Oppenheimer v. Affinity Classics, L.L.C.
Filing
18
ORDER granting 16 Plaintiffs Motion for Alternate Service to Serve Defendant. Status Conference set for 6/6/2018 is VACATED and RESET to 7/3/2018 10:00 AM in Courtroom C203 before Magistrate Judge Scott T. Varholak, by Magistrate Judge Scott T. Varholak on 5/8/2018. (jgonz, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18–cv–00359-RM-STV
DAVID OPPENHEIMER,
Plaintiff,
v.
AFFINITY CLASSICS, L.L.C.,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff’s Motion for Alternate Service to Serve
Defendant (the “Motion”) [#16], which was referred to this Court [#17]. Through the
Motion, Plaintiff requests that the Court grant Plaintiff leave, pursuant to Colorado Rule
of Civil Procedure 4(f), to serve Defendant Affinity Classics, LLC “via [ ] its registered
agent, via certified mail, return receipt requested to [the registered agent’s] last known
residential address.” [#16 at 5]
Federal Rule of Civil Procedure 4 governs service of a summons and complaint.
Pursuant to Rule 4(h)(1)(A), a corporation or association may be served within a judicial
district of the United States “in the matter prescribed by Rule 4(e)(1) for serving an
individual.” Rule 41(e)(1) states that service may be accomplished by “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.”
Colorado Rule of Civil Procedure 4(f) authorizes substitute service. When the
party attempting service “is unable to accomplish service . . . the party may file a
motion, supported by an affidavit of the person attempting service, for an order for
substituted service.” Such a 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.
Colo. R. Civ. P. 4(f). If the court is satisfied that due diligence has been used to attempt
personal service, that further attempts to obtain personal service would be to no avail,
and that the person to whom delivery of the process is directed 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). For substitute service to be
valid, it must comport with due process by being calculated “to apprise interested
parties of the pendency of the action and afford them an opportunity to present their
objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
In sum, Colorado Rule 4(f) authorizes personal service upon a substitute person
“deemed appropriate for service.” Here, Plaintiff does not seek to personally serve a
substitute individual. Instead, Plaintiff seeks to serve Defendant’s registered agent—
who already is authorized to accept service on behalf of defendant—by certified mail.
The relief requested by Plaintiff thus is not available pursuant to Colorado Rule 4(f),
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which applies only “when a party seeks to serve a substituted person on behalf of the
opposing party.” Wagner v. Williams, Scott & Assocs., LLC, No. 12-CV-00104-MSKMJW, 2012 WL 5409799, at *3 (D. Colo. Nov. 6, 2012) (emphasis in original). “The rule
does not provide authority for alternative methods of service when a party simply cannot
effectuate personal service under Rule 4(e).” Id.
Although Colorado Rule 4(f) does not provide authority for the relief requested, a
separate Colorado statute does. Pursuant to Colorado Revised Statute § 7-90-704(2),
an entity “may be served by registered mail or by certified mail, return receipt requested,
addressed to the entity at its principal address” when the entity’s registered agent either
“is not located under its registered agent name at its registered agent address” or
“cannot with reasonable diligence be served.” Courts in this District consistently have
found service pursuant to Section 7-90-704(2) effective under Federal Rule of Civil
Procedure 4(h)(1)(A). See Reg’l Dist. Council v. Mile High Rodbusters, Inc., 82 F.
Supp. 3d 1235, 1242 (D. Colo. 2015) (collecting cases).
The Court finds that Plaintiff has submitted adequate proof that Defendant’s
registered agent “cannot with reasonable diligence be served” and thus that service by
certified mail is justified pursuant to Section 7-90-704(b). The Colorado Secretary of
State’s website lists Defendant Affinity Classics LLC as a limited liability company in
“good standing” and identifies Daniel Byron Pumphrey as Defendant’s registered
agent. 1
The same street address, 2360 Robin’s Way, Unit B, Montrose, Colorado
1
Summary Information for Affinity Classics LLC, Colorado Secretary of State,
https://www.sos.state.co.us/biz/BusinessEntityDetail.do?quitButtonDestination=Busines
sEntityResults&nameTyp=ENT&masterFileId=20081436708&entityId2=20081436708&fi
leId=20121699111&srchTyp=ENTITY (last visited May 8, 2018); see also Llewellyn v.
Allstate Home Loans, Inc., No. 08-CV-00179-WJM-KLM, 2011 WL 2533572, at *1 n.2
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81401 (the “Robin’s Way Address”), is provided both for Defendant and for Mr.
Pumphrey. Id. In support of the Motion, Plaintiff provides an affidavit from process
server Dave Mills reflecting seven separate attempts over the course of nine days to
serve Defendant through Mr. Pumphrey at the Robin’s Way Address. [#16-3] On two of
those attempts, activity was heard inside the Robin’s Way Address, but no one
responded. [Id.] The Court thus finds that Plaintiff has exercised reasonable diligence
in attempting to personally serve Defendant and that further attempts to personally
serve Defendant through its registered agent would be futile. Particularly given that
Defendant remains an entity in good standing with the Colorado Secretary of State, the
Court finds that service upon Defendant by certified mail to the addresses on file with
the Colorado Secretary of State is reasonably calculated “to apprise [Defendant] of the
pendency of the action and afford [it] an opportunity to present [its] objections.”
Mullane, 339 U.S. at 314.
Accordingly, Plaintiff’s Motion is GRANTED and Plaintiff is granted leave to serve
Defendant pursuant to Colorado Revised Statute § 7-90-704(b) by registered mail or
certified mail, return receipt requested, addressed to the following addresses:
Affinity Classics LLC
c/o Daniel Byron Pumphrey
2360 Robin's Way, Unit B
Montrose, CO 81401
Affinity Classics LLC
c/o Daniel Byron Pumphrey
P.O. Box 1714
Montrose, CO 81402-1714
IT IS FURTHER ORDERED The Status Conference set for June 6, 2018 at
11:30 a.m. is VACATED and RESET for July 3, 2018 at 10:00 AM in Courtroom C-203,
Byron G. Rogers United States Courthouse, 1929 Stout Street, Denver, Colorado.
Please remember that anyone seeking entry into the courthouse will be required to
(D. Colo. June 27, 2011) (collecting cases taking judicial notice of information available
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show valid photo identification. See D.C.COLO.LCivR 83.2(b). The parties may appear
by telephone by initiating a call among all individuals participating by phone and then
calling the Court at 303.335.2365 at the scheduled time.
DATED: May 8, 2018
BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
from secretary of state websites).
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