Kilthau v. Low T Medical Clinic, Inc.

Filing 15

ORDER granting 12 Plaintiff's Motion for Leave for Other Service. Plaintiff may serve Defendant by hand-delivery as well as by mail, as set forth in the Order. By Magistrate Judge Michael J. Watanabe on 2/11/2015.(emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03309-MJW
RAYMOND KILTHAU,
Plaintiff,
v.
LOW T MEDICAL CLINIC, INC.,
Defendant.
ORDER
on
PLAINTIFF’S MOTION FOR LEAVE FOR OTHER SERVICE
(Docket No. 12)
MICHAEL J. WATANABE
United States Magistrate Judge
Plaintiff moves for leave to serve Defendant through substituted service under
Fed.R.Civ.P. 4(h)(1)(A) and Colo.R.Civ.P. 4(f)(1). (Docket No. 12.) The matter is
before me pursuant to this District’s Pilot Project to Assign Civil Cases to Full Time
Magistrate Judges. (Docket No. 7.) For the following reasons, the Court GRANTS the
motion.
Background
Plaintiff filed his Complaint on December 5, 2014. (Docket No. 1.) On December
8, 2014, the Clerk of Court issued a summons. (Docket No. 3.) So far, Defendant has
not appeared.

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On January 14, 2015, Plaintiff moved this Court for permission to serve
Defendant by mail. (Docket No. 9.) As support for that motion, Plaintiff showed:


A process server attempted to personally serve Defendant’s registered agent,
Corey Counts, at the address of record on Defendant’s registered agent filing.
The address turned out to be the location of a business called the Triad
Financial Group; the receptionist there told the process served that the
registered agent does not maintain an office at that address. (Id. ¶ 7.)



The receptionist at the Triad Financial Group provided the process server with
an alternate address for Mr. Counts; the alternate address was the same
address as Defendant’s Englewood clinic. (Id. ¶ 8.) The process server
attempted to personally serve Mr. Counts at that address, but was told by the
receptionist there that Mr. Counts was rarely at that office. (Id. ¶ 9.)



Plaintiff’s process server searched public records and determined that Mr.
Counts’s most recent known address was in Nashville, Tennessee. (Id. ¶ 10.)



The process server attempted to serve Defendant’s incorporator, Joshua
Anderson, at Defendant’s Englewood address, but was told that Mr. Anderson
was no longer associated with the clinic. (Id. ¶¶11–14.) Plaintiff had been
unable to identify any other directors or officers of Defendant. (Id. ¶ 15.)

Based on the foregoing, Plaintiff moved for permission to serve Defendant by
registered or certified mail as authorized C.R.S. § 7-90-704(2). The Court granted
Plaintiff’s motion, stating:
The Court finds that Plaintiff has used all due diligence to obtain personal
service, that Defendant’s registered agent is not located under his name at
his assigned address, and that Defendant’s registered agent cannot with
reasonable diligence be served. Plaintiff is hereby authorized to serve
process upon Defendant pursuant to Colorado Revised Statutes Sec. 790-704(2). As required by that statute, the process shall be served “by
registered mail or by certified mail, return receipt requested, addressed to
the entity at its principal address.”
(Docket No. 11 (emphasis in original).)
Plaintiff’s new motion (Docket No. 12) shows that service by mail has been
ineffective. More specifically:

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

A legal assistant for Plaintiff’s counsel mailed a copy of the Complaint,
summons, and other documents to Defendant, via certified mail addressed to
two different addresses: Defendant’s principal address as reflected on the
records of the Colorado Secretary of State, and Defendant’s address as
reflected on its website. (Id. ¶¶ 4–5, 8.)



Both attempts at service were reported as undeliverable by the Post Office,
with no further information available. (Id. ¶¶ 6–7, 9–10.)

The legal assistant then contacted Defendant by telephone and spoke with an individual
Plaintiff identifies only as “a representative” of Defendant’s. (Id. ¶ 12.) This
representative stated that Defendant receives its legal mail at a different address; that
address, according to Defendant’s website, is the location of Defendant’s new Denver
branch. (Id. ¶¶ 13–14.)
Based on the foregoing, Plaintiff now moves for leave to serve Defendant
through all of the following:


Leaving a copy of the summons and complaint, certain other documents, and
this Order with the receptionist at Defendant’s Englewood clinic;



Mailing a copy of those documents to Mr. Counts at his address in Nashville,
Tennessee;



Mailing a copy of those documents to Defendant at Defendant’s Englewood
clinic; and



Mailing a copy of those documents to Defendant at Defendant’s Denver clinic.

(Id. ¶ 20–21.) Plaintiff doesn’t specifically state the method of proposed mail, but the
Court assumes Plaintiff proposes regular first-class mail through the U.S. Postal
Service.
Discussion
Under the Federal Rules of Civil Procedure, service may be made upon a party
(1) as provided for under state law, (2) by personal in-hand service, (3) by leaving

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process with an appropriate individual at the party’s residence, or (4) by serving an
authorized representative. Fed.R.Civ.P. 4(e). The Colorado Rules of Civil Procedure
add a few more options. First, an individual can be served by leaving the process “at
the person’s usual workplace, with the person’s supervisor, secretary, administrative
assistant, bookkeeper, human resources representative or managing agent.”
Colo.R.Civ.P. 4(e)(1). Second, for a business entity, process can be served “by
delivering a copy thereof” on any officer, partner, trustee, or functionally equivalent
person. Colo.R.Civ.P. 4(e)(4). Finally, Colorado allows for “substituted service” upon
another person in lieu of the party, in certain circumstances:
[4](f) Substituted Service. In 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
(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. Service shall be complete on the date
of delivery to the person deemed appropriate for service.
Colo. R. Civ. Pro. 4(f) (emphasis added).

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The Court finds that due diligence has been used to attempt personal service of
Defendant’s registered agent, to attempt personal service of an officer, director or other
appropriate agent of Defendant’s, and to attempt service through certified mail. The
Court further finds that both Mr. Counts (at his last identifiable address) and the
receptionist at Defendant’s principle place of business are appropriate individuals to
serve under the circumstances. Finally, the Court finds that service upon those
individuals, in conjunction with the proposed first-class mail to Defendant’s known
business locations, is reasonably calculated to give actual notice to Defendant.
Order
For the foregoing reasons, it is hereby ORDERED that Plaintiff’s Motion for
Leave for Other Service (Docket No. 12) is GRANTED. It is further ORDERED that
Plaintiff may serve Defendant by hand-delivering the Complaint (Docket No. 1),
summons (Docket No. 3), Pilot Program Consent Form (Docket No. 7), and each Order
of the Court to date (Docket Nos. 8, 11, 14, and 15), to the receptionist at Defendant’s
principal place of business in Englewood, Colorado, as well as by mailing the same to
each of the following addresses:
Corey Counts
Registered Agent
348 Hickory Place
Nashville, TN 37214
Low T Medical Clinic
385 Inverness Parkway, #300
Englewood, CO 80112
Lot T Medical Clinic
3003 East 3rd Avenue, Suite 203
Denver, CO 80206

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Dated: February 11, 2015
Denver, Colorado

/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge