vary case by case. The rules, on its face, give courts broad discretion over whether there is enough factually to warrant such an action. In comments discussing the rule change, the legislature stated, “[i]n determining whether to permit electronic service of process, a court should consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology.” Tex. R. Civ. P. 106.
With little to no case law regarding alternative service via social media and little guidance from the legislatures, practitioners must feel their way through obtaining an order for service via social media. Fortunately, other states have. First, the social media site itself must provide a platform consistent with service of process. This means that the site should offer a non-connected user a means of contacting another user through a private message. The messaging feature of the site must also have the ability to include attachments in the message so that the summons and the complaint can be attached and sent in the message. Second, because a question will likely be raised about whether the account belongs to the defendant, the plaintiff must make reasonable efforts to verify the account through corroboration of its information. Therefore, the plaintiff would be required to show with a reasonable degree of certainty that a considerable amount of the information contained in the profile, such as education, occupation, hobbies, friends, interests, age, hometown, and possibly general location, matches information known about the defendant sought to be served. Third, in order to establish the timeliness of notice via social media, there must be evidence of the defendant’s use of the site, such as status updates, postings on others’ walls, connecting with other users, or similar activity. If the frequency of use cannot be shown or the user’s account has been set to private, service would not be permissible. See Knapp, #serviceofprocess @socialmedia: Accepting Social Media for Service of Process in the 21st Century (2014) 74 La. L.Rev. 547, 576; See also Davis, Social Media: A Good Alternative, for Alternative Service of Process (2020). In order to achieve these steps, considerable research and ingenuity must be used to serve the defendant. Sometimes it is not as easy as merely looking within Facebook for a profile. With the rise of LinkedIn, Instagram and TikTok, cross referencing and investigation must be completed before seeking alternative service by social media.
A motion for alternative service by social media can be beneficial and provide the defendant actual notice of the suit; however, gaining enough information on the defendant and validating the information are two separate issues. In any case, the rule change has aided litigators in Texas and across the country as another means of getting the defendant actual notice of the pending suit, which in and of itself has progressed our profession forward.
Jourdan Dukes is an associate attorney at Anozie LLP and handles civil litigation and entertainment law matters. She can be reached at email@example.com.
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