By Nicole Black
BridgeTower Media Newswires
Technology affects so many aspects of practicing law. Whether it’s running your firm using cloud-based billing and practice management software, using legal software to obtain data analytics to assist in litigation, or mining social media for evidence, there’s no escaping the impact of 21st-century technologies .
That’s not always a bad thing, and technology often reduces the tedium of law practice and reduces friction and difficulties often encountered by lawyers in their day to day practice.
One example is the use of online communication tools for service of process.
Years ago, this was a unique concept many courts approached with caution. But as online communication became increasingly common, courts slowly began to allow lawyers to use them to effect service of process.
Fast forward to 2019, and effecting service of process using social media platforms is no longer unheard of. Often, the platform of choice is Facebook. I wrote about this in 2014, when two different judges had issued orders permitting service upon litigants using Facebook: a U.S. Magistrate judge for the Eastern District of Virginia and a New York family court judge.
Then, in March 2015, another New York judge permitted service via Facebook in a matrimonial case. In 2016, I wrote about Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), where U.S. Magistrate Judge for the Eastern District of New York, Cheryl Pollak permitted an alternate method of service via Facebook, but required the plaintiff to attempt to effect service using other methods as well.
In June 2017 I wrote about Axberg v. Langston, Docket No. MRS-C-157 (2016). In this post-adoption case, as reported in the New Jersey Law Journal, Judge Stephan C. Hansbury, Morris County P.J. (ret.), concluded service via Facebook, and Facebook alone, was a sufficient method of service.
But other platforms have also been used to effect service of process such as WhatsApp, which I wrote about in November 2018. In that case, Alzaabi v. Jaston, a Queens County Supreme Court Justice allowed the plaintiff, who was alleging that the defendant defrauded him via an online sale, to serve process using WhatsApp.
Which brings us to the case at hand: Noco Co. v. Chang, 2019 WL 2135665. In this trademark infringement lawsuit filed in the Northern District of Ohio, the plaintiff alleged that defendant used an Amazon merchant account to sell infringing products. The name registered with the Amazon merchant account was associated with a trademark application under that same name, and listed an address in China.
After multiple failed attempts to obtain a waiver of service from the defendant pursuant to the Federal Rules of Civil Procedure, the plaintiff filed a motion requesting permission to serve the defendant via Amazon messaging in lieu of effecting service using the procedure authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.
Due to the unique nature of the Hague Convention, the court declined to grant the plaintiff’s request to serve the defendant through online channels. The Court explained its rationale as follows: “Given the fact-specific nature of matters concerning service abroad, the Court makes explicit the facts that dictate that service on Defendant Chang must be transmitted through China’s Ministry of Justice: (1) Defendant Chang appears to live in China, a Hague Convention signatory state that has objected to service by the Article 10 methods; (2) Chang’s physical address is not unknown; (3) the only way to effect service is by transmitting documents abroad (e.g., there is no U.S. subsidiary or U.S. counsel); and (4) Plaintiff has not already attempted to serve Defendant using this method authorized by the Hague Convention.”
Notably, the Court lamented that the requirements of the Hague Convention necessitated service of process using more traditional methods, in large part due to their lack of expediency: “Requiring Plaintiff to wait many months for service feels shockingly out-of-step with today’s fast-paced e-commerce...However, the Court’s hands are tied. Plaintiff NOCO must serve Defendant Chang through China’s Ministry of Justice.”
So in this case, 21st-century methods were rejected. But I would suggest it’s a rather unique situation and that more often than not, especially where disputed transactions occurred online and other more traditional attempts at service of process have failed, courts will increasingly consider these online options. So don’t rule them out.
It’s 2019, and the world is changing rapidly. You can’t practice law in a vacuum and technological change is a reality. Litigation is not immune from its effects, so if you’re a litigator make sure you’re technologically savvy and are taking steps to incorporate technology learning into your daily routine. At the end of the day, you’ll be a better lawyer, thus more able to provide the best possible representation for your clients. And after all, isn’t that what the practice of law is all about?
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
