Every year, thousands of law students sit down to claw their way through Pennoyer v. Neff, the classic, if confounding, Supreme Court case. Dewy-eyed Civ-Pro students, they desperately try to separate issues of federalism from those of due process, to delineate in rem from quasi in rem from in personam jurisdiction, to untangle the procedural mess that was Pennoyer, in which Pennoyer himself played only the smallest of parts. Or they just grab a hornbook and read: Constructive service is insufficient to establish personal jurisdiction over parties outside the court’s territorial range.
Of course, things have changed a lot since 1878. (International Shoe, anyone?) So much so that we’re now serving parties through Instagram.
Poor Pennoyer, Where Are You Now?
For those who’ve blacked it out, Pennoyer tells the tale, obliquely, of Marcus Neff, who, like many clients before and after him, hired an attorney and failed to pay for his services. That attorney, John. H. Mitchell, then sued Neff in Oregon. But Neff, a Californian, was nowhere to be found. After due diligence and with Mitchell unable to serve Neff personally, the Oregon court allowed service through the publication of the summons in a local newspaper. Mitchell won a default judgment for less than $300, forced a sheriff's sale of Neff’s $15,000 Oregon property and proceeded to sell it to one forename-less Pennoyer. One decade and one lawsuit later, the Supreme Court ruled the publication of the summons was insufficient to establish personal jurisdiction over Neff and, thus, the original judgment against Neff was invalid.
That was bad news for Pennoyer and worse news for law students, whom sadistic professors continue to haze with Pennoyer v. Neff to this day.
Though Pennoyer survives in Civ Pro, courts themselves have moved away from the opinion’s reasoning. (International Shoe, anyone?) Service by publication is certainly more common now that it was in Pennoyer’s time—most frequently used, perhaps, in divorce proceedings, where a spouse may have “gone out to buy some cigarettes” and never returned. In such cases, after a showing that due diligence has failed to locate the party to be served, courts regularly allow constructive service, often through notice published in a local newspaper.
A Canadian court, however, has taken constructive notice well beyond the Pennoyer and newspaper eras and into the age of digital social media.
According to Canadian Lawyer magazine, Ontario attorney Tara Vasdani recently convinced a court to allow for service over Instagram and LinkedIn. Canadian Lawyer’s Alex Robinson explains:
[Vasdani] first attempted to serve the defendant on Sept. 1, 2017, using a physical address, and her process servers were told the defendant had moved away. She then tried using email, with a read receipt, but her messages were either ignored or never read.
Vasdani then looked up the defendant on LinkedIn and contacted her last listed employer, who told her the person never worked there.
When Vasdani could not find the defendant on other social media sites, she turned to Instagram, which the lawyer says she uses much more than Facebook or other apps.
Having found the defendant on Instagram, Vasdani brought a motion in court asking if she could serve the defendant through Instagram and LinkedIn.
The court agreed, treating service as effected five days after notice was conveyed through social media. Notably, the court did not require a read receipt be obtained to effect service, making this Insta-service more akin to service by publication than by certified mail.
This may be the first service of process on Instagram or LinkedIn, but it's not the first time social media has been used to notify a party of legal proceedings against them. At least two courts—American courts—have allowed service via Facebook in the past. In 2011, a trail-blazing Minnesota court allowed service of divorce proceedings via "Facebook, Myspace or any other social networking site." Not too long after, in 2014, a Staten Island court acted similarly, allowing a man to serve his ex-wife over Facebook, after other attempts to contact her failed.
Is such service an affront to tradition, to due process, to the gravity of the law? Vasdani, the Canadian lawyer, thinks not. “[I]n order to avoid becoming obsolete, it is our duty to evolve with society—and one of the concrete and surefire ways society is evolving is through technology,” she explains.
Of course, these are our neighbors to the north, so American practitioners shouldn’t rush to move their process servers onto Instagram just yet. Facebook, though? Maybe.