Chapter 12 - § 12.8 • SERVICE OF PROCESS

• Jurisdiction: Colorado

§ 12.8 • SERVICE OF PROCESS

Each defendant in the action (including each name variant) should be served in accordance with C.R.C.P. 4. This chapter will not address all of the different types of service contemplated by Rule 4. Because a QTA is an in rem proceeding, service by publication and service by mail are acceptable to obtain jurisdiction if personal service is not possible. To the extent in personam claims for relief are joined in the same lawsuit with the QTA, personal service will be required.

§ 12.8.1—Service By Publication

Prior to July 1, 1997, Rule 4(h) allowed service by publication upon a showing to the court that diligent efforts had been made to obtain personal service "within the state." Thus, no efforts were required to serve nonresidents personally, and service upon nonresidents by publication was routine in Rule 105 actions.

Rule 4 requires diligent efforts to obtain personal service. If that requirement includes diligent efforts to locate a party whose name is known but whose address and whereabouts are unknown, the ability to conduct an internet search may be a factor. Effective July 1, 1997, Rule 4(h) was consolidated by the Supreme Court with Rule 4(g) to provide that the party desiring service by publication must show due diligence to obtain personal service, not only within Colorado, but everywhere. This change in Rule 4 presents a dilemma for quiet title practitioners. Whenever you have or can get an address for a resident or a nonresident party, be it an individual, corporation, or other entity (e.g., a routine inquiry to the Colorado or a foreign Secretary of State), due diligence must be used to obtain personal service on that party at the Colorado or out-of-state address. Cf. Synan v. Haya, 15 P.3d 1117 (Colo. App. 2000) (when defendant can be identified, due process requires more than service by publication). See also Willhite v. Rodriguez-Cera, 274 P.3d 1233 (Colo. 2012) (substituted service per C.R.C.P. 4(f) provides a valid alternative to service abroad).

Under Rule 4(g), the recommended practice is to deliver a signed original summons (using Form 12-1) and complaint to a process server in the locality of the last known address of each defendant, wherever that may be, with instructions to attempt personal service. The process server must be qualified under C.R.C.P. 4(d). The affidavit of the process server that the named defendant cannot be found at that address, if such is the case, is then filed with the Motion for...