Recently, in one of the attorney discussion groups I am a member of on Facebook, it was mentioned that some lawyers have successfully gotten judges to sign off on allowing them to serve a party via Facebook.
I had heard of other states allowing service via Facebook before, but this was the first time I heard it mentioned that a Texas judge had allowed this. Today's discussion will look at different services available in a divorce, including Facebook.
Notice and an Opportunity to be Heard
One of the requirements for due process under the United States Constitution is that the parties to a case against them have the right to be notified and an opportunity to be heard.
The notice does not have to be actual notice, but under the law, "due process: notice must be reasonably calculated to succeed."
Personal Service under Rule 106(a)
For this reason, courts usually prefer that parties try and provide actual notice by first trying to serve a party to a divorce personally.
- Unless the citation or an order of the court otherwise directs, the source shall be served by any person authorized by Rule 103 by:
- delivering to the defendant, in person, a true copy of the head with the date of delivery endorsed thereon with a copy of the petition attached to that, or
- Mailing the defendant by registered or certified mail, return receipt requested, a true copy of the citation, and a copy of the petition attached.
Rule 106(b) of the Texas Rule of Civil Procedure (TRCP)– Method of Service
If that fails, a court will consider a motion for substituted service under Rule 106(b).
This section provided that all motions for substituted service under Rule 106 must be accompanied by an affidavit that includes the following information:
- all efforts are taken to verify that the defendant lives or works at the subject address;
- each attempt at service, with the date(s) and time(s);
- identity of persons who were present at the subject address and what was
- said; and
- A printout of some public record or PublicData.com or similar online database confirms that the person to be served resides at the address at which service is attempted.
This can also include a statement identifying license plates of cars in the driveway and attaching a printout of license plates registered to the person to be served. Comments by neighbors or people residing in the abode must include the person's full name and a description. The idea is to assure the court that the person lives at that address.
The attached proposed form order should accompany any Rule 106 motion. Failure to do so may delay the court's granting of an otherwise proper motion.
Rule 109 and Rule 109(a) of the Texas Rule of Civil Procedure
The current Texas Rules of Civil Procedure have two rules governing substituted citation service.
- In Texas Rule of Civil Procedure 109, the plaintiff or petitioner can serve the defendant or Respondent by publication as a last resort. You typically see this when a petitioner cannot find the Respondent.
- Texas Rule of Civil Procedure 109a allows the court to prescribe a method other than publication if a different approach would be as likely as a publication to give the Respondent actual notice.
Rule 109 - Citation by Publication
When a party to a suit, his agent, or attorney, shall make oath that the residence of any party defendant is unknown to affiant, and to such party when his agent or attorney drives the affidavit, or that such defendant is a transient person, and that after due diligence such party and the affiant have been unable to locate the whereabouts of such defendant, or that such defendant is absent from or is a nonresident of the State, and that the party applying for the citation has attempted to obtain personal service of nonresident notice as provided for in Rule 108, but has been unable to do so, the clerk shall issue a citation for such defendant for service by publication.
In such cases, it shall be the duty of the court to try the chance to inquire into the sufficiency of the diligence exercised in ascertaining the residence or whereabouts of the defendant or to obtain service of nonresident notice, as the case may be, before granting any judgment on such service.
Rule 109a. - 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 process so named would be as likely as a publication to give defendant actual notice.
When such a method of substituted service is authorized, the officer's return executing the citation shall state particularly how service is accomplished and shall attach any return receipt, returned mail, or other Evidence showing the result of such service.
Failure of the defendant to respond to such citation shall not render the service invalid. When such substituted service has been obtained, and the defendant has not appeared, the provisions of Rules 244 and 329 shall apply as if citation had been served by publication.
Service by Facebook?
As mentioned above, TRCP 109a allows a court to order a method other than publication if the different approach would be as likely as a publication to give the Respondent actual notice.
Most courts and lawyers would agree that service by publication is an inferior substitute for actual service.
The Texas Supreme Court said as much in In re E.R., 385 S.W.3d 552, 561 (Tex. 2012). The court cautioned that "publication should be a last resort, not an expedient replacement for personal service."
Arguments in Favor of Service by Facebook or Other Social Media
Some courts have concluded that service by Facebook or other social media provides a better chance of actual notice than placing an ad in the classified sections of a newspaper.
This was the situation in a New York case In the Matter of a Support Proceeding Noel B, Petitioner, - against-- Anna Maria A, 2014 N.Y. Misc. LEXIS 4708 (2014).
The court found that it was "…not aware of any published decision wherein a New York state court has authorized service of process using social media… The method detailed here by the court provides the best chance of the Respondent getting actual notice of these proceedings."
Concerns for Serving via Facebook or Other Social Media
Below is a case that discusses service via Facebook and some of the concerns that have been raised regarding serving people via Facebook:
Baidoo v Blood-Dzraku 2015 NY Slip Op 25096 [48 Misc 3d 309] (2015)
In this case, a wife was having trouble serving her husband in a divorce. As a result, the wife sought to help him via Facebook.
When deciding whether to grant her request, the judge considered whether the method the plaintiff seeks to serve the defendant comports with the fundamentals of due process by being reasonably calculated to provide the defendant with notice of the Divorce.
Or more simply posed: If the summons for Divorce is sent to what the plaintiff represents to be the defendant's Facebook account, is there a good chance he will receive it? To answer this question, the judge asked the following questions:
Authentication – Does the Account Belong to the Person Being Served?
The first is that the Facebook account the plaintiff believes is the defendant's might not belong to him.
As is well known, the Facebook profile somebody views online may very well belong to someone other than whom the profile purports it to be. This has led courts to observe that "anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm whether the Facebook page belongs to the defendant to be served."
Will the Person Being Served to Get the Notice?
The second concern is that if the defendant is not diligent in logging on to his Facebook account, he risks not seeing the summons until the time to respond has passed.
Here too, the plaintiff's affidavit successfully addressed the issue. Her exchanges with the defendant via Facebook showed that he regularly logged on to his account.
Should Facebook only be used to Supplement Other Services?
The third concern is whether a backup means of service is required under the circumstances. Although, as was discussed, other court decisions have endorsed using Facebook as a means of service, they have done so only where Facebook was but one of the methods employed, not the only method.
Why use Facebook as Either the Sole or Supplemental Means of Service?
Why use Facebook as either the sole or the supplemental means of service in the first place when there is a statutorily prescribed method of assistance readily available?
After all, the publication is not only expressly sanctioned by the CPLR, but it is a means of service of process that has been used in New York in one form or another since colonial times. Even today, it is probably the method of service most often permitted in divorce actions when the defendant cannot be served by other means.
The court then went on to say that: "The problem, however, with publication service is that it is almost guaranteed not to provide a defendant with notice of the action for divorce, or any other lawsuit for that matter."
"In divorce cases brought in New York County, plaintiffs are often granted permission to publish the summons in such newspapers as the New York Law Journal or the Irish Echo. If that were to be done here, the chances of the defendant, who is neither a lawyer nor Irish, ever seeing the summons in print, either in those particular newspapers or in any other, are slim to none."
Facebook Service in El Paso
I am a part of the Texas Family Law Group on Facebook, and I learned that at least one Judge in El Paso allows and encourages substituted service via Facebook. They also generously provided me some sample forms that they used, including:
- Motion for Other Substituted Service
- Order on Motion for Other Substituted Service
- Affidavit in Support of Motion for Other Substituted Service
This Motion for Other Substituted Service is brought by _________________, Petitioner,
who shows in support:
1. Attached is the Affidavit of _________________ (Affidavit in Support of Motion for Other Substituted Service), stating facts showing that service of citation by publication (via Facebook) on ________________________ is authorized.
2. Reasonably effective notice, via a substituted method of service as likely as publication via Facebook is likely to give ____________________ actual notice.
3. _____________ Facebook url is:
________________ prays that the Court grant this Motion for Other Substituted Service.
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