KF Financial, Inc. v. Set 4 Life Agency, LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 26-cv-03730-STV
KF FINANCIAL, INC.,
Plaintiff,
v.
SET 4 LIFE AGENCY, LLC; and
THOMAS POULIN,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff’s Motion for Leave to Effect Alternative
Service on Defendants and for Costs and Attorneys’ Fees Pursuant to Fed. R. Civ. P.
4(d)(2) (the “Motion”). 	[#9] 	Through the Motion, Plaintiff requests that the Court permit
substituted service on Defendants pursuant to Federal Rule of Civil Procedure 4(e) and
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 August 14, 2026, seeking injunctive relief and
damages for alleged trademark infringement and unfair competition. 	[#1] 	Defendant
Poulin allegedly formed Defendant Set 4 Life which competes with Plaintiff, doing
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business as Set For Life, in the insurance brokerage industry. 	[Id.] 	On April 28, 2026,
Plaintiff sent a cease-and-desist letter to Defendants at the address of Defendant Set 4
Life’s principal place of business and by email. 	[#9 at 3] 	Defendants did not comply.
[Id.]
Defendants are represented by attorney Kyle Coker. 	[Id.] Plaintiff’s counsel has
been in contact with Mr. Coker on several occasions. 	[Id.] 	These communications
included a request that Mr. Coker accept service on behalf of his clients, a notice that
his clients are evading service, and a transmittal of a formal Notice of a Lawsuit and
Request to Waive Service of Summons. 	[Id.] 	On August 11, 2026, Plaintiff spoke with
Mr. Coker about the nature of the dispute and asked if Mr. Coker could accept service
on behalf of his clients. 	[#11-1 at ¶ 4] 	Mr. Coker stated that he would check with his
clients but never responded. 	[Id.] 	On August 28, 2026, Mr. Coker sent a letter to
Plaintiff’s counsel describing the terms of a proposed settlement offer on behalf of his
clients. 	[Id. at ¶ 6] 	Mr. Coker did not respond to further communications regarding
service. [Id. at ¶ 7]
Plaintiff also engaged a process server in the state of Florida, where Defendants
are believed to be located, to personally serve Defendants. 	[#9 at 4] 	The process
server attempted to serve Defendants at the principal place of business, which is a
condominium at which Defendant Poulin is believed to reside, on six occasions. 	[#9-2
at 2] 	Between August 22 and August 25, 2026, the process server attempted service
three times and the door was not answered. 	[Id.] 	On August 27, 2026, the process
server attempted service, noting that he could hear people inside of the residence but
that they would not open the door. 	[Id.] 	On August 28, the process server again
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attempted service, received no answer at the door, and left a card. [Id.] On August 29,
2026, the process server again attempted service, received no answer at the door, and
noted that the calling card he had left was no longer there. 	[Id.] 	Based upon these
facts, Plaintiff believes that Defendants are intentionally evading service. 	[#9 at 5]
Thus, on October 8, 2026, Plaintiff filed the instant motion seeking substituted service.
[#9]
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:
(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
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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, Plaintiff has attempted to contact Defendants’ counsel regarding
service and has attempted service on Defendants on six occasions. 	Plaintiff asks the
Court to allow service upon Defendants by certified mail at the same address at which
service was previously attempted, Set 4 Life Agency, LLC’s principal place of business,
and upon Defendants’ counsel. [#9 at 6]
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
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.
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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). 	In addition “Colorado Rule of Civil Procedure 4(f) allows
for substitute service by personal delivery to a substituted person and mailing to
defendant, 	but 	does 	not 	contemplate 	substitute 	service 	by 	certified 	mail, 	only.”
Kuciapinski v. Ennis, No. 24-cv-02181-MDB, 2025 WL 1158434, at *2 (D. Colo. Apr. 21,
2025) (emphasis omitted).
Here, Mr. Coker appears to represent Defendants related to the present case, as
Mr. Coker proposed settlement as to the claims of the present case. [#11-1 at ¶ 6] Mr.
Coker is also in contact with Plaintiff and Defendants about service in the instant case.
[Id. at ¶¶ 4, 5, 7] 	Defendants also appear to already be aware of Plaintiff’s claims
against them given that Mr. Coker was able to identify suitable terms of settlement on
behalf of Defendants. 	[Id. at ¶ 6] 	Given that Defendants have refused to answer the
door for the process server on several occasions, even when people could be heard
within the unit, it appears that Defendants are evading service. 	[See #9-2 at 2] 	The
Court 	finds 	that 	the 	proposed 	substitute 	service 	on 	Attorney 	Kyle 	Hotchkiss 	is
reasonably calculated to give Defendants actual notice of the lawsuit and comports with
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due process. 	The Court finds that additional service by certified mail, return receipt
requested, at Defendants’ last known addresses will further comport with due process.
Thus, the Court will require both forms of service.
III. 	CONCLUSION
For the reasons stated above, it is ORDERED as follows:
(1) 	Plaintiff’s Motion [#9] is GRANTED;
(2) 	Plaintiff 	is 	authorized 	to 	personally 	serve 	Defendants 	by 	substituted
service on Kyle Coker of Coker & Coker, PLLC at 1901 Main Street, Suite 5330, Dallas,
TX 75202 and by substituted service via certified mail, return receipt requested, to
Thomas Poulin and Set 4 Life Agency, LLC at 2200 North Ocean Blvd., #906S, Fort
Lauderdale, FL 33305;
(3) 	Service of process shall be effectuated upon Defendants 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, on or before the date
of delivery of process to Kyle Coker of Coker & Coker, PLLC at 1901 Main Street, Suite
5330, Dallas, TX 75202 and by sending a copy of the summons, Complaint, and all
other relevant documents, via certified mail with delivery confirmation and return receipt
requested, to Thomas Poulin and Set 4 Life Agency, LLC at 2200 North Ocean Blvd.,
#906S, Fort Lauderdale, FL 33305;
(4) 	Plaintiff shall promptly file a status report informing the Court when such
service is accomplished; and
(5) 	A Status Conference is set for November 24, 2026, at 9:30 AM in
Courtroom A 402 before Magistrate Judge Scott T. Varholak.
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DATED: October 13, 2026 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
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