Today the Arkansas Supreme Court decided Steward v. Kuettel, 2014 Ark. 499. In this case, the trial court entered an order, pursuant to Rule 4(e)(5) allowing the plaintiff to serve the defendant by email, with a tracking pixel to confirm that the email and attached summons and complaint were received. In support of this “other service,” the plaintiff recounted that attempts to serve by mail at the defendant’s last known address had been unsuccessful, but that other sources had confirmed the defendant was using a particular email address (that was published on a website that was the subject of the lawsuit).
The Supreme Court did not rule-out the possibility that “other service” could include service by email.
“Assuming, without deciding, that service of process by email may be allowed under
Rule 4(e)(5), we cannot say that, under the facts of this case, the alternative method of
service crafted by the circuit court was reasonably calculated to give actual notice of the
Instead, the decision turns on the fact that while the tracking pixel did tend to confirm that the email was received and opened, it did not establish that the defendant actually opened the summons and complaint that were attached to the email as PDFs.
The Supreme Court reversed the trial court’s refusal to set aside the default judgment, holding:
“The alternative service of process in this case was insufficient because it was not
reasonably calculated to give actual notice to Steward. A default judgment is void under Rule
55(c)(2) if the defendant was improperly served under Rule 4. E.g., S. Transit Co. v. Collums,
333 Ark. 170, 175, 966 S.W.2d 906, 908 (1998). Because the default judgment was void
because of insufficient service of process, the circuit court erred in denying Steward’s motion
to set aside default judgment.”
This leaves open the possibility that the Court may approve initial service of a summons and complaint by email, but the plaintiff will have the burden of conclusively proving the summons and complaint were actually received and opened by the recipient.
Here’s the full text of the case: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/330359/Electronic.aspx