The ability to serve an individual with a lawsuit on Facebook and other popular social media and social networking services.is quickly becoming a reality under New Jersey law. In a recent case, an adopted ten-year-old child was being harassed by a stranger claiming that they were the child biological father, first via Instagram and then on Facebook. He even used pictures that he obtained from the child’s mother’s Facebook page and posted them on his Facebook page in order to further claim that he is the child’s father. The parents then hired an attorney to obtain a permanent injunction
The typical manner in which an attorney shall serve a party is via “personal service.” A sheriff’s officer or a process server personally handing the Complaint upon the defendant effectuates service. However, the are other matters, pursuant to New Jersey’s Rules of Court, that allow for regular and certified mail as a proper method of serving a defendant. Finally, as a means of last resort, a lawyer may serve a defendant by was of publication. Practically speaking this means obtaining permission from a judge to place a notice in the defendant’s local newspaper in order to give them notice that they have been named as a defendant in a lawsuit in New Jersey.
In this case, the lawyer did not have a mailing address for the defendant. In fact, the attorney only knew that the defendant lived somewhere in the vast state of Pennsylvania. However, it was glaringly clear that the defendant was actively using Facebook on a daily basis. Therefore, the attorney sought permission of a judge of the Superior Court of New Jersey to allow for service via Facebook.
By way of background, it is imperative in American jurisprudence that a party must prove to a New Jersey court that the adverse party has been notified of a pending lawsuit against them. Usually my law firm is able to obtain a mailing address for an individual. Sometimes we hire a private investigator and other times we simply find their address on Google. If that did not work, then we would seek permission of the court to serve the person via a newspaper.
That is now a big problem as the newspaper business has collapsed. While I personally recall how sad I felt cancelling my Star-Ledger, the reality is that Americans no longer religiously read newspapers like back in the “old days.” In turn, a court has very little faith in a defendant being notified of a pending lawsuit against them by service by publication. While New Jersey’s Rules of Court require an update due to our changing times, the judge in this case felt that due to the defendant’s active use of their Facebook account would be the best and most probable way to effectuate service. Following you shall find the details of this case that illuminates this huge development in New Jersey law.
In K.A. & K.I.A. v. J.L., parents K.A. and K.I.A. instituted suit to enjoin J.L. from: 1) calling himself the father of their son, Z.A., 2) from contacting them and the child, and 3) to compel J.L. to remove information about Z.A. that he had published online. The parents had great difficulty in serving the complaint and summons on J.L. by traditional contact methods of certified and regular mail, so they requested permission to substituted service of process through Facebook. In this case, the Family Part was satisfied that the only available method of service of process to the parents was Facebook.
K.A. and K.I.A. are Z.A.’s adoptive parents. Z.A.’s biological father is only identified as someone named J.P., and is not a party to the case. The parent’s claimed that J.L., the person holding himself out as Z.A.’s father, was a complete stranger that they never had any contact with before the events that gave rise to this lawsuit happened. According to the adoptive parents, J.L. contacted their family by finding K.A.’s Facebook profile and sent him a friend request. After K.A. denied the Facebook friend request, J.L., then contacted Z.A. through Instagram. The parents allege that J.L. told Z.A. that he was adopted and that he was his biological father. They further allege that J.L. told Z.A. that he knew of his birth location, and told him the identities of Z.A.’s birth mother and biological siblings.
After that, J.L. put a picture of Z.A. into a image collage of three separate photographs. Each photograph was of a different person, and J.L. held the image collage out to be a picture of his children. J.L. published this image collage on his Facebook account where it is available for public viewing. The parent’s allege that J.L. got the picture of Z.A. from K.A.’s Facebook page, and that J.L. also sent a Facebook friend request to K.A.’s sister.
James Miskowski, the attorney for the parents, stated that he mailed cease and desist notices to J.L.’s two last know addresses, by certified and regular mail, both of which were in Pennsylvania. The attorney stated that the certified mailings were sent back as unclaimed, but that the regular mail, which was sent on November 4, 2015, was not returned as of November 30, 2015. The parents submitted partial copies of the envelopes for the certified mailings as evidence. On one envelope the post office stamped “RETURN TO SENDER/ATTEMPTED – NOT KNOWN/UNABLE TO FORWARD,” and the other was stamped “RETURN TO SENDER/ NOT DELIVERABLE AS ADDRESSED/UNABLE TO FORWARD.” Because of the difficulty the parent’s encountered in serving J.L. by mail, they requested permission to do substituted service of process through Facebook.
The issue in this case is whether the Family Part of Morris County may assert personal jurisdiction over J.L. through service of process by Facebook. First, the Family Part judge explained that the addresses the parents claimed as J.L.’s were out of state, and a court cannot assert jurisdiction over an out of state defendant unless that defendant has sufficient contact within the forum state. Out of state activity can be considered as contact within the forum state for purposes of personal jurisdiction when the defendant knew that the effects of his or her actions would manifest in the forum state. This is called the “effects test” and has traditionally been used to support findings of jurisdiction over people whose out of state conduct went into the forum state and targeted an in state resident, making the forum state the main point of the harm. Furthermore, according to the 2003 United States 3rd Circuit Court of Appeals case of Toys “R” Us, Inc. v. Step Two, S.A., a person’s intentional interaction with a forum state through the internet is sufficient to establish personal jurisdiction. In this case, J.L., the owner of the social media accounts, knowingly contacted several members of the parent’s family who are all New Jersey citizens. It was clear that any harm from this contact would be felt in New Jersey, and as such, the conduct conferred personal jurisdiction over J.L. to the Family Part.
Personal jurisdiction is dependent on a defendant’s contact within the forum state. If one engages is continuous and systematic activities in a state, then that state can properly exercise general jurisdiction over that person. However, when that person’s activities do not rise to the level of continuous and systematic, a court can only exercise specific jurisdiction. Specific jurisdiction is limited to the causes of action that arise directly from the person’s contact within the state. In this case, J.L.’s only alleged contact in New Jersey was a few activities done through social media that targeted residents of New Jersey. The Family Part judge explained that while such communications were not continuous and systematic to support a finding of general jurisdiction, they were sufficient to justify a finding of specific jurisdiction. Because these activities were the subject of the parent’s’ complaint, the Family Part court could properly exercise jurisdiction over J.L.
Personal jurisdiction, however, has another aspect called service of process. Someone stating a cause of action must personally serve a complaint and summons on the defendant. With that said, if a person’s reasonable, good faith attempt to effectuate personal service of process is not successful, then that person may attempt to effectuate service of process using secondary methods enumerated in the court rules. The court rules provide that as a last resort, if service of process cannot be effectuated by any of the means provided for in the court rules, then any defendant can be served as provided by court order.
The Family Part judge of Morris County explained that, in certain circumstances, service of process through Facebook may be valid. The judge explained that as the Instagram and Facebook accounts at issue were the only tools of the alleged harm, service of process through Facebook would be a reasonable method to inform J.L. of the pendency of the lawsuit and afford him an opportunity to defend himself against the claims alleged against him. J.L.’s recent activity on Facebook showed that his account is active and it is probable that he will receive the documents. Moreover, Facebook has a feature that lets the sender of a message to see if the recipient has opened the message, ensuring that the recipient is on notice of the contents of the message.
In this case, the Family Part was satisfied that the only available method of service of process to the parents was Facebook. The only address that the parents could locate was not a good address, so service of process could not be accomplished personally or by mail. The relief sought by the parents, an injunction prohibiting contact, made publication of notice in a newspaper obsolete. J.L. had to actually receive the pleading and know of any restraint or injunction, if the conduct was to be stopped.
The constitutional requirements of service of process are reasonably calculated notice that informs the interested parties of the legal action, and provides them an opportunity to present any objections they may have. The court analyzed the following factors in order to establish that service by Facebook would be proper: 1) could J.L. be served by traditional methods specifically allowed for by court rules; 2) is the requested relief appropriate for service by publication; and 3) would service of process through Facebook still protect J.L.’s due process rights
Here the requested relief was to stop specific conduct, and thus actual service was vital. Furthermore, there was a substantial likelihood that J.L. would receive the order to show cause and complaint through Facebook. J.L. actually appeared at the hearing through telephone, therefore establishing that he was in fact served. Therefore, the Family Part was satisfied that service of process through Facebook was successful and valid. The court entered the injunction against J.L. and prohibited him from contacting the family.
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