Legal Language Blog

In international service of process case law, the hottest topic, by far, concerns electronic service of process.

Viewed broadly, electronic service of process is effected by email or some social media platform. Indeed, Legal Language Services has been a pioneer in the latter area.

In previous blog posts we have discussed whether email constitutes a postal channel within the meaning of Article 10 of the Hague Service Convention here and here.

But whether electronic service is allowed by a destination county is only half the battle.

Demonstrating that the Address is Correct

The other half of the battle over electronic service is the “authentication” of the account. A court only has authority to authorize service by alternative means (i.e., electronic service) when it is demonstrated to be effective.

In particular “[f]or alternative service to comport with due process requirements, the method of service 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.'”[1]

This means, at a minimum, that to obtain service by alternative means one has to demonstrate to the forum court that the electronic address for service belongs to the defendant; i.e., the country must be authenticated.

This brings us to today’s case: Vaswani, Inc. v. Manjunathamurthy.[2]

An Overview of Vaswani, Inc. v. Manjunathamurthy

In the case of Vaswani, Inc. v. Manjunathamurthy, the Plaintiff

Vaswani seeks leave to serve [the Defendant] through her Instagram profile. As a general matter, service via social media is assessed in the same manner as email service, with the analysis centering on due process concerns for the defendant receiving notice of the lawsuit. With this in mind, the Court must deny this portion of Vaswani’s motion. In support of this request, Vaswani provides printouts from an unverified crunchbase.com profile which lists [the Defendant] as CEO of defendant Lucidient and appears to link to her Facebook profile, which, according to Vaswani, links to her Instagram profile. Vaswani provides a printout of what appears to be [the Defendant’s] Instagram profile and states that it reflects activity as of January 2021; however, the Court cannot discern any such activity.[3]

The opinion goes on to state that

[u]nder these facts, the Court is unconvinced that service via Rao’s Instagram profile is reasonably calculated to provide her with notice of the lawsuit. This is for the same two reasons as stated in connection with [a second Defendant]. First, although the Instagram profile appears to belong to [the Defendant], Vaswani provides no proof that this is so. See, e.g., SEC v. Dubovoy, 2019 U.S. Dist. LEXIS 72669, at *17 (D.N.J. Apr. 29, 2019) (denying request for service via Facebook in part because “the Commission . . . failed to subpoena Facebook to gather proof that Defendants . . . own the accounts”). Second, there is no indication that [the Defendant] actively monitors her Instagram account. As stated in Silverman v. Sito Mktg. Llc, 2015 U.S. Dist. LEXIS 197433 (E.D.N.Y. July 21, 2015), “where courts have permitted service through social media messaging, they have been presented with strong evidence demonstrating that the party being served was likely to receive the message.” Id. at *6-7 (citing cases). No such evidence exists here. The Court therefore will deny without prejudice Vaswani’s motion to serve [the Defendant] via Instagram.

The Takeaway

In this particular service, the person or persons who were responsible for the service were egregiously lazy.

LLS has demonstrated that such service can be successfully effected, but it requires due diligence. For example, it is possible to subpoena a third party’s social media platform to obtain documentation that a defendant owns a particular social media account, and to obtain evidence of how often the defendant uses said account.

Another cause of caveat emptor.

How LLS Can Help