Civil procedure rules require that plaintiffs notify defendants of the
lawsuits filed against them; this is called “service of process.”
Traditionally, service of process is done through personal service; this means, by
delivering a copy of the lawsuit to the defendant’s residency or place of
business. Given the increasing use of electronic communications nowadays and
the proliferation of online businesses, could service of process be
accomplished through e-mail? Various United States courts have already entertained
this question, and some have denied the possibility that defendants be
served through the use of e-mail, while others have allowed service by e-mail.
This article provides examples of two district court decisions regarding
service of process through e-mail.
The Federal Rules of Civil Procedure establish that individuals and
corporations may be served “following state law for serving a summons . . . in
the state where the district court is located." Fed. R. Civ. P. 4(e)(1),
(h)(1)(A). Thus, state rules determine how plaintiffs serve on defendants.
When personal service of process cannot be accomplished, plaintiffs usually
resort to alternate means to serve defendants as allowed by state law. For
instance, under Michigan law, when service of process cannot be made as
provided by the civil procedure rules, “the court may allow service of process
to be made in any other manner reasonably calculated to give defendant
actual notice of the proceedings and an opportunity to be heard.” M.C.R.
2.105(I). This Michigan rule is common to most U.S. states.
In McCluskey v. Belford High Sch., Case No. 2:09-14345, the United States
District Court for the Eastern District of Michigan was to decide whether
service of process through an e-mail was an alternate way to serve defendant
according to M.C.R. 2.105(I). The court held that an e-mail was not an
appropriate service of process under Michigan law. In McCluskey, plaintiffs
alleged that defendants operated a fraudulent Internet scheme through various
websites where they represented the existence of accredited and legitimate
high schools, whose diplomas would be accepted by employers, professional
associations, other schools, colleges and universities. Plaintiffs were
adults who obtained diplomas through Defendant’s websites. Plaintiffs were
unable to serve summons on defendants personally or by registered mail.
Plaintiffs alleged that defendants listed addresses in Texas and California,
but neither location had a physical office located there or an agent to
accept service. Thus, plaintiffs filed a motion requesting the court to
authorize service of process through (1) e-mail (they had some plaintiffs’ e-mail
addresses); (2) by a posting at the county courthouse; and (3) by a
posting on the Internet at “www.belfordlawsuit.com,” according to M.C.R.
The court held that plaintiffs’ proposed alternate forms of service were
not reasonably calculated to give defendants actual notice of the
proceedings and an opportunity to be heard. Regarding the courthouse postings, the
court held that there was no evidence that defendants had physical presence
in Michigan as to infer that these postings would give actual notice to
defendants. Regarding the Internet postings, the court held that “is unlikely
to provide actual notice to Defendants of the proceedings because Defendants
may not be aware of the existence of the website created by Plaintiffs.”
Lastly, the plaintiffs failed to prove that the e-mail addresses obtained
were likely to give actual notice of the proceedings to defendants.
Unlike this Michigan district court, a New York district court in Snyder
v. Energy Inc., 857 N.Y.S.2d 442 (2008), allowed service through e-mail.
In Snyder, Defendant Corporation was not registered with the N.Y. secretary
of State and the plaintiff was unable to find a place where the defendant
corporation or its president could be physically served. Plaintiffs showed
the court that they made reasonable effort to locate a current address to
serve defendants to not avail. Yet, plaintiffs showed the court that they
could reach the corporation’s president on the Internet. Plaintiffs had the
president’s e-mail address and they sent an e-mail requesting a physical
address to serve process, but their e-mails were unanswered. The court held
that “[S]ervice by e-mail was reasonably calculated, under the circumstances,
to apprise the corporation and the president of the action, and was an
appropriate form of service.”
According to the two above decisions, the granting of a request of service
of process through e-mail may depend on the facts of each case and the
state court to decide it. E-mail as an alternate way to serve summons is
still incipient, and many years may passed before this becomes a common
practice. Yet, we are moving towards this trend.
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