2006 Amendments to the Civil Rules: Modernization, New Math, and Polishing - May 2006
| Publication year | 2006 |
| Pages | 21 |
| Citation | Vol. 35 No. 5 Pg. 21 |
2006, May, Pg. 21. 2006 Amendments to the Civil Rules: Modernization, New Math, and Polishing - May 2006
May 2006
Vol. 35, No. 5 [Page 21]
by Richard P. Holme
(c) Richard P. Holme 2006
Richard P. Holme, Denver, is a senior partner in the trial group at Davis Graham & Stubbs LLP. Mr. Holme is a member of the Colorado Supreme Court Standing Committee on Civil Rules - richard.holme@dgslaw.com, (303) 892-9400.
Several significant changes have been made to the Colorado Rules of Civil Procedure, effective in 2006. This article describes changes to: Rule 4, which expands and modernizes methods of serving process; Rules 5 and 6, which substantially affect the calculation of filing deadlines; and Rules 43 and 121, which update and polish several of their provisions.
After a lengthy period of gestation, the Supreme Court and its Standing Committee on Civil Rules(fn1) finally gave birth to a series of significant amendments to several of the Colorado Rules of Civil Procedure. Specifically, this article addresses amendments to Rules 4, 5, 6, 43, and 121. The amendments to these rules deal with practical issues that have arisen since the rules were adopted or last amended. The changes will ease some of the timing stress on litigation counsel and create greater conformity with certain federal rules. All of these new rules became effective January 1, 2006.(fn2) Rule 4 was adopted and became effective March 23, 2006.(fn3)
Rule 4, relating to service of process, is updated and modernized to deal with: new entities - such as limited liability companies and limited partnership associations; previously unmentioned organizations - universities and municipal water districts; and new pragmatic problems that impede service of process - gated communities and restricted access office buildings). Even for those attorneys practicing primarily in federal court, these changes are of direct importance, because service of a summons under Fed. R. Civ. P. 4(e)(1) may be effected "pursuant to the law of the state in which the district court is located or in which service is effected. . . ."(fn4)
Attorneys will need new math to calculate due dates for filings under the combination of Rule 5, which acknowledges that service can be made on other parties by facsimile, e-mail, and overnight courier, and Rule 6, which gives some additional time for counsel to respond under a number of deadlines established by other rules. Finally, Rule 121 relating to statewide practice standards is polished and expanded in a number of respects.
MODERNIZATION
A confluence of several unrelated events caused the Civil Rules Committee and the Supreme Court to consider a substantial updating and modernization of C.R.C.P. 4 as it relates to the service of process.(fn5) In this article, persons to be served with process are referred to as "defendants," even though service of a summons may be made on third-party defendants, and other forms of process may be served on non-defendants.
Rule 4. Summons and Service of Process
The Civil Rules Committee had been concerned for some time about the absence of provisions for service on a number of defendants that were newly created Colorado entities, such as limited liability companies. However, the recent impetus for a substantial modernization of Rule 4 was generated by information relating to the difficulty - and sometimes impossibility - of effecting service of process on unwilling recipients who live in gated communities and work in office complexes with underground parking and security guards who refuse entrance to unauthorized persons. With increasing frequency, service was becoming extremely difficult, time consuming, and expensive to complete or carry out.
Another motivation for revisiting Rule 4 was added in the spring of 2005 when legislation was proposed and passed by the Colorado legislature that designated the Secretary of State as the agent for service of process for any person who caused damage while driving a car in Colorado. Under House Bill 05-1121, process was to be mailed to the driver and the driver's insurance company.(fn6) The Colorado Bar Association ("CBA") argued that service of process should be governed by the Colorado Rules of Civil Procedure, which would substantially ameliorate the problem addressed by the legislation. The bill was vetoed by Governor Bill Owens.(fn7)
As it began considering amendments to Rule 4, the Civil Rules Committee enlisted the assistance of several Colorado corporate lawyers who have been most heavily involved in CBA-sponsored revisions of Colorado statutes relating to business entities.(fn8) These attorneys noted that the new statutes have established and govern new types of entities and organizations, all of which might be sued, and that there was an absence of any provisions in Rule 4 for service of process on those new entities. They recommended a number of solutions. Their concerns and suggestions received substantial attention by the Civil Rules Committee, as it deliberated the amendments to Rule 4.
The Committee ultimately proposed a series of fairly sweeping revisions to Rule 4. (Virtually identical changes also were adopted for C.R.C.P. 304, relating to service of process in county court, and C.R.C.P. 504, relating to service in small claims court.(fn9)) These proposals were posted online at the Court's website and were published by the Supreme Court with a request for written comments.(fn10) After comments were received, the Court returned them to the Civil Rules Committee for further consideration and recommendations. The amendments to Rule 4 became effective immediately on their adoption.(fn11) The changes are described below.
Rule 4(d) - Who Can Serve Process?
Rule 4(d) amends language describing who can serve process. Those changes are formal - not substantive.
* Reference to service out-of-state by sheriffs "or any other person over the age of 18": This section was shortened by deleting the specific reference to sheriffs and their deputies, because undoubtedly they would be included in the category of persons over the age of 18.
* Reference to a person "over the age of 18 years" could be ambiguous: Must a person be 19 years old? The phraseology was changed to refer to a person "whose age is 18 years or more." This clarifying change reflects the original intent of this provision.
* Service of process in a foreign country: Language similar to the federal rule was adopted, which provides that service of process in a foreign country can be accomplished by treaty, the law of the foreign country, or pursuant to court order, where not prohibited by treaty.
Rule 4(e) - Methods of Personal Service
Rule 4(e) relates to methods of personal service. This rule underwent the greatest amount of proposed modernization. In addition to the methods of service delineated in Rule 4(e), amendments to Rule 4(f) also allow for substituted service on still other persons.
* Service on natural persons under Rule 4(e)(1): Only modest changes were made under this rule. In addition to delivering a copy of process to the defendant or leaving it at the defendant's home with a family member who is 18 or older,(fn12) the revised rule replaces the allowance of service at the defendant's "usual place of business" with allowance of service at the defendant's "usual workplace." This change was made to avoid arguments that leaving a copy of a summons or other process at the defendant's place of employment could be challenged because the defendant was employed by a charity or some other "non-business" enterprise.
- When service is made at a person's workplace, the categories of persons to whom process may be delivered were changed from the person's secretary, bookkeeper, manager, or chief clerk, by deleting the now unfamiliar term "chief clerk" (viz: Bob Cratchet) and adding a more modern title of "administrative assistant."
- The term "manager" is changed to "managing agent." This was done to make it clear that alternate service at the workplace is limited to service on "the person's secretary, etc.," not on a secretary or manager at the person's workplace. Service on a supervisor or manager of the business offers no assurance that the defendant will ever receive actual notice (except perhaps with his or her pink slip). If the defendant is to receive notice, it is likely to occur only when delivery is made to the defendant's subordinate, who will feel a genuine obligation to deliver the process. Thus, "managing agent" is used to distinguish the "person's managing agent" (acceptable) from a "manager" at the person's place of employment (unacceptable).
Rule 4(e)(4) - Service on Entities: Subsection (e)(4) now consolidates and expands the provisions for service on entities, associations, and organizations that may have the attribute of limited liability. This subsection is now dramatically expanded from the entities identified in the previous version of this subsection, which only included corporations, partnerships, and unincorporated associations. The new rule includes those organizations, as well as cooperatives, limited liability companies, limited partnership associations, trusts, and organizations. Indeed, to avoid future amendments to this portion of the rule regarding new entities that might be created in Colorado or elsewhere, this rule now also describes service on any "other form of entity that is recognized under the laws of this state or of any other jurisdiction."
Service on such entities is spelled...
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