“You’ve been served!”

FL SoP Law & ESoP22nd Annual Convention

Orlando, FloridaJOHN C. MURPHY

March 20, 2013

What is the Goal? actually reach defendant most likely to reach defendant reasonably likely to reach

defendant might reach defendant

SoP• critical aspect of litigation.• Personal service of process has been the

hallmark for initialing litigation for nearly 100 years, primarily because it guarantees actual notice to a defendant of a legal action against him or her.

Due Process Guarantees• “To be sure, the Constitution does not

require any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond.”

Determining Effective Service of Process

• The return of service is evidence of whether service was validly made.

• If the return of service is regular on its face, service of process is presumed to be valid and the burden then shifts to the party challenging service to rebut the presumption with clear and convincing evidence.

• However, if the return is defective on its face, then the return is not evidence of service and the party seeking to invoke the court's jurisdiction must present evidence to show effective service of process.

Facial Validity §48.21: • shall note on return-of-service • date and time received, • date and time served, • manner of service, • name of the person served and, if

representative capacity, the position occupied. • A failure to state the foregoing facts invalidates

the service, but the return is amendable.

Determining Effective Service of Process

• The return of service is evidence of whether service was validly made.

• If the return of service is regular on its face, service of process is presumed to be valid and the burden then shifts to the party challenging service to rebut the presumption with clear and convincing evidence.

• However, if the return is defective on its face, then the return is not evidence of service and the party seeking to invoke the court's jurisdiction must present evidence to show effective service of process.

Clear and Convincing Evidence• Clear and convincing evidence requires:• witnesses to a fact be credible; • the facts testified to must be distinctly

remembered; • the details must be narrated exactly and in

order; • the testimony must be clear, direct and

weighty; • and the witnesses must be lacking in

confusion as to the facts in issue.

Strict Compliance• statute providing for substitute service “is

an exception to the general rule requiring a defendant to be personally served, there must be strict compliance with the statutory requirements so as to protect due process guarantees.”

BOATFLOAT v. CENTRAL TRANS. There was no affirmative evidence to show that someone was present inside Vinnik's residence at the time Benebe delivered the process papers, or that Vinnik was trying to evade service of process. Benebe testified that he never saw Vinnik when he went to his condo. There was no testimony that Benebe or the security guard made any attempt to call or contact Vinnik. Although Benebe heard a small dog barking and noises inside the apartment, which stopped when he knocked on the door, he could not identify the noises as human noises. reverse and remand for the trial court to quash service of process.

KOSTER v. SULLIVAN, 2d DCA, October 10, 2012.

• Because return service was regular on its face, trial court properly shifted burden to defendant to show by clear and convincing evidence that service was defective

• failure to indicate that person served was fifteen years of age or older or that contents of the process were explained to the person served.

Hearsay• The statement of one person to another as

to his identity is hearsay

Weinstein v. LPI-The Shoppes• A process server attempted service on a

person as a roommate of the defendant. At a hearing concerning the sufficiency of service, the process server testified about how the person served both identified himself and described his relationship to the defendant.

• The 3d DCA held that the process server's testimony regarding what the served person had told him was hearsay!

Identification of a Person made after Perceiving Him § 90.801(2)(c) is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination about the statement.'' Here, the process server did not testify as to his identification of Sanders. Instead, he testified as to Sanders' remarks when he served Sanders the process.

Spontaneous Statement § 90.803(1)

• A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate a lack of trustworthiness.

Excited Utterance § 90.803(2)(1) there must be an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must be made while the person is under stress of excitement caused by the event.

Electronic Service of ProcessESoP

Personal SoP• The process server hands, ie., pushes the

paper off, to the defendant

ESoP• The defendant pulls the electronic file to it.

INTRO• the speed of international communication is

frighteningly fast and efficient. • Anyone hooked into the technological grid via

computer or telephone can send a message to a fellow gridder in a matter of seconds.

• Email and social networking websites, such as Facebook, are spectacularly successful creatures of the information age.

• Professionals, laymen, and judges all over the world have rapidly embraced electronic communications and social networking technology

Constitutional Requirements

“To be sure, the Constitution does not require any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond.”

Mullane v. Central Hanover Trust Co., 339 U.S. 306 at 314, (1950).

1980New England Merchants National Bank v.

Iran Power Generation and Transmission Co.a group of American plaintiffs were unable to serve process on Iranian defendants as a result of the diplomatic breakdown between the USA and Iran. The district court ordered service of process via telex in both Farsi and English, a form of electronic communication now obsolete.

2000In Re Int’l Telemedia Assocs., Inc.,

first time that service of process by fax and electronic mail has been authorized in a case pending in the United States.”

Rio Properties, Inc. v. Rio International Interlink, 284 F. 3d 1007 (9th Cir. 2002)

• Trademark dispute and Internet registration issue over name RIO used in sports gambling.

Rio Properties, Inc.• Foreign defendant• No physical address• Defendant website listed email address• Court approved email as one alternative

form of service on foreign defendant

Rio Properties, Inc.

• Upheld by appellate court• “If any method of communication is

reasonably calculated to provide RII [the defendant] with notice, it is surely e-mail – the method of communication that RII utilizes and prefers.”

Ehrenfeld v. Salim A Bin Mahfouz

court distinguished the facts from those in Rio Properties and refused to authorize email service because the defendant’s email address was “apparently only used as an informal means [of communication],” and thus was not a reliable enough channel of communication to ensure that the defendant would receive the email.

Queens Bench Division of the Royal Courts of Justice 1996

• series of email messages to counsel • internet blackmail of a media personality • disseminate defamatory material • Could not locate to serve Injunction• Court allowed service via email

– required actual notice • defendant sent email acknowledging receipt

and withdrawing all threats

South Carolina• permits electronic service of process on

corporations and partnerships (but not individuals), and all registered corporations and partnerships are required to register an email address with the Secretary of State.

• The party attempting to utilize electronic SoP cannot just send an email to a potential defendant; it must utilize a “certifying” authority (such as the U.S. Postal Service’s “Electronic Post Mark” or “EPM.”)

Email pass muster?• Avoiding personal service?• How many Email accounts?• Used for business?• Inbox storage limits?• Recently used account?• Frequency of activity?• Spam/junk/delete?• confirm actually read?

FACEBOOK

• from 2008 to 2012, Facebook usage grew from 8 percent to over 50 percent of Americans,

• and 96 percent of Americans under age 50 use Facebook.

Facebook• In 2008, the Supreme Court of the

Australian Capital Territory allowed personal service via a message sent on Facebook.

--------------- serve

Facebook pass muster?• Avoiding personal service?• Correct person/user?• recently used• user’s frequency of activity • wall postings invites the world to

communicate publicly with him

Minnesota• In May 2011, a Minnesota District Court authorized

the plaintiff in a divorce action to serve process on her husband through e-mail, Facebook, Myspace, or any other social networking site.

• The court stated that although it had considered service of process via publication, it rejected it because ‚it is unlikely that Respondent would ever see this. . . .The traditional way to get service by publication is antiquated and is prohibitively expensive.

• Service is critical, and technology provides a cheaper and hopefully more effective way of finding Respondent.

PIOTROWSKI v. GREEN & ABREAU

• Where Abreau concealed his whereabouts but did not appoint public officer as agent for SoP, substituted service on defendant was not effective

• ESoP by means of social networking site is not adequate to effect personal service on defendant

ESoP by TEXT

• 2010, the Federal Court of Australia ordered that the defendant be provided notice of pending proceedings via text message.

• The court further ordered that five business days after the court’s order for substituted service was fulfilled, the defendant would be assumed to have been served.

Text pass muster?• Avoiding personal service?• directly targets defendant.• cell phone number is uniquely linked to a

particular person• texting is a means of contacting someone

used in the ordinary course of daily living.• most ready form of communication that

people use • Currently & frequently uses

Conclusion• electronic service of process should be

used as a secondary channel of service provided that more reliable channels are first exhausted

• When authorized, multiple methods!