Great Lakes Reinsurance (UK) SE v. Cedar Cove Condominium Association, Inc. et al
ORDER denying 13 Motion for Reconsideration of Order re: Substituted Service on Wolfe Law Group and Evan R. Wolfe by Magistrate Judge Michael E. Hegarty on 11/20/2015.(mdave, ) Modified on 11/20/2015 to edit magistrate judge (slibi, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02024-MEH
GREAT LAKES REINSURANCE (UK) SE, f/k/a Great Lakes Reinsurance (UK) PLC,
CEDAR COVE CONDOMINIUM ASSOCIATION, INC.,
COLORADO COMPREHENSIVE MANAGEMENT, LLC,
ROCKY MOUNTAIN ADJUSTERS,
WOLFE LAW GROUP, INC., and
EVAN R. WOLFE,
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Plaintiff’s Renewed Motion for Order re: Substituted Service on Wolfe
Law Group, Inc. and Evan R. Wolfe [filed November 19, 2015; docket #13]. Filed in conjunction
with the motion are Affidavits of Non-Service executed by Amanda Dougherty [docket #13-1]; in
addition, the Court will consider the Affidavit of Non-Service executed by Art Shields [docket #85]. For the reasons that follow, Plaintiff’s motion is denied.
Plaintiff initiated this action on September 15, 2015 seeking damages for fraud and
misrepresentation, insurance fraud, civil conspiracy, civil theft and violations of COCA and RICO,
as well as a declaration of rights and obligations of the parties pursuant to the subject insurance
contract. Plaintiff asserts that all Defendants have been served in this case except Defendants Wolfe
Law Group, Inc. and Evan Wolfe, who represented Defendant Cedar Cove Condominium
Association for assistance with its supplemental insurance claim against Plaintiff. Plaintiff has
provided information demonstrating the following information about the unserved Defendants:
Wolfe Law Group is a Florida corporation with its principal place of business at 3801 Hollywood
Blvd., Suite 300, Hollywood, FL 33021. See docket #8-1. Its registered agent is Donna Wolfe, at
the same address. Id. Mr. Wolfe is a licensed Florida attorney whose mailing address with the
Florida Bar is the same address as Wolfe Law Group. See docket #8-2. Mr. Wolfe is listed as a
partner/shareholder in Evan R. Wolfe, P.A., see id., which is also located at 3801 Hollywood
Boulevard, see docket #8-3. Mr. Wolfe and Donna Wolfe are listed as the officers and directors of
Evan R. Wolfe, P.A. See id. Correspondence sent by Mr. Wolfe that forms the basis of the
Complaint against him was issued on Wolfe Law Group letterhead, and displays the same 3801
Hollywood Boulevard address. See docket #8-4.
According to Plaintiff’s process server, several attempts at personal service of the unserved
Defendants at the Florida address have failed:
The server attempted service at 3801 Hollywood Boulevard, # 300, Hollywood, FL
33021 and found that the Law offices of Rubinton & Associates, P.A. is located
there. As per a Senior Associate, Davina Tala (38 year old, white female, 5'6", 130
lbs., blond hair, no glasses) stated that “Wolfe Law Group” leases an office from
them but is rarely there going only every 4 to 5 weeks. Law offices of Rubinton &
Associates, P.A. is not associated with the Wolfe Law Group and would not accept
service. Through skip trace, address 4000 Hollywood Boulevard, # 256, Hollywood,
FL 33021 was found and attempted. The server spoke with the receptionist, Jessica
(41, F, White, 5'5, 150, Dark Brown Hair, No Glasses), who informed the server
th[at] Mr. Evan Wolfe has not occupied an office there for at least 2 years and his
whereabouts are unknown. The server then attempted the address of 2432 SW 112th
Way, Davie, FL 33325 on 10/20/15 @ 5:40 PM & 10/21/15 @ 6:30 P. This address
is in a gated community, no guards on premises to render access. Called gate code,
phone rang approx. 8 x's then disconnects.
Affidavit of Non-Service, docket #8-5 at 1.
The same letter at docket #8-4 displays a “Colorado Office” address at 3498 E. Ellsworth
Avenue, Suite 1305, Denver, Colorado 80209. The Plaintiff’s process server again described
attempted service as follows:
11/3/2015 5:45 pm SERVICE ATTEMPTED AT THE ADDRESS PROVIDED.
THIS IS A SECURE BUILDING WITH A CONCIERGE. SERVER ABEL [sic] TO
GET THROUGH JUST FINE. NO RESPONSE AT THE UNIT AND NO
MOVEMENT BEHIND PEEPHOLE. ATTEMPTS CONTINUING.
11/10/2015 7:23 am MULTIPLE SERVICE ATTEMPTS MADE WITH NO
RESPONSE AT THE UNIT. ON LAST ATTEMPT, CONCIERGE DENIED
SERVER ACCESS. WAS A DIFFERENT CONCIERGE THAN BEFORE. WILL
11/10/2015 5:00 pm NON SERVED PER ATTORNEY INSTRUCTION.
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:
(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
Fed. R. Civ. P. 4. Likewise, a corporation may be served in the same manner as that set forth in
Rule 4(e)(1). Fed. R. Civ. P. 4(h)(1)(A). Colorado law expresses a preference for personal service
[see Colo. R. Civ. 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
(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.
Colo. R. Civ. 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.” Colo. R. Civ. P. 4(g).
Here, after numerous attempts to serve the Defendants personally, Plaintiff seeks to serve
the Defendants by “first-class mail, return receipt requested” under Colorado’s “substituted service”
provision. The plain language of that rule, however, states that it applies when a party seeks to serve
a substituted person on behalf of the opposing party. See Willhite v. Rodriguez-Cera, 274 P.3d
1233, 1240 (Colo. 2012) (Rule “4(f) directs the court to authorize delivery to the substituted person
and to order that process me mailed to the address of the defendant”). The rule does not provide
authority for alternative methods of service when a party simply cannot effectuate personal service
under Rule 4(e). The language of Colorado’s Rule 4(g) supports this conclusion where it states that
service by mail shall be allowed only in specific proceedings. Notably, the Plaintiff neither argues,
nor even mentions, whether Rule 4(g) applies in this case.
Finding that Plaintiff has failed to demonstrate service by mail would be proper under the
circumstances of this case, the Court denies Plaintiff’s Renewed Motion for Order re: Substituted
Service on Wolfe Law Group, Inc. and Evan R. Wolfe [filed November 19, 2015; docket #13].
DATED at Denver, Colorado, this 20th day of November, 2015.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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