In two recent opinions, the US District Courts for the Eastern District of Missouri and the Southern District of New York reined in service of process by e-mail and Facebook. The Eastern District of Missouri prohibited electronic service on domestic defendants because this method of service is not permitted under the federal rules or under applicable state law. The Southern District of New York allowed service by e-mail on foreign defendants, but would not permit service by Facebook because the court had not been provided with the screenshots of the Facebook pages.

These opinions demonstrate that although courts are becoming more open to the idea of serving process by electronic means (at least on foreign defendants), they are doing so cautiously. The decisions show that:

In an August 12, 2013 decision, the US District Court for the Eastern District of Missouri denied the plaintiff's motion to serve process on two US defendants by Facebook. The court found that under FRCP 4(e), which applies to domestic defendants, electronic service is permitted only if the applicable state law allows it. (Joe Hand Promotions, Inc. v. Shepard, No. 4:12cv1728, (E.D. Mo. Aug. 12, 2013).)

Plaintiff Joe Hand Promotions, Inc. made several unsuccessful attempts to serve defendants in Missouri under the traditional methods of service. The plaintiff then requested permission to serve the defendants by attaching a copy of the summons and complaint to a message or an e-mail, which would be sent to the defendants' Facebook accounts. The plaintiff argued that service by Facebook is similar to service by e-mail, which is authorized by FRCP 4(f). The court rejected this argument, finding that FRCP 4(f) only applies to service on foreign defendants. The court noted that the cases in which service by e-mail has been permitted all involved foreign defendants.

The court explained that for domestic defendants, service of process is permitted only by:

(FRCP 4(e).)

The court concluded that FRCP 4(e) does not allow e-mail as a means of substituted service on domestic defendants unless applicable state law permits it (which Missouri law does not). Because service by process through e-mail is not permitted, the court found that service through Facebook is certainly not allowed.

The court also noted that the plaintiff had not fully exhausted its efforts to serve the defendants and found that the plaintiff could have attempted service through other means authorized under FRCP 4(e).

Notably, the same plaintiff tried to serve other defendants by Facebook in an action before the US District Court for the District of Kansas. Although that case also involved service of process on domestic defendants, the court did not make a distinction between the means of service permitted under FRCP 4(e) and FRCP 4(f). Rather, the District of Kansas denied the request to serve by Facebook because the plaintiff failed to provide sufficient evidence that the Facebook profile was current, active or authentic. (See Legal Update, District of Kansas Finds that Service by Facebook Not Permitted Where Profile's Authenticity in Question.)

In an August 7, 2013 decision, the US District Court for the Southern District of New York permitted service of process on defendants located in India by e-mail, but not by Facebook (FTC v. Pecon Software Ltd., Nos. 12 Civ. 7186, 12 Civ. 7188, 12 Civ. 7191, 12 Civ. 7192, 12 Civ. 7195, (S.D.N.Y. Aug. 7, 2013)). The court reiterated its earlier findings from a related case, FTC v. PCCare247, that:

(See Legal Update, SDNY: E-mail and Facebook Service on Indian Defendants Approved.)

In Pecon Software, the FTC had difficulties with service in India. As a result, the FTC made a motion requesting permission to serve the defendants by e-mail and Facebook. The court permitted service by e-mail on several defendants but did not allow service by Facebook. Unlike in PCCare247, the FTC failed to provide the court with actual screenshots of the defendants' Facebook pages. Without viewing the pages, the court could not confidently find that service by Facebook was highly likely to reach the defendants. Thus, due process requirements were not satisfied.