Willhite v. RODRIGUEZ-CERA
274 P.3d 1233
Colo.2012Background
- Willhite alleges a rear-end collision against Rodriguez-Cera and Torres and sues in Colorado.
- Rodriguez-Cera resides in Mexico; Willhite cannot locate him for personal service in Colorado.
- Willhite obtains substituted service on Rodriguez-Cera’s sister, Torres-Bravo, in Colorado.
- Trial court initially denied substituted service under Rule 4(f) but later authorized substituted service after discovery showed location in Mexico.
- Trial court quashed substituted service, ruling Hague Service Convention applied; Willhite seeks relief via C.A.R. 21.
- Colorado Supreme Court holds Rule 4(d) is not exclusive and substituted service under Rule 4(f) is valid, not implicating the Hague Convention; remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 4(d) exclusive to international service | Willhite argues 4(d) mandates Hague service | Rodriguez-Cera contends 4(d) governs foreign service exclusively | 4(d) not exclusive; 4(f) valid substitute |
| Whether substituted service within the U.S. avoids Hague implications | Substituted service within the U.S. suffices | Hague applies if transmittal abroad is needed | Hague not implicated; substituted service valid under 4(f) |
| Whether substituted service satisfies due process | Delivery to substituted person reasonably calculated to notify | Service must occur abroad under Hague if applicable | Yes; due process satisfied under 4(f) |
| Scope of transmission requirement when address known | Mailing to defendant required by Rule 4(f)(2) | Mailing not required if substituted delivery suffices | Mailing is not required to complete substituted service under 4(f) when notice is achieved |
Key Cases Cited
- Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (U.S. 1988) (Hague Convention applies only when transmittal abroad is required for service)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (Due process governs notice requirements for substituted service)
- Nuance Communications, Inc. v. Abbyy Software House, 626 F.3d 1222 (Fed. Cir. 2010) (4(f) substitutes may be justified when foreign central authority refuses)
- ReMine v. Dist. Court, 709 P.2d 1379 (Colo. 1985) (Substituted service rules interpreted narrowly and in derogation of common law)