Kesten v. Broadcast Music, Inc.

Background

Plaintiff Nadim Nimai Kesten moved under Federal Rule of Civil Procedure 4 for an order authorizing alternative service on defendant Tarik Johnston, also known as Rvssian, by email, Facebook private message, and Instagram private message. Kesten also requested an extension of time to serve Johnston.

Rule 4 permits service on an individual in the United States through several methods, including methods allowed by the law of the state where the federal court is located or where service occurs, personal delivery, delivery at the person’s residence, or delivery to an authorized agent. New York law also permits a court to direct another method when the usual methods are impracticable.

Alternative Service

The court found that Kesten had sufficiently shown that the usual methods were impracticable. Kesten had hired a private investigator but could not locate Johnston’s current address, and attempts to serve Johnston at two other identified addresses were unsuccessful.

The court nevertheless concluded that Kesten had not proposed a method reasonably calculated to notify Johnston of the lawsuit. Although courts may approve service by email when the plaintiff shows that the email is likely to reach the defendant, Kesten provided no evidence that the booking agent still worked for Johnston, remained in regular contact with him, would likely relay the summons and complaint, or still used the email address.

The court also rejected Kesten’s reliance on Facebook and Instagram messages. The opinion discussed prior cases treating Facebook service primarily as a backup to other service methods and noting concerns about whether an online profile actually belongs to the person to be served. Kesten showed that profiles bearing Johnston’s name appeared to be regularly updated, but the court held that this did not cure the lack of evidence connecting the booking-agent email to Johnston or showing that the proposed methods would notify him.

Extension of Time and Disposition

Johnston’s service deadline had expired on February 16, 2021. Because Kesten filed the motion before that deadline, showed good cause for failing to complete service, and timely sought permission to use alternative methods, the court granted a 30-day extension from the date of the order. The opinion states that the extended deadline was April 2, 2012, which appears inconsistent with the March 3, 2021 order and the stated 30-day extension.

Judge Lewis J. Liman denied Kesten’s request to authorize service by the proposed email, Facebook, and Instagram methods and granted the request for additional time to complete service.