Federal courts have authorized alternative service of process, including service by e-mail, where a defendant has evaded service and the proposed alternative method is reasonably calculated to provide notice of the action and an opportunity to be heard.
Requests for alternative methods of service arise when traditional methods are not possible, particularly, where a defendant has evaded service, defendant’s whereabouts are unknown, or defendant’s business is exclusively digital in nature.
Under such circumstances, courts have held that service by e-mail alone comports with due process so long as the plaintiff establishes the e-mail is likely to reach the defendant and the record discloses diligent efforts by the plaintiff to obtain a physical address to effect traditional service, the defendant conducts business online related to the subject at issue, and the defendant recently communicated using the e-mail address plaintiff proposes to use for service.
Both district and circuit courts across the country have adopted this principle:
- ECHO Health, Inc. v. Echo Payments, Case No. 0:23-cv-00741 (D.Minn. May 25, 2023): Granting plaintiff’s motion for alternative service of process via e-mail where defendant intentionally concealed its whereabouts and knowingly provided its domain name registrar with a false, incorrect, or invalid address allegedly associated with its business, thereby making service by traditional methods impossible.
- Seaboard Marine Ltd., Inc. v. Magnum Freight Corp., 2017 U.S. Dist. LEXIS 231098, 2017 WL 7796153 (S.D. Fla. Sept. 21, 2017): Authorizing service of process via e-mail where plaintiff presented evidence that defendant evaded service, refused to accept service via FedEx, and had communicated with the e-mail plaintiff proposed to use for service.
- St. Francis Assisi v. Kuwait Fin. House, 2016 U.S. Dist. LEXIS 136152 (N.D.Cal. Sept. 30, 2016): Authorizing service of process via Twitter finding it was reasonably calculated to give notice and was not prohibited by international agreement.
- FTC v. PCCare247 Inc., 2013 U.S. Dist. LEXIS 31969, 2013 WL 841037 (S.D.N.Y. Mar. 7, 2013): Holding service by e-mail and Facebook are reasonably calculated to provide defendants with notice.
- Power Corp. of Canada v. Power Financial, 2009 U.S. Dist. LEXIS 31058, 2009 WL 982750 (M.D. Pa. Apr. 13, 2009): Authorizing service of process via e-mail where plaintiff demonstrated service through customary methods was not possible due to defendant’s efforts to prevent plaintiff from ascertaining its physical location.
- MacLean-Fogg Co. v. Ningbo Fastlink Equip. Co., 2008 U.S. Dist. LEXIS 97241, 2008 WL 5100414 (N.D. Ill. Dec. 1, 2008): Authorizing service via e-mail where plaintiffs demonstrated the defendants transacted business online and were unsuccessful in effectuating traditional service.
- Popular Enters., LLC v. Webcom Media Group, Inc., 225 F.R.D. 560, 2004 U.S. Dist. LEXIS 26785 (E.D. Tenn. Nov. 16, 2004): Holding service upon the defendant by e-mail is fully authorized, is the method most likely to reach the defendant, and is reasonably calculated to apprise the defendant of the pendency of the action and afford it an opportunity to be heard. The Court further reasoned an e-mail sent to an e-mail address supplied by the defendant to its domain name registrar presumably reached defendant since it did not bounce back.
- Rio Props. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002): Holding service of process by e-mail was proper not only because it was reasonably calculated to apprise the defendant of the pendency of the action and afford it an opportunity to respond, but also because it was the method of service most likely to reach the defendant.
Although the decision to allow service by alternate methods lies solely within the discretion of the court, it is clear courts agree that as technology advances, a defendant should not be allowed to evade service by confining itself to methods of communication not specifically mentioned in the Federal Rules. Courts have further recognized that when a defendant is playing hide-and-seek with the federal court, e-mail may be the only means of effecting service of process. Authorization of service by e-mail and other alternative methods under federal law ultimately seeks to prevent such gamesmanship.