Case 1:21-cv-01256-RM-NYW Document 32 Filed ... - GovInfo

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 21-cv-01256-RM-NYW PENN-STAR INSURANCE COMPANY, a Pennsylvania corporation,

Plaintiff,

v. BUSINESS FUTURES, INC., a Colorado corporation, and CHRISTOPHER MILLS, an individual,

Defendants.

ORDER

Magistrate Judge Nina Y. Wang

This matter comes before the court on the Motion for Substituted Service (Opposed) and

Motion for Extension of Time (Unopposed) to Serve Defendant Christopher Mills (the “Motion

for Substituted Service” or “Motion”) [Doc. 17, filed August 5, 2021].1 This court considers the

Motion pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated August 9, 2021 [Doc. 21],

and the Memorandum dated August 9, 2021. [Doc. 24]. For the foregoing reasons, the court

GRANTS the Motion for Substituted Service.

BACKGROUND

On or about May 5, 2019, Defendant Christopher Mills (“Mr. Mills”) was allegedly stabbed

at a mobile home park at which he lived, sustaining serious injuries. [Doc. 1 at ¶ 27]. Mr. Mills

subsequently sued Defendant Business Futures, Inc. (“Business Futures”) and Depew MHP, LLC

(“Depew”) in the District Court for the City and County of Denver (the “Underlying Action”),

1 This court previously granted the Motion insofar as it sought a motion for extension of time to serve Mr. Mills. [Doc. 25]. Thus, this court only addresses the portion of the Motion seeking to serve Mr. Mills by substituted service.

Case 1:21-cv-01256-RM-NYW Document 32 Filed 09/14/21 USDC Colorado of 15

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alleging that Business Futures (the property manager) and Depew (the mobile home park’s owner)

had “the right to conduct maintenance at [the mobile home park] and otherwise had the right of

possession,” but that they “failed to take any steps to mitigate the danger” caused by Mr. Mills’s

assailant. [Id. at ¶¶ 1, 25-26]. At the time of the stabbing, Depew held liability insurance coverage

through a Commercial General Liability Coverage Policy (the “Policy”) tendered by Plaintiff

Penn-Star Insurance Company (“Plaintiff” or “Penn-Star”). [Id. at ¶ 2].

On May 7, 2021, Penn-Star initiated this federal action against Business Futures, Mr. Mills,

and Depew,2 seeking a declaration pursuant to 28 U.S.C. § 2201 that it has no duty to defend or

indemnify Business Futures or Depew in the Underlying Action. [Id. at ¶ 6]. Penn-Star served

Business Futures on June 25, 2021, [Doc. 11], but the remaining Defendant, Mr. Mills, has not yet

been served. [Doc. 17 at ¶ 3].

Plaintiff’s counsel represents that, after filing the Complaint, she contacted Mr. Mills’s

counsel to request that Mr. Mills waive service, but Mr. Mills’s counsel did not respond. [Id. at

¶ 4]. Personal service on Mr. Mills was then attempted on three different days, at different times

of the day, at the last known address for Mr. Mills—the mobile home park at which the stabbing

occurred. [Id. at ¶ 5]. Such service attempts were unsuccessful, as an individual at that address

indicated that he had lived at the address for two years and that Mr. Mills no longer lived there.

[Id.]. Plaintiff then hired a legal investigation firm to locate Mr. Mills. [Id. at ¶ 6]. This firm

recovered a Georgia address, two phone numbers, and an email address potentially linked to Mr.

Mills, but personal service attempted at the Georgia address was unsuccessful, as were attempts to

contact Mr. Mills through the telephone numbers and email address. [Id.].

2 Depew was voluntarily dismissed as a Defendant in this case on August 12, 2021. [Doc. 27].


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Plaintiff then contacted Mr. Mills’s counsel again regarding a waiver of service; Mr.

Mills’s counsel represented that they do not have authority to accept service on behalf of Mr. Mills.

[Id. at ¶ 8]. Plaintiff subsequently hired a new process server to locate and serve Mr. Mills. [Id.

at ¶ 9]. This process server found 16 potential addresses for Mr. Mills, but determined that the

only viable address was an address in Lakewood, Colorado. [Id.]. Personal service attempted at

this Lakewood address was unsuccessful, as were additional service attempts at the mobile home

park and at a motel in Idaho Springs, Colorado.3 [Id.]. Finally, Plaintiff’s counsel asked counsel

for Depew whether Depew had any information as to Mr. Mills’s whereabouts or last known

address; Depew represented that it had no such information. [Id. at ¶ 10]. Penn-Star’s counsel

submitted this same request to Mr. Mills’s counsel, who indicated that they do not have an address

for Mr. Mills “and that Mr. Mills stays with friends;” Mr. Mills’s counsel did provide Penn-Star

with an email address for Mr. Mills, but Penn-Star’s email to that address went unreturned. [Id. at

¶ 11].

On August 5, 2021, Penn-Star filed the instant Motion for Substituted Service. See

generally [id.]. Penn-Star seeks a court order permitting service on Mr. Mills by publication or by

serving his counsel in the Underlying Action. [Id. at ¶ 12]. Penn-Star asserts that, despite its

diligent efforts, it has been unable to effect personal service on Mr. Mills and that further attempts

at service would be futile, but that service on Mr. Mills’s counsel “is reasonably calculated to give

actual notice [of this lawsuit] to Mr. Mills.” [Id. at ¶¶ 15, 17]. On August 13, 2021, Mr. Mills’s

counsel entered a special appearance to contest the Motion for Substituted Service. [Doc. 30]. Mr.

Mills’s counsel “objects to Plaintiff’s Motion for Substituted Service” because they have been

3 The Idaho Springs address was one of the 16 potential addresses recovered by the process server. [Doc. 17 at ¶ 9].


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“unable to contact Mr. Mills about having authority to accept service on his behalf in this matter”

and because they presently do not have such authority to accept substituted service. [Id. at 4-5].

In addition, they state that, when they need to reach Mr. Mills, they email him and Mr. Mills

“sometimes calls [counsel] back.” [Id. at 4]. They represent that they will “continue to assist

Plaintiff’s counsel in contacting Mr. Mills to the extent possible.” [Id. at 5]. In its Reply filed

August 17, 2021, Penn-Star notes that Mr. Mills’s counsel do not dispute that Penn-Star has

exercised diligence in attempting to serve Mr. Mills or that service on Mr. Mills’s counsel will

give actual notice of this lawsuit to Mr. Mills, [Doc. 31 at ¶¶ 3, 7], and reiterates that substituted

service is warranted here. See generally [id.]. 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 (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). “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


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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. Cent. Hanover Bank & Trust

Co., 339 U.S. 306, 314 (1950)).

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 of age 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). Relevant here are the methods

of service by publication and substituted service.

Service by Publication. The Colorado Rules of Civil Procedure provide that service by

publication may be made “only in actions affecting specific property or status or other proceedings

in rem.” Colo. R. Civ. P. 4(g). A party seeking service by publication must file a motion “stat[ing]

the facts authorizing such service, and [showing] the efforts, if any, that have been made to obtain

personal service.” Id. If the court is satisfied that the party seeking alternative service has been


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diligent in its efforts to obtain personal service, a court may order publication of the process in a

newspaper published in the county in which the action is pending. Colo. R. Civ. P. 4(g)(2).

Substituted Service. 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. Service by Publication

The court addresses Penn-Star’s second argument—that serving Mr. Mills by publication

would be proper under the Colorado Rules—first. Plaintiff asserts that “[s]ervice by publication

is permitted under the substituted service provisions of C.R.C.P. 4(f) if service by publication is

not already permitted under C.R.C.P. 4(g) and if the requirements of 4(f) are satisfied.” [Doc. 17

at 6]. The court respectfully disagrees. The Colorado Rules are explicit that service by publication

is permitted “only in actions affecting specific property or status or other proceedings in rem,”


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Colo. R. Civ. P. 4(g) (emphasis added), and the case Plaintiff cites in support of its argument that

service by publication may be permissible in other types of matters does not support such an

assertion. See Colony Ins. Co. v. Bristlecone Montessori Sch., No. 20-cv-01269 CMA-STV, 2021

WL 50893 (D. Colo. Jan. 5, 2021). In Colony, the court denied a motion for service by publication

upon concluding that the plaintiff had failed to demonstrate that a declaratory judgment insurance

coverage case—similar to the case here—constitutes an “in rem” proceeding for purposes of

permitting service by publication. Id. at *3. In fact, the court noted that “other Courts in this

District have declined to permit in rem service” in this specific type of case. Id. (citing State Farm

Fire & Cas. Co. v. Webb, No. 18-cv-02722-WYD-NRN, 2019 WL 1296632, at *1 (D. Colo. Mar.

21, 2019) (finding that declaratory judgment insurance coverage case was not an “action[]

affecting specific property or status or other proceeding[] in rem”)). Thus, the court respectfully

disagrees with Plaintiff that the Colorado Rules permit service by publication so long as “the

requirements of [Rule] 4(f) are satisfied.” [Doc. 17 at ¶ 18].

Penn-Star does not argue that this is a proceeding in rem or that this matter otherwise

“affect[s] specific property or status.” See generally [id.]. The court’s independent research

confirms that this matter is not such an action. The Colorado Supreme Court has instructed that

an “in rem action . . . affecting specific property” is an “action brought against a person in which

the essential purpose of the suit is to determine title to or affect interests in property located within

the territory over which the court has jurisdiction.” ReMine ex rel. Liley v. Dist. Ct. for City &

Cty. of Denver, 709 P.2d 1379, 1382 (Colo. 1985). In addition, a “quasi in rem action” involves

“the assertion of a personal claim, which is transformed into an action against a defendant’s

property by the attachment or garnishment of some or all of the defendant’s property located within

the jurisdiction.” Id. In its Complaint, Penn-Star seeks only a declaratory judgment that it has no


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duty to defend Business Futures for claims arising out of the stabbing incident; it does not seek to

determine title to real property or seek attachment or garnishment of any real property. See [Doc.

1 at 10-11]. As a result, the court concludes that the Colorado Rules of Civil Procedure do not

permit service by publication in this matter. Cf. Nat’l Specialty Ins. Co. v. Advanced Cargo

Transp., Inc., No. 3:14-CV-01417, 2014 WL 6473975, at *4 (M.D. Pa. Nov. 19, 2014) (finding

that a declaratory judgment action in which an insurer sought a declaration that it had fully satisfied

its contractual obligations was “clearly brought in personam, rather than in rem or quasi in rem,”

and thus the New Jersey Court Rule authorizing service by publication in an in rem action was

inapplicable). “Because service by mail or publication is not appropriate in this action, the general

provisions of Rule 4(f) control,” Am. Produce, LLC v. Vargas, No. 11-cv-02919-PAB-MEH, 2012

WL 1340121, at *2 (D. Colo. Apr. 17, 2012), and the court thus turns to Penn-Star’s arguments as

to substituted service under Rule 4(f).

II. Substituted Service

In the alternative, Penn-Star seeks substituted service pursuant to Rule 4(f), and is thus

required to file a motion, “supported by an affidavit of the person attempting service,” setting forth

(1) the efforts made to obtain personal service and why personal service could not be obtained;

(2) the identity of the person to whom the party wishes to deliver service; 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). Upon the filing of such a motion, if the court is satisfied that

(1) the moving party has engaged in due diligence in their attempts to service; (2) future attempts

at service would be futile; and (3) the party to whom service is request “is appropriate under the

circumstances and reasonably calculated to give actual notice to the party upon whom service is


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to be effective,” the court will authorize substituted service. Id. The court now turns to whether

Penn-Star has met each of these requirements.

Appropriate Motion Supported by Affidavit. In its Motion, Penn-Star has set forth in detail

the efforts it has taken to effect personal service on Mr. Mills, including initiating multiple attempts

at personal service, hiring two separate firms to locate Mr. Mills, attempting to obtain Mr. Mills’s

contact information from opposing counsel, and emailing Mr. Mills. See [Doc. 17 at ¶¶ 4-11]. In

addition, Penn-Star has identified the individuals on whom Penn-Star seeks to effectuate

substituted service—Phil Harding (“Mr. Harding”) and Robert Kitzinger (“Mr. Kitzinger”)—and

has identified their business address at which they may be served. [Id. at ¶ 14]. And finally, Penn-

Star has attached to its Motion three affidavits of attempted service from its various hired process

servers, see [Doc. 17-2; Doc. 17-3; Doc. 17-7], which satisfies the affidavit requirement contained

in Rule 4(f). Minshall v. Johnston, 417 P.3d 957, 960 (Colo. App. 2018); Allen v. The Pinery,

LLC, No. 17-cv-00688-MSK-STV, 2017 WL 3492872, at *2 (D. Colo. Aug. 15, 2017). The court

finds that Penn-Star’s Motion meets the procedural requirements under Rule 4(f).

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)). The court is satisfied that Penn-Star has demonstrated due diligence in attempting to

personally serve Mr. Mills in this matter. Penn-Star has initiated personal service attempts at least

seven times at four different addresses, has hired two different firms to locate Mr. Mills, has spoken

with Mr. Mills’s counsel and Depew’s counsel seeking Mr. Mills’s address, and has emailed Mr.

Mills at the email address provided by his counsel. [Doc. 17 at ¶¶ 5-11]. These efforts are


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sufficient to demonstrate due diligence as to personal service. See 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).

In addition, the court agrees with Penn-Star that additional attempts to personally serve Mr.

Mills would likely be futile. Penn-Star has detailed its efforts in locating an address at which Mr.

Mills can be reached and has seemingly exhausted all known potential addresses of Mr. Mills.

[Doc. 17 at ¶¶ 5-6, 9]. In addition, Mr. Mills counsel has confirmed that Mr. Mills “stays with

friends” and may not presently have a address at which he may be regularly located. [Id. at ¶ 11;

Doc. 30 at 4]. Because it appears that Penn-Star has exhausted its options for personal service,

and because there is no known address for Mr. Mills at this juncture, the court concludes that future

attempts at personal service would be fruitless. Malone, 2009 WL 2139857, at *2.

Propriety of Serving the Requested Party. Next, the court must determine whether Messrs.

Harding and Kitzinger, Mr. Mills’s attorneys in the Underlying Action, are “appropriate under the

circumstances” to be served and “reasonably calculated to give actual notice to the party upon

whom service is to be effective.” Colo. R. Civ. P. 4(f). “In Colorado, ‘generally service of process

on an attorney of record is improper unless the attorney has been specifically authorized by his

client to accept service.’” Colony, 2021 WL 50893, at *2 (quoting Webb, 2019 WL 1296632, at

*2). However, courts in this District have also held that Colorado law allows a plaintiff to serve a

defendant’s attorney if the attorney is currently representing or has recently represented the


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defendant. Two Rivers, 2019 WL 5535227, at *3 (finding that counsel, who had represented the

defendants in “a contemporaneous arbitration proceeding relating to the same matters at issue in

[the] case” had “a professional obligation to provide actual notice to Defendants of this substituted

service”); see also JDK LLC v. Hodge, No. 15-cv-00494-NYW, 2015 WL 2455504, at *2 (D.

Colo. May 22, 2015) (finding that an attorney who had represented the defendants in negotiations

related to the lawsuit was an appropriate person to serve under the circumstances, despite the fact

that the attorney did not then represent the defendants).4 Courts similarly have approved

substituted service on an attorney where the attorney to be served is then representing the defendant

in a different, but related, case. Webb, 2019 WL 1296632, at *3 (“Mr. Killian currently represents

Defendant David E. Webb in an appeal addressing issues determined in the State Case—which, as

State Farm alleges, is related to this case. . . . I therefore agree with State Farm that service on Mr.

Killian is reasonably calculated to give actual notice to Defendant David E. Webb based on Mr.

Killian’s current representation of Mr. Webb.”). However, the ability to serve a defendant through

his counsel is not without its limits; the cases both permitting and precluding such service suggest

that there must exist a clear, recent connection between the defendant and the person to be served

via substitution. See, e.g., Rain Design, Inc v. Spinido, Inc., No. 19-cv-00349-RM-KMT, 2020

WL 4339376, at *4 (D. Colo. July 28, 2020) (finding that an attorney was not an appropriate

subject of substituted service where the attorney represented the entity that owned the defendant’s

trademark, but where there was no confirmation that the attorney represented the defendant); see

4 See also Warrender Enter., Inc. v. Merkabah Labs, LLC, No. 20-cv-00155-SKC, 2020 WL 2306856, at *3 (D. Colo. May 8, 2020) (finding that an individual defendant could be served via an attorney where the attorney, in the same matter, represented the company of which the individual defendant was the chief executive officer and managing partner and where the attorney had previously represented the individual defendant in a different case); Allen, 2017 WL 3492872, at *2 (finding that the defendant’s attorney in a separate divorce proceeding was appropriate person to serve).


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also Farmlands Partners Inc. v. Fortunae, No. 18-cv-02351-KLM, 2019 WL 2436064, at *6 (D.

Colo. June 11, 2019) (denying motion for substituted service as to certain Doe defendants where

it was “less than clear” whether the attorney to be served represented the Doe defendants).

The court concludes here that Messrs. Harding and Kitzinger are appropriate parties to

serve under the circumstances. Counsel have confirmed that they represent Mr. Mills in the

Underlying Action. See [Doc. 30 at 4-5]. Although they have not been authorized to accept service

on Mr. Mills’s behalf, [id. at 4] the court finds that counsel’s representation of Mr. Mills in a

separate, but directly related, action creates a sufficient link between counsel and Mr. Mills so as

to find that service upon Messrs. Harding and Kitzinger would be appropriate in this case. Webb,

2019 WL 1296632, at *3; JDK, 2015 WL 2455504, at *2; Warrender Enter., Inc. v. Merkabah

Labs, LLC, No. 20-cv-00155-SKC, 2020 WL 2306856, at *3 (D. Colo. May 8, 2020).

However, to order substituted service, the court must also conclude that the party upon

whom service is to be effected is “reasonably calculated to provide actual notice” to the defendant.

Colo. R. Civ. P. 4(f). Generally speaking, “[i]f an attorney is currently representing a defendant,

it is reasonable to infer that the attorney will give actual notice of service to that defendant.” Two

Rivers, 2019 WL 5535227, at *3. But here, the Parties’ briefing suggests that Messrs. Harding

and Kitzinger have at least some level of difficulty in regularly reaching Mr. Mills. See [Doc. 17

at ¶ 16; Doc. 30 at 4]; see also [Doc. 30-2 at 1 (Mr. Harding representing that, when counsel needs

to reach Mr. Mills, “[they] email him at chrismills111974@gmail [sic] and he sometimes calls

[counsel] back.”)]. Moreover, Messrs. Harding and Kitzinger represent that they “have been

unable to contact Mr. Mills about having authority to accept service on his behalf in this matter.”

[Doc. 30 at 4],


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Weighing the information in the record against these factors, the court finds that substituted

service on Messrs. Harding and Kitzinger is reasonably calculated to provide actual notice of this

lawsuit to Mr. Mills. This court has independently obtained a copy of the docket sheet in the

Underlying Action dated September 9, 2021. See Attach 1.5 The state-court docket reflects that

Messrs. Harding and Kitzinger were likely in contact with Mr. Mills at least as recently as June

16, 2021, the date on which Mr. Mills filed a response to Depew’s motion to dismiss the

Underlying Action—a filing which undoubtedly requires client participation. Id. at 1. In addition,

on September 7, 2021, the state court denied Depew’s motion to dismiss, id., and thus it appears

that the Underlying Action will continue to proceed, which demonstrates to the court that Messrs.

Harding and Kitzinger will continue to be in direct contact with Mr. Mills for the foreseeable

future, as regular client contact will be necessary for Mr. Mills to participate in discovery and

proceed with the general progression of the Underlying Action.

Moreover, Messrs. Harding and Kitzinger do not represent that they cannot contact or reach

Mr. Mills or that their emails do not reach Mr. Mills; instead, they indicate that Mr. Mills only

“sometimes” responds to their messages. While the court acknowledges that such communications

may be inconsistent, the briefing does not reflect an outright inability to reach Mr. Mills and

provide him actual notice of this lawsuit. Cf. Allen, 2017 WL 3492872, at *2 (finding that an

attorney was reasonably calculated to provide actual notice to the defendant where the attorney

“did not express any concern in being able to deliver notice to [the defendant], but rather responded

5 The court takes judicial notice of this docket sheet. See Stack v. McCotter, 79 F. App’x 383, 391 (10th Cir. 2003) (unpublished) (a state court docket sheet is “an official court record in a related state court case, subject to judicial notice.”); St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (“[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”).


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only that she was not ‘authorized’ to accept service.”). Indeed, Rule 1.4 of the Colorado Rules of

Professional Conduct requires that a lawyer “promptly inform the client of any decision or

circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is

required by these Rules;” “reasonably consult with the client about the means by which the client’s

objectives are to be accomplished;” and “keep the client reasonably informed about the status of

the matter.” Colo. RPC 1.4. All of these functions implicitly assume that the attorney can

appropriately contact and convey information to her or his client—in this case, Mr. Mills. Finally,

the court notes that Rule 4(f) does not require a guarantee that the substituted service will provide

actual notice to the defendant—rather, it requires that the substituted service be “reasonably

calculated” to provide actual notice to the defendant. Colo. R. Civ. P. 4(f). The court finds that,

here, substituted service meets that threshold.

For all of these reasons, the court finds that Penn-Star has met the requirements of Rule

4(f), that Messrs. Harding and Kitzinger are appropriate individuals to serve under the

circumstances, and that such service is reasonably calculated to give Mr. Mills notice of this

lawsuit. As a result, the court GRANTS the Motion for Substituted Service.

CONCLUSION

For the reasons stated herein, IT IS ORDERED that:

(1) The Motion for Substituted Service [Doc. 17] is GRANTED;

(2) Penn-Star is granted leave to serve Defendant Christopher Mills as follows:

a. By substituted personal service of Phil Harding, Harding & Associates, P.C.,

730 17th Street #650, Denver, Colorado 80202;

b. By substituted personal service of Robert Kitzinger, Harding & Associates,

P.C., 730 17th Street #650, Denver, Colorado 80202;


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(3) Penn-Star shall mail the process to the address of the parties to be served by

substituted service on or before the date of delivery, as set forth in Colo. R. Civ.

P. 4(f)(2) no later than September 20, 2021.

DATED: September 14, 2021 BY THE COURT: _________________________ Nina Y. Wang United States Magistrate Judge


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