Opinion
Civil Action 21-cv-00943-NYW
09-14-2021
ELIDE FIRE USA, LLC, a New York Corporation, Plaintiff, v. AUTO FIRE GUARD, LLC, a Colorado limited liability company, GRANT VAN DER JAGT, and DOES 1-10, inclusive, Defendants.
ORDER
Nina Y. Wang United States Magistrate Judge
This matter comes before the court on Plaintiff's Motion for Alternate Service Under FRCP 4(e) (the “Motion for Alternative Service” or “Motion”) [Doc. 40], filed August 19, 2021. In the Motion, Plaintiff Elide Fire USA, LLC (“Plaintiff”) seeks to serve Defendant Grant Van Der Jagt (“Mr. Van Der Jagt”) through counsel for Defendant Auto Fire Guard, LLC (“AFG”). For the foregoing reasons, the court DENIES the Motion for Alternative Service without prejudice.
BACKGROUND
Plaintiff initiated this action against AFG in the United States District Court for the District of Colorado on April 5, 2021, see generally [Doc. 2], and the case was directly assigned to the undersigned. [Doc. 5]. On June 1, 2021, Plaintiff moved for a clerk's entry of default against AFG, see [Doc. 10], and default was entered that same day. [Doc. 11]. On June 2, 2021, AFG's counsel, Robert Purcell (“Mr. Purcell”), entered a special entry of appearance to contest the entry of default on the basis that AFG had not been properly served. See [Doc. 12]. On June 30, 2021, this court held a status conference at which the Parties discussed the status of service on AFG. [Doc. 20]. Mr. Purcell indicated that he was not authorized to accept service on behalf of AFG nor authorized to waive service on its behalf. [Id.]. However, on July 8, 2021, the Parties stipulated to vacatur of the Clerk's entry of default and Mr. Purcell's acceptance of service, [Doc. 21], and the entry of default was vacated. [Doc. 22]. Plaintiff and AFG consented to magistrate judge jurisdiction on July 29, 2021. [Doc. 25].
On August 3, 2021, Plaintiff filed Plaintiff's First Amended Complaint Against Defendants for Patent Infringement; Unfair Competition; and Colorado Consumer Protection Act C.R.S. § 61-101, Et Seq. (the “Amended Complaint”) as a matter of right pursuant to Rule 15 of the Federal Rules of Civil Procedure. See [Doc. 30]. In so doing, Plaintiff added Mr. Van Der Jagt, who Plaintiff alleges is “an officer and director of defendant AFG, ” [id. at ¶ 12], as a Defendant in this matter, and asserted two additional claims not previously raised. See generally [id.]. At a hearing held on August 12, 2021, the court and the Parties discussed, inter alia, service on Mr. Van Der Jagt. See [Doc. 39]. Mr. Purcell represented that he was not authorized to accept service on behalf of Mr. Van Der Jagt. See [id.]. The court ordered Plaintiff to seek a waiver of service or file an appropriate motion for alternative service on or before August 19, 2021. [Id.].
Rule 15 provides that “[a] party may amend its pleading once as a matter of course within . . . 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1)(B). AFG filed a motion to dismiss on July 22, 2021. [Doc. 23]. Thus, Plaintiff's Amended Complaint was timely filed as a matter of course pursuant to Rule 15.
Plaintiff filed the Motion for Alternative Service on August 19, 2021. See [Doc. 40]. In the Motion, Plaintiff states that it has attempted personal service on Mr. Van Der Jagt “multiple times” but that Mr. Van Der Jagt “has refused to allow himself to be served while physically at his home address.” [Id. at 2]. In addition, Plaintiff's counsel asserts that Mr. Van Der Jagt “is AFG's only principal who would be in direct communication with Mr. Purcell” and represents that he has, on multiple occasions, requested that Mr. Purcell speak with Mr. Van Der Jagt to confirm if he may accept service on Mr. Van Der Jagt's behalf. [Id.]. According to Plaintiff's counsel, Mr. Purcell has represented that Mr. Van Der Jagt has not confirmed whether counsel is authorized to accept service on his behalf. [Id. at 2-3]. Plaintiff asserts that personal service on Mr. Van Der Jagt has been thwarted by “an intentional evasion of service” and thus, leave to serve Mr. Van Der Jagt by alternative service-more specifically, by serving Mr. Purcell-is warranted here. [Id. at 3]. AFG responded in opposition to the Motion on September 1, 2021. [Doc. 6]. Generally, AFG argues that the Motion should be denied because Plaintiff has failed to demonstrate due diligence in attempting to personally serve Mr. Van Der Jagt. [Id. at 2-4]. In a Reply filed September 10, 2021, [Doc. 46], Plaintiff asserts that “the conduct of [Mr.] Van Der Jagt as the sole principal of AFG together with statements made by [Mr. Purcell] evidence that [Mr.] Van Der Jagt's refusal to accept service has been ostentatious.” [Id. at 3]. I consider the Parties' arguments below.
LEGAL STANDARD
Rule 4 of the Federal Rules of Civil Procedure provides:
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
Fed. R. Civ. P. 4(e). “The federal rules are silent regarding substituted and alternative service. Where federal rules are silent ‘as to a specific procedural requirement,' the deciding court's local rules control.” Two Rivers Water & Farming Co. v. Am. 2030 Cap. Ltd., No. 19-cv-01640-CMA-STV, 2019 WL 5535227, at *2 (D. Colo. Oct. 25, 2019) (quoting Hammond v. City of Junction City, No. 00-2146-JWL, 2002 WL 169370, at *9 (D. Kan. Jan. 23, 2002)). It is only when “service of process by personal service cannot be accomplished” that “other means of service may be used.” United States v. Elsberg, No. 08-cv-00552-MSK-KLM, 2010 WL 5177439, at *3 (D. Colo. Aug. 17, 2010). “For a substituted method of 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.'” Id. (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
In the Motion, Plaintiff emphasizes the text in subsection (2)(C). See [Doc. 40 at 3]. However, Plaintiff has conceded that Mr. Purcell has represented that he is not authorized to accept service on behalf of Mr. Van Der Jagt, and Plaintiff has not cited any authority demonstrating that Mr. Purcell is authorized by law to receive service of process on behalf of Mr. Van Der Jagt. See generally [id.]. For these reasons, the court does not construe the Motion as asserting that service through Mr. Purcell would be proper under Fed.R.Civ.P. 4(e)(2)(C).
Under Colorado law, the default method of service is “personal service, ” which includes leaving the complaint and summons at the defendant's normal place of abode with a person who is at least 18 years old and a family member of defendant, or at the defendant's workplace with the defendant's supervisor, secretary, administrative assistant, bookkeeper, human resources representative, or managing agent. See Colo. R. Civ. P. 4(e)(1) (emphasis added)). However, the Colorado Rules of Civil Procedure provide alternative methods of service in the event that personal service cannot be effectuated. See generally Colo. R. Civ. P. 4(e). If personal service is unable to be effectuated, and where service by mail or publication is not permitted under Colorado Rule of Civil Procedure 4(g), a party “may file a motion, supported by an affidavit of the person attempting service, for an order for substituted service.” Colo. R. Civ. P. 4(f). The motion must set forth (1) the efforts made to obtain personal service and the reason why 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 the last known address of the workplace and residence, if known, of the party upon whom service is to be effectuated. Id.
If the motion satisfies these requirements, and if the court determines that further attempts at personal service would be futile and that the person to whom the party seeks to deliver service is “appropriate under the circumstances and reasonably calculated to give actual notice to the party upon whom service is to be effectuated, ” the court must then (1) authorize delivery to be made to the person deemed appropriate for service; and (2) order that process be “mailed to the address(es) of the party to be served by substituted service, as set forth in the motion.” Id.
ANALYSIS
I. Request for Alternative Service
Because Plaintiff seeks substituted service pursuant to Rule 4(f), the court considers whether Plaintiff has satisfied the procedural motion requirements of that Rule before addressing whether Plaintiff has demonstrated that it has been diligent in its attempts to personally serve Mr. Van Der Jagt, that further service attempts would be futile, and that Mr. Purcell is an appropriate party to serve under the circumstances and that such service reasonably calculated to provide actual notice of this matter to Mr. Van Der Jagt. Upon reviewing each of the foregoing factors, the court finds that substituted service is not currently warranted in this matter.
Appropriate Motion Supported by Affidavit.
In its Motion, Plaintiff has explained the efforts it has taken to obtain personal service and asserts that, because these attempts were futile, personal service on Mr. Van Der Jagt cannot be obtained in this case. [Doc. 40 at 4-5]. In addition, attached to the Motion are affidavits from process servers regarding the unsuccessful attempts at service. See [Doc. 40-1]. Without passing on whether these efforts are substantively sufficient to constitute due diligence under Rule 4(f), court finds that the Motion satisfies the procedural requirements that Plaintiff set forth the efforts made to obtain personal service and why personal service could not be obtained. Colo. R. Civ. P. 4(f).
However, Plaintiff must also provide the identity and address of the person to whom the party wishes to deliver the process. Colo. R. Civ. P. 4(f). More specifically, Plaintiff must provide “the address, or last known address of the workplace and residence, if known, of the party upon whom service is to be effected.” Id. Although Plaintiff provides the identity of the person to be served-Mr. Purcell-it does not provide Mr. Purcell's address or last known address. See generally [Doc. 40]. And while Mr. Purcell's professional contact information is included on the docket and in AFG's filings, see, e.g., [Doc. 34], the Colorado Rules of Civil Procedure state that the motion for substitute service “shall state” the contact information of the person to be served. Colo. R. Civ. P. 4(f). Plaintiff's Motion does not do so, and thus fails to comply with the Colorado Rules of Civil Procedure. This reason alone would be sufficient to deny Plaintiff's request for alternative service.
Nevertheless, the court finds that it is in the best interest of judicial economy to address the remaining substantive requirements of substituted service under Rule 4(f) so as to diminish the risk of duplicative unsuccessful motions for alternative service. As such, the court next addresses whether Plaintiff has demonstrated due diligence in attempting personal service and that future attempts at personal service would be futile.
Due Diligence and Futility of Future Attempts at Personal Service.
“‘Due diligence' is commonly understood as ‘the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.'” Owens v. Tergeson, 363 P.3d 826, 835 (Colo.App. 2015) (quoting Black's Law Dictionary 553 (10th ed. 2014)). Plaintiff asserts that it “has attempted personal service on [Mr.] Van Der Jagt multiple times.” [Doc. 40 at 2]. More specifically, Plaintiff states that the Douglas County Sheriff's Office (the “Sheriff's Office”) affidavits attached to the Motion “attest to the efforts made to obtain personal service” on Mr. Van Der Jagt at his personal residence, which “further evidence service could not be obtained due to [Mr.] Van Der Jagt's systematic evasion of service.” [Id. at 4 (emphasis omitted)]. In addition, Plaintiff cites in support of its Motion an affidavit from a private process server filed in this case on May 3, 2021 stating that when the private process server attempted to serve AFG in this matter via Mr. Van Der Jagt, a man who “was believed to be Mr. Van Der Jagt” ran inside when the process server approached. [Doc. 9 at 1]. Finally, Plaintiff asserts that its counsel has contacted Mr. Purcell on multiple occasions and has requested that Mr. Purcell ask his client whether he is authorized to accept service on behalf of Mr. Van Der Jagt, but that Mr. Purcell continues to assert that he is not so authorized. [Doc. 40 at 4-5].
The court cannot conclude that these efforts demonstrate Plaintiff's due diligence in pursuing personal service on Mr. Van Der Jagt in this matter. First, the court notes that the Sheriff's Office affidavits appear to demonstrate Plaintiff's attempts to serve Mr. Van Der Jagt, both as an individual defendant and on behalf of AFG, in a separate matter-Civil Action No. 21-cv-01362-CMA-NRN (the “Alternate Case”)-and not this case. Moreover, the affidavit from the private process server demonstrates that, when Mr. Van Der Jagt allegedly evaded service in this case in April 2021, the private process server was attempting to serve AFG through Mr. Van Der Jagt, but not Mr. Van Der Jagt personally. [Doc. 9 at 1]. Indeed, Mr. Van Der Jagt was not a named defendant in this matter until August 3, 2021. [Doc. 30]. Accordingly, there is currently no evidence before the court that Plaintiff has attempted to personally serve Mr. Van Der Jagt in his personal capacity as a defendant in this case, nor does Plaintiff assert that it has made such an attempt. See [Doc. 40]. In fact, Plaintiff has failed to even request that the Clerk of Court issue a summons in this lawsuit so that Mr. Van Der Jagt may be served as an individual defendant.
Plaintiff initiated the Alternate Case against AFG and Mr. Van Der Jagt on May 18, 2021 but voluntarily dismissed that case on August 18, 2021. See [Doc. 40-2; Doc. 43].
The affidavits do not contain a case number so as to definitively demonstrate that the service represented in the affidavits was for the Alternate Case. See [Doc. 40-1]. However, the affidavits reflect that, at the time of the attempted service, Mr. Van Der Jagt was a named defendant in the action associated with the to-be-served papers. See [id. at 2]. However, on the June dates on which this service was attempted, Mr. Van Der Jagt was not a named defendant in this action. See [id.]; see also [Doc. 30 (amended complaint adding Mr. Van Der Jagt as a defendant on August 30, 2021)]. Thus, this demonstrates that these affidavits of service were associated with the Alternate Case.
While the court understands Plaintiff's argument to be that, due to Mr. Van Der Jagt's purported history of evading service, he is likely to attempt to evade service again in this matter, see [id. at 6], the court cannot conclude that Plaintiff has exercised “the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation” when Plaintiff has not actually attempted to personally serve Mr. Van Der Jagt in this matter. Owens, 363 P.3d at 835; see also Colo. R. Civ. P. 4(f) (permitting substituted service “[i]n the event that a party attempting service of process by personal service under section (e) is unable to accomplish service”) (emphasis added); Namaste Judgment Enf't, LLC v. King, 465 P.3d 78, 81(Colo.App. 2020) (“When a party has attempted, but is unable to, accomplish personal service under Rule 4(e), such party may move for substituted service under Rule 4(f).”) (emphasis added).
Even if the court were to consider Plaintiff's attempts to serve Mr. Van Der Jagt as a representative of AFG or individually in the Alternate Case, the court would not find sufficient due diligence here. The documents relied upon by Plaintiff demonstrate that: (1) on April 24, 2021, a private process server attempted to serve AFG through Mr. Van Der Jagt, and that a man who “was believed to be Mr. Van Der Jagt” ran inside a home when the process server arrived, [Doc. 9 at 1]; and (2) when the Sherriff's Office attempted to serve both Mr. Van Der Jagt individually and AFG through Mr. Van Der Jagt in to the Alternate Case, personal service was not effectuated for the following stated reasons: “no answer at door” and “avoiding.” [Doc. 40-1 at 2, 5 (emphasis omitted)]. Each of these attempts appears to have been made at the same address in Larkspur, Colorado. [Doc. 9 at 1; Doc. 40-1 at 2, 4].
Although service was apparently attempted multiple times at this address, this is nevertheless insufficient to demonstrate due diligence. See Allstate Ins. Co. v. Cruz, No. 20-cv-03139-DDD-MEH, 2020 WL 7421389, at *2 (D. Colo. Nov. 18, 2020) (“Allstate's apparent attempts to serve Mr. Cruz at only one residential address also do not warrant the somewhat extraordinary measure of allowing service on someone expressly not authorized to accept service.”). Indeed, courts often find that the due-diligence requirement has been satisfied when a party has made multiple attempts at service at multiple addresses. See, e.g., Matthews v. Candie, No. 20-cv-00139-PAB-NYW, 2020 WL 3487850, at *3 (D. Colo. June 26, 2020) (finding due diligence where the plaintiff hired a private investigator who attempted to serve the defendant three times at three different addresses and performed various searches for the defendant and its owner to no avail); Malone v. Highway Star Logistics, Inc., No. 08-cv-01534-RPM-KLM, 2009 WL 2139857, at *2 (D. Colo. July 13, 2009) (finding that due diligence was used to obtain service where personal service was attempted at five different addresses); BMO Harris Bank N.A. v. Marjanovic, No. 19-cv-02945-CMA-KMT, 2020 WL 4705294, at *1 (D. Colo. Aug. 13, 2020) (plaintiff employed due diligence by attempting service at four different addresses). It does not appear that Plaintiff has attempted to serve Mr. Van Der Jagt at any other address, such as a business address. See [Doc. 40]. Moreover, there is “no indication that Plaintiff performed any basic online or other research to determine other places [Mr. Van Der Jagt] might be located to effectuate service upon him; and no evidence that the process server attempted to serve him . . . anywhere else where [Mr. Van Der Jagt] might be found.” Harper v. Biolife Energy Sys., Inc., No. 18-cv-02868-DDD-SKC, 2020 WL 2770845, at *3 (D. Colo. May 12, 2020), report and recommendation adopted, 2020 WL 2771797 (D. Colo. May 28, 2020). For these reasons, the court finds that Plaintiff has not shown the requisite due diligence in attempting personal service to warrant substituted service under Rule 4(f).
In its Reply, Plaintiff states that Mr. Van Der Jagt's “usual workplace would be AFG's physical address, which is the same as [Mr.] Van Der Jagt's home address.” [Doc. 46 at 3-4]. Plaintiff does not raise this argument in its Motion, nor does Plaintiff present any evidence demonstrating that Mr. Van Der Jagt's regular workplace is his home. Regardless, there is no indication that Plaintiff has attempted service at any location aside from the Larkspur address, which cuts against a finding of due diligence.
Nor can the court presently conclude that future attempts at personal service of Mr. Van Der Jagt would be futile. As an initial matter, Plaintiff has failed to establish that it has attempted to locate or to personally serve any other person permitted by Rule 4(e), such as a family member 18 years or older who lives at Mr. Van Der Jagt's home or a supervisor, secretary, administrative assistant, or human resources representative at Mr. Van Der Jagt's usual workplace. See Colo. R. Civ. P. 4(e)(1). It is therefore possible that future attempts at personal service under Rule 4(e), albeit not on Mr. Van Der Jagt directly, could prove fruitful. Moreover, although Plaintiff argues that the Sheriff's Office “specifically found [Mr.] Van Der Jagt to be ‘avoiding' service, ” [Doc. 46 at 4], the affidavits contain no explanation as to why the Sheriff's Office believed Mr. Van Der Jagt was “avoiding” service, so as to demonstrate to the court that Mr. Van Der Jagt was indeed evading service during the prior unsuccessful attempts at personal service. Nor can the court conclude that a door left unanswered at Mr. Van Der Jagt's home, where vehicles sat in the garage and a garage light was lit, see [Doc. 40-1 at 2], demonstrates that Mr. Van Der Jagt was avoiding service. The court thus finds that Plaintiff has not met its burden of demonstrating that future attempts at personal service would not be successful, which is a separate sufficient basis to deny the Motion for Alternative Service.
Insofar as Plaintiff suggests that service on a person at Mr. Van Der Jagt's usual workplace “is not recognized under the Colorado Rules of Civil Procedure, ” Plaintiff is incorrect. See Colo. R. Civ. P. 4(e)(1) (“Personal service shall be as follows: . . . Upon a natural person whose age is eighteen years or older by delivering a copy thereof to the person, or by leaving a copy thereof . . . at the person's usual workplace, with the person's supervisors, secretary, administrative assistant, bookkeeper, human resources representative or managing agent.”).
The court agrees with Plaintiff that, generally, the email thread submitted by Plaintiff between Plaintiff's counsel and Mr. Purcell may demonstrate a deliberate avoidance of the question whether Mr. Purcell is authorized to accept service on behalf of Mr. Van Der Jagt. See [Doc. 40-3 (Mr. Purcell representing that, over the span of over twelve days, he had not heard from his client whether he was authorized to accept service)]. However, the court cannot conclude that, based simply on this email thread, future attempts at personal service would be futile.
II. Request for an Extension of Time
Although unclear, it appears that Plaintiff might also request an extension of time to serve Mr. Van Der Jagt in this matter. See [Doc. 40 at 5]. In a section of the Motion titled “Good Cause Exists to Extend Time for Alternative Service, ” Plaintiff asserts a brief argument as to whether good cause exists for an extension of time for service, but then concludes that “good cause [exists for] the Court to issue an order for alternative service.” See [id. (emphasis added)]. It is thus unclear to the court whether Plaintiff actually requests an extension of time to serve, or whether this language was inadvertently included in the Motion. Regardless, “[w]hen an amended complaint names a new defendant, as is the case here, a plaintiff has 90 days from the date on which the amended complaint is filed to serve that defendant with process.” Lunnon v. United States, No. CV 16-1152 MV/JFR, 2020 WL 1820499, at *9 (D.N.M. Feb. 21, 2020), report and recommendation adopted, MV/JFR, 2020 WL 1329821 (D.N.M. Mar. 23, 2020) (citing Bolden v. City of Topeka, 441 F.3d 1129, 1148 (10th Cir. 2006)); see also Wright & Miller et al., Fed. Prac. & Proc. Civ. § 1137 (4th ed.) (“[A]dding a new party through an amended complaint initiates a new timetable for service upon the added defendant.”). The Amended Complaint was filed on August 3, 2021, and thus Plaintiff's deadline to serve Mr. Van Der Jagt is November 1, 2021. Finding no present indication that Plaintiff cannot serve Mr. Van Der Jagt by this deadline, the court declines to, at this juncture, grant Plaintiff an extension of time to serve Mr. Van Der Jagt.
III. Request for Costs
Finally, Plaintiff requests that the court “award costs incurred by Plaintiff in making alternate service on Defendant Van Der Jagt.” [Doc. 40 at 6]. Because the court is denying the Motion, the court declines to issue any award of costs. However, the court notes that it would nevertheless be disinclined to award costs incurred in substituted service where Plaintiff has not actually attempted to serve Mr. Van Der Jagt personally in this case.
CONCLUSION
For the reasons stated herein, IT IS ORDERED that:
(1) Plaintiff's Motion for Alternate Service Under FRCP 4(e) [Doc. 40] is DENIED without prejudice.