United States District Court, D. Colorado
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
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