As recently reported in Virginia Lawyers Weekly (Mar. 5, 2014) the Alexandria U.S. District Court issued a decision last month in which the Court approved service of process service of process on an individual in a foreign country in a lawsuit via Facebook, LinkedIn and email.
Case Background
In WhosHere Inc. v. Orun (VLW 014-3-103; No. 1:13-cv-526-AJT-TRJ, 2014 U.S. Dist. LEXIS 22084 (E.D. Va. Feb. 20, 2014)), a trademark infringement case, plaintiff WhosHere Inc. launched a “social proximity networking application” in 2008 that allows users to create online profiles and meet people near them with similar interests. The company has sued Turkish resident Gökhan Örün, who is doing business as “WhoNear” and “whonearme,” both of which plaintiff alleges are unauthorized imitations of the WhosHere® trademark, according to WhosHere Inc.’s Complaint.
Prior to filing suit, WhosHere contacted defendant using email to notify him of the alleged infringement. Although the defendant responded to emails, and provided plaintiff with additional contact information including a second email address and a Skype username, he continued to use the “WhoNear” name.
Requirements for Service
Service of process on a foreign individual must comply with constitutional due process requirements, as well as FRCP 4(f) , as noted by the Court. To satisfy due process, service must provide interested parties with:
- Notice reasonably calculated to inform them of the action.
- Opportunity to object.
FRCP 4(f)(3) allows service by any means, so long as it:
- Is not prohibited by any international agreement.
- Meets constitutional notions of due process.
The court first determined that WhosHere's proposed methods of service were not prohibited by the Hague Convention. While Article 2 of the Convention generally requires documents in civil matters to be served through a central authority, Article 10 permits "alternative means" of service, so long as the destination state does not object to these means.
Attempted Service
Whoshere ultimately filed suit in July 2013, and emailed a courtesy copy of the Complaint to the defendant. They attempted to serve process through the Turkish Ministry of Justice under Rule 4(f)(1). However, the Ministry returned the summons and complaint to the U.S. Office of Foreign Litigation because the defendant could not be located at the provided address.
Alternative methods of service allowed
After Whoshere’s efforts to serve Örün under the Hague Convention failed, Whoshere moved the Court to serve Örün through the two email addresses, Facebook, and LinkedIn pursuant to Rule 4(f)(3), which provides for service on foreign individuals “by other means not prohibited by international agreement.” (see footnote 2).
In granting the motion, U.S. Magistrate Judge Thomas Rawles Jones Jr. held that alternative means of service satisfied due process in this case because it was “reasonably calculated to provide notice under the circumstances.” Slip Op. at 5. Judge Jones found preliminarily that Turkey has not specifically objected to service by email or social media networking sites, as signatories to the Hague Convention may do. Importantly, Rule 4(f) does not favor one of the three enumerated methods of service of process over the other, nor does it require a plaintiff to first attempt service pursuant to Rule 4(f)(1) or Rule 4(f)(2) before trying alternate methods. He concluded that the four methods used to contact the defendant (two email address, Facebook, and LinkedIn) collectively are “highly likely to provide defendant notice” of the suit, because defendant himself provided plaintiff with his email addresses and the social networking profiles were verified to be the defendant’s. Slip Op. at 7. Judge Jones also stated that courts have been flexible in applying Rule 4(f)(3) to allow service by email and social networking sites previously, citing decisions from federal courts in New York, Georgia and Florida as examples.
Application to other cases requiring service of process on an individual in a foreign country
We could see a trend towards service of process on an individual in a foreign country through email or social media. Even if service of process on a foreign individual is unsuccessful under the Hague Convention, federal courts have broad discretion to allow alternative means of service, as long as these means do not violate any international agreement ,comport with constitutional notions of due process, and are reasonably calculated to provide the defendant with notice of the litigation.
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1The ruling can be found here: http://docs.justia.com/cases/federal/district-courts/virginia/vaedce/1:2013cv00526/295058/19/0.pdf?1393003174.
2Rule 4(f) governs service of process on an individual in a foreign country and provides three mechanisms of service:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by [certain specified means outlined in the Rule] reasonably calculated to give notice . . .; or
(3) by other means not prohibited by international agreement, as the court orders.