An Anniversary in Supreme Court Certified Questions

In recent years, acceptance by the Supreme Court of questions certified to it by the Third Circuit Court of Appeals under Rule 2:12A has become somewhat more frequent, though still not a regular occurrence.  Today, May 16, however, is the anniversary of the Court’s first opinion answering a certified question under Rule 2:12A.  Musikoff v. […]

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Could Service of Process Via Facebook Be the Way of the Future?

Ah, technology.  In this modern world, we navigate the roads on our phones instead of a map.  We talk to a cylindrical tube to tell it to order more toilet paper for us, tell us the weather, read us the news, or turn on the lights.  We don’t remember anyone’s phone number because they are all stored for us on our phones.  And we obtain personal jurisdiction over an out-of-state defendant via Facebook.

 

The legal world is, perhaps, notorious for its luddite tendencies.  One need only step into any lawyer’s office to see reams of paper everywhere – stacked on the floor (okay maybe that’s just me), piled on the desk, packed into boxes.  But in terms of the use of social media as a mechanism for exercising “long-arm” jurisdiction over a defendant, the law appears to be catching up with modern means of communication as more and more jurisdictions are allowing the use of Facebook and other social media platforms to serve as a form of substituted service.

Personal Jurisdiction = Sufficient Minimum Contacts + Service of Process

For those who didn’t take Civil Procedure, it is important to understand that there are rules (a lot of them!) about who is subject to the jurisdiction of a particular Court.  Every state in the country has the ability to exercise “long-arm” jurisdiction over parties who do not reside within it, but only if certain rules are followed and conditions met.

In order for a New Jersey court to exercise jurisdiction over a person who does not live in this state, that person must have sufficient minimum contacts (a phrase drilled into every first-year law student’s head for all of time) with New Jersey, and must also be properly served with process.  Broadly speaking, the “minimum contacts” test is satisfied if the individual could or should reasonably expect to be brought into court in the state.

Importantly, there are limits on what types of actions a court can exercise its jurisdiction over, and these are based upon the type and scope of the minimum contacts the out-of-state defendant has with the state.  For example, if a PA resident has a car accident in NJ, and the nexus of personal jurisdiction is that the PA resident drove into NJ where the accident occurred, then a New Jersey Court would have jurisdiction over any legal claims arising out of the car accident.  But, if someone wanted to sue the PA resident for some other reason in NJ, there would have to be some other finding of minimum contact related to that cause of action here in NJ.

There also has to be service of process.  The purpose of this requirement is two-fold.  First, service must be reasonably calculated to apprise the party of the pending legal action.  Second, it must allow the party an adequate opportunity to respond.  Simply speaking, under our Court Rules, personal service (i.e. actually delivering the process to the person or a representative) is the preferred form of service.  Under certain conditions, service can also be made by mail.  But then, there is a third option.  If service cannot be made personally or by mail, then it can be made “as provided by a court order, consistent with due process of law.”  In other words, the Court can determine an alternate method of service, so long as this method accomplishes the dual purposes of service of process: the manner of service must be reasonably calculated to let the party know about the pending legal action and the claims against him/her, and must allow the defendant the opportunity to respond.

Recent Court Ruling Approves Service of Process Via Facebook

In a recent published (precedential) decision, K.A. and K.I.A. v. J.L, a New Jersey trial court found that – under the circumstances – service by Facebook would be sufficient to confer personal jurisdiction over the defendant.  In that case, K.A. and K.I.A. were adoptive parents of their son, referred to as “Z.A.”  Z.A.’s biological father had contacted not only Z.A. but also K.A. and other family members (all of whom were NJ residents) on Facebook and had disclosed to Z.A. on Instagram that Z.A. was adopted and told him the identity of his birth mother and the location of his birth.  J.L. also obtained photographs of Z.A. from K.A.’s Facebook page and published them on his own page, holding Z.A. out as his son.  The plaintiff’s commenced an action to enjoin J.L. from holding Z.A. out as his son, to enjoin him from contacting them and Z.A., and to compel J.L. to remove information pertaining to Z.A. that he allegedly published online.

The plaintiff’s attorney sent cease and desist letters to both of the defendant’s last known addresses, which were in Pennsylvania, by certified and regular mail.  Under the Court Rules, this is an acceptable method of service so long as the regular mail is not returned to the sender, and so long as an answer or response is made by the defendant.  In this case, both of the certified mailings were unclaimed and, although the regular mail was not returned, no answer was made by the defendant.

Because the defendant, based upon the conduct forming the basis of the claims against him, was evidently an active Facebook user, the plaintiffs sought permission from the Court to effect substituted service by use of Facebook.

Judge Hansbury found that under the circumstances, such service would meet the requirements to confer personal jurisdiction over the defendant with regard to the claims against him based on the following:

• Personal Jurisdiction:  Judge Hansbury relied upon a Third Circuit case, Toys R’ Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003), which held that a defendant’s intentional interaction with the forum state via the internet is sufficient to confer jurisdiction.  In the case before the Court, the defendant intentionally reached out to various members of the plaintiffs’ family who are NJ residents, using his social media accounts.  Any harm arising from these intentional contacts would clearly be concentrated in NJ.  Therefore, the Court found that it could exercise personal jurisdiction over the defendant by virtue of his intentional contact with the State via the internet.
• Scope of Personal Jurisdiction:  Because the defendant’s contacts with the state were precisely those that gave rise to the causes of action the plaintiffs pursued against the defendant, the Court found that the scope of its personal jurisdiction over the defendant included these claims, though it acknowledged it did not have personal jurisdiction over the defendant as to any claims unrelated to the alleged contact with the plaintiffs and their family members.
• Service:  Under the facts of the case, service of process via Facebook would accomplish the dual purposes of the service of process requirements discussed above.  The Court reasoned that because the defendant solely used his Facebook and Instagram accounts as the “conduits of the purported harm,” service via Facebook was reasonably calculated to apprise the defendant of the pendency of the action and afford him an opportunity to respond.  The Court observed that the plaintiffs had demonstrated that the defendant’s Facebook account was active.  Further, the Court noted that Facebook includes a feature that allows the sender of a message to see whether the recipient has opened and received the message, which would indicate whether the defendant was actually notified of the case.

Limitations on the Use of Facebook to Confer Personal Jurisdiction

It is important to note that Judge Hansbury’s ruling does not mean that service of process via Facebook is acceptable as a primary method of service or even that it is available in every case.  Central to the ruling here is that personal service could not be affected, nor could service by mail.  Moreover, it was due to the particular facts of this case – specifically, that it was evident the defendant had an active Facebook account and that the Facebook account was the primary means of the harm alleged in the case – that caused the judge to believe it would be an appropriate means of substituted service.  However, given the widespread use of Facebook, the ruling suggests that it can be used in other cases as a means of substituted service and is something to keep in mind in cases where out-of-state defendants cannot be served by traditional methods.

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Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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Divorce Arbitration – How it Works and Why it’s Right

Divorce arbitration is an effective method of dispute resolution which has been recognized by the New Jersey Supreme Court as an alternative to conventional litigation. Given the severe backlog in the New Jersey court system and the difficulty obtaining consecutive hearing dates and receiving timely decisions, more divorcing parties are turning to arbitration to resolve their disputes. As a certified divorce arbitrator, I will describe what arbitration is (and isn’t) and explain how it functions.

First, it is important to distinguish arbitration from mediation. While mediation involves the assistance of a third party “neutral” to encourage and facilitate a resolution, arbitration is akin to litigation on an expedited basis. In other words, at the conclusion of an arbitration hearing the arbitrator renders a decision just as would a judge hearing the case.

Second, the selection of an arbitrator is essential. My recommendation is to utilize a family law attorney who has been certified as a divorce arbitrator by the American Academy of Matrimonial Lawyers in the place of a judge who may have had limited or perhaps no family law experience prior to his or her appointment to the bench. The selection is also critical since the arbitrator’s decision will generally be binding.

Third, the issues that will be arbitrated must be determined. In short, the parties and their attorneys would make this determination in advance, to include arbitration of related non-family law matters. If custody is involved, New Jersey’s inherent jurisdiction over the welfare of children within its borders means that an arbitration decision in this area is subject to review by a court.

Fourth, the protocol of an arbitration hearing is important to consider. For example, should a court reporter be present to transcribe testimony and mark exhibits or will a less expensive means such as audio-recording suffice? Should the Rules of Evidence strictly govern at the hearing or be relaxed? Where will the arbitration take place? Will the arbitrator’s fee be advanced by one party or shared? Will such payment be subject to adjustment by the arbitrator? Needless to say, these and any other questions should be resolved in advance.

Finally, once arbitration commences, the case will proceed with witnesses testifying and documents submitted to the arbitrator consistent with the rules of evidence, as discussed above. At the conclusion of the hearing the arbitrator will advise the parties of a date for issuance of his or her decision, depending on the complexity of the issues involved. The goal of a divorce arbitrator is to render a decision within 30 days, if possible.

In summation, divorce arbitration is a far cry from the “courthouse” experience which is inefficient and difficult to endure. In contrast, presenting the case to a certified divorce arbitrator is more timely and thorough. It is also in the best interests of children who desire a conclusion of their parents’ divorce and a certainty of their future.

Please check this site and other outlets for the dates of upcoming divorce arbitration seminars at Stark and Stark’s New Jersey locations.

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A Relatively Rare Exercise of Original Jurisdiction by the Appellate Division

Royal Tax Lien Services, LLC v. Shuaib, 2017 WL ______ (App. Div. May 11, 2017).  Rule 2:10-5 authorizes an appellate court to exercise “such original jurisdiction as is necessary to the complete determination of any matter on review.”  In comparison to the number of times that parties have asked appellate courts to exercise original jurisdiction, […]

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A Redesigned Judiciary Website

Today, the New Jersey Judiciary debuted its new website.  (For some time, there was a link on the prior site that allowed for a sneak peek at the new site).  The address of the site, http://www.njcourtsonline.com, remains the same.  The site has been redesigned with the goal of directing attorneys, members of the public, the […]

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Say What? The Second Circuit Establishes a New “Outer-Bounds” Limit to Protected Employee Speech

To say that Facebook and social media have complicated the relationship between employer and employee and, specifically, what an employee can say or do with respect to his/her work, is an understatement. Social media has added a new dimension to analyzing the intersection between employee speech and protected activity under the National Labor Relations Act (the “NLRA”), and the level of protected activity has reached a new low.

A new line has been drawn in the sand, and the “outer-bounds of protected, union-related” activity has been reestablished by the United States Court of Appeals for the Second Circuit. In National Labor Relations Board v. Pier Sixty, LLC,  the Second Circuit was tasked with the challenge of determining to what extent the NLRA protects an employee’s comments on social media and the point at which an employee’s conduct is so “opprobrious” (i.e. abusive, pejorative, obscene, libelous) as to lose the NLRA’s protection.

In laymen’s terms, the question is: How badly can an employee behave and still keep his job if the employee’s behavior is at least loosely tethered to union-related activity? The answer, as explained below, is very badly.

Pier Sixty operates a catering company in New York City. In 2011, many of its service employees sought to unionize. Two days before the election, an employee, in response to what he perceived to be harsh criticism and continued mistreatment by a supervisor, took to Facebook with the use of his iPhone during an authorized work break. He posted: “Bob is such a NASTY M–R F–R don’t know how to talk to people!!!!!! F— his mother and his entire f–ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” The employee knew that his Facebook friends included coworkers, and that those coworkers would be able to see the post. As expected, news of the Facebook rant made its way back to Pier Sixty which, following an investigation, fired the employee.

The Second Circuit upheld the termination event and protected the employer, right? Not so fast.

Wait – you can drop the f-bomb on your boss (and his family) and keep your job? I repeat: Not so fast. It’s a little more nuanced than that.

First, some ground rules. The NLRA generally prohibits employers from discharging an employee based on that employee’s concerted or union‐related activity. Section 7 provides, in relevant part: “Employees shall have the right to self‐organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection .”

In turn, Section 8(a) reads: “It shall be an unfair labor practice for an employer‐‐ (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title . . . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” In other words, employers cannot fire employees who engage in speech protected by the NLRA.

The caveat, of course, is that, at some point, the employee’s conduct is so “opprobrious” that it forfeits NLRA protection.

Thus, in NLRA v. Pier Sixty, the Second Circuit was required to resolve whether an employee’s Facebook post insulting his boss’s mother and encouraging other employees to vote for the union should receive protection under Sections 8(a)(1) and 8(a)(3) of NLRA. Applying the nine-factor “totality of circumstances” test for evaluating an employee’s use of social media, the Second Circuit determined that Pier Sixty failed to show the employee’s behavior was so egregious as to lose the protection of the NLRA.

In making its decision, the Second Circuit rested heavily on the deference afforded to the factual determinations of the National Labor Relations Board following a six-day trial, as well as the specific culture at Pier Sixty (where profanity was somewhat tolerated). The Second Circuit qualified its decision by reiterating that the case sits at the outermost-bounds of protected, union-related activity, and that the test for evaluating “opprobrious conduct” must be “sufficiently sensitive to employers’ legitimate disciplinary interests.”

So, it’s okay to call your boss names in a public forum and you won’t lose your job, right? No, obviously not. Again, it’s more nuanced and fact-specific than that. In NLRA v. Pier Sixty, the Pier Sixty work environment, the employee’s use of Facebook as a medium to vent (but also to communicate with fellow co-workers and at least loosely engage in concerted activity), and the employee’s inclusion of “Vote YES for the UNION!!!!!!!” in his post on the eve of the union election, all factored into the court’s decision.

The point is this. What likely seemed to be a clear cut decision for Pier Sixty – to fire its employee for clear misconduct – obviously was not clear cut… not at all. The Pier Sixty case reminds us that these cases, which are incredibly fact-sensitive, can be tricky and often require careful consideration (if not a phone call to an employment attorney), before any critical decisions are made. Furthermore, the Second Circuit’s ruling serves as a reminder that employers should revisit their social media, cell phone, and disciplinary policies, all of which can come into play under these types of situations.

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Four New Supreme Court Grants of Review: Criminal Law, OPRA, and Self-Critical Analysis Privilege

The Supreme Court announced this morning that it has granted review in four more cases.  Two of them address discovery issues, and two involve criminal matters. In Brugaletta v. Garcia, the question presented, as phrased by the Supreme Court Clerk’s Office, is “Does the absolute privilege of documents developed as part of a hospital’s self-critical […]

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