Modern Methods and Rule 4

Modern Methods and Rule 4

Rule 4 lists the ways a plaintiff may serve a summons and complaint, and it reaches past its own list by authorizing state-approved methods under certain circumstances. Whatever its source, every method must also satisfy Mullane, which requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”¹

Each method therefore faces two separate questions. The first is whether a rule or statute governing service in the particular court authorizes it. The second is whether it meets constitutional standards, and a statute's authorization of a method does not settle that second question.² The constitutional yardstick asks what one “desirous of actually informing the absentee might reasonably adopt to accomplish it.”³ Because the yardstick follows the means a sincere sender would choose, it can absorb a new channel of communication without a new rule for each one.

Two lessons from earlier in the chapter carry over. Reasonableness depends on the circumstances, so a method that suffices for one defendant can fail for another. And the test measures the sender's method, not proof that the papers arrived.

This unit takes up email and social media first, where the question is whether a recent channel is one a sincere sender would choose. It then turns to state methods, which Rule 4 lets federal courts borrow and which in most cases may be much broader than the methods Rule 4 lists itself.⁴

Email and Social Media

Rio Properties, Inc. v. Rio International Interlink is the leading federal decision on service by email. The plaintiff, Rio Properties, tried conventional service on an elusive international internet business and met an obstacle at every step. The only United States address the business claimed housed its international courier, which declined to accept service for the business. The business's attorney, who had been consulted about this dispute, declined as well, and a private investigator could not find the business in Costa Rica.⁵ The plaintiff then moved for alternative service. The district court ordered service through the courier, on the attorney, and by email, and the Ninth Circuit held each method constitutionally acceptable.⁶

The court answered two questions in sequence, and a court asked to approve email or social media service must answer both. Do the rules let the court order the method? And does the method satisfy Mullane?

On authority, the court held that Rule 4(f)(3) “is an equal means of effecting service of process” alongside the rule's other methods, and it committed to the district court's sound discretion the task of deciding when the particularities and necessities of a given case call for alternative service.⁷ The plaintiff therefore did not have to try every permissible method first. It had only to show that the facts and circumstances necessitated the court's intervention, and an inability to serve an elusive international defendant striving to evade service made that showing.⁸ A contrary rule would reward the evasion, since a defendant could prolong the case by defeating each conventional attempt in turn.

Authorization does not end the inquiry. Even a method that Rule 4(f)(3) facially permits must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”⁹ The court tested each ordered method against the record. Service on the attorney was appropriate because the business had specifically consulted him about this lawsuit, he knew its legal positions, and he was evidently in contact with it in Costa Rica.¹⁰ That ruling rests on facts connecting the intermediary to the defendant, and it shows the general lesson: a courier or a lawyer carries notice only when the record shows that the intermediary passes information along.

Email was the novel step, and the court found it the strongest of the three. If any method was reasonably calculated to give the business notice, “surely it is email—the method of communication which RII utilizes and prefers.” Email was also the only ordered method aimed directly and instantly at the business, because the others ran through intermediaries, and against an international e-business playing hide-and-seek with a federal court, email might be the only means of effecting service at all.¹¹ The court concluded that email was not merely proper but the method most likely to reach the business.¹² That is the sincere-sender yardstick applied to a new channel: a person desirous of informing the absentee would write to the address the absentee itself uses and prefers.¹³

Rio Properties does not hand plaintiffs a free hand. A plaintiff may not generally resort to email service on its own initiative; in Rio, email was properly ordered by the district court acting within its discretion under Rule 4(f)(3).¹⁴ Email also has a practical weakness, because a sender usually cannot confirm that a message was read. That weakness does not make email unconstitutional, since the test measures the method and not proof of arrival, but it explains why courts look for facts showing that the address is the defendant's working channel.

A domestic plaintiff finds no equivalent provision in Rule 4, which makes court-directed alternative service available for defendants in foreign countries. The route to email runs through state law, which Rule 4(e)(1) makes available.¹⁵ A federal court in California took that route in Aevoe Corp. v. Pace. It applied a California rule permitting service “in a manner reasonably calculated to give actual notice to the party” and allowed email only after the plaintiff showed diligence in trying other means.¹⁶ Rule 5(b)(2)(E) permits electronic service of later papers on a person who consented in writing, but it does not cover the summons and complaint.¹⁷

Social media carries the same reasoning from the inbox to the platform. In Baidoo v. Blood-Dzraku, a New York trial court considered whether a wife could serve her divorce summons on her husband solely through Facebook.¹⁸ The state's alternative-service provision, CPLR 308(5), lets a court direct service “in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.”¹⁹ Those paragraphs cover personal delivery, delivery to a person of suitable age and discretion at the defendant's business, dwelling, or usual place of abode combined with a mailing, and nail-and-mail service.²⁰ The wife cleared that threshold with a record of failed searches by investigators, the post office, and the motor vehicle department, and the defendant had said he had no fixed address or workplace. Substitute methods depend on knowing where the defendant lives or works, so they were futile, and the court concluded that notice on Facebook probably would reach him. It ordered several methods at once: Facebook posts and messages, together with calls and texts to his cell phone.²¹ Layering makes sense because receipt on any one channel cannot be confirmed, and each added channel improves the odds that one of them lands.

Courts do not uniformly accept social media service. One court refused because its state's law mandated publication notice when a defendant could not be found, in Joe Hand Promotions, Inc. v. Shepard, and another refused in Fortunato v. Chase Bank USA, N.A., because someone other than the defendant may have posted the account.²² Federal courts have used Facebook as one channel among several. The court in Ferrarese v. Shaw applied New York law through Rule 4(e)(1) and ordered certified mail to the defendant's last known address and to the defendant's sister, email, and a Facebook message. The court in United States v. Mohammad likewise authorized email and a Facebook message under Rule 4(f)(3) after customary methods abroad proved ineffective.²³

The instinct that loses points on an exam is to reason that a defendant who uses Facebook can be served through Facebook.

The motion fails because the provision authorizes a court-directed method only when the listed methods would be impracticable, and the plaintiff's own facts point to inquiries that might yield an address: a forwarding request, an investigator, a search for the workplace. The provision does not let a court go straight to an alternative method whenever the plaintiff argues that it is likely to provide actual notice.²⁴ A court would read this motion as an effort to avoid more extensive efforts to locate the defendant, not as the only viable option for serving an elusive one.²⁵ Evidence that the defendant uses Facebook answers the Mullane question whether the channel would probably reach him. It does not show that the listed methods are impracticable.

Baidoo differs because the searches there had already failed. Rio Properties fits the same pattern. Rule 4(f)(3) imposes no exhaustion requirement, yet the plaintiff had already met a courier's refusal, an attorney's refusal, and a failed investigation, so the need for the court's intervention was plain. The governing authorization sets how much a plaintiff must show before the court may act, and Mullane then judges the quality of the method the court orders.

State Methods and Rule 4

Rule 4(e)(1) lets a plaintiff in federal court serve an individual by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Rule 4(e)(2) offers a short federal list instead: delivering the papers to the individual personally, leaving them at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there, or delivering them to an agent authorized by appointment or by law to receive service.²⁷ The state option matters because state methods may be much broader than anything on the federal list.²⁸

Borrowing a state method does not borrow an exemption from the Constitution. A method used in federal court under state law “must comport with the minimum requisites of federal due process,” the limits the Supreme Court developed in Mullane and its progeny.²⁹ Each borrowed method therefore passes two tests, and passing one says nothing about the other. It must be authorized by the statutes or rules governing service in the court where the case is pending, and it must also meet constitutional standards.³⁰ The relationship resembles the one between a long-arm statute and due process: a statute that authorizes jurisdiction still cannot be applied beyond constitutional limits. The second test checks the first. A legislature drafting a service provision may favor whatever is cheapest and simplest for plaintiffs, and without the requirement that the method be reasonably calculated to inform the person served, Rule 4(e)(1) would carry every state shortcut into federal practice unexamined.

The federal version of abode service answers the constitutional question on its own terms, because the papers go to someone of suitable age and discretion who resides at the dwelling and can be expected to pass them along.³¹ Some state provisions drop the resident. Massachusetts Rule 4(d)(1) permits service “by leaving copies thereof at his last and usual place of abode.”³² Read literally, that provision is satisfied by slipping the papers under the door, which is considerably less likely to assure actual notice than delivery to a person. It would also seem to be satisfied by posting the papers on the door, the procedure rejected in Greene v. Lindsey, where the Supreme Court held that a notice posted on a tenant's door was inadequate because posted papers are easily lost or removed and a mailed copy was an inexpensive way to improve the odds of notice.³³ The same two facts can be pressed against bare abode service, since papers left with no one can be lost or picked up by someone else. The Massachusetts provision has been in effect for many years, but counsel may be wise to use another authorized method, such as personal delivery, to avoid the risk of a constitutional challenge.³⁴

Other states close the gap by pairing the leave-at-the-abode step with a mailing. Indiana requires mailing the summons to the defendant after the papers are left at the usual place of abode, and Kansas requires mail notice that the papers have been left there.³⁵ New York's CPLR 308(2) follows the same design, combining delivery to a person of suitable age and discretion at the defendant's business, dwelling, or usual place of abode with a mailing, for example to the defendant's last known residence.³⁶ The mailing does the work the door cannot do. It sends a copy to an address the sender already holds, over a channel that is cheap and efficient, and mail is the best practical means of notifying a party whose address is known.³⁷

The Massachusetts town-clerk statute shows both hurdles operating on a single provision. General Laws chapter 227, section 5A appoints the town clerk by law as the agent to receive service on a nonresident contractor who does work in the state, so delivering papers to the clerk fits the federal rule's provision for an agent appointed by law, Rule 4(e)(2)(C). Compliance with the rule was not enough, because handing the papers to the clerk gives no assurance that the defendant will ever hear of the suit. An earlier version of the statute was held invalid in Impoco v. Lauro, 129 F. Supp. 543 (D. Mass. 1955), because it did not require that the defendant be sent notice. The legislature then added a sentence directing that when process is served on the clerk, a copy “shall forthwith be sent by registered mail with a return receipt requested by the plaintiff to the defendant at his last known address.” Under the amended statute the plaintiff must give the required notice by mail, and if the plaintiff does, service is proper under the Massachusetts rule and constitutionally sufficient under Mullane.³⁸

The clerk provision failed because delivery to a public official gives the defendant no reason to learn of the suit, and the legislature repaired it by adding a step directed at the defendant. Naming the clerk as agent was never the flaw. A registered letter to a known address supplies the missing effort, and it is the best practical means of notifying a party whose address is known.³⁹ The duty to mail rests on the plaintiff, so a plaintiff who serves the clerk and skips the mailing has not done what the statute requires, even though the amended statute is sound.⁴⁰

The tempting shortcut is to reason that because Rule 4(e)(1) incorporates state law, any method a state statute lists is valid in federal court. Rule 4(e)(1) answers only the authorization question, and the constitutional question stays open for every borrowed method. The converse holds too: a method that a sender desirous of informing the defendant would choose still fails if no applicable rule or statute authorizes it.⁴¹