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
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff’s Motion for Substitute Service on
Defendant Nicole Griffie (the “Motion”) [#32], which was referred to this Court [#33].
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). [#32] For the following reasons, the Motion is GRANTED.
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
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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. [## 32 at 3; 32-3 at 381] 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 Plaintiff’s
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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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. 	[#32] 	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. 	[#32-3 at 31] 	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)). 	In its original Motion
seeking substitute service in this manner, Plaintiff failed to provide the necessary
argument or analysis for the Court to make a determination on the due process issue
[See ## 22, 25] 	The Court then directed 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 addressed the due process issue. 	[## 28, 30] 	The Court
therefore denied Plaintiff’s Motion without prejudice. [#31] Plaintiff then filed the instant
Motion, which includes a section outlining the due process considerations in this case.
[#32 at 3-4] 	Plaintiff claims that service on Progressive Insurance comports with
Defendant Griffie’s due process rights because Progressive is in contact with Defendant
Griffie and provided Plaintiff’s counsel the P.O. Box that Defendant Griffie is using for
correspondence. 	[#32 at 4] 	Plaintiff also provides evidence that Defendant Griffie
picked up a copy of the Complaint that was sent to this P.O. Box in October 2024. [Id.;
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#32-1 at 122] 	The Court is satisfied with Plaintiff’s argument on this issue and
concludes that the circumstances described in Plaintiff’s motion are sufficient to put
Defendant Griffie on notice of the impending litigation.
Accordingly, IT IS ORDERED as follows:
1. Plaintiff's Motion [#32] is GRANTED;
2. Plaintiff is authorized to serve Defendant Griffie by substituted service made
on Progressive Insurance’s registered agent per Colo. Rev. Stat. § 42-7-414(3)(b):
Division of Insurance, 1560 Broadway, Denver, CO 80202;
3. 	Service of process shall be effectuated upon Defendant Griffie 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
locations on or before the date of delivery of process to Progressive Insurance’s
registered agent:
(a) 	Nicole Griffie at the P.O. Box most recently associated with her as
referenced in the Motion: P.O. Box 460681, Denver, CO 80246;
and
(b) 	Nicole Griffie at a last-known address as referenced in the Motion:
18495 E. Tennessee Place, Apt 304, Aurora, CO 80017; and
4. Plaintiff shall promptly file a status report informing the Court when such
service is accomplished.
2 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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DATED: January 13, 2025 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
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