Yes, you can use Facebook to serve a lawsuit on an out of state Defendant…Sometimes

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Lawsuit and Litigation Attorney

Plaintiffs instituted this action to enjoin defendant from holding himself out as the father of their son, Z.A. to enjoin defendant from contracting plaintiffs and Z.A., and to compel defendant to remove information pertaining to Z.A. that he has allegedly published online. Plaintiffs are Z.A.’s adoptive parents. Z.A.’s biological father of record is J.P.

Plaintiffs indicate that defendant is a “complete stranger” to them, and they have not had any contact with him prior to the events that gave rise to this litigation. Plaintiffs alleged that defendant initiated contact with their family by locating K.A.’s Facebook profile and sending him a friend request, which K.A denied. Plaintiffs allege that defendant then contacted Z.A. through Instagram, another Social Media platform. Plaintiffs represent that defendant communicated to Z.A. that Z.A. had been adopted and identified himself as Z.A.’s biological father. Plaintiff further allege that defendant informed Z.A. that he knew the location of Z.A.’s birth and disclosed both the identity of Z.A.’s birth mother and that Z.A. has biological siblings at large. Plaintiffs state that defendant incorporated a picture of Z.A. into an image comprised of three separate photographs, each featuring a different person, and allege that defendant holds out the picture as an image of his children. Plaintiffs further allege that defendant published the conglomerate image on his Facebook page, where it was presently available to the public. Plaintiffs believe that defendant obtained the picture of Z.A. from K.A.’s Facebook profile. Plaintiffs also allege that defendant had sent a Facebook friend request to KA’s sister, which she, too, denied. Plaintiffs’ attorney certified that he mailed cease and desist notices to defendant’s two last known addresses, both of which are in Pennsylvania, by certified and regular mail. Plaintiffs’ attorney reports that the certified mailings were returned as unclaimed, but the regular mail had not been returned. One envelope bears the word, “RETURN TO SENDER/ATTEMPTED – NOT KNOWN/UNABLE TO FORWARD,” and the other reads, “RETURN TO SENDER/NOTDELIVERABLE AS ADDRESSED/UNABLE TO FORWARD.” In light of their difficulty in reaching defendant by mail, Plaintiffs now sought leave to effectuate substituted service of process via Facebook.

The issue presented here is whether the court is able to assert personal jurisdiction over defendant by virtue of the service of the order to show cause and complaint by Facebook. As a preliminary matter, the addresses that plaintiffs allege are defendants are out of State. A court cannot assert jurisdiction over an out-of-state defendant unless such defendant has engaged in contact with the forum state. An out-of-state activity constitutes a contact with the state for the purposes of personal jurisdiction where the actor knew that its effects would be manifested in the forum state. This “effects test” has been used to support findings of jurisdiction over defendants whose out-of-state conduct reached into NJ State and targets an in-state resident, thus making the NJ state the focal point of the harm.

Here, the only contacts with New Jersey alleged of defendant are a handful of activities carried out through social media that target NJ residents, plaintiff’s son. Though these activities are not continuous and systematic such that they support a finding of general jurisdiction, they are sufficient to justify specific jurisdiction over certain causes of action. The court can properly exercise jurisdiction over the account holder for the purpose of addressing plaintiff’s allegations.

If a plaintiff’s reasonable, good-faith attempt to effectuate personal service proves unsuccessful; the plaintiff may then attempt to effectuate service using the secondary methods prescribed in the court rules. Service of process via Facebook is in certain circumstances given that the Facebook and Instagram accounts are the sole cause of the harm, service via Facebook apprise the account holder of the pendency of this action and afford him or her an opportunity to defend against plaintiff’s claims. The account holder’s recent activity on Facebook indicates that the account is active and that receipt of the documents is probable. Additionally, Facebook includes a feature that allows the sender of a message to see whether the recipient is on notice of the message’s contents. Here, the court is satisfied that the only method of service available to plaintiffs is Facebook.

To discuss your NJ Lawsuit and Litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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