Boatright
DENVER (Legal Newsline) - Earlier this week, the Colorado Supreme Court reversed a trial court's order quashing substituted service on a defendant in a personal injury case who fled to Mexico.
The trial court had determined that a section of Colorado law mandated that service on a defendant located in a foreign country be made according to international agreement, if any.
The state's high court said that same section -- C.R.C.P. 4(d) -- does not establish service according to international agreement as the "exclusive means" of serving a defendant in a foreign country.
The lower court had previously granted substituted service on Paulo Rodriguez-Cera under another section of Colorado law, C.R.C.P. 4(f).
However, because Mexico and the U.S. are both parties to the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters -- also known as the Hague Service Convention -- the trial court later concluded that plaintiff Rex Willhite had to serve Rodriguez-Cera via the agreement.
As a result, the trial court quashed the substituted service.
Willhite alleged that Rodriguez-Cera rear-ended his vehicle. He sued both Rodriguez-Cera and Juan Torres, the owner of the vehicle Rodriguez-Cera was driving, for damages for the injuries he sustained.
Willhite had attempted to serve Rodriguez-Cera personally in Colorado but was unable to find him. While attempting service, the process server learned that the defendant was residing in Mexico.
The process server also learned that Rodriguez-Cera was in regular contact with his sister, Lydia Torres-Bravo, who was married Torres and was living in Colorado.
Soon after learning that Rodriguez-Cera was living in Mexico, Willhite filed a motion for substituted service pursuant to C.R.C.P. 4(f), asking the trial court to permit substituted service on Rodriguez-Cera's sister. The court denied the motion.
Willhite later filed a renewed motion for substituted service and, again, was denied.
It wasn't until months later, after Willhite tried -- unsuccessfully -- to serve Rodriguez-Cera through Mexican authorities that the trial court granted his second renewed motion for substituted service.
However, Rodriguez-Cera filed a motion to quash the substituted service, arguing that C.R.C.P. 4(d) mandates adherence to international treaty. The trial court granted the motion.
In its ruling Monday, the state Supreme Court said under C.R.C.P. 4(d), service according to international agreement is just one method for effecting service in a foreign country.
"Further, C.R.C.P. 4(d) does not require that service on a defendant located in a foreign country actually occur abroad and nothing in Rule 4(d) prohibits a plaintiff from serving a defendant within the United States if otherwise authorized," Justice Brian D. Boatright wrote for the majority.
As for C.R.C.P. 4(f), the Court said substituted service under the section provides a "valid alternative" to service abroad.
"We acknowledge that the Hague Service Convention is implicated when the law of the forum state requires the transmittal of documents abroad in order to effectuate service," Boatright explained.
"However, we conclude that the transmittal of documents abroad is not required to effectuate service under C.R.C.P. 4(f) and therefore the Hague Service Convention is not implicated by substituted service within the United States under Colorado's Rules of Civil Procedure."
The Court made the rule absolute and remanded the case to the trial court.
From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.