Greene v. JJLV LLC, 1:21-cv-01182

Plaintiff Joe Greene sued JJLV LLC (d/b/a Cannaves), Higher Cut LLC, and Jonathan David Vesely under the FLSA, Colorado Wage Act, and for related common-law claims; summons issued April 30, 2021.
Process servers attempted personal service of Vesely multiple times at three addresses (a Colorado Springs residence, a Pueblo business, and a Pueblo residence); attempts reported unsuccessful and premises appeared vacant or inaccessible.
Plaintiff moved for substituted service under Colo. R. Civ. P. 4(f), proposing mail/email delivery to attorney Michael Freimann (who previously represented Vesely and whose firm is JJLV’s registered agent).
Court reviewed the affidavit and exhibits and found Plaintiff’s evidence of attempts at the Pueblo residential address sparse and insufficient to show the diligence Rule 4(f) requires.
Court also found the proposed substituted method (certified mail/email) inconsistent with Colorado Rule 4(f)’s hand-delivery requirement in non-rem actions, and that Plaintiff did not prove Freimann was an appropriate designee reasonably calculated to give Vesely actual notice.
The motion for substituted service was denied without prejudice; Plaintiff was ordered to effect personal service on Vesely and file proof by December 17, 2021.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether substituted service under Colo. R. Civ. P. 4(f) is appropriate given prior service attempts	Greene asserts multiple failed attempts at three addresses show due diligence and futility of further personal service	Vesely (implicitly) is not served; court requires stronger showing that further attempts would be futile	Denied: Plaintiff did not show sufficient due diligence or that further attempts would be futile
Whether mailing/emailing process to Freimann complies with Rule 4(f)	Greene proposes certified mail and email to Freimann as substituted service	Such mail/email is not proper substituted service under Colorado law for in personam actions	Denied: Rule 4(f) requires hand delivery to the substituted person (mail allowed only in in rem/specific property cases)
Whether attorney Freimann is an appropriate person to receive substituted service for Vesely	Greene states Freimann previously represented Vesely and his firm is JJLV’s registered agent, so delivery to Freimann likely to give notice to Vesely	Absent proof Freimann recently represented Vesely or was authorized to accept service, attorney is not an appropriate substitute	Denied: No evidence of a clear, recent connection or authorization making Freimann reasonably calculated to give Vesely notice

Willhite v. Rodriguez-Cera, 274 P.3d 1233 (Colo. 2012) (service under Colo. R. Civ. P. 4(f) is tied to delivery to substituted person; mail alone is insufficient)
Namaste Judgment Enforcement, LLC v. King, 465 P.3d 78 (Colo. App. 2020) (hand delivery to substituted person required under Rule 4(f))
Minshall v. Johnston, 417 P.3d 957 (Colo. App. 2018) (substituted service requires evidence the designated person is reasonably calculated to give actual notice)
RexMine ex rel. Liley v. Dist. Ct. for City & Cnty. of Denver, 709 P.2d 1379 (Colo. 1985) (substituted service statutes are in derogation of common law and strictly construed)
Bardahl Mfg. Corp. v. Dist. Ct. In & For Jefferson Cnty., 372 P.2d 447 (Colo. 1962) (attorney generally cannot be substituted recipient absent client authorization)