Your company has entered into a contract with a smaller, foreign company to do business. While your relationship starts off strong, it quickly sours when you discover that the smaller company’s quality standards do not meet the requirements of the contract. Worse still, you prepaid for future work and the company refuses to do any more work for you. Left with no other choice, you are forced to initiate a lawsuit. Unfortunately, your troubles do not end there. You seek to serve the corporate officers of the company, who are overseas, but they are nowhere to be found. You have attempted service through process servers, sheriffs, and other traditional methods, but the officers have evaded service every time. What do you do?
Just 15 years ago, you may have been out of luck. A court likely would have required you to continue to try to serve the defendant through traditional means until it determined that the defendant had sufficient notice of the lawsuit. Only then would a court enter default judgment against the defendant. Still, your judgment likely would have been open to future challenges from the defendant about notice. Now, in just the past decade, courts have begun to permit service via email — and even service via Facebook — when a defendant has actual notice of the lawsuit but continually evades service. This makes serving a difficult defendant much easier than before, although there still are some challenges to service via electronic means.
Some courts have permitted service of overseas defendants via email only when a defendant had actual notice of a lawsuit and was known to be evading service. In August, a federal court in Wisconsin permitted an international defendant to be served via email and Facebook after the plaintiff had exhausted attempts at traditional means of service.1 The plaintiff attempted to serve the defendant in Mexico by delivering a petition to the Central Authority in Mexico, a means of service authorized by the Hague Convention. The plaintiff also attempted service in New York and via personal email to an officer of the defendant. All attempts failed. The court permitted the plaintiff to effectuate service via an email address on the defendant’s website and also via its Facebook page. The court noted that the Hague Convention did not prohibit service via email and that the defendant maintained a very active Facebook page. “Moreover and of significance here, [the defendant] has actual notice of the Petition.”
Other...
