Pogue et al v. Brown

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-00285-WJM-STV
KEVIN POGUE; et al,
Plaintiffs,
v.
TIM BROWN,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff’s Motion for Substituted Service on
Defendant Tim Brown (the “Motion”). 	[#8] 	The Motion has been referred to this Court.
[#9] 	Through the Motion, Plaintiff requests that the Court permit substituted service for
Mr. Brown pursuant to Colorado Rule of Civil Procedure 4(f). 	[Id.] 	This Court has
carefully 	considered 	the 	Motion 	and 	the 	related 	exhibits, 	the 	case 	file, 	and 	the
applicable case law, and has determined that oral argument would not materially assist
in the disposition of the Motion. 	For the reasons set forth herein, the Motion is
GRANTED.
I. 	BACKGROUND
Plaintiff 	initiated 	this 	action 	on 	January 	27, 	2025, 	which 	seeks 	relief 	for
construction defects and interference with an employment contract. 	[#1] 	Plaintiffs are
currently 	involved 	in a 	related 	arbitration with 	Mr. 	Brown’s 	company, 	Tim 	Brown
Construction, LLC. [#8 at ¶ 2] In order to effectuate service on Mr. Brown in the instant
Case No. 1:25-cv-00285-WJM-STV Document 10 filed 03/13/25 USDC Colorado
pg 1 of 5

2
case, Plaintiffs initially contacted Mr. Brown’s attorneys in the related arbitration, Gary
Kuhn and Alex Touboul of Hall & Evans LLC in Denver, who declined to waive service.
[Id. at ¶ 7] 	Plaintiffs thereafter sent the complaint and summons to Mr. Brown via
certified mail. 	[#8 at ¶ 8] 	Mr. Brown received the complaint and summons and had his
arbitration attorney, Mr. Kuhn, respond by email. 	[Id.] 	Neither Mr. Brown nor Mr. Kuhn
executed the waiver of service. [Id.]
On February 27, 2025, a process server traveled to Mr. Brown’s home in Pagosa
Springs, Colorado, but could not get past the private gate to attempt service. [#8 at ¶ 9;
#8-2] On March 1, 2025, the process server returned to the residence and spoke to Mr.
Brown through a video doorbell. [Id.] Mr. Brown refused to accept service claiming that
he would be in the Bahamas until June and told the process server to come back then.
[Id.] 	Plaintiffs believe that Mr. Brown is still operating his business in Colorado and
attempting to evade service. 	[#8 at ¶ 19] 	On March 5, 2025, Plaintiffs filed the instant
motion seeking substituted service.
II. 	DISCUSSION
Federal Rule of Civil Procedure 4 governs service of a summons and complaint.
Pursuant to Rule 4(e)(1), an individual within a judicial district of the United States may
be served by “following state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or where service is
made.” 	Colorado Rule of Civil Procedure 4(f) authorizes substitute service. 	When the
party attempting service “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 service.” Such a motion shall state:
Case No. 1:25-cv-00285-WJM-STV Document 10 filed 03/13/25 USDC Colorado
pg 2 of 5

3
(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.
Colo. R. Civ. P. 4(f). If the court is satisfied that due diligence has been used to attempt
personal service, that further attempts to obtain personal service would be to no avail,
and that the person to whom delivery of the process is directed is appropriate under the
circumstances 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.” 	Colo. R. Civ. P. 4(f). 	For substitute service to be
valid, it must comport with due process by being calculated “to apprise interested
parties of the pendency of the action and afford them an opportunity to present their
objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).
Here, the Court is satisfied that due diligence has been used to attempt personal
service and that further attempts to obtain timely personal service would be to no avail.
As outlined above, Plaintiffs have made numerous efforts to serve Mr. Brown but have
been unsuccessful. 	Plaintiffs ask the Court to allow service on Attorneys Gary Kuhn
and Alex Touboul, who represent Mr. Brown and his company in the related arbitration
case. [#8 at ¶¶ 13, 15]
There are several examples of when substituted service on a defendant’s current
or former attorney is appropriate to effectuate personal service on the defendant. 	If an
attorney is currently representing a defendant, it is reasonable to infer that the attorney
Case No. 1:25-cv-00285-WJM-STV Document 10 filed 03/13/25 USDC Colorado
pg 3 of 5

4
will give actual notice of service to that defendant, and substituted service on that
attorney is therefore appropriate. 	Two Rivers Water & Farming Co. v. Am. 2030 Cap.
Ltd., No. 19-cv-01640-CMA-STV, 2019 WL 5535227, at *3 (D. Colo. Oct. 25, 2019)
(citing Contrada, Inc. v. Parsley, No. 1:10-cv-00646-WYD-CBS, 2010 WL 2943428, (D.
Colo. July 21, 2010)). 	Substituted service on a former attorney can also be granted
when such service will reasonably apprise the defendant of the lawsuit. 	Sandia Lab'y
Fed. Credit Union v. Burg, No. 1:24-cv-01443-SKC-STV, 2024 WL 4728025, at *4 (D.
Colo. 	Nov. 	8, 	2024) 	(finding 	substitute 	service 	on 	Defendant’s 	former 	attorney
appropriate because it would reasonably give Defendant notice of the lawsuit and it
comports with due process). Indeed, service upon an attorney, who may or may not
have 	represented 	the 	defendant 	but 	has 	had 	dealings 	with 	them, 	can 	also 	be
appropriate if the attorney has already given actual notice of service to the defendant.
JDK LLC v. Hodge, No. 15-cv-00494-NYW, 2015 WL 2455504, at *2 (D. Colo. May 22,
2015) 	(ordering 	substituted 	service 	on 	attorney 	who 	had 	potentially 	represented
defendants in settlement negotiations relating to the lawsuit and had provided actual
notice of the lawsuit to them).
Here, Mr. Kuhn represents Mr. Brown in the related arbitration and is in contact
with Mr. Brown about service in the instant case. 	[#8 at ¶¶ 7-8; #8-1 at 1] 	Mr. Brown
also appears to already be aware of Plaintiffs’ claims against him—having discussed
the same with his attorney and had his attorney respond [#8 at ¶ 8]—and is seemingly
attempting to avoid service. 	The Court finds that the proposed substitute service on
Attorneys Gary Kuhn and Alex Touboul is reasonably calculated to give Mr. Brown
actual notice of the lawsuit and comports with due process.
Case No. 1:25-cv-00285-WJM-STV Document 10 filed 03/13/25 USDC Colorado
pg 4 of 5

5
III. 	CONCLUSION
For the reasons stated above, it is ORDERED as follows:
(1) 	Plaintiff’s Motion [#8] is GRANTED;
(2) 	Plaintiff 	is 	authorized 	to 	personally 	serve 	Defendant 	Tim 	Brown 	by
substituted service on Gary Kuhn and Alex Touboul of Hall & Evans LLC at 1001 17th
Street, Suite 300, Denver, CO 80202.
(3) 	Service of process shall be effectuated upon Defendant Tim Brown in
accord with Colo. R. Civ. P. 4(f) by sending a copy of the summons, Complaint, and all
other relevant documents, via registered mail with delivery confirmation, to the following
location on or before the date of delivery of process to Gary Kuhn and Alex Touboul:
Tim Brown at 1085 Oren Road, Pagosa Springs, CO 81147, as referenced in the
Motion; and
(4) 	Plaintiff shall promptly file a status report informing the Court when such
service is accomplished.
DATED: March 13, 2025 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
Case No. 1:25-cv-00285-WJM-STV Document 10 filed 03/13/25 USDC Colorado
pg 5 of 5