Serving Defendants in the 21st Century

By Habib Olapade
Habib Olapade is a first-year law student at Yale University.

Federal Rules of Civil Procedure often lag behind technological developments. This gap is particularly acute in the case of Rule 4, which, among other things, regulates how plaintiffs may serve domestic and international defendants with orders to appear before a federal court. [1]

Under Rule 4, domestic parties may only be served in person, through an individual living in their housing unit, or through an agent. Foreign parties, on the other hand, may be served in any manner that complies with constitutional due process requirements and other requirements in Rule 4. Under the Fourteenth Amendment’s due process clause, notice must be “reasonably calculated, under all circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” [2] In practice, this fuzzy standard has been interpreted to include service of process via physical delivery, letters rogatory, repeatedly published notices in newspapers, telex, email, and Twitter posts. Private Facebook messages (not public wall posts) have been authorized by a few district courts, but only as a supplemental mode of delivery. [3]

Generally, Rule 4 only allows electronic process delivery in cases involving foreign defendants. Moreover, electronic process may be used only if the defendant’s whereabouts are unknown and other delivery methods are insufficient. For example, plaintiffs of modest means may be unable to physically travel to a foreign country to personally serve the defendant, take out multiple ads in a prominent foreign newspaper, or hire a competent professional process server. In these cases, service via Twitter or Facebook may be the most convenient and efficient option.

Indeed, a few months ago, a United States District Court in San Francisco authorized such an approach in a case involving Kuveyt-Turk Participation Bank, a Kuwaiti firm accused of illicitly financing ISIL attacks against Assyrian Christians in Iraq. [4] Kuveyt-Turk could not be served through traditional means. The bank, though, maintained a publicly-accessible Twitter account to fundraise for terrorist operations. Because the Twitter profile was active, could be traced to Kuveyt-Turk, and there was a reasonable chance that the account owner would receive the process notice, a federal district judge allowed the suit to move forward.  

It is clear, however, that these three premises should also lead one to conclude that electronic process through email should be available in cases involving domestic defendants. One can easily conceive of situations where a domestic plaintiff may also be unable to track down a domestic defendant and commission professionals to help her. In 2011, for instance, Jessica Mpafe, a Minnesota citizen, finally decided that she wanted to divorce her absentee husband of ten years. Mpafe filed divorce papers in state court, but Minnesota officials were unable to give notice to Jessica’s husband because he was at an undisclosed location in the United States. [5]

Conventional process delivery would have been impractical because Jessica could not afford a round-trip domestic airline ticket nor mail process papers without a destination address. Fortunately, the state judge in Jessica’s case was able to order service of process via Facebook because Minnesota courts are not bound by Federal Civil Procedure Rules. Most litigants in federal courts, though, do not have the same luxury, despite the fact that there is no rational reason for the discrepancy.  

Skeptics might respond in one of three ways. First, email process delivery may not satisfy constitutional notice requirements because electronic messages may never be opened or may be unwittingly thrown into a user’s junk file.  

Second, users can create unauthentic Facebook and Twitter profiles in order to masquerade as someone they are not. If nothing else, the constitution requires that process must be served on the correct party. Admittedly, it can be difficult to pick out the right attendee when everyone in the reception hall is wearing a mask.
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Finally, one might question the assumption that email process delivery provides more benefits than drawbacks to the poor. Many low income citizens lack email addresses and home computers. Others are limited in English proficiency. Everything being equal, a policy that harms those it is intended to benefit cannot command assent.

There are three responses to these claims. One must first consider that fact that plaintiffs can now access affordable software applications such as SpyPig, which allow them to track when a sent email is opened by the recipient. [6] If the email has been opened, the constitution’s notice requirements have been meet. If not, other means must be resorted to.

The social media anonymity problem can be mitigated by confining social media process delivery to a supplementary role reinforcing email delivery. Furthermore, social media delivery would only be ordered in cases where indicia on the profile page such as the listed email address make it more likely than not that the profile is authentic.

Furthermore, courts could tailor Rule 4 electronic process orders to accommodate poor litigants in need of a bilingual summons or delivery in a more accessible technological form such as cell phone text messages.

It is ridiculous to have no better reason for a procedural rule than the fact that it was laid down in an era of horses and buggies. Rule 4 was drafted at a time when typewriters and telephones were cutting edge technology. Times have changed and so must some of the procedural rules that our federal courts follow. Anything less would allow history’s dead hand to receive more than it is due.    

[1] “Federal Rule of Civil Procedure Four: Summons,” Cornell University Law School,
accessed February 22, 2016, https://www.law.cornell.edu/rules/frcp/rule_4.

[2] Mullane v. Central Hanover Bank & Trust Corporation, 339 U.S. 306 (1950).

[3] “Facebook Notification,” American Bar Association Law Practice Today, accessed
February 22, 2016, http://www.lawpracticetoday.org/article/facebook-notification- youve-
been-served/.

[4] Saint Francis Assisi v. Kuwait Finance House, 3:16-cv- 3240-LB (order granting
motion to serve process by alternative means).

[5] “A Pleasure to Serve You,” American Bar Association Journal, accessed February
22, 2016.

[6] Ronald J. Hedges, Kenneth N. Rashbaum, and Adam Losey, “Electronic Service of
Process at home and Abroad: Allowed Domestic Electronic Service of Process in the
Federal Courts,” The Federal Courts Law Review (Volume 4, Issue 1).

Photo Credit Flickr User: SalFalko
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The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.