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Is service of process by email viable?

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  • suesarkis@aol.com
    Civil procedure rules require that plaintiffs notify defendants of the lawsuits filed against them; this is called “service of process.” Traditionally,
    Message 1 of 1 , Jun 22, 2010
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      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.
      2.105(I).
      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.
      _http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=2347
      _
      (http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=2347)

      Sincerely yours,
      Sue
      ________________________
      Sue Sarkis
      Sarkis Detective Agency

      (est. 1976)
      PI 6564
      _www.sarkispi.com_ (http://www.sarkispi.com/)

      1346 Ethel Street
      Glendale, CA 91207-1826
      818-242-2505

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