Doe v. Hyassat

Background

Jane Doe alleged that Mutaz Hyassat sexually assaulted her. She asserted claims for battery, assault, false imprisonment, and intentional infliction of emotional distress. The opinion states that Hyassat is a Jordanian national who primarily resides in New York City and works for the United Nations Advisory Committee on Administrative and Budgetary Questions.

Doe’s ordinary efforts to serve Hyassat were unsuccessful. A process server tried three possible New York City residential addresses. At two locations, the process server was told Hyassat was not a resident; at the Permanent Mission of Jordan to the United Nations, personnel refused access and refused to accept service. Another process server attended a conference at United Nations Headquarters but could not locate Hyassat.

The court had previously authorized alternative service by Facebook message and email after finding that service under the usual New York methods was impractical. Doe later reported that both emails bounced back as undeliverable. Her counsel sent a Facebook message to a user named “Mutaz Hyassat” with electronic copies of the summons and amended complaint. The user did not respond and later disabled the account.

Service Through Facebook

Federal Rule of Civil Procedure 4(e)(1) permits service under the law of the state where the federal court is located or where service occurs. New York law allows court-directed alternative service when the usual methods are impractical. But any method must be reasonably calculated, under the circumstances, to notify the defendant about the lawsuit and give the defendant an opportunity to respond.

The court explained that Facebook service has generally been allowed only as a supplemental method, or “backstop,” along with another method of service. Courts have required concrete evidence that the account is regularly used and maintained by the defendant. Here, Doe showed that the account’s name matched Hyassat’s name and that some listed biographical information matched information about Hyassat. She did not, however, provide sufficient evidence that Hyassat was the account user or that he regularly used and maintained the account. The court also found that the account’s being disabled shortly after the message was not enough to establish that the user was Hyassat.

The court therefore denied Doe’s request to treat service exclusively through the Facebook message as sufficient.

Service Through Kenneth Kerner

Doe alternatively asked to serve Hyassat through Kenneth Kerner, whom she believed represented Hyassat in a criminal investigation involving the same conduct. The court noted that service through a lawyer in another matter can sometimes be permitted when ordinary service is impractical, but the lawyer’s representation must be established.

The evidence here did not establish that Kerner represented Hyassat. Doe’s counsel relied on information allegedly received from an NYPD detective, but the court found that the counsel’s statement about what “our office” heard from the detective lacked evidentiary value and did not explain why the detective believed Kerner represented Hyassat. The court also found no basis to conclude that Kerner represented Hyassat in September 2020, even if he had done so in December 2018. Kerner had confirmed only that he had met with Hyassat and had refused to accept service.

The court concluded that there was no credible evidence that Kerner had ever represented Hyassat, much less that he represented him at the time of the ruling. It therefore denied Doe’s request to serve Hyassat through Kerner.

Disposition

The court denied Doe’s application seeking either approval of Facebook service or permission to serve Hyassat through Kerner. It vacated the Clerk’s certificate of default. It also denied Doe’s March 9, 2020 application for an order to show cause.