Colorado § 7-90-704 - Service on entities.

§ 7-90-704. Service on entities.

(1) The registered agent of an entity is an agent of the entity authorized to receive service of any process, notice, or demand required or permitted by law to be served on the entity. The registered agent of an entity is an agent of the entity to whom the secretary of state may deliver any form, notice, or other document with respect to the entity under this title, unless otherwise specified by an organic statute.

(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:

(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.

(3) This section does not prescribe the only means, or necessarily the required means, of serving an entity in this state.

Source: L. 2003: Entire part added, p. 2304, § 217, effective July 1, 2004. L. 2004: (1) amended, p. 1491, § 234, effective July 1. L. 2007: IP(2) amended, p. 244, § 38, effective May 29.

ANNOTATION

Law reviews. For article, "1959 Amendments to the Colorado Corporation Code", see 36 Dicta 489 (1959). For note, "Service of Process on Foreign Corporations Outside the Forum", see 34 Rocky Mt. L. Rev. 359 (1962). For comment on Bay Aviation Serv. Co. v. District Court (149 Colo. 542, 370 P.2d 752 (1962)), see 34 Rocky Mt. L. Rev. 544 (1962). For note, "One Year Review of Colorado Law 1964", see 42 Den. L. Ctr. J. 140 (1965). For comment on White-Rodgers Co. v. District Court (160 Colo. 491, 418 P.2d 527 (1966)), see 39 U. Colo. L. Rev. 443 (1967). For note, "Doing Business in Colorado for Foreign Corporations: Service of Process, Qualification, Taxation", see 49 Den. L.J. 529 (1973).

Annotator's note. Since § 7-90-704 is similar to § 7-115-111 as it existed prior to the 2003 repeal and reenactment of article 115 of title 7 and former § 7-115-111 is similar to § 7-9-119 as it existed prior to the 1993 recodification of the "Colorado Business Corporation Act", articles 101 to 117 of title 7, cases construing that provision and its predecessors have been included in the annotations to this section.

Where party did not serve process on a foreign corporation as required by the "long arm" statute, its provisions concerning contacts sufficient to establish doing business were inapplicable under this section. Geer Co. v. District Court, 172 Colo. 48, 469 P.2d 734 (1970).

But it is not necessary to rely on the "long arm" statute to sustain jurisdiction of a court over a foreign corporation where service of process is not made outside of Colorado, but is made upon the agent of the foreign corporation in the state. White-Rodgers Co. v. District Court, 160 Colo. 491, 418 P.2d 527 (1966).

Service of process may be made on agent or secretary of state. When a foreign corporation has filed the necessary documents with the secretary of state as required by this article, it voluntarily subjects itself to process in Colorado either by service on an agent or on the secretary of state. Bardahl Mfg. Corp. v. District Court, 150 Colo. 312, 372 P.2d 447 (1962).

Fact that corporation's employee did not make known to corporation that service had been made upon it constitutes neither mistake, inadvertence, surprise, nor excusable neglect. Stroh v. Am. Recreation & Mobile Home Corp., 35 Colo. App. 196, 530 P.2d 989 (1975).

In addition to service on the secretary of state, service under this section must be completed by mail or by personal service within or without the state on the person over whom jurisdiction is sought. Leach v. Farnsworth & Chambers Co., 231 F. Supp. 157 (D. Colo. 1964); Geer Co. v. District Court, 172 Colo. 48, 469 P.2d 734 (1970).

Determination of "doing business" is matter for court. The absence of exact measures for the determination of what constitutes doing business in a state for the purpose of becoming amenable to the processes of the courts of the state and the lack of uniformity, taken together with the opportunity of the trial court to observe the witnesses and to weigh their testimony, all lend strength to the wisdom of leaving the matter to the trial court. Am. Type Founders Co. v. District Court, 154 Colo. 156, 389 P.2d 85 (1964).

But each case must be decided ad hoc so to not violate due process. The question of what constitutes sufficient minimal contact within the state so as to hold that a foreign corporation has subjected itself to in personam jurisdiction without violating due process clause under the fourteenth amendment of federal constitution is resolved on an ad hoc basis, namely, each case rests upon its own facts. Bolger v. Dial-A-Style Leasing Corp., 159 Colo. 44, 409 P.2d 517 (1966).

The question of what constitutes doing business is a fact to be determined as any other fact. Am. Type Founders Co. v. District Court, 154 Colo. 156, 389 P.2d 85 (1964).

And the burden of proving necessary "presence" in Colorado of foreign corporations for jurisdictional purposes is upon plaintiff. Bolger v. Dial-A-Style Leasing Corp., 159 Colo. 44, 409 P.2d 517 (1966); Geer Co. v. District Court, 172 Colo. 48, 469 P.2d 734 (1970).

Purchaser failed to establish seller's status as an agent for a foreign manufacturer where seller conducted an independent business, purchasing mobile homes outright and selling them in its own business. Hence a motion for substituted service should have been quashed. Geer Co. v. District Court, 172 Colo. 48, 469 P.2d 734 (1970).

Establishing beachhead for business activity and retaining open lines of communication as well as strings of ownership is "doing business" within the state. Bolger v. Dial-A-Style Leasing Corp., 159 Colo. 44, 409 P.2d 517 (1966).

And since a foreign manufacturer maintained a local distributor in Colorado, its sales activity was found to constitute doing business to the extent that service on secretary of state was valid service on the manufacturer, such determination resting largely in the sound discretion of the trial court. Am. Type Founders Co. v. District Court, 154 Colo. 156, 389 P.2d 85 (1964).

But not a nonpresent parent corporation because of mere presence of subsidiary. Although a corporation is totally owned by another corporation, the mere presence in Colorado of the wholly-owned subsidiary, standing alone, does not in and of itself subject the nonpresent parent corporation to the state's jurisdiction where the two companies are operated as distinct entities. Bolger v. Dial-A-Style Leasing Corp., 159 Colo. 44, 409 P.2d 517 (1966).

Presence in the state has never been doubted when the activities of a foreign corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given. Am. Type Founders Co. v. District Court, 154 Colo. 156, 389 P.2d 85 (1964).

As where regular trips are made into the state to accept delivery. A nonresident corporation is subject to substituted service by reason of its doing business within the state of Colorado where it conducts regular and continuous trips to the state for the purpose of accepting delivery of all the merchandise which it sells in another state and its entire operation depends on these regular and frequent trips into the state. Jones v. Wood, 208 F. Supp. 750 (D. Colo. 1962).

But where a foreign corporation is in Colorado for one instance, and that was for a demonstration, this presence in not sufficient to constitute doing business in the state so as to subject the corporation to process of service of summons in Colorado. Bay Aviation Servs. Co. v. District Court, 149 Colo. 542, 370 P.2d 752 (1962).

Applied in Adolph Coors Co. v. A. Genderson & Sons, 486 F. Supp. 131 (D. Colo. 1980).