Tague v. Mind Rocket, LLC

Filing 28

ORDER by Magistrate Judge Kristen L. Mix on 11/16/20 DENYING without prejudice 25 Plaintiff's Motion for the Court to Review and Approve the Motion for Entry of Clerk's Default. (nmarb, )

Case 1:20-cv-00230-REB-KLM Document 28 Filed 11/16/20 USDC Colorado Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-00230-REB-KLM
STEVE TAGUE,
Plaintiff,
v.
MIND ROCKET, LLC,
Defendant.
ORDER
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for the Court to Review and
Approve the Motion for Entry of Clerk’s Default [#25]1 (the “Motion”). Plaintiff asks
the Court to review the Clerk of Court’s refusal to enter default against Defendant under
Fed. R. Civ. P. 55(a), as requested in Plaintiff’s first Motion for Entry of Clerk’s Default
[#16] and second Motion for Entry of Clerk’s Default [#19] (collectively, the “Motions for
Default”). The Court has reviewed the Motion [#25], the Motions for Default [#16, #19],
the entire case file, and the applicable law, and is sufficiently advised in the premises.
For the reasons set for the below, the Motion [#25] is DENIED without prejudice.
I. Background
Plaintiff initiated this lawsuit on January 28, 2020, seeking judgment against
Defendant for purported copyright infringement. Compl. [#1] ¶ 1. Plaintiff alleges that

1

“[#25]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Order.

1

Case 1:20-cv-00230-REB-KLM Document 28 Filed 11/16/20 USDC Colorado Page 2 of 7

Defendant copied Plaintiff’s “copyrighted Work from the internet in order to advertise,
market and promote [Defendant’s] business activities.” Id. ¶ 4. Plaintiff states that
Defendant is a:
Colorado LLC with its principal place of business at 5053 North 30th Street,
Colorado Springs, Colorado, 80919, and can be served by serving its
Registered Agent, Mr. Michael Larson, 2058 Paradise Ride Court, Colorado
Springs, Colorado, 80921.
Id. ¶ 9.
In the Motion [#25], Plaintiff states that he attempted to serve Defendant five times
through personal service. Motion [#25] at 2. The attempts to personally serve Defendant
were carried out at Defendant’s principal place of business at 5053 North 30th Street,
Colorado Spring, Colorado, 80919 once per day from March 2, 2020, to March 6, 2020,
for a total of five attempts at service.2 Summons Returned Executed, Ex. A [#21-2] at 4.
When these attempts proved unsuccessful, Plaintiff next, on May 20, 2020, “mailed the
summons and a copy of the complaint via certified mail, return receipt requested to
[Defendant’s] registered agent, Michael Larson (“Larson”) at 2058 Paradise Rise Court,
Colorado Springs, Colorado 80291.” Id. Plaintiff avers that service was effectuated on
May 25, 2020, pursuant to Colo. Rev. Stat. § 7–90–704(2)(c), five days after the summons
was mailed. Id.
On July 1, 2020, Plaintiff filed the first Motion for Entry of Clerk’s Default [#16],
stating that “[Defendant] has failed to appear or otherwise respond to the Complaint within

2

The Court notes a slight discrepancy among the documents here. The form titled Denver
Attorney Services, LLC [#21-2] at 4, states that service was attempted five times, including on
March 6 (“Door lock No Access”), although no time is included for this attempt. The Affidavit of
Non-Service [#21-2] at 2, however, only lists the first four attempts, omitting the March 6 attempt
at service. Regardless of whether four attempts or five were made at this address, the issue is
not material to the Court’s resolution of the Motion [#25].

2

Case 1:20-cv-00230-REB-KLM Document 28 Filed 11/16/20 USDC Colorado Page 3 of 7

the time prescribed by the Federal Rules of Civil Procedure.” On July 6, 2020, the Clerk
entered a note denying entry of default, stating that “the affidavit or declaration required
by Fed. R. Civ. P. 55(a) is not signed; no proof of service has been filed - the signed
Return Receipt Proof of Delivery has not been filed.” See Clerk’s Note Regarding Default
[#18]. On July 6, 2020, Plaintiff filed a second Motion for Entry of Clerk’s Default [#19],
again stating that “the time allowed for [Defendant] to respond to the Complaint has
expired.” On July 8, 2020, the Clerk again entered a note denying entry of default, on the
basis that “no signed return receipt proof of delivery” had been filed. See Clerk’s Note
Regarding Default [#20]. In the present Motion, Plaintiff asserts that Defendant has been
properly served and that the Clerk has “improperly declined to enter a Clerk’s default
against [Defendant].” Motion [#25] at 1.
II. Analysis
Pursuant to Fed. R. Civ. P. 55(a), “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the party’s default.” Generally, to
avoid default, a defendant must serve an answer within twenty-one days of being served
with the summons and complaint. See Fed. R. Civ. P. 12(a).
Before entry of default, the Court must first determine whether Defendant was
properly served. United States v. Welch, No. 11-cv-02292-CMA-KLM, 2012 WL 4097737,
at *1 (D. Colo. Sept. 17, 2012). The Complaint identifies Defendant as a limited liability
company. Compl. [#1] ¶ 9. Therefore, the Court analyzes the adequacy of service in the
context of Fed. R. Civ. P. 4(h), which establishes the requirements for service of a
corporation, partnership, or association. See Welch, 2012 WL 4097737, at *1; United

3

Case 1:20-cv-00230-REB-KLM Document 28 Filed 11/16/20 USDC Colorado Page 4 of 7

States v. Berryman, No. 11-cv-02708-WYD-KLM, 2013 WL 5878952, at *4 (D. Colo. Apr.
12, 2013), report and recommendation adopted, No. 11-cv-02708-WYD-KLM, 2013 WL
5466891 (D. Colo. Sept. 27, 2013). Rule 4(h) provides that service on a corporation,
partnership, or association is adequate if effectuated:
(A) in the manner described by Rule 4(e)(1) for serving an individual; or (B)
by delivering a copy of the summons and of the complaint to an officer, a
managing or general agent, or any other agent authorized by appointment
or by law to receive service of process . . .
Fed. R. Civ. P. 4(h)(1)(A), (B). Rule 4(e)(1) further provides that service is effectuated on
an individual 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.” Fed. R. Civ. P. 4(e)(1).
Here, Plaintiff relies on Colo. Rev. Stat. § 7–90–704(2)(c) regarding service on
entities to demonstrate proper service on Defendant. Motion [#25] at 1. The relevant
portion of the statute provides:
[i]f an entity that is required to maintain a registered agent pursuant to this
part has no registered agent, or if the registered agent is not located under
its registered agent name at its registered agent address, or if the registered
agent cannot with reasonable diligence be served, the entity may be served
by registered mail or by certified mail, return receipt requested, addressed
to the entity at its principal address. Service is perfected under this
subsection . . . [f]ive days after mailing.
Colo. Rev. Stat. § 7–90–704(2)(c).
Plaintiff is correct that Colo. Rev. Stat. § 7–90–704(2)(c) allows for service to be
effectuated on a corporate entity by certified mail to the entity at its principal address.
However, this method of service is valid only “if the registered agent is not located under
its registered agent name at its registered agent address, or if the registered agent cannot
with reasonable diligence be served.” Colo. Rev. Stat. § 7–90–704(2)(c) (emphasis

4

Case 1:20-cv-00230-REB-KLM Document 28 Filed 11/16/20 USDC Colorado Page 5 of 7

added). Plaintiff has identified Defendant’s registered agent as Michael Larson and the
registered agent address as 2058 Paradise Court Road, Colorado Springs, Colorado,
80921. Compl. [#1] ¶ 9. Plaintiff asserts that personal service on Defendant’s registered
agent was unsuccessful through five separate attempts, and therefore, service by mail is
valid. Motion [#25] at 2. In reviewing the Affidavit of Non-Service filed with Plaintiff’s
Summons Returned Executed [#21], all attempts at personal service upon Defendant’s
registered agent Michael Larson were carried out at Defendant’s principal place of
business at 5053 North 30th Street, not at Mr. Larson’s registered agent address at 2058
Paradise Ride Court. Summons Returned Executed, Ex. A [#21-2] at 4. Thus, the Court
is not inclined to agree that Plaintiff “diligently attempted to serve [Defendant] five times
through personal service,” Motion [#25] at 2, because there is no indication that personal
service on Defendant’s registered agent was attempted at the registered agent address
at 2058 Paradise Ride Court, as required by Colo. Rev. Stat. § 7–90–704(2)(c).
In A.O. Smith Corp. v. USA Smith Indus. Dev. Inc., No. 16-cv-2587-WJM-MJW,
2017 WL 2224539, at *2 (D. Colo. May 22, 2017), the Court deemed effective service by
registered mail to an entity’s business address, pursuant to Colo. Rev. Stat. § 7–90–
704(2)(c), because personal service on the entity’s registered agent was deemed
unsuccessful after the plaintiff contacted “the current resident of the . . . home that is
supposedly the address of Defendant’s registered agent and concluded that the
registered agent is not located there.” The Court determined that the defendant had no
registered agent actually living in the country at the time of service. A.O. Smith Corp.,
2017 WL 2224539, at *2.

5

Case 1:20-cv-00230-REB-KLM Document 28 Filed 11/16/20 USDC Colorado Page 6 of 7

In a similar case, service was permitted on an entity by mail after personal service
on the entity’s registered agent could not be completed “at the address of record on
Defendant’s registered agent filing” and at an alternate address associated with the
registered agent. See Kilthau v. Low T Med. Clinic, Inc., No. 14-cv-03309-MJW, 2015
WL 586262, at *1 (D. Colo. Feb. 11, 2015). After these attempts, the plaintiff then
“searched public records and determined that [the registered agent’s] most recent known
address was in Nashville, Tennessee.” Id. Based on these varied attempts to locate and
serve the entity’s registered agent, the Court determined that the plaintiff had “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,” thus authorizing service on the entity at its principal
address. Id.
In the foregoing cases, the Court found that the plaintiffs used reasonable diligence
to locate and personally serve the defendants’ registered agents because the plaintiffs
unsuccessfully attempted to serve the registered agents at their registered agent address,
and then sought to locate the registered agents elsewhere. The registered agents could
not be located, and thus, service by mail to the entities’ principal business address was
valid pursuant to Colo. Rev. Stat. Ann. § 7–90–704(2)(c).
Here, Plaintiff asserts that he attempted to serve Defendant personally five times
with no success, and “then attempted and successfully completed service pursuant to
Colo. Rev. Stat. Ann. § 7–90–704(2)(c)” by mailing the summons and a copy of the
complaint via certified mail. Motion [#25] at 2. However, the Court does not find, in this
situation, that Plaintiff’s attempts to personally serve Defendant are sufficient to allow for

6

Case 1:20-cv-00230-REB-KLM Document 28 Filed 11/16/20 USDC Colorado Page 7 of 7

service to be effectuated by mail. Per Colo. Rev. Stat. § 7–90–704(2)(c), service on an
entity by mail is appropriate “if the registered agent is not located . . . at its registered
agent address, or if the registered agent cannot with reasonable diligence be served.”
Plaintiff has not made any attempt to personally serve Defendant’s registered agent at
the known registered agent address or to locate the registered agent using any other
avenue. The Court does not agree that Plaintiff has “diligently attempted” to serve
Defendant because service has only been attempted at Defendant’s business address.
Thus, Plaintiff has not met the threshold requirement regarding attempted personal
service on Defendant’s registered agent to allow for service to be effectuated by mail
under Colo. Rev. Stat. § 7–90–704(2)(c). Accordingly, the Court finds that Defendant has
not been properly served.
III. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#25] is DENIED without prejudice.
Plaintiff may renew his request for entry of default, if necessary, after attempting to serve
Defendant at the registered agent address or otherwise exercising reasonable diligence
to discover an address at which Mr. Larson can be served pursuant to Colo. Rev. Stat. §
7–90–704(2)(c). Attempts at service shall be completed no later than December 21,
2020.
Dated: November 16, 2020

7