IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Magistrate Judge Boyd N. Boland

Civil Action No. 11-cv-02281-MSK-BNB

MOUNT VERNON FIRE INSURANCE COMPANY, a Pennsylvania corporation,

Plaintiff,

v.

LISA LYLE, a Colorado resident,

SCOTT LYLE, a Colorado resident, and

MCCARTHY HOMES, INC., a Colorado corporation,

Defendants.

______________________________________________________________________________

ORDER

______________________________________________________________________________

This matter arises on Mount Vernon Fire Insurance Company’s Motion for

Substitute Service of McCarthy Homes, Inc. [Doc. # 6, filed 11/9/2011] (the “Motion for

Substituted Service”), which is GRANTED as specified.

This is an action concerning insurance coverage. The plaintiff seeks a declaration that it

has no duty to defend or indemnify McCarthy Homes, Inc. (“McCarthy Homes”), in the

underlying action where the Lyles assert claims against McCarthy Homes for defective design

and construction of the Lyle’s new house. Motion for Substituted Service [Doc. # 6] at ¶1. The

plaintiff reports that it has been unable to effect service of process against McCarthy Homes. It

seeks leave to make substituted service pursuant to Rule 4(f), Colo. R. Civ. P.

McCarthy Homes is a Colorado corporation. It has designated Daniel P. McCarthy as its

registered agent for service of process at 10480 Mooring Road, Longmont, Colorado. Annual

Report [Doc. # 6-1] at ¶¶3, 5. The plaintiff attempted to make service on the registered agent at

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the designated address, but service was not achieved because Mr. McCarthy no longer resides at

that address and could not be found there. The plaintiff also attempted service at Mr.

McCarthy’s last known address and at his last known place of employment, but he could not be

found at either of those locations. Mr. McCarthy has failed to return the plaintiff’s telephone

calls or to respond to the plaintiff’s emails.

Rule 4(e)(1) and (h), Fed. R. Civ. P., provide that service of process may be

accomplished against a corporation by “following state law for serving a summons in an action

brought in courts of general jurisdiction in the state where the district court is located or where

service is made. . . .” Colorado law allows service on a corporation as follows:

[B]y delivering a copy thereof to the registered agent for service as

set forth in the most recently filed document int eh records of the

secretary of state of this state or any other jurisdiction, or one of

the following:

(A) An officer of any form of entity having officers;

* * *

(G) If no person listed in subsection (4) of this rule can be found

in this state, upon any person serving as a shareholder, member,

partner, or other person having an ownership or similar interest in,

or any director, agent, or principal employee of such entity, who

can be found in this state, or service as otherwise provided by law.

Colo. R. Civ. P. 4(e)(4).

Section 7-90-704(2), C.R.S., provides:

(2) If an entity that is required to maintain a registered agent

pursuant to this part 7 has no registered agent, or if the registered

agent is not located under its registered agent name at its registered

agent address, or if the registered agent cannot with reasonable

diligence be served, the entity may be served by registered mail or

by certified mail, return receipt requested, addressed to the entity

at its principal address. Service is perfected under this subsection

(2) at the earliest of:

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(a) The date the entity receives the process, notice, or demand;

(b) The date shown on the return receipt, if signed on behalf of the

entity; or

(c) Five days after mailing.

I find that the plaintiff has acted with reasonable diligence but has been unable to serve

McCarthy Homes’ registered agent. Consequently, I grant the motion for substituted service to

allow service of process in the manner specified in section 7-90-704(2), C.R.S. 

In addition, although it appears that Mr. McCarthy is refusing to respond to emails sent to

his email address, it also appears that those emails are being received. In an attempt to assure

actual notice of the action against McCarthy Homes to its registered agent, the plaintiff also shall

email copies of the summons and complaint to Mr. McCarthy at his last known email address.

IT IS ORDERED:

(1) The Motion for Substituted Service [Doc. # 6] is GRANTED;

(2) The plaintiff shall make substituted service by registered mail or by certified mail,

return receipt requested, as specified in section 7-90-704, C.R.S., and shall file proof of such

service on or before December 21, 2011; and

(3) The plaintiff shall email copies of the summons and complaint to Mr. McCarthy

at his last known email address and shall file an affidavit establishing compliance with this

requirement on or before December 21, 2011.

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Dated December 1, 2011.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

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