by Scott Snodgrass Recently I was hired to serve documents to a truck driver who delivered gas to stations throughout the Denver metro area. We knew who employed him, but we were unable to determine where he was living. Receiving little help from his employer, I was forced to lie in wait for 90 minutes at the end of the day for his return from the field. Under the amended rules, I could now serve his supervisor or the company’s human resources representative and be on my way, saving surveillance costs and eliminating the risk of an unpleasant confrontation in front of the defendant’s coworkers.Few principles are more fundamental in the legal world than personal jurisdiction. It is a well-accepted constitutional due process requirement that a person or entity must have notice they are a defendant in a lawsuit and have an opportunity to present a defense. For most cases the plaintiff’s attorney simply hires a process server who follows Rule 4 of the Colorado Rules of Civil Procedure and without much ado, the notice is given. With some defendants, however, an expensive game of hide and seek has begun. Recent amendments to Rule 4 have provided process servers with another location to “find” the defendant.The Colorado rules for service of process have been revised, effective June 21, 2012. The most significant amendments were to Rule 4(e)(1) and the categories of persons to whom process may be delivered at a person’s workplace. Prior to the revisions, process servers were limited to serving a person’s secretary, administrative assistant, bookkeeper or managing agent. Most employees do not have a secretary, bookkeeper or administrative assistant and few process servers or attorneys can identify with certainty a “managing agent” because that term is not commonly used in the workplace. As a result, unless the process server was trying to serve a business owner or management type person, service at the workplace was effectively limited to direct personal service. That has now changed with the addition of two categories. Service can now be accomplished by serving a person’s supervisor or human resources representative.The addition of these categories is welcomed by process servers and should serve the obligations of due process well. Because due process demands that a defendant have an opportunity to appear and defend, due process requires notice.[1]The goal of notice is only achieved at the workplace where the documents are given to “an employee whose position presumably includes delivery of the papers to the relevant party.”[2]A person’s supervisor presumably works directly with an employee and has frequent communication with the employee. This differs from an office manager who may be in charge of the operations of an office but have no employee management responsibilities. Service to a supervisor has much greater assurance that the person will actually receive the documents and have notice of the lawsuit. Thus, now, if a process server can identify an employee’s supervisor, the documents can be given to that person. These same rationales are true of a human resources representative, who by the very nature of their responsibilities in managing the employees of an organization, will ensure delivery of documents to the appropriate employee.Real world application of these new categories will be very helpful to process servers. Policemen, delivery persons, repairmen, utility workers, construction workers, and installers all work in the field and can be difficult if not impossible to locate. Yet, often the supervisors of these employees work in the office and can easily be served. Additionally, there is a large category of employees who cannot conveniently be interrupted at work, such as teachers, factory workers, customer service representatives, etc. Service to supervisors will be better for everyone involved. A word of caution when using these new categories: recently I had identified a supervisor who was willing to accept service. However, the supervisor also indicated that the employee may be on “permanent vacation.” Service might have technically complied with Rule 4, but may not have provided the desired notice. To ensure the service will stand up to judicial scrutiny, I decided to try a different method.Finally, Rule 4(e)(4) was amended to provide for service to secretaries or assistants of an entity’s registered agent, officer, general partner, manager, member or trustee when making service upon an entity. This change reflects current case law in Colorado. Although case law in these areas is somewhat rare, the Colorado Supreme Court recently affirmed that registered agents may be served in the same manner as a natural person under Rule 4.[3]Thus, this amendment simply acknowledges and clarifies that secretaries and assistants are appropriate persons to serve.Please note, all of the above changes also apply to county court by virtue of identical changes to Rule 304.[1]Goodman v. WP Mountain Prop., LLC, 222 P.3d 310 (Colo. 2010).[2]Id.[3]Id.
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