FTC v. PCCARE Inc., 12 civ-7189 (S.D.N.Y. Mar. 3, 2013) is a very strange case because it shows how service of process might be altered and in what circumstances. In this case, the FTC wanted to be able to serve documents other than the Summons and Complaint via Facebook or e-mail. The Southern District of New York granted this request.
This is a very strange case. Generally, the Hague Service Convention has guidelines detailing how abroad defendants may be served. The Hague Service Convention doesn’t expressly authorize service on foreign defendants by email or social media accounts.
So why could you serve documents a foreign defendant over Facebook?
The court explained that “A court in this district has held that the Hague Service Convention only applies to the initial service of process, not subsequent documents.” See SEC v. Credit Bankcorp., Ltd., 2001 WL 666158, *4 (S.D.N.Y. Feb 14, 2011). In addition the court relied on Federal Rule of Civil Procedure 4(f)(3), whereby it stated,
a Court may fashion means of service on an individual in a foreign county, so long as the ordered means of service (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process.” SEC c. Anticevix, 2009 WL 361739, at *3 (S.D.N.Y. Fec. 13, 2009).
The court reasoned that federal courts need to keep an open mind about technology.
The court acknowledges that service by Facebook is a relatively novel concept, and that it is conceivable that defendants will not in fact receive notice by this means. But, as noted, the proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant at his, or its, known email address. And history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.