JDK LLC et al v. Hodge et al
Filing
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ORDER ON MOTION FOR SUBSTITUTED SERVICE by Magistrate Judge Nina Y. Wang on 5/22/15. The Motion for Substituted Service or Service of Process by U.S. Marshal 40 is GRANTED. Plaintiffs shall file proof of the foregoing with the court on or before 6/8/2015. (bsimm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00494-NYW
JDK LLC, a Colorado limited liability company,
DEBORAH KOLASSA,
JERRY KOLASSA, and
S. MARK SPOONE,
Plaintiffs,
v.
RONALD K. HODGE,
GREGG K. HODGE,
PAUL A. TALBOT,
FRANK O. HOFMEISTER,
JAMES E. SYLVESTER,
MAX 1 FINANCIAL LLC, a Colorado limited liability company, and
BROOKE TALBOT,
Defendants.
ORDER ON MOTION FOR SUBSTITUTED SERVICE
Magistrate Judge Nina Y. Wang
This civil action is before the court on Plaintiffs JDK LLC, Deborah Kolassa, Jerry
Kolassa, and S. Mark Spoone’s (collectively, “Plaintiffs”) Motion for Substituted Service or
Service of Process by U.S. Marshal (“Motion for Substituted Service”). [#40, filed May 12,
2015]. The matter was assigned to this Magistrate Judge pursuant to the Order Referring Case
dated May 14, 2015 [#41] and memorandum dated the same day [#42]. The court has carefully
considered the Motion, the exhibits, the entire case file, and the applicable law. For the reasons
stated below, the Motion for Substituted Service is GRANTED.
BACKGROUND
Plaintiffs filed the Complaint on March 9, 2015 alleging that Defendants Gregg K.
Hodge, Paul A. Talbot, Frank O. Hofmeister, James E. Sylvester, Max 1 Financial LLC, and
Brooke Talbot perpetuated a comprehensive and fraudulent scheme that defrauded Plaintiffs of
millions of dollars pursuant to Civil Racketeer Influenced and Corrupt Organizations. Plaintiffs
assert fraud and additional state law claims and request damages in the amount of $1,600,000,
along with various equitable remedies. This Order concerns Paul A. Talbot (“Mr. Talbot”) and
Brooke Talbot (“Ms. Talbot”) (collectively, the “Talbots”).
Plaintiffs have been unable to personally serve the Talbots. Two process servers have
provided affidavits attesting to two service attempts at the Talbots’ residential address, two
service attempts at the Talbots’ business address, and one service attempt at the Talbots’ “other”
business address. [#40-1; #40-2 at ¶ 2]. The Talbots’ full-time residence is barricaded by a gate
and the manager for their known business refused to accept service. [#40-1]. Counsel for
Plaintiffs, Mr. Meretta, attests that Lawrence Horwitz has represented the Talbots in settlement
negotiations in this matter, though he claims to not directly represent the Talbots as individuals.1
[#40-2 at ¶¶ 3, 4]. The Talbots have rejected Mr. Horwitz’s efforts to arrange for their voluntary
acceptance of service of process.
[Id. at ¶ 5].
Finally, Mr. Meretta has attempted to
communicate with the Talbots by sending electronic mail to addresses known to be operative,
and he has not received a response. [Id. at ¶¶ 6, 7]. Mr. Meretta’s position is that further
attempts to achieve service under Fed. R. Civ. P. 4(e) via private process servers or the U.S.
1
Mr. Horwitz represents a publicly-traded entity, General Payment Systems, Inc., on whose
board Ms. Talbot purportedly serves. [#40-2 at ¶ 3].
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Marshal Service would not prove successful, and he asks the court to authorize substituted
service on the Talbots through certified mail. [Id. at ¶ 8].
ANALYSIS
Federal Rule of Civil Procedure 4 provides:
(e) ... Unless federal law provides otherwise, an individual—other than a minor,
an incompetent person, or a person whose waiver has been filed—may be served
in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where service
is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of
abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by
law to receive service of process.
Fed. R. Civ. P. 4(e). Plaintiffs have failed at effecting service pursuant to Rule 4(e)(2)(A) and
(B).
Colorado is the forum state and allows substituted service upon motion by the party who
has been unsuccessful effecting personal service. C.R.C.P. 4(f). The motion must be supported
by an affidavit of the person attempting service and 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.
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Id. If the court is satisfied that the unsuccessful party has used due diligence to attempt personal
service, that further attempts to obtain service would prove fruitless, 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.
Id.
This court finds that Plaintiffs have used due diligence in attempting to serve the Talbots
and that further attempts to effect in-hand service would likely be to no avail. The court cannot
authorize substituted service on the Talbots in the form of certified mail, however, because this
action does not concern “specific property or status or other proceedings in rem.” C.R.C.P. 4(g).
Nonetheless, this court finds that Mr. Horwitz is an appropriate person to serve under the
circumstances and that Mr. Horwitz is reasonably suited to give—and in fact has already given—
actual notice of service to the Talbots. Accordingly,
IT IS ORDERED that the Motion for Substituted Service is GRANTED:
1. Plaintiffs shall serve Lawrence Horwitz via personal in-hand service with the Summons
and Complaint in this case along with a copy of this Order;
2. Plaintiffs shall mail a copy of the Summons and Complaint along with a copy of this
Order to Paul A. Talbot and Brooke Talbot, individually, at 5335 North Mesa Drive,
Castle Rock, Colorado 80108; and
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3. Plaintiffs shall file proof of the foregoing with the court on or before June 8, 2015.
DATED: May 22, 2015
BY THE COURT:
s/Nina Y. Wang__________
United States Magistrate Judge
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