American Produce, LLC v. Vargas et al

Filing 32

ORDER granting 26 Plaintiff's Notice of Motion and Motion for Leave to Serve Defendant Felix Rivera Vargas a/k/a Felix Rivera by Substitute Service, by Magistrate Judge Michael E. Hegarty on 4/17/2012. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02919-PAB-MEH
AMERICAN PRODUCE, LLC, a limited liability company,
Plaintiff,
v.
FELIX RIVERA VARGAS, an individual, a/k/a Felix Rivera,
JOHN M. LUNA, an individual, and
RICARDO FELIX RIVERA, an individual, a/k/a Ricardo Felix,
Defendants.

ORDER

Michael E. Hegarty, United States Magistrate Judge.
Pending before the Court is Plaintiff’s Notice of Motion and Motion for Leave to Serve
Defendant Felix Rivera Vargas a/k/a Felix Rivera by Substitute Service [filed March 7, 2012;
docket #26]. Filed in conjunction with the motion is the Affidavit of R. Jason Read in Support of
Plaintiff’s Motion for Leave to Serve Defendant Felix Rivera Vargas a/ka/ Felix Rivera by
Substitute Service [docket #27]. For the reasons that follow, Plaintiff’s motion is granted.
I.

Background
Plaintiff initiated this action on November 9, 2011, to enforce the statutory trust provisions

of the Perishable Agricultural Commodities Act (“PACA”), 7 U.S.C. § 499e et seq. (Docket #1.)
As defendants, Plaintiff names Felix Rivera Vargas, also known as Felix Rivera (“Vargas”), John
M. Luna (“Luna”), and Ricardo Felix Rivera (“Rivera”). (Id.) Thus far, Plaintiff has effected
service on two of the three Defendants: Defendant Rivera was served on November 17, 2012,
through his wife, Edith Felix (“Edith Rivera”) [docket #5], while Defendant Luna was served
personally that same day [docket #6]. The Clerk of the Court entered default against Luna and

Rivera on January 20, 2012 [docket #9], and Plaintiff’s motion for default judgment against Luna
and Rivera is currently pending before the Court [docket #17]. Because Plaintiff’s attempts to serve
Defendant Vargas have been unsuccessful, Plaintiff filed the present motion seeking leave from the
Court to effect substitute service on Vargas instead.
According to Plaintiff’s motion and the affidavits submitted therewith, Plaintiff hired a
process server in November 2011 to locate and serve Defendant Vargas. (Docket #27 at 3.) The
process server attempted to locate Defendant Vargas at Vargas’ last known address, 2560 Billings
Street, Aurora, Colorado (the “Billings Street address”) on November 17, 2011. (Docket #27-1, 2.)
The Billings Street address is also home to Defendant Rivera and his wife, Edith. (Id.) According
to Plaintiff’s counsel, Vargas is Rivera’s nephew. (Docket #27 at 3.) Edith Rivera answered the
door and informed the process server that Vargas had moved to Mexico approximately two months
earlier. (Docket #27-1 at 3.)
In addition to efforts made at the Billings Street address, the process server also attempted
to serve Defendant Vargas at 21470 E. 42nd Avenue, Denver, Colorado (the “42nd Avenue address”),
which was the address Vargas listed with Azteca Ranch Markets, Inc.’s bankruptcy petition.1 (Id.)
Between December 7, 2011, and December 20, 2011, the process server made numerous additional
attempts to serve Vargas at the 42nd Avenue address; however, Vargas could not be located. (Id.)
The process server made a final attempt on December 31, 2011, but again, no one was home. (Id.
at 3.)
After attempting, unsuccessfully, to serve Defendant Vargas at the Billings Street and 42nd
Avenue addresses, Plaintiff’s counsel began investigating Vargas on the internet using a locate-and-

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In the “List of Equity Security Holders” filed with Azteca Markets Inc.’s bankruptcy
petition, Defendant Vargas identified himself as President of each company and provided the 42nd
Avenue address as his own. (Docket #26-1.)
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research database available through LexisNexis. (Docket #27 at 3.) The comprehensive report
obtained through the search listed the 42nd Avenue address as Vargas’ most recent address. (Id.)
Having exhausted all other known options, counsel for Plaintiff sent the summons, complaint, and
a waiver of service form by certified mail to the 42nd Avenue address on January 17, 2012. (Id.)
The mailing was returned in February as undeliverable because Vargas had not provided a
forwarding address. (Id.)
In light the apparent impossibility of personally serving Defendant Vargas, Plaintiff filed the
present motion seeking leave from the Court to effect substitute service on Vargas. Specifically,
Plaintiff seeks to serve either Defendant Rivera, who is Vargas’ uncle, or Rivera’s wife, Edith
Rivera on Plaintiff’s behalf.
II.

Discussion
Rule 4(e)(1) of the Federal Rules of Civil Procedure provides that an individual may be

served by following state law for serving a summons in courts of general jurisdiction in the state
where the court is located or where service is made. Colorado law expresses a preference for
personal service [see C.R.C.P. 4(e)], but allows for substitute service under Rule 4(f) as follows:
[i]n the event that a party attempting service of process by personal service
under section (e) is unable to accomplish service, and service by publication or mail
is not otherwise permitted under section (g), the party may file a motion, supported
by an affidavit of the person attempting service, for an order for substituted service.
The motion shall state (1) the efforts made to obtain personal service and the reason
that personal service could not be obtained, (2) the identity of the person to whom
the party wishes to deliver the process, and (3) the address, or last known address of
the workplace and residence, if known, of the party upon whom service is to be
effected. If the court is satisfied that due diligence has been used to attempt personal
service under section (e), that further attempts to obtain service under section (e)
would be to no avail, and that the person to whom delivery of the process is
appropriate under the circumstances and reasonably calculated to give actual notice
to the party upon whom service is to be effective, it shall:
(1) authorize delivery to be made to the person deemed appropriate for service, and

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(2) order the process to be mailed to the address(es) of the party to be served by
substituted service, as set forth in the motion, on or before the date of delivery.
C.R.C.P. 4(f). Rule 4(g) allows for service by mail or publication “only in actions affecting specific
property or status or other proceedings in rem.” Because service by mail or publication is not
appropriate in this action, the general provisions of Rule 4(f) control.
Based on Plaintiff’s motion and the affidavit and exhibits submitted therewith [see docket
#27], the Court finds that substitute service is warranted against Defendant Vargas. Plaintiff
diligently attempted to serve Vargas from November 17, 2011 through January 17, 2012 at various
addresses, at various times, and through various methods. Plaintiff’s counsel also undertook the
additional time and expense of conducting research to determine whether Plaintiff might be found
at another address. Despite theses extensive efforts, Plaintiff was unable to locate Defendant
Vargas. In accordance with Rule 4(f), the Court is satisfied that Plaintiff has used due diligence to
effect personal service on Defendant Vargas, and that further attempts to effect personal service on
Vargas would be to no avail.
Finally, the Court also finds that Plaintiff has identified two adequate recipients for
substitute service; namely, Defendant Rivera, or his wife, Edith Rivera. Defendant Rivera is
Vargas’ uncle, and thus, Ms. Rivera is presumably his aunt. The relationship between Vargas and
the Riveras is further evidenced by the fact that Vargas resided with the family at one point, and
when asked about Vargas’ whereabouts, Ms. Rivera was able to provide an answer. In addition to
the familial relationship, there was also a legal relationship between Defendant Rivera and Vargas.
In a related legal proceeding in this District [American Produce v. Azteca Ranch Market Inc., et al,
case no. 10-cv-00620-WYD, docket #5-1], Defendant Vargas provided Defendant Rivera with
power of attorney to sign legal documents on his behalf. (See docket #27-2.) In light of these facts,
the Court finds that service on either Defendant Rivera or Edith Rivera is appropriate under the
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circumstances and is reasonably calculated to give actual notice to Defendant Vargas.
III.

Conclusion
Finding that 1) Plaintiff has employed due diligence in attempting to effect personal service

Defendant Vargas; 2) that further attempts at personal service would not be fruitful; 3) that substitute
service upon Ricardo Felix Rivera or Edith Felix Rivera is appropriate under the circumstances; and
4) that such service is reasonably calculated to provide actual notice to Defendant Vargas, the Court
grants Plaintiff’s Notice of Motion and Motion for Leave to Serve Defendant Felix Rivera Vargas
a/k/a Felix Rivera by Substitute Service [filed March 7, 2012; docket #26] and accordingly
authorizes Plaintiff to serve either Ricardo Felix Rivera or Edith Rivera in place of Defendant
Vargas. In accordance with Rule 4(f)(2), Plaintiff shall mail the process to the Riveras’ last known
address on or before the date of delivery.
Respectfully submitted at Denver, Colorado, this 17th day of April, 2012.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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