Lead Opinion
delivered the Opinion of the Court.
T1 In this original proceeding under C.A.R. 21, we review the trial court's order quashing service on Paulo Rodriguez-Cera, who resides in Mexico, but was served by substituted service in Colorado. After previously granting substituted service under C.R.C.P. 4(£), the trial court determined that C.RC.P. 4(d) mandated that service on a defendant located in a foreign country be made according to international agreement, if any. Because Mexico and the United States
T2 We hold that C.R.GC.P. 4(d) does not establish service according to international agreement as the exclusive means of serving a defendant located in a foreign country. Under C.R.C.P. 4(d), service according to intеrnational 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. We hold that substituted service under C.R.C.P. 4(f) 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. 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. We make the rule absolute and remand to the trial court for further proceedings consistent with this opinion. ,
I. Factual Background a-nd Procedural History
T3 In his personal injury complaint, Will-hite alleged that Rodriguez-Cera rear-ended the vehicle Willhite was driving.
T4 After learning that Rodriguez-Cera was living in Mexico, Willhite filed a motion for substituted service pursuant to C.R.C.P. 4, asking the trial court to permit substituted service on Rodriguez-Cera's sister. Unconvinced that Willhite had made sufficient effort to serve Rodriguez-Cera personally as required by C.R.C.P. 4(f), the trial court denied the motion. The court, however, granted Willhite's motion to conduct early discovery to assist in determining the location of Rodriguez-Cera's workplace or residence. In the course of early discovery, Willhite deposed Ms. Torres-Bravo and learned that Rodriguez-Cera was living with their parents in a small town in Chihuahuas, Mexico and was in regular contact with his sister through her phone calls to their parents. Ms. Torres-Bravo could not provide an address for her parents' home and believed that the homes in that small town did not have numbers. Willhite filed a renewed motion for substituted service. The trial court denied the motion, noting that Willhite had not described any diligent efforts to follow the international service requirements of C.R.C.P. 4(d), and directed Willhite to proceed with service on Rodriguez-Cera pursuant to the Hague Service Convention.
T5 Siz months later, Willhite filed a second renewed motion for substituted service. He reported that he undertook efforts to serve Rodriguez-Cera through the Mexican central authority, in accordance with the Hague Service Convention, but was hindered by numerous obstacles and bureaucratic challenges.
16 The next day, Willhite served Rodriguez-Cera by substituted service on his sister, Ms. Torres-Bravo. By special appearance, Rodriguez-Cera filed a motion to quash the substituted service. He argued that C.R.C.P. 4(d) mandates adherence to international treaty, in this case, the Hague Service Convention. He also argued that substituted service is not allowed when a plaintiff is obligated to serve a defendant outside the United States pursuant to C.R.C.P. 4(d). The trial court interpreted C.R.C.P. 4(d) to require a plaintiff to serve a defendant located in another country in accordance with international agreement and determined that, in the case of Mexico, that international agreement was the Hague Service Convention. The trial court ruled that Willhite must serve Rodriguez-Cera via the Hague Service Convention and granted the motion to quash.
T 7 Willhite filed a C.A.R. 21 petition seeking review of the trial court's order quashing service. We issued a rule to show cause to determine whether C.R.C.P. 4(d) mandates service by international agreement as the exclusive means of serving a defendant located in a foreign country and, if not, whether substituted service within the United States provides a valid alternative to service abroad.
II. Jurisdiction
18 C.A.R. 21 authorizes this court to review a trial court's order if a remedy on appeal would not be adequate. CAR 21(a)(1). An order quashing service is not a final order that is immediately appealable. Hoen v. Dist. Court,
III. Standard of Review
19 The United States Supreme Court is the final authority on matters of federal constitutional law, and we are bound by its interpretations of international treaties. Am. Fed'n of Labor v. Reilly,
IV. Analysis
(10 This case raises questions regarding the possible methods of serving a defendant located in a foreign country. To resolve these questions in this case, which involves a defendant residing in a country that is party to the Hague Service Convention, we must examine the Hague Service Convention as well as Colorado's rules governing service of process.
T11 The Hague Service Convention is a multilateral treaty addressing service of process in foreign countries. See 20. U.S.T. 361. Because the United States and Mexico are both parties to the Convention, it is of potential applicability to this case. See id. (United States); Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 2117 U.N.T.S. 818 (accession of Mexico entered into force June 1, 2000). We therefore begin by reviewing the scope of the Hague Service Convention. The United States Supreme Court has held that the Convention is implicated when the laws of the forum state require the transmittal of documents abroad in order to effectuate service. Volkswagenwerk Aktiengesellschaft v. Schlunk,
T12 CRCP. 4(d) addresses process served in a foreign country. It provides for service according to international agreement as one method of serving a defendant in a foreign country. However, service according to international agreement is not the exclusive means of effecting service in a foreign country under C.R.C.P. 4(d). Moreover, 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. 'We conclude that substituted service under C.R.C.P. 4(f) provides a valid alternative to service abroad. Because C.R.C.P. 4(f) does not require the transmittal of documents abroad in order to effectuate service, the Hague Service Convention is not implicated. Accordingly, we make the rule absolute and remand to the trial court for further proceedings consistent with this opinion.
A. The Scope of the Hague Service Convention
{13 The Hague Service Convention is a multilateral treaty formulated in 1964 by the Tenth Session of the Hague Conference of Private International Law. See Volkswagenwerk,
{14 Article 1 of the Hague Service Convention dictates that it "shall apply in all cases ... where there is occasion to transmit a judicial or extrajudicial document for service abroad." 20 U.S.T. at 861. In Volks-wagenwerk, the United States Supreme Court considered whether substituted service within the United States was compatible with the Hague Service Convention.
T15 The Court concluded that, if the forum state "defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies." Id. However, after reviewing the negotiating history of the Convention, the Court distinguished the mere "delivery" of documents abroad froim the transmission of documents "for service abroad." Id. at 700-01,
B. C.R.C.P. 4(d) Does Not Mandate ._ Service Abroad
116 We begin with C.R.C.P. 4(d), which provides four methods for serving process in a foreign country. Rule 4(d) states, in pertinent part,
Process served in a foreign country shall be according to any internationally agreed means reasonably calculated to give notice, the law of the foreign country, or as directed by the foreign authority or the court if not otherwise prohibited by international agreement.
Notably, the Rule uses the phrase "in a foreign country" and does not use the phrase "on a defendant located in a foreign country." We conclude that, by its plain language, Rule 4(d) applies only to service that occurs in a foreign country and does not apply to service that occurs in the United States, even if the defendant upon whom service is effectuated is located abroad at the time.
T17 CRCP. 4(d) goes on to state that process served in a foreign country "shall be according to" the means listed. The word "shall" connotes a mandatory requirement. People v. Dist. Court,
118 Finally, Rule 4(d) describes four methods of effecting service in a foreign country: (1) service in accordance with any internationally agreed means reasonably calculated to give notice; (2) service in accordance with the law of the foreign country; (8) service as directed by the foreign authority if not otherwise prohibited by international agreement; or (4) service as directed by the court if not otherwise prohibited by international agreement. Nothing in Rule 4(d) suggests that one of these methods is preferred over another. In fact, the use of the disjunctive "or" reflects a choice of equally acceptable alternatives. See Webster's Third New International Dictionary 1585 (2002) (defining "or" as indicating "a choice between alternative things, states,, or courses"); see also Denver Horse Imp. Co. v. Schafer,
19 In defining the four exclusive means of effecting service in a foreign country, C.R.C.P. 4(d) says nothing about effecting
C. CGR.CP. 4) is a Valid Alternative to Service Abroad
120 C.R.C.P. 4(f) provides for substituted service as an alternative to personal service when a plaintiff
121 C.R.C.P. 4(f) provides, in its entirety: In the event that a party attempting service of process by personal service under section (e) is unable to accomplish service, ... the party may file a motion supported by an affidavit of the person attempting service, for an order for substituted ser-viee. The motion shall state (1) the efforts made to obtain personal service and the reason that 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 last known address of the workplace and residence, if known, of the party upon whom service is to be effected. If the court is satisfied that due diligence has been used to at'tempt personal service under section (e), that further attempts to obtain service under section (e) would be to no avail, and that the person to whom delivery of the process is appropriate under the cireum-stances and reasonably calculated to give actual notice to the party upon whom service is to be effective, it shall
(1) authorize delivery to be made to the person deemed appropriate for service, and
(2) order the process to be mailed to the address(es) of the party to be served by substituted service, as set forth in the motion, on or before the date of delivery. Service shall be complete on the date of delivery to the person deemed appropriate for service.
122 Because substituted service is an alternative to personal service, a plaintiff must first attempt personal service before recurring to the court for an order for substituted service. Whether a plaintiff may attempt personal service on a defendant who is located abroad is a case-specific inquiry. If that defendant comes to the United States, there may be an opportunity for personal service within the United States in accordance with C.R.C.P. 4(c) However, if that defendant does not come to the United States, a plaintiff must proceed pursuant to C.R.C.P. 4(d), which provides the exclusive means for effecting service in a foreign country. See supra. Accordingly, whether a plaintiff mаy attempt personal service in a foreign country will depend on whether any applicable international agreement, the law of the foreign
D. C.R.C.P. 4(f) Does Not Implicate the Hague Service Convention
123 In ordering substituted service, C.R.C.P. 4(f) directs the court to authorize delivery to the substituted person and to order that process be mailed to the address of the defendant. In cases involving a defendant located in a foreign country, Rule 4(P)'s mailing requirement implies the transmittal of documents abroad, which implicates the Hague Service Convention if the transmission is necessary to effectuate service. Volkswagenwerk,
124 By its plain language, C.R.C.P. 4(f) indicates that service is "complete on the date of delivery to the [substituted person]." Because process must be mailed to the defendant "on or before the date of delivery" to the substituted person, procedurally, the mailing, if it occurs, must occur before the date that process is dеemed complete. However, the completion and validity of service is linked to the delivery of process to the substituted person and not to the mailing of process to the defendant. If process is never delivered to the substituted person, service can never be valid and complete under C.R.C.P. 4(f). By contrast, service can be valid and complete without the mailing. For example, Rule 4(f) requires a plaintiff's motion for substituted service to include "the address, or last known address of the workplace and residence, if known, of the [defendant]." C.R.CP. 4(f). By acknowledging that a defendant's address may not be known, C.R.C.P. 4(f) contemplates cireum-stances in which substituted service is available, even when it is not possible to mail process to a defendant. Although the Rule directs the court to order that process by mailed to the defendant, and failure to comply with a court order may result in sanctions, the mailing is not required to comрlete service.
125 Service also must be valid and complete under the Due Process Clause. See Volkswagenwerk,
126 A due process guarantee is built in to the concept of substituted service in Colorado. Before authorizing substituted service, a Colorado court must consider
127 Rodriguez-Cera suggests that allowing substituted service under C.R.C.P. 4(f) as an alternative to service abroad cireum-vents the Hague Service Convention. As described above, the 1964 revision to the Convention was intended "to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit." Volkswagenwerk,
{28 Because C.R.C.P. 4(f) requires that substituted service be "reasonably calculated to give actual notice to the party upon whom service is to be effective," substituted service under Rule 4(f) is consistent with the purpose of the Convention. . We do not believe that either the language of Article 1 or the Supreme Court's interpretation of the Convention in Volkswagenwerk intended to elevate form over substance, by discouraging an interpretation of forum law that is consistent with the purpose of the Convention and protective of a defendant's due process rights, only because it operates to provide a method of service alternative to the Hague Service Convention.
{29 We now consider whether Willhite could avail himself of substituted service under C.R.C.P. 4(f) in this case.
V. Application
€30 Willhite initially attempted to serve Rodriguez-Cera personally at his last known address in Colorado. While attempting personal service, he learned that Rodriguez-Cera was residing in Mexico. At that point, Willhite could no longer attempt to serve Rodriguez-Cera pursuant to C.R.C.P. 4(e) because C.R.C.P. 4(d) provides the exclusive means of effectuating service, in a foreign country. Because Mexico has objected to all alternative methods of service and only consents to service requests to its central authority, personal service was not available to serve Rodriguez-Cera in Mexico. Thus, "further attempts to obtain service un
VI. Conclusion
T31 For the foregoing reasons, we make the rule absolute and remand to 'the trial court for further proceedings consistent with this opinion. j
Justice EID dissents, and Justice COATS joins in the dissent.
Notes
. Willhite and his wife, who was a péssenge'r in the vehicle Willhite was driving, filed suit together. His wife is no longer a party to this action.
. According to Willhite, he was hindered by the Mexican central authority's refusal to communicate with Fed-Ex; Mexico's requirement that all documents be translated by a translator licensed in Mexico and the delay and high fees associated with those translations; the need for a Mexican court with jurisdiction where the Mexican national resides to approve service by the Mexican central authority; and a shortage of local counsel available to seek approval from that court due to
. Article 1 also provides that the Convention "shall not apply where the address of the person to be served with the document is not known." 20 U.S.T. at 361. The record in this case suggests that the Hague Service Convention may be inapplicable due to the lack of an address for Rodriguez-Cera. In her deposition, Ms. Torres-Bravo could not provide a mailing address for Rodriguez-Cera and expressed her belief that the homes in her parents' town did not have numbers. Although Willhite's counsel later suggested in a brief that Ms. Torres-Bravo provided a mailing address for Rodriguez-Cera, the assertion was not supported by reference to evidence in the record. A mailing address for Rodriguez-Cera does not appear anywhere in the record and the only evidence of any information provided by Ms. Torres-Bravo is the transcript from her deposition testimony, mentioned above. We conclude that there is insufficient evidence in the record to determine whether a street address exists for the home in Mexico where Rodriguez-Cera resides. Accordingly, we do not decide whether Article 1 limits the applicability of the Hague Service Convention when the whereabouts of a defendant are known but a specific street address is not available.
. Rule 4 refers to the "party attempting service" and the "party to be served." While acknowledging that third party complaints and service of documents other than process can affect who is "attempting" service and who is "being served," we refer to "plaintiff" and "defendant" here for simplicity. *
. By comparison, C.R.C.P. 4(g) also directs the court to order that process be mailed to the defendant when authorizing service by mail in proceedings in rem. Under Rule 4(g) the court must order the plaintiff "to send by registered or certified mail a copy of the process addressed to {the defendant], requesting return receipt signed by the addressee only." In contrast to Rule 48, Rule 4(g) specifically provides that service is not complete until the filing of the proof of mailing "together with such return receipt attached thereto signed by [the defendant]." CRCP. 4(g). Rule 4(g) reveals that the Rules Committee knows how to adopt language that makes the completion of service dependent on mailing process to the defendant. The Rules Committee did not do that in C.R.C.P. 4({).
. Numerous state and federal courts have considered similar mailing provisions and concluded that those provisions do require the transmittal of documents abroad and, therefore, do implicate the Hague Service Convention. These statutes, which involve the appointment of an involuntary agent to accept service of process on behalf of certain types of defendants and do not require court approval prior to serving the state agent, are distinguishable from C.R.C.P. 4(f), which requires the court to determine that substituted service is reasonably calculated to give actual . notice to the defendant before authorizing such service. See, e.g., In re Hayes Lemmerz Int'l, Inc.,
. We note that federal courts regularly authorize substituted service within the United States pursuant to FRCP. which authorizes a court to order alternative forms of service on a defendant located abroad, so long as the method is not prohibited by international agreement and comports with due process. See, eg., Nuance Commc'ns,
. In his response to our rule to show cause, Rodriguez-Cera argued that Willhite's motion for substituted service was defective because he did not supply an affidavit by the person attempting service as required by C.R.C.P. 4(f). This issue is not before us. Although Rodriguez-Cera raised the issue to the trial court in his motion to quash, the trial court did not reach the issue because it found that service under the Hague Service Convention was mandatory. On remand the trial court may consider whether Willhite has complied with the affidavit requirements of C.R.C.P. 4(f) and may hold additional hearings as it deems necessary to determine whether Willhite has satisfied the requirements for substituted service.
Dissenting Opinion
dissenting.
T32 I agree with Justice Eid that the mailing requirement of our own Rule 4) is, in and of itself, sufficient to make the Hague Convention applicable, and I share her concern that the majority rationale risks abrogating that requirement of our substituted service rule altogether. Even if the mailing requirement were not so express, however, I question whether Rule 4(f) would constitute an adequate substitute, as contemplated by the Supreme Court, for the transmittal of documents abroad.
1 33 I do not disagree that in Volkswagenwerk Aktiengesellschaft v. Schlunk,
1 34 Although Colorado has a similar long-arm statute, see § 18-1-125, C.R.S. (2011), mandating that service of process on corporations outside the state be accomplished by serving their agent within the state in the manner permitted by Rule 4 of the Colorado Rules of Civil Procedure, and Rule 4 similarly classifies service on a designated agent as an accepted method of effecting "personal service," see C.R.C.P. 4(e), the method of service at issue in this case is not similarly an alternative and equivalent form of personal service at all. Rather, it is a secondary and less reliable method of service, hopefully complying with the requirements of due process in any particular case, permitted in this Jurisdiction only as a last resort, when personal service cannot be accomplished. We know this to be the case, not because the alternative methods of effecting service in a foreign country described in Rule 4(d) are prioritized in some way, but because Rule 4(f) itself subordinates "substituted service" to "personal service," rather than providing an alternate method for effecting "personal service."
135 Since service by mail or publication alone in a case of this nature would clearly be inadequate, unless the plaintiffs can establish both that they have been unable, despite their due diligence, to effect personal service and that any further attempts to do so would
T36 I understand the majority to hold precisely that. I am reluctant to join this expansive interpretation of Volkswagenwerk, in part because it so obviously circumvents a specific compromise of the Convention, to leave the choice of accepting alternate methods of service to each contracting country; but even more importantly, because it renders nugatory any binding effect of an international treaty. There is no suggestion here, as in some cases, that the signatory country refuses to comply with its treaty obligations. See, e.g., Nuance Commc'ns, Inc. v. Abbyy Software House,
37 Finally, I appreciate the fact that the majority does not actually sanction substitute service in this case, see maj. op. at 11 80 n. 8, but merely disapproves the district court's determination that it was barred from considering such substitute service and remands for further consideration. In reaching even this result, howevеr, the majority accepts the intermediate proposition that in light of Rule 4(f), personal service in Mexico is not required, and therefore the Hague Convention does not apply. Because I believe Rule 4(f) does. not provide a complete or equivalent substitute for personal service in a foreign signatory country, and instead merely provides a- last resort alternative when personal service, as otherwise required, cannot be sue-cessfully effected, I would agree with the conclusion of the district court that the Hague Convention applies in this situation and must be complied with.
T38 Because I would therefore discharge the rule, I respectfully dissent.
I am authorized to state that Justice EID joins in this dissent.
Dissenting Opinion
dissenting.
39 I join Justice Coats' dissent. I write separately to address the majority's conclusion that - "mailing [to the defendant] is not required to complete service" under Rule 4(£), and that therefore the Hague Convention does not apply to this case. Maj. op. at €24. Under the plain language of Rule 4(£)(2), the court "shall ... order the process to be mailed to the address(es) of [the defendant] ... on or before the date of delivery" of process to the substitute party. C.R.C.P. 4(f)(2) (emphasis added). Thus, service is complete only after the process has been mailed to the defendant and delivered to the substituted party. Because service is complete under our rule only after the process
$40 When a defendant's address is known,
T41 The majority makes two arguments that service is complete without the mailing. First, it argues that the rule's statement that service is "complete on the date of delivery to the [substituted person]" shows the mailing is unnecessary. Maj. op. at 124. But the rule requires that the mailing to the defendant occur "on or before the date of delivery." C.R.C.P. 4(£)(2) (emphasis addеd). So the statement that service is "complete on the date of delivery to the [substituted person]" means nothing more. than that service is complete after both delivery and mailing.
« 42 Second, the majority argues that the rule only requires mailing when the address is known. Thus, when the defendant's address is unknown, service must be complete when the process is delivered to the substituted person. Consequently, the majority concludes, service is complete when the process is delivered to the substituted person, even when the defendant's address is known. Maj. op. at 124. But this is a leap of logic that goes too far. Simply because there may be circumstances under which a defendant's address is not known does not excuse the rule's requirement that mailing occur when the address is known.
148 We have narrowly construed rules allowing substituted service. See, eg., Re-
44 As applied here, Rule 4()(@2) requires the plaintiffs to mail the process to the defendant, who is located abroad, "on or before" the date the process is delivered to the substituted party. The rule therefore requires "the transmittal of documents abroad," and the Hague Service Convention applies. Volkswagenwerk,
{45 When confronted with similar state mailing procedures, a host of federal courts have come to the same conclusion. See, eg., Vega Glen v. Club Méditerranée S.A.,
46 The underlying justification for today's decision appears to be that it is difficult to comply with the Hague Convention in this case. Maj. op. at T5 n. 2 (cataloging the "obstacles and bureaucratic challenges" facing the plaintiffs in attempting service of process in Mexico in accordance with the Hague Convention). But significantly, the majority's interpretation of the language of Rule 4(f) applies to both domestic and international service. As a result, the effect of the majority's decision is to read the mailing requirement entirely out of Rule 4(f). Because such diminishment of the mailing requirement is inconsistent with the rule's plain language, 1 respectfully dissent.
I am authorized to state that Justice COATS joins in this dissent.
. The majority notes that when Ms. Torres-Bravo, the substituted person, was deposed, she "could not provide an address for her parents' home and believed that the homes in that small town did not have numbers." Maj. op. at T4. But the plaintiffs, at some point in time, acquired the address from Ms. Torres-Bravo. See Response to Defendant Paulo Rodriguez-Cera's Motion for Enlargement of Time to File Answer or Otherwise Respond to Plaintiffs' Amended Complaint, p. 3 n. 2, July 22, 2010 ("Defendant Paulo's sister, Lydia Torres-Bravo, provided both a cell phone and a mailing address for her parents. Defendant Paulo is now living under his parents' care, so Defendant Paulo's counsel is virtually assured of contacting Defendant Paulo through his parents.").
. It is likely that the defendant's address would be known in most cases. Rule 4(f) states that the court must be satisfied that the plaintiff used "due diligence" to attempt personal service. In completing due diligence, the plaintiff is likely to learn the defendant's address, as occurred in this case.