You’ve Been Served: on Facebook?
In the age of social media, tortious conduct can easily arise between people in different states. What recourse does a litigant have when they are seeking to obtain jurisdiction over someone who has harmed or wronged them from another state and is not able to be served in New Jersey? A recently published Chancery Division case in New Jersey addressed this novel issue.
In K.A. v. J.L., 2016 N.J. Super. LEXIS 166 (Ch.Div. Apr. 11, 2016) (approved for publication May 10, 2017) the Plaintiffs were adoptive parents of Z.A. The defendant was posting on Facebook that he was the biological father of Z.A. and posting edited photographs of Z.A. on Facebook. The plaintiffs filed an order to show cause to enjoin the defendant from contacting them and Z.A., and to compel the defendant to remove information pertaining to Z.A. from his Facebook page. The plaintiffs were unable to serve the defendant at his last known address in Pennsylvania.
The issue presented was whether the court was able to assert personal jurisdiction over the defendant by an order to show cause and complaint served on Facebook. It is well established that a court cannot assert jurisdiction over an out-of-state defendant unless such defendant has engaged in contact with the forum state. Waste Mgmt. v. Admiral Ins. Co., 138 N.J.106 (1994). Activities done out of state but which can be considered a “contact” within the state are those that the actors knew would have effects in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 311 (1980). This means that jurisdiction could be found over out of state defendants whose out-of-state conduct targeted an in-state resident, making the forum state the “focal point of the harm.” See Calder v. Jones, 465 U.S. 783, 789 (1984); Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003). Whether that jurisdiction is found to be general or specific depends upon whether the defendant’s activities are “continuous and systematic”. Personal jurisdiction also requires that service of process must be effectuated on the defendant; meaning, they must be served with the complaint personally. However, if a reasonable, good faith attempt to personally serve a defendant is unsuccessful, then Rule 4:4-4(b)(3) provides that “any defendant may be served as provided by court order, consistent with due process of law."
The court in K.A. v. J.L. found that service of process via Facebook is, in certain circumstances, satisfactory. In that case the court found that because the defendant’s Facebook and Instagram accounts were the “sole conduits of the purported harm,” meaning the conduct alleged to have occurred only happened on Facebook and Instagram, then service via Facebook was reasonable to advise the defendant of the action against him and to give him an opportunity to defend himself against those claims. There was recent activity on the defendant’s Facebook account and therefore it was reasonable to believe he received the documents served by that method. The court appeared to give weight to the fact that Facebook messages allowed the sender to see if the recipient opened the message and therefore it can be determined whether the recipient is on notice of the contents of the message. The court was satisfied that the only method of service available to the plaintiffs was via Facebook, as it could not be accomplished personally or by mail. Additionally, the defendant even acknowledged receipt of the summons and complaint. The court found that the fundamentals of due process were satisfied.
This decision is significant in that people located outside of New Jersey should be aware that their actions against people located in New Jersey on Facebook, and possibly other forms of social media, could be enough to establish personal jurisdiction over them in New Jersey, and also that they could be served with a lawsuit via Facebook message if other forms of process are unsuccessful.
Juliann M. Alicino has significant experience litigating civil matters, including in the areas of general liability, automobile liability, construction liability, insurance coverage, and commercial litigation. Should you have any questions or have any litigation needs, please do not hesitate to contact Ms. Alicino at firstname.lastname@example.org or (732) 545-4717.