Colorado Court of Appeals clarifies permissibility of substituted service of process under Hague Service Convention

The Colorado Court of Appeals recently issued an important ruling in Sebastian Holdings, Inc. v. Johansson that clarifies when courts can authorize substituted service of process for foreign litigation under the Hague Service Convention. This case of first impression provides an assessment of the interplay between the Hague Service Convention and the Colorado Rules of Civil Procedure and provides important guidance for parties and attorneys handling international litigation involving service abroad.

Background of the case

The case arose from a complex and many years’ international dispute in which receivers appointed by the Turks and Caicos Supreme Court needed to serve process on Per Johansson, a defendant thought to be located in Aspen, Colorado.

After the Turks and Caicos court authorized service abroad in the United States, the receivers attempted personal service at Johansson’s Aspen residence six times without success. Learning that Johansson was likely in Italy and perhaps actively avoiding service, the receivers petitioned a Colorado district court for permission to use substituted service of process. The Pitkin County District Court allowed it, determining that under C.R.C.P. 4(f), the receivers exercised due diligence and the substituted service was reasonably calculated to give actual notice.

The Hague Service Convention is a multilateral treaty that was formulated in 1964 by the Tenth Session of the Hague Conference of Private International Law. It addresses service of process in foreign countries. The Convention applies when the laws of the forum state — here the Turks and Caicos Islands — require the transmittal of documents abroad in order to effectuate service. Both the United States and the United Kingdom of Great Britain and Northern Ireland are signatories to the Convention, and the parties agreed that the Convention applies to the international service of process authorized by the Turks and Caicos Supreme Court.

Key Holdings

The Colorado Court of Appeals affirmed the District Court’s authorization of substituted service, establishing three important principles:

1. Personal jurisdiction is not required before a Colorado court may authorize substituted service of process

The court of appeals rejected Johansson’s argument that Colorado courts must have personal jurisdiction over a defendant before authorizing substituted service. The court explained that requiring personal jurisdiction would create an impossible situation—courts couldn’t authorize service without jurisdiction, but couldn’t obtain jurisdiction without proper service. This catch-22 would undermine the entire service process.

2. Hague Service Convention permits substituted service

In a matter of first impression for Colorado, the court interpreted Article 19 of the Hague Service Convention as permitting any method of service authorized by the receiving state’s law, here Colorado’s. Article 19 states that the Convention “shall not affect” internal laws permitting “methods of transmission” of foreign documents for service.

The court noted that it has previously held that C.R.C.P. 4(f) may be used to effectuate service on a foreign national for a Colorado lawsuit when personal service would be to no avail under C.R.C.P. 4(e). That, coupled with Rule 4’s provision of a variety of “methods of transmission” within the state, including substituted service, led the court to conclude that nothing in Rule 4 limits these permitted methods of transmission for service of process in a suit from a foreign nation.

This interpretation aligns with federal courts and sister states that have found the Hague Service Convention allows service abroad through any method permitted by local law.

3. Due Diligence and Notice Requirements Clarified

The court upheld the district court’s findings that the receivers exercised due diligence in attempting personal service and that the substituted service was reasonably calculated to provide actual notice. In making its ruling, the court cited key factors:

• • Six attempts at personal service at Johansson’s known address
  • Investigation by the receivers reveals Johansson’s substantial connections to the Aspen property
  • Evidence that Johansson had actual notice of the litigation and was avoiding service
  • Service on individuals with demonstrated connections to Johansson.

Practical implications for litigants and practitioners

This decision has several important implications for practitioners handling international litigation:

• Streamlined process: Litigants can seek substituted service authorization from Colorado courts for foreign (and domestic) litigation without first establishing personal jurisdiction, streamlining the service process for international cases.
• Broader service options: The ruling confirms that the Hague Service Convention doesn’t restrict parties to only the Convention’s prescribed methods. Instead, service abroad can utilize any method permitted by the receiving state’s law, including substituted service.
• Due diligence standards: The decision provides guidance on what constitutes adequate efforts for personal service before seeking substituted service, and also, whether the substituted service is reasonably calculated to give actual notice to the person being served. Courts will examine the totality of circumstances, including investigation efforts and the defendant’s apparent attempts to avoid service.

Key Takeaways

The Sebastian Holdings decision represents a practical approach to international service of process in Colorado that balances procedural requirements with practical realities. By clarifying that the Hague Service Convention permits flexible service methods authorized by local procedures and that personal jurisdiction isn’t a prerequisite for service authorization, Colorado courts have provided a clearer framework for service of international disputes on litigants in Colorado.

The Sebastian Holdings decision also underscores the importance of thorough documentation of service attempts and investigation efforts to satisfy due diligence requirements under Colorado law, especially when creative approaches to service are taken.

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