United States District Court, D. Colorado
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant Rota Fortunae's
(“Rota”) Motion to Reconsider Order
Granting Substituted Service of Fictitious Defendants
John/Jane Does 2-10 [#72] (the
“Motion”). Defendant Rota initially filed the Motion
in Denver District Court on August 30, 2018. After the case
was removed, Defendant Rota re-filed the Motion in this Court
on March 14, 2019, separately from its Notice of Removal
[#1]. In adjudicating the Motion, the Court has reviewed the
entire case file, the applicable law, and the following
briefs: (1) Plaintiff's Response [#73] in opposition to
the Motion; (2) Rota's Reply [#74] in support of the
Motion; (3) Plaintiff's Supplemental Response [#77]; and
(4) Rota's Supplemental Reply [#78]. Being fully advised
in the premises and for the reasons stated below, the Motion
[#72] is GRANTED.
initiated this action against Defendants on July 23, 2018, in
Denver District Court. Compl. [#3]. In short,
Plaintiff alleges that Defendants conspired to publish false,
misleading, and defamatory statements regarding
Plaintiff's company in an attempt to profit from
Plaintiff's declining stock price in what is known as a
“short and distort” scheme. Id. at 1-7.
The Complaint asserts claims for defamation/defamation by
libel per se, disparagement, intentional interference with
prospective business relations, unjust enrichment, deceptive
trade practice in violation of the Colorado Consumer
Protection Act, and civil conspiracy. Id. at 7-12.
August 13, 2018, the Denver District Court granted
Plaintiff's request to serve Defendant Rota by
substituted service through his former counsel, Matthew
Mitzner (“Mitzner”). Order Granting
Plaintiff's Motion to Allow Substituted Service
[#1-4]. Subsequently, Plaintiff served Rota through Mr.
Mitzner on August 16, 2018. See Proof of Service of
August 28, 2018, Plaintiff moved to effect substituted
service on Defendants John/Jane Does 2-10 (the “Doe
Defendants”) by filing its Motion to Allow Substituted
Service [#1-6] (the “Motion for Substituted
Service”). In the Motion for Substituted Service,
Plaintiff explained that it had conferred with Rota's
current counsel, John Chanin (“Chanin”),
regarding service on the Doe Defendants. [#1-6] at 3.
According to Plaintiff, Mr. Chanin declined Plaintiff's
request to accept service on behalf of the Doe Defendants and
informed Plaintiff “that he was not authorized to
accept such service.” Id. For that reason,
Plaintiff sought an order from the Court permitting Plaintiff
to serve the Doe Defendants pursuant to Colorado Rule of
Civil Procedure 4(f) by delivering process to Mr. Chanin.
following day, August 29, 2018, the Denver District Court
granted Plaintiff's Motion for Substituted Service.
Order Granting Plaintiff's August 28, 2018, Motion to
Allow Substituted Service [#1-7] (the “State Court
Order”). Accordingly, Plaintiff delivered service to
Mr. Chanin and filed its Proof of Service [#15-10] with
respect to the Doe Defendants on August 30, 2018.
same day, August 30, 2018, Rota filed the instant Motion
[#72] in state court requesting that the state court
reconsider its order granting Plaintiff's Motion for
Substituted Service [#1-6]. The Denver District Court ordered
the parties to submit expedited briefing on Rota's Motion
on August 31, 2018. Pursuant to the expedited briefing
schedule, Plaintiff filed its Response [#73] on September 7,
2018, and Defendant filed his Reply [#74] on September 11,
2018. Before the state court could rule on the Motion [#72],
however, Rota removed the case to this Court on September 14,
2018, leaving the Motion unresolved.
Notice of Removal [#1] attached, among other things, the
Motion, the relevant briefing, and the register of actions
for the state court proceedings. [#1-8]; [#1-9]; [#1-10];
[#1-11]. However, the Motion was not separately filed on the
docket in this case to indicate that it was pending before
this Court until March 14, 2019. See D.C.COLO.LCivR
81.1(b) (“No later than 14 days after the filing of the
notice of removal, the removing party shall file a current
docket sheet (register of actions) and shall separately file
each pending motion, petition, and related response, reply,
and brief.”). Subsequently, Plaintiff filed its
Supplemental Response [#77] regarding the Motion on March 20,
2019, and Rota filed his Supplemental Reply [#78] on April 3,
Motion, Rota primarily contends that the substituted service
on the Doe Defendants permitted by the State Court Order
[#1-7] was inappropriate because the Doe Defendants
“are purely fictitious” and simply do not exist.
Motion [#72] at 2. According to Rota, because the
Doe Defendants do not exist, Mr. Chanin cannot be reasonably
calculated to give those defendants actual notice of this
suit. Id. In Plaintiff's Response, Plaintiff
argues that Rota fails to allege a manifest error of fact or
law that clearly mandates reconsideration of the State Court
Order and that Rota has failed to refute the validity of
substituted service established by Plaintiff's Motion for
Substituted Service [#1-6]. Response [#73] at 2, 5.
Plaintiff's Supplemental Response further argues that
recent factual admissions by Rota confirm that substituted
service on the Doe Defendants via Mr. Chanin was appropriate.
Pl.'s Supplemental Response [#77] at 1. Rota
counters this point, arguing that “[n]one of the
so-called new ‘factual admissions' . . .
retroactively render substituted service via Mr. Chanin
proper.” Rota's Supplemental Reply [#78]
Authority to Review the State Court Order and Standard of
initial matter, the parties do not address Rota's
standing to challenge the State Court Order [#1-7] which, as
explained above, concerned service of process on the Doe
Defendants, not on Rota. Rota seeks to vacate the State Court
Order and deny Plaintiff's Motion for Substituted Service
[#1-6]. Motion [#72] at 4. Therefore, Rota
effectively seeks to quash the service already completed on
the Doe Defendants under the Colorado Rule of Civil Procedure
which permits substituted service. See Colo. R. Civ.
P. 4(f) (“Service shall be complete on the date of
delivery to the person deemed appropriate for
service.”). Generally, “[a] party may object to
personal jurisdiction or improper service of process only on
behalf of himself or herself, since the objection may be
waived.” Burnett v. Country Mut. Ins. Co., No.
12-cv-0019-SLC, 2013 WL 12234282, at *6 (W.D. Wis. May 3,
2013) (quotation omitted) (collecting cases); see
also 5B Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 1353 (3d ed.) (noting
that “the defense of insufficient service of process is
“[a]fter removal, the federal court takes the case up
where the State court left it off.” Granny Goose
Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers
Local No. 70 of Alameda Cty., 415 U.S. 423, 436 (1974)
(internal citation omitted). “All injunctions, orders,
and other proceedings had in such action prior to its removal
shall remain in full force and effect until dissolved or
modified by the district court.” 28 U.S.C. § 1450.
“A prior state court order in essence is federalized
when the action is removed to federal court, although the
order ‘remains subject to reconsideration just as it
had been prior to removal.'” Laney ex rel.
Laney v. Schneider Nat'l Carriers, Inc., 259 F.R.D.
562, 564 (N.D. Okla. 2009) (quoting Resolution Trust
Corp. v. Northpark Joint Venture, 958 F.2d 1313, 1316
(5th Cir. 1992)). “Thus, a federal court is free to
reconsider a state court order and to treat the order as it
would any interlocutory order it might itself have
entered.” Id. (citing Nissho-Iwai American
Corp. v. Kline, 845 F.2d 1300, 1303 (5th Cir. 1988));
see also 14C Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 3738 (Rev.
4th ed.) (“The federal court thus may redetermine, for
example, the propriety of state-court orders concerning the
sufficiency of process, and even may reconsider a default
judgment entered by the state court prior to the removal, if
the removal notice has been filed within the time period
specified in the removal statute.”). Finally,
“the state court order is not entitled to deference in
federal court and because federal procedure governs the
enforcement of a prior state court order removed to federal
court, the federal court should ensure that the order is
consistent with the federal rules[.]” Id. at
565 (citation omitted).
the Court finds that it may reconsider the State Court Order
[#1-7] “based on the court's inherent power to
review its [own] interlocutory orders.”Ferluga v.
Eickhoff, 236 F.R.D. 546, 549 (D. Kan. 2006); see
Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir.
1991) (“Thus, plaintiff's January 17, 1990, motion
for reconsideration was nothing more than an interlocutory
motion invoking the district court's general
discretionary authority to review and revise interlocutory
rulings prior to entry of final judgment[.]”);
Hauff v. Petterson, 755 F.Supp.2d 1138, 1145 (D.N.M.