New Jersey Examines Use of Social Media to Acquire Personal Jurisdiction Over Out of State Defendant

This week the Honorable Stephen Hansbury, P.J. Ch. published a Superior Court opinion that demonstrates how technology and social media is changing the legal landscape and creating new challenges and solutions.   In the published opinion in KA v. JL, in which Judge Hansbury addressed a cause of action that occurred based on a defendant’s use of social media, whether a New Jersey court can obtain personal jurisdiction over an out of state litigant over his use of social media, and whether pleadings may be served via social media.

In this case the Plaintiffs KA and KIA are the adoptive parents of son, ZA.  They are strangers to Defendant, JL.   JL, however, purports to be the biological father of ZA.  He attempted to initally contact Plaintiff KA and her sister via the social media Internet site, Facebook.  After his Facebook friend requests were denied, he contacted ZA himself via social media, specifically ZA’s Instagram account.   JL told ZA that he was ZA’s biological father, that he knows who ZA’s biological mother is, and told ZA that he has biological siblings.  Defendant is then alleged to have taken photos of ZA from Plaintiff’s Facebook page and incorporated ZA’s image into JL’s own photos.  JL then published those photos on his Facebook page, holding himself out to the public as ZA’s father.

Plaintiffs’ attorney attempted to mail cease and desist letters to Defendant’s address in Pennsylvania, but the mail was returned unopened.  Plaintiff filed a Complaint and Order to Show Cause in the Chancery Division of the Superior Court in Morris County seeking to restrain Defendant from contacting them and their son, and to cease using their son’s image.   Plaintiffs’ counsel, however, did not have a good address for Defendant to personally serve him with those pleadings giving him notice of the action pending against him in New Jersey, nor did they know an address to give him his due process rights to notice via mail.

Judge Hansbury first addressed whether New Jersey has personal jurisdiction over the out of state Defendant. Judge Hansbury noted that New Jersey’s court could not assert jurisdiction with an out of state defendant unless that defendant had contacts with New Jersey.   facebook-300x87Out of state activity may constitute contact with New Jersey to establish personal jurisdiction if the defendant knew that the effects of his contact could be manifested in New Jersey. Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 311 (1980).    Moreover, a defendant’s intentional interaction with New Jersey via the Internet may be enough to confer personal jurisdiction over the Defendant. Toys R. Us, Inc. v. Step TWo, S.A., 318 F.3d 446 (3d Cir. 2003). In this case, Judge Hansbury reasoned that the defendant knowingly reached out to Plaintiff and her family, all of whom live in New Jersey, via social media, and it was clear that the harm caused from that contact would occur in New Jersey.  Hence, Judge Hansbury concluded that New Jersey has personal jurisdiction over this out of state defendant JL.

The judge then examined the scope of personal jurisdiction over the defendant.  The scope of the jurisdiction depends on the degree of the defendant’s contacts with New Jersey.   If an out of state defendant engages in “continuous and systematic activities” in New Jersey, then a New Jersey court can exercise “general jurisdiction” over the defendant.  If, however, the defendant’s activities are less than that, the court may only have “specific jurisdiction” over him, meaning that jurisdiction is limited to causes of action arising only out of the defendant’s contacts with New Jersey.  Waste Management v. Admiral Ins. Co., 138 N.J. 106 (1994).   Judge Hansbury concluded that the defendant’s activities did not give New Jersey courts general jurisdiction, but limited jurisdiction.  Defendant’s only contacts known with New Jersey were through social media contacts with New Jersey residents, so the New Jersey court would have jurisdiction only over actions related to that social media activity.

Finally, the judge  addressed whether service could actually be effectuated on the defendant so that the New Jersey court could exercise jurisdiction.  The out of state defendant must receive the plaintiff’s complaint and summons personally.  Plaintiffs’ attorney did not have a good address for Defendant to allow him to be served in person or by mail.   New Jersey Rule 4:4-4(b) allows service of pleadings by means that are consistent with due process..  In order to afford the defendant due process, notice of the pending action has to be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” O’Connor v. Altus, 67 N.J. 106, 126 (1975).   The notice given has to be of a nature that could reasonably convey the required information and give enough reasonable time for interested parties to appear. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

Judge Hansbury noted in his written decision that there is no general agreement in the courts as to whether service of process by social media is permissible.  Only a handful of unpublished decisions, mostly from federal district courts, have even addressed the issue, and those that have allowed service of process by social media also required service of pleadings on a defendant by a second method as well.

Here, Judge Hansbury decided to allow Plaintiffs to serve their pleadings on Defendant via Facebook.  Facebook and Instagram were the social media conduits used by Defendant to cause Plaintiffs purported harm.   Defendant’s Facebook activity showed that he has an active Facebook account, and that it is actually possible for him to receive documents via Facebook, which also has a feature that allows a user sending a message to receive notification that the recipient has opened the message.  Given that Plaintiffs were seeking an injunction preventing the defendant from contacting them, the judge did not feel that substituted service by something like a newspaper publication would be sufficient to give Defendant notice of a restraint not to contact plaintiffs so that he could stop his contact.

Judge Hansbury established his own test to determine if service of process via Facebook is proper service.  The following factors were those that he recommended be used:

  1.    Can the defendant be served by conventional means already permitted by court rule?
  2.    Is the relief sought appropriate for service by publication?
  3.    Will service by Facebook still protect the defendant’s due process rights?

In this case, Defendant demonstrated that he has an active Facebook account and that he uses it.  It was substantially likely that he would receive the pleadings.  He in fact did appear by phone the hearing, showing that he was indeed actually served.

Cases like this show the growing landscape of how technology is affecting the law and how the courts are having to address the different and new ways in which people interact and receive information.   It also shows how the courts in New Jersey are often in the forefront in addressing these new areas of the law.