Service of Process by Electronic Means?
SERVICE BY ELECTRONIC MAIL: PROCEDURAL REQUIREMENTS OF DUE PROCESS
The suitable forms of service of process have traditionally evolved with advancements in society and technology... I. Introduction This evolution has occurred within the legal framework of the concept of due process as defined by the Constitution. The purpose of process, as it is interpreted today, is to allow a court to acquire jurisdiction over a party to ensure compliance of court orders by the party in which a judgment is rendered. “Jurisdiction is acquired in one of two ways: first, as against a person of the defendant by the service of process (In Personam), or, secondly, by a procedure against property of the defendant within the jurisdiction of the court(In Rem)." The due process clause of the 14th Amendment states that no state shall “deprive any person of life, liberty or property without due process of law." Furthermore, it has been stated that, [interpreting the] “words of the due process clause...there could be no doubt that at a minimum they require that the deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity to be heard." “The fundamental requisite of due process of law is the opportunity to be heard." Consequently, certain steps must be taken to fulfill constitutionally interpreted requirements of giving notice before a court can obtain jurisdiction over a party. Further, the most important aspect of the due process clause is notice which is reasonably calculated,feasible and customary. In order to be “heard" one must be notified. The methods of notification have evolved from strict personal service to notification via publication, reliance on the federal mail system, electronic facsimile transmissions and electronic mail. Electronic mail(email)is an electronic means of communication in which messages are transmitted over communication networks. Email messages can be composed of text, images, and entire files from your existing saved material which can be sent anywhere in the world. Given the large number of email users, it will come as no surprise that email has been used as a method of service of process to afford a party the opportunity to be heard. Although the use of email as a form of process has potential ability to fulfill the requirements of the 14th Amendment, there are some shortcomings when the strict application of due process is applied. Therefore, the use of email as a method of service of process has only been allowed in limited circumstances. II. Historical Background of Due Process Pennoyer v. Neff The historical background of due process pertaining to service of process was first addressed in Pennoyer v. Neff. Pennoyer brought an action against Neff for the recovery of property which was located in Oregon. Pennoyer claimed title to the land which was acquired from a sheriff’s sale initiated by the Oregon state courts based on a judgement against Neff. Neff claimed that he was not a resident of Oregon and had never received proper notice of the action against his parcel of property. Notice was posted by publication in Oregon. Neff was not a resident in Oregon, and as a result, he never appeared in the action. As a result of Neff’s absence the Oregon court entered a default judgement against him. Neff then claimed that he was not given proper notice of the action and that the Oregon court could not acquire jurisdiction over him. The Supreme Court ruled that the state may exercise jurisdiction over a person present in that state at the time the summons is served even if the presence was for a short term. Thus, the Supreme Court established that service of process on a defendant can only be done within the state’s jurisdiction setting forth the physical presence standard. Mullane v. Central Hanover & Trust Co. In 1950 the physical presence standard established in Pennoyer v. Neff. was adjusted and expanded in Mullane v. Central Hanover Bank & Trust Co. This decision recognized new modern standards advancing communication technology and increased mobility of the average citizen. The plaintiff challenged whether the beneficiaries of a trust account were given proper notice under New York Banking Law which allowed for notice by publication. In this case there were two categories of persons who were to be notified, those whom Central Hanover Trust knew the addresses and those whom they did not. The argument presented by Mullane (special Guardian to the trustees)was that service by publication was inadequate under due process because the defendant, Central Hanover Bank, had notice of certain plaintiffs addresses. Rather then directly notifying the plaintiffs’ by mail, Central Hanover Bank chose notice by publication for all plaintiffs. The issue with this notice pertained to those beneficiaries from whom the bank had notice of their addresses. The Supreme Court in Mullane interprets that service is reasonably calculated by looking at specific facts pertaining to the method of service of process. The Court distinguished the method of service (publication) between parties where the physical address is known and where the physical address is unknown. In instances in which the physical address is known, the Court ascertained that service of process by publication was not reasonably calculated to afford proper notice. Therefore, if the address is known, service of process must be made personally. If the address is unknown due diligence must be used to ascertain the address. If personal service is unsuccessful, service of process can be made by publication reasonably calculated to give actual notice. Greene v. Lindsey The factor that service of process must be reasonably calculated(Mullane) was expanded in Green v. Lindsey to include a feasible and customary standard. In Greene, the appellees, apartment tenants argued they were not given proper notice prior to a forcible entry and detainer action. They contended that since it was well known that postings, even official notices, on doors within the building were frequently removed. Therefore, tenants would not see the postings. Thus, the method of service would not be feasible to give proper notice. The Supreme Court ruled that service by posting did not satisfy minimal standards of due process. In many circumstances, the tenants were not afforded actual notice because postings were placed only after one attempt at personal service was made. Therefore, it can be interpreted that one attempt at personal service does not satisfy “due process", The Court stated:“the sufficiency of notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interest...its effect must be judged in the light of its practical application to the affairs of men as they are ordinarily conducted." Additionally, the Court stated “the reasonableness of the notice provided must be tested with reference to the existence of ‘feasible and customary’ alternatives and supplements to the form of notice chosen." Thus, the fairness and reasonable rule now has expanded the method of service to include a means of service feasible and customary to give actual notice. Factors for Giving Defendants Reasonable Notice The evolution of the due process, as interpreted in Mullane and Greene, pertaining to the procedural application of service of process has developed three factors which must be fulfilled for alternative service to obtain jurisdiction. First, there must be no feasability of personal service before an alternative form of service may be used. The facts of the case must establish that there is no effective possibility of personal service giving actual notice to the interested party. Second, the method of alternative service must be reasonably calculated to give actual notice to the interested party. Reasonably calculated is a term of art pertaining to the notion of whether it is probable that the interested party will actually receive notice by the method chosen. In interpreting the notion of reasonably calculated, the courts have reasoned that when the names of the interested parties were easily obtainable by plaintiff’s own records, service by publication was deficient. If there is a more reliable form of process ascertainable after due diligence to give actual notice, that form of service must be used. Additionally, courts have concluded that if the serving party has actual knowledge through due diligence that the party will not be notified by the form of service used, that form of service is not proper to give actual notice.. Third, the method of alternative service must be a feasible and customary method of giving actual notice. A feasible and customary alternative, where personal service is not available, is a form of substituted service where from the facts and circumstances, the court can determine that the method chosen is a practical application to the affairs of men as they are ordinarily conducted. The United States District Court, Southern District of New York, addressed and applied this rule in New England Merchants National Bank v. Iran Powers Generation and Transmission Company. This case took place during the late 1970's and early 1980's when the United States was having troubled relations with the foreign nation of Iran, thus, causing strained business relationships between U.S. and Iranian entities. The plaintiffs sought a court order under Rule 4 of the Federal Rules of Civil Procedure to allow service to be made by fax on the non-resident Iranian defendants. Under these circumstances, the court found the use of substituted service by fax upon the government of Iran, its agencies and instrumentalities sufficient to give proper notice. The court ruled that it was acceptable to use fax machines to serve process upon a recipient in Iran: