Ramon v. Uber Technologies, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-02667-CNS-STV
JULIAN RAMON,
Plaintiff,
v.
UBER TECHNOLOGIES, INC.;
UBER USA, LLC;
RAISER, LLC; and
NICOLE GRIFFIE,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff’s Motion for Substitute Service on
Defendant Nicole Griffie (the “Motion”) [#25], which was referred to this Court [#26].
Through the Motion, Plaintiff requests that the Court permit substituted service for
Defendant Griffie pursuant to Colorado Rule of Civil Procedure 4(f) and Colo. Rev. Stat.
§ 42-7-414(3)(a). 	[#25] 	For the following reasons, the Motion is DENIED WITHOUT
PREJUDICE.
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
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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:
(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).
Here, the Court is satisfied that due diligence has been used to attempt personal
service and that further attempts to obtain personal service would be to no avail. 	The
Motion states that Plaintiff was advised by the insurance carrier for Defendant Griffie
that she was currently homeless in Denver, Colorado and provided a P.O. Box that
Defendant Griffie had authorized them to provide. 	[##25 at ¶ 3; 25-1 at 521] 	Plaintiff
has 	attempted 	service 	at 	this 	P.O. 	Box and 	a 	physical 	address 	associated 	with
Defendant Griffie without success. 	Given the circumstances, the Court finds that
1 For consistency and clarity, the Court refers to the actual page number of the .pdf
document uploaded to the Electronic Court Filing system, rather than to the numbering
printed on each page.
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Plaintiff’s unsuccessful efforts at service are sufficient to establish the due diligence and
futility required by Colo. R. Civ. P. 4(f).
Plaintiff asks the Court to allow service on Progressive Insurance, the insurer of
the vehicle being driven by Defendant Griffie at the time of the accident from which the
instant lawsuit arises. 	[#25] 	Under Colorado law, there are certain circumstances
where an insurer may be served as a substitute for the insured. See Colo. Rev. Stat. §
42-7-414. Pursuant to Colo. Rev. Stat. § 42-7-414(3)(a):
The insurance carrier that issues a motor vehicle liability policy accepted
as proof under this article shall include the following provision in the policy
contract: “If the insured's whereabouts for service of process cannot be
determined through reasonable effort, the insured agrees to designate and
irrevocably appoint the insurance carrier as the agent of the insured for
service of process, pleadings, or other filings in a civil action brought
against 	the 	insured 	or 	to 	which 	the 	insured 	has 	been 	joined 	as 	a
defendant or respondent in any Colorado court if the cause of action
concerns an incident for which the insured can possibly claim coverage.
Subsequent 	termination 	of 	the 	insurance 	policy 	does 	not 	affect 	the
appointment for an incident that occurred when the policy was in effect.
The insured agrees that any such civil action may be commenced against
the insured by the service of process upon the insurance carrier as if
personal service had been made directly on the insured. The insurance
carrier agrees to forward all communications related to service of process
to the last-known e-mail and mailing address of the policyholder in order to
coordinate any payment of claims or defense of claims that are required.”
Courts have analyzed Motions for Substitute Service pursuant to Colo. Rev. Stat.
§ 42-7-414(3)(a) by reviewing the relevant insurance policy to correctly identify whether
the elements of the statute have been satisfied. 	See Ornelas v. Cauthon, No. 24-cv-
01888-KAS, 2024 WL 4534582, at *3 (D. Colo. Oct. 18, 2024); Podlacha v. Dobrovlny,
No. 20-cv-01801-WJM-KMT, 2020 WL 6158605, at *1 (D. Colo. Oct. 21, 2020). 	Here,
the insurance policy for Defendant Griffie includes the necessary provision designating
Progressive Insurance as an agent of the insured for the purposes of service of
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process. 	[#25-1 at 45] 	Thus, the Court finds the elements of Colo. Rev. Stat. § 42-7-
414(3)(a) are satisfied.
Lastly, 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); see also United States v. Elsberg, 08-cv-00552-
MSK-KLM, 2010 WL 5177439, at *3 (D. Colo. Aug. 17, 2010) (“For a substituted method
of 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.’” 	(quoting 	Mullane, 	399 	U.S. 	at 	314)). 	While 	Plaintiff’s
proposed method of substitute service may very well meet this standard, Plaintiff has
failed to provide the necessary argument or analysis for the Court to make such a
determination. [See ##25, 28, 30] Indeed, upon noting that the Motion did not address
whether the purported manner of service would apprise Defendant Griffie of the action,
the Court explicitly Ordered Plaintiff to “submit supplemental briefing addressing how
substituted service per Colo. Rev. Stat. § 42-7-414(3)(a) under the circumstances of this
case comports with due process.” 	[#27] 	Plaintiff filed two responses, neither of which
even mentions the term due process, let alone analyzes the topic. 	[##28, 30] And the
Court will not assume the role of advocate in crafting arguments that Plaintiff has
elected not to present. 	Accordingly, Plaintiff’s Motion [#25] is DENIED WITHOUT
PREJUDICE. 	Plaintiff may refile a motion for substitute service that corrects the
deficiencies identified herein and specifically addresses the issue of whether substitute
service as proposed by the instant Motion comports with due process.
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DATED: January 8, 2025 	BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
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