In 2015, Manhattan Supreme Court Justice Matthew Cooper issued what will likely come to be seen as a monumental opinion expanding the concept of due process in the U.S. justice system. In a case captioned Baidoo v. Blood-Dzraku, 2015 WL 1486978 (Sup. Ct. Mar. 27, 2015), Justice Cooper addressed the issue of whether the plaintiff in the case, Ellanora Arthur Baidoo, could serve her defendant-husband, whom she married in 2009, with a divorce summons “solely by sending it through Facebook by private message to his account.”
While other courts have allowed service by Facebook in conjunction with other forms of service – for example, in Fed. Trade Comm’n v. PCCare247 Inc., 2013 WL 841037 (S.D.N.Y. Mar. 7, 2013), the court allowed service by Facebook and email but questioned whether service by Facebook alone would comport with due process – the Baidoo case is groundbreaking because the court allowed the social networking site to function as the only means by which service on the defendant would be effectuated, declaring “service by Facebook, albeit novel and non-traditional, is the form of service that most comports with the constitutional standards of due process.”
By way of background, following Ms. Baidoo’s and Victor Sena Blood-Dzraku’s 2009 nuptials, the marriage became strained for a number of reasons and the two spouses lived apart, with their only correspondence coming over the telephone and the popular social networking website, Facebook. When Ms. Baidoo finally decided to pursue a divorce, she found that Mr. Blood-Dzraku’s last permanent residence was vacated in 2011 and that he was unemployed. In light of these circumstances and despite the absence of “the guiding light of clear judicial precedent,” Justice Cooper fashioned – as an alternative means of service pursuant to New York’s Civil Practice Law and Rules (“CPLR”) 308(5) – the method of service by Facebook.
To be entitled to use this novel technological method, Ms. Baidoo had to demonstrate to the court that she was unable, despite diligent efforts, to have her husband served personally (i.e., by having it hand delivered to him personally by a process server) and that service by other means provided for under the CPLR were similarly futile. Additionally, the court required Ms. Baidoo to show that service by Facebook private message was “reasonably calculated, under all the circumstances, to apprise [the defendant] of the pendency of the action,” quoting the seminal United States Supreme Court case of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), in which the Justices clarified the basic standard of due process as it relates to service of process.
The court addressed several practical concerns before ordering service by Facebook. The first is the verifiability of Mr. Blood-Dzraku’s Facebook account. Because Facebook accounts are free and merely require an e-mail address and some basic biographical information to be activated, the court required Ms. Baidoo to set forth, in a supplemental affidavit, that the account to which the summons would be sent was actually the defendant’s. Similarly, the court addressed the concern that the defendant may not diligently check his Facebook account, and thus may not receive notice of the action until his time to respond had already passed. Ms. Baidoo was able to persuade the court, through submission of the same affidavit, that the defendant regularly logged onto his profile and therefore would receive notice of the action. Finally, because the defendant had no permanent physical or e-mail address, Ms. Baidoo had a “compelling reason” to make Facebook the sole, rather than a supplemental, method of service, a departure from the handful of previous cases allowing service by Facebook in conjunction with another form of service.
As precedent, Baidoo may be limited, at least in the near term, to divorce proceedings under New York’s Domestic Relations Law. However, as the court so aptly stated, “it would appear that the next frontier in the developing law of the service of process over the [I]nternet is the use of social media sites as forums through which a summons can be delivered.” That next frontier having already arrived, it is up to future courts to decide whether service by Facebook was an isolated foray into uncharted legal waters or a new method to be ‘liked’ and used by litigants to come.