service by social media
Service by Social Media

When a new lawsuit is filed, whether it is a divorce in Dallas County, Texas or any other type of suit, the responding or defending party has a right under the Constitution to be personally service with citation. Also called “service of process”, this means that the party who filed for divorce must request the clerk of the court to issue citation upon the responding party and it must be served by an authorized neutral third party (such as a constable or process server). If a temporary hearing is scheduled, notice of hearing must also be served on the responding party.

But, what happens if the responding party dodges service or for some reason cannot be served easily? Under that scenario, the filing party must file a motion and obtain an order authorizing substituted service. This substituted service must be authorized in a manner that is likely to actually give the responding party notice of the lawsuit. Most often this involves posting the citation on the front door of his or her house. In the day and age of electronic communication, folks are starting to request service by electronic means. Maybe the responding party is travelling but always checks email. The Court might authorize service via email.

One issue that has arisen lately is whether it is permissible to serve someone through social media channels. Zachary Ludens with Carlton Fields Jorden and Burt in Miami Florida wrote a blog post called “Where is the ‘Serve’ Button?” about this topic. Ludens points to some recent federal and state court decisions that have opened the door to service of process via Facebook and LinkedIn messaging. This began as a method of serving foreign individuals under the federal rules of civil procedure, Ludens expects it could expand to cover folks living in the United States.

“Between March 2013 and February 2014, two federal courts allowed foreign defendants to be served via social media. In both cases, the courts initially determined whether the defendant’s resident nation had affirmatively disallowed service via social media in an agreement with the United States. When that question was answered negatively, the courts—the Southern District of New York in FTC v. PCCare247 Inc. and the Eastern District of Virginia in Whoshere, Inc. v. Orun—examined whether service via social media was “reasonably calculated under the circumstances” to provide notice, in accordance with due process standards. In both cases, the courts allowed service via social media—but required that it be supplemented with service via email.

“Then, in September 2014, a family court in Staten Island, New York, allowed a defendant to be served via Facebook when the traditional methods of service proved inadequate. Determining that the defendant had been actively using her Facebook account, the court concluded that Facebook provided “the best chance of the [defendant] getting actual notice of these proceedings.” Nevertheless, the court also required mailing of service to the defendant’s last known address.”

These cases indicate a willingness among some judges to permit social media service, when coupled with other means of notifying the responding party. This means we are one step away from social media service being the only method of substituted service when personal service isn’t available.

But, what happens if the message via Facebook goes to the person’s “other” inbox. Some don’t know that the “other” inbox exists much less how to access it. What if the person gets a notification from LinkedIn that he or she has a message but doesn’t check it? (I know I don’t check my LinkedIn messages all that often.) Or, what if the person thinks the Twitter pm was a scam or junk and ignores it? This is likely the reason for the secondary method of coupling the social media notice with email. When personal service is not available, other methods of service are imperfect, but should be designed to reasonable give the responding party actual notice of the suit.

And, who does the service via social media come from? A process server unknown to the party but still a “neutral”? Or someone known to the party?

How do you know that you served the right person when there are multiple parties registered to the same name and maybe even in the same location when the name is common?

Process servers use all sorts of means to locate a party, including social media resources. But, even process servers are injecting discontent with the idea of service by social media. See “Getting Serious About Service of Process by Social Media” by Stephanie Irvine. That article points to a survey of over 300 process servers that says less than 2% have served documents through social media. One of the main problems as reported by the process servers seems to be getting a verification of receipt.

What do you think about social media service? Is it a good idea? Have you had experience with using it? Let us know!

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.