As technology develops and changes, so too does the practice of law. Although the law changes and adapts more slowly than many other industries, Texas litigants may soon be able to harness technology-specifically social media-as a vehicle of service. Although Texas Courts have not yet addressed this issue of service of process via social media, several courts from New York have already approved service of citation through Facebook in specific instances. These examples may give us an idea of how Texas courts will handle this issue.
New York courts have held substituted service through Facebook satisfies the requirements of due process when (1) other traditional attempts at service have failed and (2) service by Facebook is in addition to other forms of substituted service. In Ferrarese, a Plaintiff was allowed to serve the Defendant with notice through Facebook in a child custody suit. Initially, the Plaintiff in Ferrarese was unable to serve the Defendant via regular methods. The Plaintiff attempted to serve the Defendant at two home addresses, she spoke with Defendant's family members, and she hired a private investigator to locate the Defendant. Since traditional service methods were exhausted, the court then allowed the Plaintiff to serve the Defendant (1) via certified mail to the Defendant's last known address and the Defendant's sister, (2) via email to the Defendant, and (3) via a private Facebook message to the Defendant.1
The court was hesitant to allow service by Facebook alone because the Plaintiff had not provided evidence that the Facebook page bearing the Defendants name was actually operated and consistently viewed by the Plaintiff. Despite this concern, the Court decided to allow service by Facebook in cases where "the proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant . . ." The court reasoned, service by Facebook was not substantially less likely to provide notice when used in addition to the other methods of service and thus satisfied the requirements of due process.2
Previously, in Baidoo a New York court ruled that alternative service via Facebook satisfied the requirements of due process when traditional attempts at service had failed multiple times. In Baidoo, the court stated (1) that the identified Facebook page did indeed belong to the Defendant, (2) that the Defendant consistently viewed the Facebook page, and (3) that service via Facebook was a superior method of service to service by publication.
Notably, in Baidoo the court allowed service via Facebook as the sole form of alternative and determined that service via Facebook-in this case-was superior to service via publication. According to the Court, "the problem with publication service is that it is almost guaranteed not to provide a defendant with notice of . . . [the lawsuit]."3
What About Texas?
Similar to New York, Texas expressly allows service by publication. Further, Texas also permits "other substituted service:" "whenever citation by publication is authorized, the court may, on motion, prescribe a different method of substituted service, if the court finds, and so recites in its order, that the method so prescribed would be as likely as publication to give defendant actual notice" (emphasis added).4 Thus, in Texas, an argument could be made that alternative service through Facebook can be used when it would be as likely as publication to give defendant actual notice.
Although Texas courts have not yet addressed the issue of service via Facebook or any other social media platform, Rule 109a appears to give Court's latitude to allow service via social media, and it is possible-even likely-that Texas Court will do so in the future. As the Baidoo Court wrote, although service via social media is a novel concept, ". . . a concept should not be rejected simply because it is novel or nontraditional."
(1) Ferrarese v. Shaw, 164 F. Supp. 3d 361 (E.D.N.Y. 2016)
(2) Ferrarese v. Shaw, 164 F. Supp. 3d 361 (E.D.N.Y. 2016)
(3) Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709 (Sup. Ct.)
(4) Tex. R. Civ. P. 109a