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Adscend Media LLC v. D.K.

United States District Court, D. Colorado

April 5, 2017

ADSCEND MEDIA LLC, Plaintiff,
v.
D.K., a minor, by and through his guardian and natural parent, Stephanie Auton Klose (a/k/a Stephanie Auton); STEPHANIE AUTON KLOSE, individually; and, JOHN AND JANE DOES 1-10, Defendants.

          ORDER DIRECTING SERVICE

          William J. Martinez United States District Judge

         This matter is before the Court on Plaintiff Adscend Media LLC's (Plaintiff, or "Adscend") Motion to Extend Temporary Restraining Order and for Alternative Service of Summons and Complaint (ECF No. 15 (the "Motion")), along with Adscend's Memorandum in Support (ECF No. 16), the supporting Declarations (ECF Nos. 16-1 & 16-2), and Adscend's previously-filed Status Report as to Service, together with its supporting materials (ECF Nos. 14, 14-1, 14-2), all of which pertain to effecting service of process upon Defendants, including service of the Court's previously-entered Temporary Restraining Order ("TRO") (ECF No. 12), which the Court has extended by prior order (ECF No. 17).

         I. SERVICE VIA E-MAIL AND/OR TEXT

         Adscend requests that the Court permit it to effectuate service of the Summons and the Complaint upon Defendant Klose (and, through her, upon Defendant D.K.) by means of e-mail and by sending Ms. Klose via text message a link to a website at which the summons and complaint have been posted. (See ECF No. 16 at 4.)

         Adscend does not cite any federal rule, statute, or other authority authorizing service of process by such means. To the contrary, Rule 4(e) provides that "[u]nless federal law provides otherwise, " individuals living in a judicial district of the United States may be served a Summons by the following means:

(1) 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; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e). This provision does not contemplate "alternative service" or service via electronic mans, as proposed by Adscend.

         Adscend cites Liberty Media Holdings, LLC v. Sheng Gan, 2012 WL 122862, at *2 (D. Colo. Jan. 17, 2012) and United States v. The Pub. Warehousing Co., 2017 WL 661580, at *2 (N.D.Ga. Feb. 17, 2017). Both of these cases addressed service on defendants in foreign countries, a situation specifically addressed by Rule 4(f), but not relevant here. See Blumedia Inc. v. Sordid Ones BV, 2011 WL 42296, at *3 (D. Colo. Jan. 6, 2011) ("if the Court assumes that Defendants are located within the United States, Plaintiffs Motion [seeking service by e-mail] must be denied").[1]

         Adscend does not specifically argue for allowing service "following state law, " Fed.R.Civ.P. 4(e)(1), nor invoke Colorado's provisions for "substituted service, " as set out in Colorado Rule of Civil Procedure 4(f). Moreover, such "substituted service, " even when allowed, provides only for service "to be mailed to the address(es) of the party." C.R.C.P. 4(f)(2) (emphasis added). Here, the materials filed with Adscend's motion indicate that Defendants have moved away from their last known address and Adscend has not shown that mailing the Summons to any other address would be "reasonably calculated to give actual notice." C.R.C.P. 4(f). Given these circumstances, and in light of the mandatory service of the TRO provided by Federal Rule of Civil Procedure 4.1(a) and addressed below, the Court does not at this time authorize any "substituted service" under C.R.C.P. 4(f), nor take up the question of whether that rule can ever authorize service via e-mail.

         In sum, since no provision of either Colorado or federal law provides for the relief that Adscend requests, ...


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