District of Kansas Finds that Service by Facebook Not Permitted Where Profile's Authenticity in Question | Practical Law

District of Kansas Finds that Service by Facebook Not Permitted Where Profile's Authenticity in Question | Practical Law

In Joe Hand Promotions, Inc. v. Carrette, the US District Court for the District of Kansas denied the plaintiff's motion to serve its summons and complaint on the defendants through Facebook, holding that service through Facebook in this case would not meet the standards of due process because the plaintiff did not provide sufficient evidence to prove that the Facebook profile was current, active or authentic.

District of Kansas Finds that Service by Facebook Not Permitted Where Profile's Authenticity in Question

by Practical Law Litigation
Published on 13 Aug 2013 • USA (National/Federal)
In Joe Hand Promotions, Inc. v. Carrette, the US District Court for the District of Kansas denied the plaintiff's motion to serve its summons and complaint on the defendants through Facebook, holding that service through Facebook in this case would not meet the standards of due process because the plaintiff did not provide sufficient evidence to prove that the Facebook profile was current, active or authentic.
On July 9, 2013, Magistrate Judge James P. O'Hara of the US District Court for the District of Kansas issued an opinion in Joe Hand Promotions, Inc. v. Carrette denying the plaintiff's motion to serve its summons and complaint on the defendants through Facebook. The court reasoned that service by Facebook in this case would not comport with the standards of due process because the plaintiff did not provide sufficient evidence to prove that the Facebook profile was current, active or authentic.
Plaintiff Joe Hand Promotions, Inc. filed this copyright infringement action in the District of Kansas on September 25, 2012. The plaintiff made several unsuccessful attempts to serve the complaint and summons on the defendants in person and allegedly exhausted all standard means to serve the defendants. After these failed attempts, the plaintiff asked the court to authorize service on the defendants in the form of a Facebook message.
The court considered whether service through Facebook would comport with traditional notions of due process and whether it would achieve the desired result of effectuating service on the defendants. In doing so, the court reviewed two cases that previously considered service by Facebook:
  • Fortunato v. Chase Bank USA, where the US District Court for the Southern District of New York held that Facebook was an inadequate means of service because the movant presented no facts about the Facebook profile's authenticity.
  • Federal Trade Commission v. PCCare247, Inc., where the Southern District of New York permitted service by e-mail and Facebook, holding that the plaintiff had shown a degree of certainty that the defendants' Facebook profiles were operated and maintained by the defendants. The Southern District of New York noted that service of process by Facebook alone might not satisfy due process requirements.
After reviewing these cases, the District of Kansas denied the plaintiff's motion to serve the summons and complaint through Facebook. The court reasoned that unlike in Federal Trade Commission v. PCCare247, Inc., there was little, if any, evidence that the Facebook profile was authentic. For example, the court noted that the profile did not list an e-mail address. Accordingly, the court held that service through Facebook in this case would not comport with traditional notions of due process.
Court documents: