Two Rivers Water & Farming Co. v. America 2030 Capital Limited

          ORDER GRANTING SUBSTITUTED SERVICE AND ALTERNATIVE SERVICE

          Christine M. Arguello Judge

         This matter is before the Court on Plaintiff Two Rivers Water & Farming Company's Motion for Substituted Service or Alternative Service. (Doc. # 26.) Based on the following reasons, the Court grants the Motion.

         I. BACKGROUND

         This case arises from a dispute regarding an investment agreement between the parties. Plaintiff, a company that assembles water assets by acquiring land with senior water rights, began seeking investors in hopes of expanding into Colorado in 2018. (Doc. # 1, ¶¶ 9 & 10.) In September 2018, Defendants' broker introduced Plaintiff to Defendants, America 2030 Capital Limited and Bentley Rothschild Capital Limited (“Defendants”).^[1] (Doc. # 1, ¶ 11.) That same month, Plaintiff and Defendants entered into a loan agreement according to which Defendants would loan Plaintiff up to $1, 100, 000 in exchange for 6, 800, 000 of Plaintiff's restricted shares as collateral. (Doc. # 1, ¶ 14.) Plaintiff issued the restricted shares to Defendants in October 2018 by delivering the shares to Defendant Broadridge Financial Solutions (“Transfer Agent”), which held them as securities. (Doc. # 1, ¶ 15.)

         However, on or about March 20, 2018, Plaintiff learned that Defendants' CEO, Val Sklarov, has an extensive criminal record, and he intended to take Plaintiff's shares without funding the loan. (Doc. # 1, ¶¶ 16 & 17.) On April 29, 2019, Defendants sent two letters to the Transfer Agent demanding that the Transfer Agent make Plaintiff's restricted shares available to sell to the public. (Doc. # 1, ¶ 18.) In May 2019-in an effort to discourage Plaintiff from taking action to stop a transaction that was based on Defendants' misrepresentations regarding the loan-Defendants also sent two letters to Plaintiff stating that Plaintiff was in default under the agreements by virtue of “seeking ‘Injunctive relief from any court of law.'” (Doc. # 1, ¶ 19.) The letters identified JT Singh as Defendants' legal counsel. (Doc. # 26 at 3.) Additionally, on June 6, 2019, Defendants filed arbitration claims with an arbitration and mediation service in St. Kitts & Nevis, in which Mr. Singh was again identified as Defendants' legal counsel. (Id. at 3.)

         On June 6, 2019, Plaintiff brought the instant action seeking declaratory relief and preliminary injunctive relief. See (Doc. # 1). Although the Transfer Agent waived service, Plaintiff has not been successful in serving Defendants despite multiple attempts to contact and serve them. (Doc. # 26.) Plaintiff's attempts to personally serve Defendants include the following:

• Plaintiff tried to contact Defendants through the email address provided on Defendants' website, which was the same email address that Mr. Singh and Defendants used during the arbitration proceedings. (Id. at 7.)

• Plaintiff called Mr. Singh approximately ten times. (Id. at 6.)

• Plaintiff contacted an international process server to try to serve Defendants in the Bahamas or West Indies, which is where Defendants are headquartered. (Id. at 8.)

• Plaintiff tried to contact Mr. Sklarov through his LinkedIn account. (Id.)

• Plaintiff hired a local process server to attempt to serve Defendants at their business address in the United States. However the address was not actually Defendants' business address. Rather, the address was for an unrelated pack-and-ship business. (Id.)

         After all its attempts to contact and serve Defendants, Plaintiff has been unable to do so, and it continues to incur considerable expenses due to its efforts. Therefore, Plaintiff asserts that the Court should permit substituted service on Mr. Singh or authorize service of process by email.

         II. LEGAL STANDARD

         Rule 4 of the Federal Rules of Civil Procedure establishes the standard for service of process. After filing a lawsuit, a plaintiff has the responsibility of serving a corporation, partnership, or association, regardless of whether the defendant is in a judicial district in the United States or not. Fed.R.Civ.P. 4(h). If the defendant is in the United States, then a plaintiff must “deliver[] a copy of the summons and of the complaint to an officer, a managing or ...