dissenting.
T32 I agree with Justice Eid that the mailing requirement of our own Rule 4) is, in and of itself, sufficient to make the Hague Convention applicable, and I share her concern that the majority rationale risks abrogating that requirement of our substituted service rule altogether. Even if the mailing requirement were not so express, however, I question whether Rule 4(f) would constitute an adequate substitute, as contemplated by the Supreme Court, for the transmittal of documents abroad.
1 33 I do not disagree that in Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S.Ct. 2104, 100 LEd.2d 722 (1988), the United States Supreme Court construed the Hague Convention to apply only when the home state defines the applicable method of serving process as not requiring transmittal of documents abroad; and further, that it found the Convention inapplicable in that case, where it went unchallenged that an Tllinois long-arm statute permitted service on a wholly owned domestic subsidiary in the state, as the involuntary agent for the defendant foreign corporation. Because the Court was not directly faced with the question, however, it had no occasion to explain in greater detail what it intended by either "the applicable method of service of process" or "substituted service," but the case in which it ruled clearly involved no more than a statute authorizing in-state service on an agent instead of, and as the equivalent of, service on the parent corporation in Germany.
1 34 Although Colorado has a similar long-arm statute, see § 18-1-125, C.R.S. (2011), mandating that service of process on corporations outside the state be accomplished by serving their agent within the state in the manner permitted by Rule 4 of the Colorado Rules of Civil Procedure, and Rule 4 similarly classifies service on a designated agent as an accepted method of effecting "personal service," see C.R.C.P. 4(e), the method of service at issue in this case is not similarly an alternative and equivalent form of personal service at all. Rather, it is a secondary and less reliable method of service, hopefully complying with the requirements of due process in any particular case, permitted in this Jurisdiction only as a last resort, when personal service cannot be accomplished. We know this to be the case, not because the alternative methods of effecting service in a foreign country described in Rule 4(d) are prioritized in some way, but because Rule 4(f) itself subordinates "substituted service" to "personal service," rather than providing an alternate method for effecting "personal service."
135 Since service by mail or publication alone in a case of this nature would clearly be inadequate, unless the plaintiffs can establish both that they have been unable, despite their due diligence, to effect personal service and that any further attempts to do so would *1243be of no avail, Rule 4 therefore requires that defendant Rodriguez-Cera be personally served. See C.R.C.P. 4(d), (0), (F). If the Hague Convention applies, it is indisputably an international agreement prohibiting a district court of this state from directing an alternate form of service, according to Rule 4(d), and therefore it must be complied with. Furthermore, if the Hague Convention applies, it prescribes the use of a "central authority" method of service in the contracting foreign country, and by its own terms leaves to the contracting country the choice whether to permit any alternative methods of service, like mailing or service by other competent persons. The question in this case, unlike Volkswagenwerk, is therefore whether a local rule that actually requires personal service according to the central authority method of the Hague Convention, unless that method has proven unsuccessful and further attempts would be to no avail, effectively relieves a plaintiff of any obligation to serve a defendant in the foreign country where he is known to reside and, by doing so, renders the Convention inapplicable from the outset.
T36 I understand the majority to hold precisely that. I am reluctant to join this expansive interpretation of Volkswagenwerk, in part because it so obviously circumvents a specific compromise of the Convention, to leave the choice of accepting alternate methods of service to each contracting country; but even more importantly, because it renders nugatory any binding effect of an international treaty. There is no suggestion here, as in some cases, that the signatory country refuses to comply with its treaty obligations. See, e.g., Nuance Commc'ns, Inc. v. Abbyy Software House, 626 F.3d 1222, 1239 (Fed.Cir.2010) (acknowledging Advisory Committee Note to Fed.R.Civ.P. 4, explaining that service under 4(f)(3) might be justified when a foreign country's central authority "refuses to serve a complaint seeking punitive damages or to enforce the antitrust laws of the United States"). If the Convention were held not to apply whenever a forum state concluded, as the district court is being asked to do in this case, that it would simply be too burdensome for the plaintiff to comply, the Convention would be virtually meaningless, or at most optional. By leaving to the receiving country the determination whether to allow alternatives to the central authority method of service, I believe the Convention necessarily leaves to that same receiving country the determination whether, upon the request of another country, service by the central authority method can be satisfactorily accomplished.
37 Finally, I appreciate the fact that the majority does not actually sanction substitute service in this case, see maj. op. at 11 80 n. 8, but merely disapproves the district court's determination that it was barred from considering such substitute service and remands for further consideration. In reaching even this result, however, the majority accepts the intermediate proposition that in light of Rule 4(f), personal service in Mexico is not required, and therefore the Hague Convention does not apply. Because I believe Rule 4(f) does. not provide a complete or equivalent substitute for personal service in a foreign signatory country, and instead merely provides a- last resort alternative when personal service, as otherwise required, cannot be sue-cessfully effected, I would agree with the conclusion of the district court that the Hague Convention applies in this situation and must be complied with.
T38 Because I would therefore discharge the rule, I respectfully dissent.
I am authorized to state that Justice EID joins in this dissent.