This evolution has occurred within the legal framework of the concept of due process as defined by the Constitution. The purpose of process, as it is interpreted today, is to allow a court to acquire jurisdiction over a party to ensure compliance of court orders by the party in which a judgment is rendered. “Jurisdiction is acquired in one of two ways: first, as against a person of the defendant by the service of process (In Personam), or, secondly, by a procedure against property of the defendant within the jurisdiction of the court(In Rem).” If a court is unable to acquire jurisdiction over a party, the effect of any ruling is non-binding and can be vacated. Therefore, it is important for plaintiff to give notice to the party of the action. This notice affords the party the opportunity to be heard and present any defenses. Thus, securing his/her rights under the 14th Amendment.

The due process clause of the 14th Amendment states that no state shall “deprive any person of life, liberty or property without due process of law.” Furthermore, it has been stated that, [interpreting the] “words of the due process clause...there could be no doubt that at a minimum they require that the deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity to be heard.” “The fundamental requisite of due process of law is the opportunity to be heard.” Consequently, certain steps must be taken to fulfill constitutionally interpreted requirements of giving notice before a court can obtain jurisdiction over a party.

Further, the most important aspect of the due process clause is notice which is reasonably calculated,feasible and customary. In order to be “heard” one must be notified. The methods of notification have evolved from strict personal service to notification via publication, reliance on the federal mail system, electronic facsimile transmissions and electronic mail. Electronic mail(email)is an electronic means of communication in which messages are transmitted over communication networks. Email messages can be composed of text, images, and entire files from your existing saved material which can be sent anywhere in the world. Email messages are sent by specifying a recipient’s electronic mailbox address. Since 1999, there have been over 220 million users of email every month. Email has become as common a method of delivering mail as first class mail. Additionally, there are over 235 million electronic mail boxes in the United States. Therefore, there are almost as many email boxes as there are people in the United States.

Given the large number of email users, it will come as no surprise that email has been used as a method of service of process to afford a party the opportunity to be heard. Although the use of email as a form of process has potential ability to fulfill the requirements of the 14th Amendment, there are some shortcomings when the strict application of due process is applied. Therefore, the use of email as a method of service of process has only been allowed in limited circumstances.

This paper will focus on the requirements of the due process clause, how these requirements have been interpreted by the courts and apply these requirements to service of process by email. Part II will detail the historical background of due process requirements for service of process. Part III addresses the application of the due process factors which have been applied in case law to email, including safeguards implemented to ensure that service by email fulfills due process.

Pennoyer v. Neff

The historical background of due process pertaining to service of process was first addressed in Pennoyer v. Neff. Pennoyer brought an action against Neff for the recovery of property which was located in Oregon. Pennoyer claimed title to the land which was acquired from a sheriff’s sale initiated by the Oregon state courts based on a judgement against Neff. Neff claimed that he was not a resident of Oregon and had never received proper notice of the action against his parcel of property. Notice was posted by publication in Oregon. Neff was not a resident in Oregon, and as a result, he never appeared in the action. As a result of Neff’s absence the Oregon court entered a default judgement against him. Neff then claimed that he was not given proper notice of the action and that the Oregon court could not acquire jurisdiction over him.

The Supreme Court ruled that the state may exercise jurisdiction over a person present in that state at the time the summons is served even if the presence was for a short term. Thus, the Supreme Court established that service of process on a defendant can only be done within the state’s jurisdiction setting forth the physical presence standard.


Mullane v. Central Hanover & Trust Co.

In 1950 the physical presence standard established in Pennoyer v. Neff. was adjusted and expanded in Mullane v. Central Hanover Bank & Trust Co. This decision recognized new modern standards advancing communication technology and increased mobility of the average citizen. The plaintiff challenged whether the beneficiaries of a trust account were given proper notice under New York Banking Law which allowed for notice by publication. In this case there were two categories of persons who were to be notified, those whom Central Hanover Trust knew the addresses and those whom they did not. The argument presented by Mullane (special Guardian to the trustees)was that service by publication was inadequate under due process because the defendant, Central Hanover Bank, had notice of certain plaintiffs addresses. Rather then directly notifying the plaintiffs’ by mail,
Central Hanover Bank chose notice by publication for all plaintiffs. The issue with this notice pertained to those beneficiaries from whom the bank had notice of their addresses.

The Supreme Court ruled that a minimum standard for due process must be met. The Court stated that “an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all circumstances, to appraise interested parties of the pendency of the action and afford them the opportunity to present their objections.” Clearly, the Court established the standard of fairness and reasonableness. Thus, for sufficient service of process to be accomplished to obtain jurisdiction, there must be a “responsibly calculated” probability that the actual notice will reach the interested party”

The Supreme Court in Mullane interprets that service is reasonably calculated by looking at specific facts pertaining to the method of service of process. The Court distinguished the method of service (publication) between parties where the physical address is known and where the physical address is unknown. In instances in which the physical address is known, the Court ascertained that service of process by publication was not reasonably calculated to afford proper notice. Therefore, if the address is known, service of process must be made personally. If the address is unknown due diligence must be used to ascertain the address. If personal service is unsuccessful, service of process can be made by publication reasonably calculated to give actual notice.

Greene v. Lindsey

The factor that service of process must be reasonably calculated(Mullane) was expanded in Green v. Lindsey to include a feasible and customary standard. In Greene, the appellees, apartment tenants argued they were not given proper notice prior to a forcible entry and detainer action. They contended that since it was well known that postings, even official notices, on doors within the building were frequently removed. Therefore, tenants would not see the postings. Thus, the method of service would not be feasible to give proper notice. The Supreme Court ruled that service by posting did not satisfy minimal standards of due process. In many circumstances, the tenants were not afforded actual notice because postings were placed only after one attempt at personal service was made. Therefore, it can be interpreted that one attempt at personal service does not satisfy “due process”, The Court stated:“the sufficiency of notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interest...its effect must be judged in the light of its practical application to the affairs of men as they are ordinarily conducted.” Additionally, the Court stated “the reasonableness of the notice provided must be tested with reference to the existence of ‘feasible and customary’ alternatives and supplements to the form of notice chosen.” Thus, the fairness and reasonable rule now has expanded the method of service to include a means of service feasible and customary to give actual notice.


Factors for Giving Defendants Reasonable Notice

The evolution of the due process, as interpreted in Mullane and Greene, pertaining to the procedural application of service of process has developed three factors which must be fulfilled for alternative service to obtain jurisdiction.

First, there must be no feasability of personal service before an alternative form of service may be used. The facts of the case must establish that there is no effective possibility of personal service giving actual notice to the interested party.

Second, the method of alternative service must be reasonably calculated to give actual notice to the interested party. Reasonably calculated is a term of art pertaining to the notion of whether it is probable that the interested party will actually receive notice by the method chosen. In interpreting the notion of reasonably calculated, the courts have reasoned that when the names of the interested parties were easily obtainable by plaintiff’s own records, service by publication was deficient. If there is a more reliable form of process ascertainable after due diligence to give actual notice, that form of service must be used. Additionally, courts have concluded that if the serving party has actual knowledge through due diligence that the party will not be notified by the form of service used, that form of service is not proper to give actual notice..

Third, the method of alternative service must be a feasible and customary method of giving actual notice. A feasible and customary alternative, where personal service is not available, is a form of substituted service where from the facts and circumstances, the court can determine that the method chosen is a practical application to the affairs of men as they are ordinarily conducted. The United States District Court, Southern District of New York, addressed and applied this rule in New England Merchants National Bank v. Iran Powers Generation and Transmission Company. This case took place during the late 1970's and early 1980's when the United States was having troubled relations with the foreign nation of Iran, thus, causing strained business relationships between U.S. and Iranian entities. The plaintiffs sought a court order under Rule 4 of the Federal Rules of Civil Procedure to allow service to be made by fax on the non-resident Iranian defendants. Under these circumstances, the court found the use of substituted service by fax upon the government of Iran, its agencies and instrumentalities sufficient to give proper notice. The court ruled that it was acceptable to use fax machines to serve process upon a recipient in Iran:

Courts cannot be blind to changes and advances in technology. No longer do we live in a world where communications are conducted solely by mail carried by fat sailing clipper or steam ships. Electronic communication via satellite can and does provide instantaneous transmission of notice and information. No longer must process be mailed to a defendant’s door when he can receive complete notice at an electronic terminal inside his very office, even when the door is steel and bolted shut.

Although, in Salley v. Board of Governors, the court ruled that service of discover papers were not properly served when the method of service was facsimile. In this case the court required strict compliance to the rules of law. The court stated that the law does not include fax as a proper form of mail service, facsimile’s are not mail. The court decided that it was not a decision of the court but rather the Advisory Committee on Rules to determine if service by facsimile is encompassed in statutes requiring service of process by mail.

In determining whether service by email is a suitable form of service, courts have applied the factors laid forth in Mullane and Greene. The courts look not at one factor alone, but at a combination of the factors to determine if service of process by email gives the interested party actual notice and allowing reasonable time to present a defense.

Feasability of Personal Service

In determining the feasibility of service of process by email the rules of due process must be satisfied. The feasibility of personal service must be impracticable to give actual notice. Interpreting Mullane and Greene personal service is the beginning step in obtaining jurisdiction. After attempts at personal service fail, it is proper to proceed to serve notice via a means of alternative service. Alternative service must be designed to give actual notice. To determine whether email gives actual notice under due process, courts have elaborated on the factors that must be present. Courts examine the physical presence of the party in the state, knowledge of the party address in the state, feasability of actual notice at address, and due diligence to serve personally. From these factors, the court ascertains the feasibility of personal service to be practicable or impracticable to give actual notice. For alternative service to be available, it must be determined that personal service is not a viable means to give actual notice.

In situations where the defendant is attempting to evade personal service, the method of email may be available to obtain jurisdiction. These circumstances were present in cases where courts have allowed for email service. In one such instance, a Trustee had no feasible means of serving personal notice because the parties would not divulge their addresses. The court allowed an alternative form of service (service by fax, email, and mail to last known address together) as acceptable actual notice to the interested parties. Additionally, it has been ruled that as long as other attempts at personal service have failed, the court was within its authority to order alternative service of process. Consequently, service by email will not be judicially permitted until it can be demonstrated that traditional personal service was not feasible.

Reasonably Calculated

Service of process by email is acceptable when email is reasonably calculated to give actual notice. In order to determine if service by email is reasonably calculated, the court will examine the particular facts of each case. In Mullane, the court applied the “reasonableness rule” to ensure that defendants with legitimate postal addresses be served notice through a method most practical to give actual notice. The court decided that service via publication was not reasonably calculated under these circumstances. From this ruling, one could reason that service by email may be acceptable if email is the best method of service reasonably calculated to give actual notice. The reasonableness of the method of service is based on the fact that a party must be served via the most logical and obvious means to actually place notice before the interested parties’ eyes.

Recent case law applies this rule to the facts of the case in order to determine if service of process by email is reasonably calculated. In Rio the court permitted email as a reasonably calculated method of service to give actual notice. This case involved a trademark dispute between a well known hotel and casino operator RIO All Suite Casino Resort(“Rio”) and an overseas internet web site called betrio.com (“RII”) used for gambling and advertising in the same state as Rio. Rio, which had previously trademarked its name, attempted to enter the internet gambling business and discovered the presence of two web sites containing the name Rio by RII. In an attempt to have RII cease and desist its use of the website, Rio proceeded to serve process on RII. Rio, upon unsuccessful personal and mail service, discovered that the only information available to discover RII’s location was a web site. Rio then filed a motion for alternative service of process by email which was granted by the court. RII then filed a motion to dismiss for insufficient service of process and lack of personal jurisdiction.

In Rio the court applied the “reasonably calculated factor” to the circumstances in which the only nexus to the defendant was a website. Under these circumstances the court construed service of process by email as an appropriate mode of service to afford actual notice. The court noted the fact that the interested party was not accepting any other means of communications other then email. The court reasoned that “service by email is ‘reasonably calculated’, under these circumstances, to appraise the interested party of the pendency of the action and afford them an opportunity to present their objections”. The court decided that the alternative method of service by email was constitutional. The court further stated that the means by which service is to be given is not definite, only that it must follow the law as decided in Mullane. Under the facts of this case email was the best method of notifying the party of the action. Therefore, when the interested party prefers communication through email as ordinary and customary in its business, service by email has been determined to be constitutional.

It having been decided that email is constitutional under certain circumstances, certain safeguards have been added to this method of service to ensure that actual notice is reasonably calculated. In addition to the normally required motion and affidavit of service, some courts have directed that service by email be accompanied by a mailing to the last known address of the interested party. Further, the courts have directed that repeated emails be sent on successive days. All of these safeguards have been implemented so that the courts may have reasonable assurances that the method of service chosen fulfills due process.

Since the introduction of email as a form of service, sceptics have pointed to several factors which might negate email as a reasonably calculated form of actual notice. Addressing this fact, there are a few further safeguards that may be available to ensure that email is a reasonably calculated and efficient form of actual notice. These factors include authenticating the email and guaranteeing receipt. With the rapid increase in technology, several email services provide both authenticating and receipting notification of email. SafeMessage? is a service provider which allows message privacy and receipt notification. Safemessage? not only provides instant confirmation of delivery, but provides many additional security features. Such features include encrypting all the messages that are sent thus guaranteeing privacy. Additionally, all messages sent bypass regular email servers providing a direct connection between the parties insuring privacy. This service also provides a delivery receipt. The sender can allow for the message to remain on the recipients computer until a certain date, thus ensuring against accidental deletion. These features provides a reasonably calculated means of delivery and actual uninterrupted notice.

Another service is provided by Hushmail? This service allows a sender to send an secure encrypted message using standard algorithms secured by an openPG(RFC 2240). Hushmail? also provides security for all attachments sent. Hushmail? additionally allows the sender to digitally sign the message. These safeguards ensure that the message has not been altered in any manner. Similarly, this service offers the user the option to receiving notification that the message has been received. By using these services the court has additional assurance that the message has been sent and delivered, thus aiding the court in making a determination that email is reasonably calculated to give actual notice.

Another approach to safeguarding email service is to allow courts which have initiated e-filing to actually serve the interested party. This process would be accomplished by first having service papers sent to the court via e-filing. Second, the court would proceed to serve the defendants at the defendant’s email address and receive the electronic return receipt. By using this means of service the control of the electronic service is in the hands of the court, thus ensuring proper delivery and avoidance of fraud.

In the best interest of justice, any combination of the above suggestions could be added assurance that the defendant has been given notice reasonably calculated to afford him/her actual notice and opportunity to be heard. These safeguards are extra steps used to demonstrate that the method of service chosen is reasonably calculated to give actual notice, thus complying with due process.

The concept of reasonably calculated vis a vie due process, is in no way concrete. The concept of due process is “flexible and practicable” to be applied on a case by case basis just as the Supreme Court has done thus far. Flexibility by the use of email as a method of service is dependent upon an analysis of the facts of the case. For example, if a party being served is a business person, it is reasonable to assume that the use of email is a routine part of the business day. Likewise, if the person being served is indigent, it is reasonable to assume that reading email is not a customary part of the daily routine. Thus, the notion of “reasonably calculated” is a broad term, one that does not have a distinct meaning which can be practically applied to every case in the same manner.

Feasible and Customary

The feasibility rule was adopted to ensure that the method of service chosen is commonly used to give notice. Email is commonplace in today’s society. By today’s standard it is feasible that email will be read by the intended recipient if the facts show that the party customarily uses email. A mode of transferring information or giving notice is customary if such a method is common practice. There are 569,171,600 electronic mailboxes in the world. The average number of corporate email users in the U.S. is 89 million and 50 million home users. Furthermore, it is estimated that in 2002 there were 135 million email users in the U.S. representing 59% of the overall total population. Therefore, it can be interpreted that the use of email to transfer information from one party to another has become customary.

Due Process, as discussed in the earlier analysis of Greene, was not met due to the fact that the method of service, posting notice on apartment door, could have resulted in the notice being removed before the interested party received it. The feasible and customary factor is dependent upon the customary practice at the time service was attempted. Therefore, if email is a customary practice of the party to be served, it can be concluded that email is a feasible and customary form of service.

Such a customary practice was examined in In Re International Telemedia Associates Inc. In this case, a United States Bankruptcy Court authorized the use of alternative service of process via email. In this case the defendant was avoiding service. The defendant refused to divulge any means of contact other then an email address. It was customary in the defendants business to communicate via email. Plaintiff moved for alternative service via email to obtain jurisdiction. The court ruled that service by email was within the authorized by the Federal Rules of Civil Procedure. The court reasoned that these rules do not impose a limited list of methods by which service may be achieved. The court stated “electronic mail has now become commonplace in our increasingly global society. The Federal courts are not required to turn a blind eye to society’s embracement of such technological advances.” The court then applied the “feasible and customary” rule established in Greene.

Additionally, in Hollow v. Hollow, a case of first impression in New York, the question presented was whether email was a suitable form of service. The wife of a husband who had moved to Saudi Arabia was unable to personally serve divorce papers on her husband in Saudi Arabia. She then asked the court for permission to serve process upon her husband by email. Email was the only means of communication between the parties since the husband took up residence in Saudi Arabia. The court ruled email service to be constitutional and proper and adequate to obtain jurisdiction after the plaintiff made every reasonable effort to effectuate service in a customary manner before seeking the relief sought.

Lower courts have accepted in certain situations email as a proper method of service when the factor of “feasible and customary”(Greene) is evident. Email is feasible and customary because it is a commonly used effective, efficient, and expedient method of giving actual notice. Additionally, courts could further interpret ordinary and customary usage; when the recipient has put forth his/her email address to the public on letter head, business cards, or have communicated via email to the sender of the service of process.

The rules which determine whether a form of service of process fulfills the Constitution requirements of the due process are well embedded in our legal system. The application of these rules to a new method of service (email)are in the developmental stages. The rules pertaining to service of process have been established for over a hundred years but the technology of email has only been in existence for a few decades. In determining whether email should be a suitable form of service, the court looks at: (1) whether personal service is feasible; (2) whether the method of service is reasonably calculated to give actual notice; and (3) whether the method of service is feasible and customary. The evolution of these factors in our legal system is the product of the courts’ ability to mold the law in accordance with the advancements and changes in society. The law of the land is one that is not stagnant but evolving to meet the standards of the society in which they were created to govern.

These rules, when applied by the courts to email, acknowledge the courts’ ability to recognize that the law is an expanding and evolving institution. By applying these rules to email as a form of service the courts have taken into consideration how email has evolved into a customary and feasible method of providing actual notice in today’s society. The courts have looked beyond email’s use by everyday persons and expanded its usefulness to the judicial system itself. In 2003, it is evident that the courtrooms of 1900 are not the same as they are today. The use of new technologies are being used more and more everyday by the judicial system through the use of email, e-filing, and virtual courtrooms. New cases are being decided everyday which expand the courts views on such technologies. In Salley v. Board of Governors the court ruled that service of process by fax was not sufficient, although in New England Merchant National Bank the court took the opposite position allowing service of process by email. The court stated that it cannot be blind to the changes in technology and methods of process no longer must only be mailed. In Rio and Hollow the court removed its blinders of tradition and embraced the advances in technology to perform justice.

Therefore, in many situations in which personal service of process cannot be achieved, service by email fulfills the minimum standards of due process and the need of a modern day society.