Text Alert – You’ve Been Served!

August 2023

Emma L. Knowles

Do you presume, like many, that service of summons and complaint (service of process) can only be made by a sheriff or other authorized process server? If so, you are not alone. However, as of April 24, 2023, your presumption is incorrect. Under certain circumstances, alternate avenues for service of process are available, including e-mails, text or social media messages.

Illinois Supreme Court Rule 102 governing Service of Summons and Complaint and Return in a Civil Action was recently amended to allow service by text, email, or social media messenger. But caution is warranted, as these options require a diligent inquiry as to the location of the individual defendant, as well as an affidavit affirming that such an inquiry has been conducted. Further, the court must be convinced that the party being served has access to and the ability to use the necessary technology to receive a complaint in the manner served.

There are many reasons the sheriff or an authorized process server may be unsuccessful in effectuating personal service on a defendant. From time-to-time, a defendant may purposely avoid service because they mistakenly believe their avoidance relieves them of participation in the case. In other cases, defendants simply have busy schedules and cannot be found. Such delays may necessitate multiple, often costly attempts at service of process, or even issuance of a new summons if the original 30 days expires before service is had. However, the recent amendment to Rule 102 allows service by social media, e-mail, or text message by special order of the court as follows:

f) Service by Special Order of Court. Upon motion brought pursuant to Section 2-203.1 of the Illinois Code of Civil Procedure, the court may order service of summons and complaint to be made in a manner consistent with due process and subject to provisions of this paragraph.

 

(1) If the court is satisfied that the defendant/respondent has access to and the ability to use the necessary technology to receive and read the summons and documents electronically, the following alternative methods of service or combination of methods of service may be ordered by the court when granting a motion brought pursuant to Section 2-203.1 of the Illinois Code of Civil Procedure (735 ILCS 5/2-203.1).

Section 2-203.1 of the Illinois Code of Civil Procedure permits a court to “order service to be made in any manner consistent with due process.” 735 ILCS 5/2-203.1. “In order to satisfy due process, ‘notice must be reasonably calculated ‘to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’” O’Halloran v. Luce, 2013 IL App (1st) 113735, P 32, citing Hwang v. Ill. Dept. of Pub. Aid, 333 Ill. App. 3d 698 at 707 (1st 2002).

Each potential method of service has specific requirements. For example:

“(A) Service by social media shall be made by (i) sending a direct message to the defendant/respondent on a social media platform on which the defendant/respondent has an active profile; (ii) attaching a copy of the summons, complaint/petition, and any other required documents to the direct message; and (iii) stating in the body of the direct message: “Important information – You have been sued. Read all of the documents attached to this message. To participate in the case, you must follow the instructions listed in the attached summons. If you do not, the court may decide the case without hearing from you, and you could lose the case.”

IL Sct Rule 102(f)(1)(A).

Similarly, service by e-mail may be made by sending an email to the defendant or respondent at their current email address, pursuant to the same requirements for service by social media. IL Sct Rule 102(f)(1)(B). Finally, service by text message may be made in a similar fashion by sending the required documents to the defendant / respondent’s cellular telephone number. See IL Sct Rule 102(f)(1)(C).

To avail themselves of this alternate service of process, a party must petition the court according to the requirements of Section 2-203.1 of the Illinois Code of Civil Procedure (735 ILCS 5/2-203.1) by providing an affidavit, “stating the nature and extent of the investigation made to determine the whereabouts of the defendant and the reasons why service is impractical…” by the usual means. The affidavit must also include a specific statement “showing that a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful.” The court may then “order service to be made in any manner consistent with due process.” See 735 ILCS 5/2-203.1; O’Halloran, 2013 IL App (1st) 113735, P 32.

The motion shall also include a supporting affidavit which includes “the reasons the movant believes the defendant/respondent has recently sent and received transmissions from a specific e-mail address or telephone number or the defendant/respondent maintains an active social media account on the specific platform used for service.” IL Sct Rule 102(f)(2). This is to satisfy the court “that the defendant/respondent has access to and the ability to use the necessary technology to receive and read the summons and documents electronically…” IL Sct Rule 102(f)(1).

Once the motion is granted, the plaintiff has 10 days to send a copy of the summons and other required documents. See IL Sct Rule 102(f)(3). Finally, Plaintiff must file a proof of service as directed by the court, pursuant to the requirements of Rule 102(f)(4). While the revision of Rule 102(f) is most applicable to plaintiffs, there is no prohibition against a defendant using such means of service to serve a third-party defendant.

The takeaway is, if your clients or insureds reach out to you regarding the sufficiency of email, social media, or text service, don’t assume service is ineffective. Rather, it will be necessary to ascertain whether the court granted an order to Plaintiff for such alternative service.