On February 20, 2014, in WhosHere, Inc. v. Orun, the US District Court for the Eastern District of Virginia held that service of process on a defendant in Turkey delivered by e-mail and through Facebook and LinkedIn was permissible under the terms of the Hague Convention and comported with constitutional due process requirements (No. 13-0526, (E.D. Va. Feb. 20, 2014)).

Plaintiff WhosHere, Inc. (WhosHere) filed suit against defendant Gokhan Orun (Orun), a resident of Turkey, raising trademark infringement and unfair competition claims related to a social networking application. Prior to bringing suit, plaintiff had contacted the defendant via e-mail regarding his allegedly infringing activities. Defendant responded by e-mail, identifying himself as the developer of the allegedly infringing mobile application, and provided WhosHere with a secondary e-mail address at which he could be reached. Plaintiff sent defendant a courtesy copy of the complaint and had no further response from defendant.

Plaintiff initially attempted to serve process on defendant under the Hague Convention, but was unsuccessful. WhosHere then moved for permission to serve the defendant through e-mail, as well as Facebook and LinkedIn, social networking websites, pursuant to FRCP 4(f)(3).

In considering plaintiff's motion, the court noted that service of process on a foreign individual must comply with constitutional due process requirements, as well as FRCP 4(f). To satisfy due process, service must provide interested parties with:

FRCP 4(f)(3) allows service by any means, so long as it:

The court first determined that WhosHere's proposed methods of service were not prohibited by the Hague Convention. While Article 2 of the Convention generally requires documents in civil matters to be served through a central authority, Article 10 permits "alternative means" of service, so long as the destination state does not object to these means. Although Turkey had objected generally to the means of service listed in Article 10, its objections were limited solely to those enumerated means, which do not include service by e-mail or through a social media network. Therefore, the court held, service through these channels was permissible and did not violate any international agreement.

The court then concluded that WhosHere's proposed methods of service comported with due process. The court held that, collectively, serving process through two e-mail addresses and two social networking sites was likely to provide the defendant with notice of the litigation. In so doing, the court relied on the following facts:

Counsel should remember that even if service of process on a foreign individual is unsuccessful under the Hague Convention, federal courts have broad discretion to allow alternative means of service, as long as these means do not violate any international agreement and are reasonably calculated to provide the defendant with notice of the litigation.

For more on international service of process, see International Litigation: US Laws Governing Cross-border Service of Process