Ah, technology. In this modern world, we navigate the roads on our phones instead of a map. We talk to a cylindrical tube to tell it to order more toilet paper for us, tell us the weather, read us the news, or turn on the lights. We don’t remember anyone’s phone number because they are all stored for us on our phones. And we obtain personal jurisdiction over an out-of-state defendant via Facebook.
The legal world is, perhaps, notorious for its luddite tendencies. One need only step into any lawyer’s office to see reams of paper everywhere – stacked on the floor (okay maybe that’s just me), piled on the desk, packed into boxes. But in terms of the use of social media as a mechanism for exercising “long-arm” jurisdiction over a defendant, the law appears to be catching up with modern means of communication as more and more jurisdictions are allowing the use of Facebook and other social media platforms to serve as a form of substituted service.
Personal Jurisdiction = Sufficient Minimum Contacts + Service of Process
For those who didn’t take Civil Procedure, it is important to understand that there are rules (a lot of them!) about who is subject to the jurisdiction of a particular Court. Every state in the country has the ability to exercise “long-arm” jurisdiction over parties who do not reside within it, but only if certain rules are followed and conditions met.
In order for a New Jersey court to exercise jurisdiction over a person who does not live in this state, that person must have sufficient minimum contacts (a phrase drilled into every first-year law student’s head for all of time) with New Jersey, and must also be properly served with process. Broadly speaking, the “minimum contacts” test is satisfied if the individual could or should reasonably expect to be brought into court in the state.
Importantly, there are limits on what types of actions a court can exercise its jurisdiction over, and these are based upon the type and scope of the minimum contacts the out-of-state defendant has with the state. For example, if a PA resident has a car accident in NJ, and the nexus of personal jurisdiction is that the PA resident drove into NJ where the accident occurred, then a New Jersey Court would have jurisdiction over any legal claims arising out of the car accident. But, if someone wanted to sue the PA resident for some other reason in NJ, there would have to be some other finding of minimum contact related to that cause of action here in NJ.
There also has to be service of process. The purpose of this requirement is two-fold. First, service must be reasonably calculated to apprise the party of the pending legal action. Second, it must allow the party an adequate opportunity to respond. Simply speaking, under our Court Rules, personal service (i.e. actually delivering the process to the person or a representative) is the preferred form of service. Under certain conditions, service can also be made by mail. But then, there is a third option. If service cannot be made personally or by mail, then it can be made “as provided by a court order, consistent with due process of law.” In other words, the Court can determine an alternate method of service, so long as this method accomplishes the dual purposes of service of process: the manner of service must be reasonably calculated to let the party know about the pending legal action and the claims against him/her, and must allow the defendant the opportunity to respond.
Recent Court Ruling Approves Service of Process Via Facebook
In a recent published (precedential) decision, K.A. and K.I.A. v. J.L, a New Jersey trial court found that – under the circumstances – service by Facebook would be sufficient to confer personal jurisdiction over the defendant. In that case, K.A. and K.I.A. were adoptive parents of their son, referred to as “Z.A.” Z.A.’s biological father had contacted not only Z.A. but also K.A. and other family members (all of whom were NJ residents) on Facebook and had disclosed to Z.A. on Instagram that Z.A. was adopted and told him the identity of his birth mother and the location of his birth. J.L. also obtained photographs of Z.A. from K.A.’s Facebook page and published them on his own page, holding Z.A. out as his son. The plaintiff’s commenced an action to enjoin J.L. from holding Z.A. out as his son, to enjoin him from contacting them and Z.A., and to compel J.L. to remove information pertaining to Z.A. that he allegedly published online.
The plaintiff’s attorney sent cease and desist letters to both of the defendant’s last known addresses, which were in Pennsylvania, by certified and regular mail. Under the Court Rules, this is an acceptable method of service so long as the regular mail is not returned to the sender, and so long as an answer or response is made by the defendant. In this case, both of the certified mailings were unclaimed and, although the regular mail was not returned, no answer was made by the defendant.
Because the defendant, based upon the conduct forming the basis of the claims against him, was evidently an active Facebook user, the plaintiffs sought permission from the Court to effect substituted service by use of Facebook.
Judge Hansbury found that under the circumstances, such service would meet the requirements to confer personal jurisdiction over the defendant with regard to the claims against him based on the following:
- Personal Jurisdiction: Judge Hansbury relied upon a Third Circuit case, Toys R’ Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003), which held that a defendant’s intentional interaction with the forum state via the internet is sufficient to confer jurisdiction. In the case before the Court, the defendant intentionally reached out to various members of the plaintiffs’ family who are NJ residents, using his social media accounts. Any harm arising from these intentional contacts would clearly be concentrated in NJ. Therefore, the Court found that it could exercise personal jurisdiction over the defendant by virtue of his intentional contact with the State via the internet.
- Scope of Personal Jurisdiction: Because the defendant’s contacts with the state were precisely those that gave rise to the causes of action the plaintiffs pursued against the defendant, the Court found that the scope of its personal jurisdiction over the defendant included these claims, though it acknowledged it did not have personal jurisdiction over the defendant as to any claims unrelated to the alleged contact with the plaintiffs and their family members.
- Service: Under the facts of the case, service of process via Facebook would accomplish the dual purposes of the service of process requirements discussed above. The Court reasoned that because the defendant solely used his Facebook and Instagram accounts as the “conduits of the purported harm,” service via Facebook was reasonably calculated to apprise the defendant of the pendency of the action and afford him an opportunity to respond. The Court observed that the plaintiffs had demonstrated that the defendant’s Facebook account was active. Further, the Court noted that Facebook includes a feature that allows the sender of a message to see whether the recipient has opened and received the message, which would indicate whether the defendant was actually notified of the case.
Limitations on the Use of Facebook to Confer Personal Jurisdiction
It is important to note that Judge Hansbury’s ruling does not mean that service of process via Facebook is acceptable as a primary method of service or even that it is available in every case. Central to the ruling here is that personal service could not be affected, nor could service by mail. Moreover, it was due to the particular facts of this case – specifically, that it was evident the defendant had an active Facebook account and that the Facebook account was the primary means of the harm alleged in the case – that caused the judge to believe it would be an appropriate means of substituted service. However, given the widespread use of Facebook, the ruling suggests that it can be used in other cases as a means of substituted service and is something to keep in mind in cases where out-of-state defendants cannot be served by traditional methods.