A Snyder v. Alternate Energy Inc., a New York City Civil Court decision from last month, allows this in certain circumstances, and canvasses past opinions on the subject. It then analyzes things this way:
[S]o long as Nelson's physical whereabouts remain a secret, reaching him and his company by ordinary means remains every bit as difficult as reaching the defendant in Hollow v. Hollow [an earlier New York state case -EV]. For the plaintiffs here, like the plaintiff in Hollow, the internet may very well offer the best hope they have of ever being able to reach the defendants Nelson and Corporate Energy.
The problem with the internet is that it is hard to be absolutely sure that the message is actually received by the person it is intended to reach. Despite the information plaintiffs' counsel has supplied tying defendant Nelson to e-mail address EnergyAEI@aol.com, there is still the chance, however slight, that the address belongs to someone who for some unknown reason is merely pretending to be Nelson. And even if the address is indeed Nelson's, then at any given time some other person say, a friend, family member or co-worker may be the one using the address and thus end up intercepting the message being sent to Nelson.
Concerns about the uncertainty of an e-mailed summons and complaint making its way across the internet to its intended target is reason to proceed with caution when being asked to authorize e-mail service. But such concerns are not reason enough to summarily reject an application for alternate service simply because the method sought involves e-mail. Strange as it may sound, the validity of a particular form of service is not necessarily dependent on the likelihood of receipt. As the court of Appeals wrote in Dobkin, "Our law has long been comfortable with many situations in which it is evident, as a practical matter, that parties to whom notice was ostensibly addressed would never in fact receive it." Dobkin v. Chapman, 21 NY2d at 502.
A prime example of a type of alternate service that is almost certain not to provide actual notice to a defendant turns out to be one of the most frequently used. This is service by publication. Buried in small type in the back pages of a newspaper, legal notices may very well be some of the least read prose ever composed. It is clearly no secret that the chances of a defendant leafing through the New York Law Journal or the Village Voice and happening upon a summons intended for him or her are remote at best. A recent article in the New York Times highlighted the futility of publication service; the article was pointedly entitled "How to Tell Someone She's Being Sued, Without Really Telling Her."
Unlike publication, service by e-mail at least offers a chance of providing actual notice to a defendant of a pending lawsuit. Of course, the mere fact that a defendant has a computer and an e-mail address is not a basis to allow a plaintiff to resort to e-mail service. In this case, however, plaintiffs have shown that defendant Nelson is regularly online using an e-mail address that by all indications is his. Under these particular facts, a court could readily conclude that service by e-mail is "reasonably calculated, under all the circumstances, to apprise the defendants of the action brought against them." Dobkin v. Chapman, 21 NY2d at 505, quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. at 314. Accordingly, I determined that service of the summons and complaint on defendants by e-mail was an appropriate form of service....
To better insure the effectiveness of the notice to defendants, the order imposed some additional requirements.
The first of these additional requirements was that the e-mail be sent on two consecutive dates and that it bear a prominent subject line indicating that what was being sent were legal papers in an attachment that was to be opened immediately. This was done to increase the chance that the transmittal would be brought to defendant Nelson's immediate attention and not inadvertently left unopened, deleted or read by somebody else and forgotten.
Another requirement was that the summons and complaint be mailed to defendants' last known New York and Connecticut addresses. Although this was probably an exercise in futility, it was nevertheless worth having plaintiffs spend the postage on the offhand chance that defendant Nelson had recently provided the postal service with forwarding information for him and his company.
The last requirement involved the cellular telephone number that plaintiffs had for defendant Nelson. Plaintiffs' counsel was directed to contact Nelson at that number and inform him that the summons and complaint were being sent by e-mail and regular mail. While it is unusual to advise a defendant in advance of impending service, alternate service is by its very definition a departure from the usual. As with the other requirements imposed by the order, the goal was to improve the odds that defendants would actually be aware they were being sued. Although e-mail would be the primary form of notice, a hybrid approach including mail and phone notice could only serve to heighten that awareness.
A number of readily available email return receipt methods and services are outlined here (about.com).
In practice, most return receipt methods can be defeated easily by the email recipient. But if the sender actually receives a return receipt by email, it demonstrates at least that someone with access to the recipient's email server did receive the email and didn't prevent transmission of the return receipt.
Legal notices posted on the internet are actually much *more* likely to come to one's attention, since it's possible to google your name and find out you're there.
More likely is that people who need to peruse legal notices on a regular basis would also find the internet postings more searchable and thus more helpful. Such a site could easily include a feature where you'd get an e-mail if a listing with certain words came up.
Yet, it's reported this week that foreclosure notices are boosting newspaper income, b/c of the requirement that they be posted in the hard-copy legal notices sections.
And here I thought I was going to get to bust out my 1L Civ Pro knowledge.
OTOH I don't know what else you can do. Perhaps force the use of some locator service?
As others have mentioned, this is almost certain to get caught by spam filters. Whether in e-mail or snail mail, anything that says "Open Immediately" is almost certainly not worth reading. A subject line mentioning "legal papers" looks far too much like a 419 scam. Sending the message with an attachment is a big mistake as well, if the user has any brains. If there's one thing security professionals have tried to pound into users heads in the past decade, it's not to open attachments from unknown senders. The courts additional conditions make it far less likely that the message will reach it's intended recipient.
They call it the Secretary of State, and you can serve that way, so long as the corporation is registered with the Secretary of State (which it is required to be). But in this case, it wasn't registered, so no luck.
Exactly.
AOL almost certainly has a credit card number (I think they still accept pay-by-check, in which case they have a routing number). The issuer (or bank) has an address. This goes for any ISP.
This just seems lazy. I don't object to modernizing. I do object to relying on something as unreliable as email for important legal actions. OTOH, maybe there's a market for a new FaceBook widget - "You've got supeanas!"
Also approved was a measure to change references to “telegraph” in the statute governing notice to an agent for service of process, in favor of “facsimile or e-mail.”
Proponent Jo-Ann Grace, Metropolitan News-Enterprise co-publisher and member of the Los Angeles County Bar Association delegation, said that for anyone who still uses a telegraph, “we hope this does not tax your mental abilities and that you can run a fax machine.”
Dianna Gould-Saltman, also of the LACBA delegation, added:
“Need to join 21st century. Stop. Not using Morse code anymore. Stop.”
. . . and that "posting" requirement? When was the last time you heard of someone saying "Gee, Joe, I was jest a' moseying through the courthouse downtown this morning, (when I was done with my whittlin') and I looked up on the bulletin board, and I'll be darned if some galoot isn't suin' ya! Says he couldn't find you, though!"
AOL is no longer a subscription-only service (although you can still have a paid membership to obtain certain services). In many (perhaps most) cases, the aol.com e-mail address does not guarantee that the person is a paying customer, much less one with a credit card.
That's interesting - I haven't seen those. I live in NYC - can any fellow coastal elites tell me if I'm just blind, or if we don't have them in this state for some reason? I heard about those coming out about 10 years ago, but have yet to have had an opportunity to purchase one.
Those do change the analysis, of course. And I think I need, perhaps, 10 in $200 increments and two larger denomination cards, just to keep in my go bag next to my spare SIM cards, assuming they don't have some lame decay function on the value, like other stored value cards.
Problem: because they are a "banking" transaction, you have to supply a Social Security number before the cashier can activate them - albeit I heard several months ago that BankAmerica had a limited program testing debit cards without that (so foreign tourists, illegals and others could give money to BofA...) but I do not know how they were getting around the regulations.
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Yes indeed. But WHY is "Our law" so "comfortable" with it? It makes me itchy...
" can any fellow coastal elites tell me if I'm just blind"
"fishbane, you may not be blind - just oblivious"
together with the following remark:
"Given the nature of email, I have a very hard time accepting this as legitimate."
It is incredible not one lightbulb went off such that anyone managed to recognize that the Americans With Disabilities Act would make it a mandatory requirement that e-mail service of process be provided to those people who include blind people who use screen readers and/or others who rely upon voice-recognition assistivbe technologies.
Duh! It is a requirement of architectural compliance with the spaces, elements, and entrances to the virtual courthouse governed by Tennessee v. Lane, 541 U.S. 509 (2004).
But WAIT! ... there are some protests: "The court's requirement for the construction of the message might very well result in the resulting email being confused for spam by a spam filter ..."
Amazingly, the Federal Courts don't appear ever to have any such "spam" problems getting "confused" by a "spam filter" with the CM/ECF system. So how exactly is it that other courts could not manage to similarly overcome this psuedo-problem?
Nonetheless, State courts can't seem to figure out the signage along the way of the Internet superhighway, and continue with their global warming carbon emissions in all those tons of hard paper copy filed in and vehicle trips to the "brick and mortar" Courthouse:
"[I]t's reported this week that foreclosure notices are boosting newspaper income, b/c of the requirement that they be posted in the hard-copy legal notices sections."
and
"[W]hy is this any goofier than service by publication and posting at the courthouse, still permitted under California law? Do any of you in a major metro area read the all notices in all the 'adjudicated newspapers of general circulation' for your city?"
I discovered that the Calfornia Bar Exam a few years ago included a performance test section anayzing the Americans With Disabilities Act. Those who passed that particular non-A-B-C-d examination are probably the only attorneys in American who would readily grasp the idea that vision impaired people CANNOT READ hard paper copy print!!
That means under the Americans With Disabilities Act:
1. Contracts in print format can be challenged;
2. Probate notices in newspapers print format can be challenged;
3. Pleadings in print format can be challenged;
4. Notarized affidavits in print format can be challenged;
5. Bill collectors in print format who turn the account over to Experian can both be challenged;
6. Traffic citations in print format can be challenged;
7. Bar complaints in print format can be challenged;
8. Settlement agreements in print format can be challenged;
9. Mortgage documents in print format can be challenged; etc.
etc.
etc.
Repeat after me: There are more choices than A-B-C-D; there is E: the Americans With Disabilities Act requires alternative formats!!
It is inescapably like the blind persons Treasury currency case.
A no brainer.
e-mail service of process is mandatory if there is any possibility a disabled American is involved..
I think a blind person receiving a traffic citation poses some problems beyond the Americans with Disabilities Act.
. . . and publication? In the days when people actually READ newspapers, the only reasons I knew that anyone I knew read the legal notices were (a) to find foreclosure and execution sales, and (b) to note (this was in Los Angeles...) the goofy names in the name change petitions(about 30 years ago, when I was a research attorney in Superior Court, and actually got to meet both "Nikki Sixx" and "Rainbow Wave" during the name change calendar; I also got to read the extremely long and bizarre, but immaculately typed, petition of a guy who eventually successfully changed his name to Jesus Christ, but that's a story for a different time...)
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