Brooklyn Judge Denies Service of Process by Facebook

Service by FacebookAs we are constantly trying to determine what will be the parameters in using service of process via social media accounts, a new case in Brooklyn held that a woman attempting to serve her husband via Facebook could not be granted as the husband was not an active user of the platform.  According to the record, Manal Qaza and husband Abdulla Saeed Hazza Alshalabi were married in New York in 2011.  Her husband left New York without any contact information about two months afterwards.  Qaza stated that Alshalabi was deported and she was not aware of where his present location was.

She thereafter began an matrimonial action and filed a motion for an Order allowing her to serve her husband by publication via Facebook.  She stated that she had made numerous attempts to personally serve him at last known addresses and even attempted to contact family members to determine where his current whereabouts were.  She believed that Alshalabi was in Saudi Arabia as she alleges two Facebook profiles indicated that it was his current location.  She said that she was in contact with him through Facebook.  She argued that in Saudi Arabia she could not ensure service and the costs for publishing in a paper in Saudi Arabia would be out of her means.

Service by FacebookBrooklyn Supreme Court Justice Jeffrey Sunshine denied Qaza’s request stating that the plaintiff failed to authenticate that her husband’s Facebook profile was actually his and, assuming it was, that he actually uses the profile to communicate. He noted the profile hasn’t been updated since April 2014.  Also Qaza never gave proof that she communicated with Alshalabi on Facebook in the past.

Although courts are much more open to use this type of substituted service, this case shows that there must be some proof that the parties have engaged in communication using the method in the past.  The party requesting the service would have the burden of proof to show that this method would reasonably give notice to the party to be served that an action has commenced against them.  There were not any indications of that Alshalabi had used Facebook or engaged in communication with Qaza since she did not offer any proof to the contrary.  This area of process service in New York is evolving daily.  Cases are constantly appearing in New York City courts that will either limit or expand this type of substituted service.

Should you need any assistance with service in the NYC area then DJ&H Process Service can assist you.  We have over 20 years of experience serving legal documents in the 5 boroughs and surrounding regions.  You can contact us at 718-843-1184 if you need assistance with the process service of any of your legal papers.

Federal Magistrate Judge Authorizes Service of Process via Twitter

service via TwitterA Federal Magistrate Judge in San Francisco, Laurel Beeler has approved the use of Twitter for service of process.  The case involves an international citizen of Kuwait who is an active user of the social media platform.  According to the case, the alleged defendant is engaged in the financing of terrorist activities and used Twitter to actively raise funds and promote activities.  He also has a huge Twitter following according to the record and the parties attempting to serve the Defendant has had difficulties effectuating personal service.  Please find the Order here.

According to 4(f) of the Federal Rules of Civil Procedure:

 

Rule 4 – Summons

(f) Service Upon Individuals in a Foreign Country. Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States:

(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or

(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:

(A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or

(B) as directed by the foreign authority in response to a letter rogatory or letter of request; or

(C) unless prohibited by the law of the foreign country, by

(i) delivery to the individual personally of a copy of the summons and the complaint; or

(ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or

(3) by other means not prohibited by international agreement as may be directed by the court.”

Judge Beeler concluded that Rule 4(f) of the Federal Rules of Civil Procedure permits use of service through Twitter.

 

This case is another example of the Courts extending their reach using social media.  A previous case has allowed service via Facebook after the initiating party had exhausted all his remedies and there was a pattern of the defendant using the social media platform to communicate in the past. It is another example of the Courts accepting that social media is a reliable method of communication however there have been plenty of concerns of the over-use of this method of service.  All prior cases have shown that the serving party would have to attempt several methods before service by social media is even considered.

If you need help with service of process in Federal Court or in the NYC, we can assist you.  DJ&H Process Service has expertise serving all form of legal documents for over 20 year.  You can contact us at 718-845-1184 if you need assistance serving legal documents in New York City or surrounding regions or should you have any questions.

 

Will Dog Bites be treated as an Assault on Process Servers in New York City?

process server dog bitesAs we have recently published in a previous article, a bill has been signed by Gov. Andrew Cuomo which includes provisions incorporating new elements to second-degree assault provisions of state Penal Law, §120.05.  The statute has been amended to make it a crime of inflicting an injury on process servers “with intent to prevent or obstruct” the performance of their duties.  The bill specifically provided that it should be considered assault by a person who seeks to prevent a process server from doing his job by “releasing or failing to control an animal” such as a dog.

This has caused a huge celebration in the process service industry as many injuries have been caused by parties to be served intentionally allowing their dogs to roam free leading to injuries to process servers doing their jobs in New York City.  Process servers are constantly injured by dogs that are roaming free and there is no case more illustrative of this than a process server in Texas being killed by several loose dogs.  According to the report which you can read here, the owners of where the dogs were free were not present at the time that the process server was killed and possibly would not be charged with a crime.

It is the intentional acts that will be prosecuted under this provision in New York City.  According to Larry Yellon, President of the New York State Professional Process Server Association the statutes ““It contains a clause on animals, so if you let a dog loose to attack a process server, it’s a felony.”   Process servers must still be aware of their surroundings.  Although the assault provision will cover retaliatory behavior it certainly doesn’t look like it will cover the homeowner who just leaves their dog outside for an entire day to menace the entire neighborhood.  With that being said, dog bites will be more extensively covered under the additional to the Penal Law.  Process servers in New York City, like all other workers deserve to do their job without harm and this is certainly a good step forward.

Will NYC Process Servers be Required to use Body Cameras?

process server body camerasRecently there has been a push for having more accountability for law enforcement officials.  Many counties are suggesting body cameras be required for all police officers in order to monitor the behavior of both the civilian interactions as well as officer reactions.  Illinois is now pushing for this technology to be used by process servers in counties of populations over 3 million.  This would only affect one county (Cook) in Illinois.

More About Illinois Bill HB 6327

Illinois Bill HB 6327, would require that all the video data be stored until the resolution of the case.  This would place additional expenses on process servers who are already feeling the pinch of expenses due to competition and additional technological advances that have become commonplace in the industry.  The idea of the bill would be to improve transparency and security for public servants.  However, there has been opposition that litigants would become more violent if they knew that they will be video recorded.  For more information on the bill see ServeNow’s article here.

Will this affect the New York City process service industry?

Being that New York City is a densely populated area, the legislature in New York City via the Department of Consumer Affairs has promulgated many laws since 2011 to maintain integrity of the industry.  In June 2011 the Commissioner of the New York City Department of Consumer Affairs (the “Department”) mandated new recordkeeping rules to be maintained by licensed process servers in the City of New York. The adopted rules and amendments to existing rules took effect in July, 2011. According to the Department’s website, effective as of November 12, 2011, licensed process servers are required to carry and operate an electronic device that records the Global Positioning System (“GPS”) location while serving process.  Furthermore in order to become a process server, an individual must take an exam charging a $75 fee for taking this exam and if an applicant fails the exam they must pay again to retake it. The applicant must also pay a $340 licensing fee and a $75 fingerprinting fee.  Also, this year amendments to the penal code make it a Class D felony to assault a process server.

In light of all of this legislation is there a need to have body cameras on New York City process servers?  One would think that the additional regulations set forth by the Department of Consumer Affairs would make it just an additional burden on process servers to maintain body cameras.  If Illinois mandates this, there may be a push for it in cities with a population density such as New York City.  This may lead to an another exodus of process servers from the industry.  We should all monitor what the Illinois legislature does and see if this is a viable option for New York City process servers in the future.

 

When Is Service By Publication Allowed in New York City

servicebypublication2There are many times that a legal action needs to be initiated and the Defendant is nowhere to be found.  They have left without no known address and there are not any people around that will assist you in finding them.  In an instance such as this, service by publication may be permitted by a judge.  This is when a judge allows you to publish the papers initiating the action in a newspaper or other publication.  Before you get to the part where a judge will allow service by publication, you would have to show that you have exhausted all of your other remedies and this is one of the last resorts.  We have recently found in an unusual circumstance that Courts in NYC have allowed service via facebook but service by publication is much more the norm.  Exhausting all your remedies would include attempt personal service at the last known address or at the place of business.  Trying to use substituted service is sometimes also allowed however if you cannot find the person then notice of publication would most likely be allowed.  The notice of publication would set forth guidelines that the judge will determine and also allow a certain time-frame for it to be performed.  The most common type of action that notice of publication is used is in real estate and divorce actions.  Generally the notice must be published in the newspaper more than once, such as once a week for a number of weeks. When a certain time has lapsed since initial publication, such as 45 days the service can be deemed effectuated.

 §  315.  Service  by  publication authorized.   The court, upon motion
  without notice, shall order service of a summons by  publication  in  an
  action  described  in  section  314 if service cannot be made by another
  prescribed method with due diligence.

 

With respect to notice of publication, you can put the legal document (Initiating legal document) in a newspaper.  It doesn’t matter if the publication is a local one or a large one like The Daily News.  However, it would be more cost effective as small publications costs a fraction of what a publication with a bigger based would have.  The idea is to give the defendant what is called constructive notice to the individual.  The court would deem the service appropriate even if the newspaper is read by the defendant or not. Also it would be appropriate to put the publication in a publication where the defendant should have seen it.  That would mean in a newspaper that would serve a region that the defendant has been known to live in the past.

Service of publication takes a few steps to get to.  It would be appropriate to hire an experience process server to handle the steps before in order to show the Court that you have used the highest level of care before you ask for the publication option.  DJ&H Process Service would be one that can assist you in your process service in NYC.  Should you have any questions about service by publication or anything else, please call us at 718-843-1184. We are a licensed NYC based process service agency.

 

Recordkeeping an Important Goal for NYC Process Servers

recordkeeping nyc process serversProcess servers are fully aware that they must follow New York City’s statutes and Administrative Code regulations.  The rules mandate how to serve process in many different situations and how to include the nature of service in the mandated logbook.  The rules and regulations are enforced by New York City’s Department of Consumer Affairs.  These rules explain how to use a logbook and what is necessary to be included in an affidavit of service which will be filed with the Court and signed by the licensed New York City process service and notarized under penalty of perjury.

But just as important for the process server is the creation and maintenance of complete and accurate records of each particular instance of service attempted or made. First, if a person in a lawsuit challenges the service of process, the server must be able to demonstrate its validity. Second, city regulators are stepping up efforts to oversee the profession and want proof that process servers are performing their duties correctly.  The failure to do so may result in exorbitant fines or the suspension of the license to serve papers in the five boroughs.

The ability to have correct records are tantamount when defending alleged illegal service

Valid service of process is a prerequisite for a lawsuit to proceed. So it is not uncommon for a named defendant to take the earliest opportunity to stop or delay the litigation. This will result in the Court scheduling a traverse hearing to determine whether the service was indeed proper.  To uphold the validity of the service, the process server must be able to show that quality record-keeping system is in place and that proper practices under the law are always followed.  The easiest way to show this is for the licensed process server to maintain an up to date logbook.  In that sense the logbook could be entered into evidence and the process service can testify that the entries in them were inputted in the ordinary course of business.  If a judge can see that the recordkeeping is accurate, the process server will most likely prevail in the traverse hearing.  You will have instant credibility in defending the service of process; that is, to show that service was validly made, and that the filed proof of service is technically complete and sufficient.

Department of Consumer Affairs has stepped up penalties against Process Servers

The Department of Consumer Affairs have become increasingly concerned in recent years about “sewer service” which is a failure to serve the documents despite a proof of service declaring that service was completed.  This has allowed plenty of default judgments to go through the courts and judgments handed out against defendants in particularly debt collection and bankruptcy cases.

As a result of this, New York City’s Department of Consumer Affairs issued more than 500 subpoenas on process servers for their records on their global positioning systems (GPS).   The GPS coordinates would show where exactly the process server alleged they were located when they served the legal papers.  Many did not have the required GPS coordinates or the GPS showed a location that was outside the location where the service was purportedly completed.  The Department of Consumer Affairs allows you to enter your GPS within a half a mile from where service was effectuated.

Our licensed New York City process servers know and understand the complex laws of process-serving.  Having up to date logbooks in case of hearings are of utmost importance as well.   You can contact DJ&H Process Service if you would like your legal documents served and filed in the correct manner.