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Process Service by E-Mail:

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.

Just Saying:
That's a great decision. Of course, one wonders how easy it will be to collect a judgment if it's that hard to even track down the defendant...
5.8.2008 2:48pm
Viceroy:
Federal Rule 4 allows for email service in certain circumstances, in particular on foreign defendants. (Rio Properties, among other cases apply this rule.)
5.8.2008 2:49pm
Fub:
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.


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.
5.8.2008 2:49pm
Lior:
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 ...
5.8.2008 3:04pm
hattio1:
I wonder why New York doesn't allow service on the commissioner of corporations (or whatever they call it in NY). Alaska (and other states) do. The theory being that this company should be in contact with that entity, and if they are not, and if they are hiding their physical whereabouts, any resulting default judgment is really the result of them not fulfilling their legal obligations.
5.8.2008 3:05pm
Anderson (mail):
I was thinking about legal notices the other day in a similar context.

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.
5.8.2008 3:08pm
Sean M:
Viceroy, I see, beat me to the Rio Properties case.

And here I thought I was going to get to bust out my 1L Civ Pro knowledge.
5.8.2008 3:10pm
Adam J:
Just Saying- collecting a judgment is frequently easier than locating the person, just find some real property or a bank account and attach the judgment to it and have the sheriff seize it.
5.8.2008 3:14pm
Soronel Haetir (mail):
Given the nature of email, I have a very hard time accepting this as legitimate. As noted above the terms of message construction would seem to make it that much more likely to be flagged as spam, in addition to concerns such as accepting whitelist only and other such matters.

OTOH I don't know what else you can do. Perhaps force the use of some locator service?
5.8.2008 3:25pm
CDU (mail) (www):
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.


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.
5.8.2008 3:41pm
CDU (mail) (www):
The e-mail address listed is an AOL account. Is there any reason the court couldn't just subpoena the contact information associated with the account? The account info could be faked, of course, but if the info was good it would at least offer a chance to contact the account holder and figure out if they were the person the plantiff is trying to sue and to serve them by more traditional means.
5.8.2008 3:47pm
statfan (mail):
I wonder why New York doesn't allow service on the commissioner of corporations (or whatever they call it in NY).

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.
5.8.2008 4:14pm
fishbane (mail):
he e-mail address listed is an AOL account. Is there any reason the court couldn't just subpoena the contact information associated with the account?

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!"
5.8.2008 4:37pm
New World Dan (www):
In the future, I'll expect all of my subpoenas to be delivered by carrier pigeon. I hear Google is developing a system along those lines.
5.8.2008 5:02pm
R Gould-Saltman (mail):
Report, Los Angeles Metropolitan News, from the 2001 California State Bar Annual Meeting:

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."
5.8.2008 6:35pm
R Gould-Saltman (mail):
. . . and I forgot to add: why 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?

. . . 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!"
5.8.2008 6:42pm
BZ (mail):
Just a picky note on the AOL point:

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.
5.8.2008 6:59pm
Eugene Volokh (www):
Plus even a service that requires a credit card would, I expect, take those prepaid Visa/Mastercard gift cards that you can pick up at any supermarkets. Often a subscriber wouldn't be interested enough in anonymity (or difficulty of location) to use them. But a subscriber who wants to stay hard-to-trace might deliberately use such a card.
5.8.2008 7:46pm
fishbane (mail):
lus even a service that requires a credit card would, I expect, take those prepaid Visa/Mastercard gift cards that you can pick up at any supermarkets.

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.
5.8.2008 8:19pm
teqjack (mail):
fishbane, you may not be blind - just oblivious. Almost every supermarket and pharmacy/drugstore has these in racks, either with the phone cards or by the greeting 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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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."


Yes indeed. But WHY is "Our law" so "comfortable" with it? It makes me itchy...
5.9.2008 12:28am
Mary Katherine Day-Petrano (mail):
We are REALLY reading this A-B-C-D test taker conversation:
" 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..
5.9.2008 3:08am
Jay:
R Gould-Saltman--Are you trying to claim you didn't recieve the notice of suit I had telegraphed to your office on the 27th ult.? I hope you are prepared to contest personal jurisdiction based on the Supreme Court's recent decision in Pennoyer v. Neff.
5.9.2008 3:40am
HLSbertarian (mail):

Traffic citations in print format can be challenged


I think a blind person receiving a traffic citation poses some problems beyond the Americans with Disabilities Act.
5.9.2008 9:56am
Happyshooter:
Western Union discontinued telegraph services in 2006. There is no more telegraph service because there is no carrier.
5.9.2008 9:57am
New World Dan (www):
I thought the point of publishing notices in newspapers and at the courthouse was to increase the chance that people found out via word of mouth, not necessarily that the intended target would personally read it. If you're unable to contact someone directly, you're really only left with the shotgun approach.
5.9.2008 11:13am
R Gould-Saltman (mail):
NWD: my point is the oddness in 2008 of the idea that posting something on a bulletin board in a metropolitan courthouse increases the chances that the defendant will hear about it by word of mouth more than, say, giving 200 copies of it to a guy in a chicken suit to hand out in front of the courthouse would.

. . . 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...)
5.9.2008 2:52pm