dissenting.
39 I join Justice Coats' dissent. I write separately to address the majority's conclusion that - "mailing [to the defendant] is not required to complete service" under Rule 4(£), and that therefore the Hague Convention does not apply to this case. Maj. op. at €24. Under the plain language of Rule 4(£)(2), the court "shall ... order the process to be mailed to the address(es) of [the defendant] ... on or before the date of delivery" of process to the substitute party. C.R.C.P. 4(f)(2) (emphasis added). Thus, service is complete only after the process has been mailed to the defendant and delivered to the substituted party. Because service is complete under our rule only after the process *1244has been mailed to the defendant-who, in this case, is located abroad-our rule "defines the applicable method of serving process as requiring the transmittal of documents abroad," and the Hague Convention applies. Volkswagenwerk Aktiengesellschaft v. Schlumk, 486 U.S. 694, 700, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). I theréfore respectfully dissent from the majority's opinion concluding otherwise.
$40 When a defendant's address is known,1 Rule 4({)(2) requires the plaintiff to mail the process to the defendant. Specifically, if the court finds substituted service is appropriate, the court "shall ... order the process to be mailed" to the defendant. C.R.C.P. Further, in order to prove that substituted service was provided, Rule 4(h) requires a plaintiff to provide "a duly acknowledged statement as to the date, place, and manner of [substitute] service, accompanied by an affidavit that the process was also mailed to the [defendant], setting forth the address(es) where the process was mailed." C.R.C.P. 4(h)(6) (emphasis added). In short, if the plaintiff does not mail the process to the defendant, Rule 4 explicitly prevents him from proving service.
T41 The majority makes two arguments that service is complete without the mailing. First, it argues that the rule's statement that service is "complete on the date of delivery to the [substituted person]" shows the mailing is unnecessary. Maj. op. at 124. But the rule requires that the mailing to the defendant occur "on or before the date of delivery." C.R.C.P. 4(£)(2) (emphasis added). So the statement that service is "complete on the date of delivery to the [substituted person]" means nothing more. than that service is complete after both delivery and mailing.
« 42 Second, the majority argues that the rule only requires mailing when the address is known. Thus, when the defendant's address is unknown, service must be complete when the process is delivered to the substituted person. Consequently, the majority concludes, service is complete when the process is delivered to the substituted person, even when the defendant's address is known. Maj. op. at 124. But this is a leap of logic that goes too far. Simply because there may be circumstances under which a defendant's address is not known does not excuse the rule's requirement that mailing occur when the address is known.2 Such a conclusion violates the plain language of the rule. C.R.C.P. 4(£)(2) (the court "shall ... order the process to be mailed" (emphasis added)). Moreover, the due process implications of the two situations are quite different. See Mullane v. Cent. Hanover Bank & Trust, 339 U.S. 306, 317-18, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (allowing service, under the Due Process Clause, by. publication to those parties whose addresses were unknown, but requiring mailing to those whose addresses were known). By requiring that the process be mailed to the defendant in addition to being delivered to the substituted party, the rule furthers due process by ensuring that notice of the action will reach the defendant. See Richard P. Holme, 2006 Amendments to the Civil Rules: Modernization, New Math, and Polishing, 35 Colo. Law. 21, 24 (2006); see also Wuchter v. Pizzutti, 276 U.S. 13, 19, 48 S.Ct. 259, 72 L.Ed. 446 (1928) (holding that, without a requirement that the state official mail the process to the defendant, a statute allowing substituted service on a state official violated the Due Process Clause).
148 We have narrowly construed rules allowing substituted service. See, eg., Re-*1245Mine v. Dist. Court, 709 P.2d 1379, 1382 (Colo.1985) ("[Sitatutes or rules providing for substituted service are in derogation of common law and must be strictly construed and followed...."); Ernst v. Colburn, 84 Colo. 170, 178, 268 P. 576, 577 (Colo.1928) (holding that, where the rule allowed substituted service on a family member at the defendant's residence "between the hours of eight in the morning and six in the evening," service at 6:20 p.m. was invalid). I would do the same here and hold that, when a defendant's address is known, service under Rule 4(f) is not complete until the plaintiff mails the process to the defendant as required by Rule
44 As applied here, Rule 4()(@2) requires the plaintiffs to mail the process to the defendant, who is located abroad, "on or before" the date the process is delivered to the substituted party. The rule therefore requires "the transmittal of documents abroad," and the Hague Service Convention applies. Volkswagenwerk, 486 U.S. at 700, 108 S.Ct. 2104.
{45 When confronted with similar state mailing procedures, a host of federal courts have come to the same conclusion. See, eg., Vega Glen v. Club Méditerranée S.A., 359 F.Supp.2d 1352, 1355-56 (S.D.Fla.2005) (Florida statutes allowed substituted service through the secretary of state, but also required the mailing of process to the defendant, which triggered the Hague Service Convention); In re Hayes Lemmerz Intern., Inc., 271 F.Supp.2d 1007, 1030-33 (E.D.Mich.2003) (Delaware statute allowed service on the resident agent of a nonresident company, but also required process to be mailed to the company, which triggered the Hague Service Convention); Davies v. Jobs & Adverts Online, Gmbh, 94 F.Supp.2d 719, 721-22 (E.D.Va.2000) (Virginia statutes allowed substituted service on state clerk for foreign corporations transacting business in-state, but the clerk was required to mail the process to the defendant, which triggered the Hague Service Convention); McClenon v. Nissan Motor Corp., 726 F.Supp. 822, 824-25 (N.D.Fla.1989) (same as Vega Glen) Cf. Melia v. Les Grands Chais de France, 135 F.R.D. 28, 32 (D.R.I.1991) (where the statute required the secretary of state, not the plaintiff, to mail the process to the defendant, the Hague Service Convention was not triggered). I fail to see how this case differs from the federal cases. The majority tries to distinguish the federal cases because Rule 4(f), before authorizing service, requires a court to determine that the substituted service is reasonably calculated to give actual notice to the defendant. Maj. op. at ¶ 26 n. 7. While that fact may play into a due process analysis, it makes no difference in interpreting the plain language of the rule, which, on its face, requires mailing.
46 The underlying justification for today's decision appears to be that it is difficult to comply with the Hague Convention in this case. Maj. op. at T5 n. 2 (cataloging the "obstacles and bureaucratic challenges" facing the plaintiffs in attempting service of process in Mexico in accordance with the Hague Convention). But significantly, the majority's interpretation of the language of Rule 4(f) applies to both domestic and international service. As a result, the effect of the majority's decision is to read the mailing requirement entirely out of Rule 4(f). Because such diminishment of the mailing requirement is inconsistent with the rule's plain language, 1 respectfully dissent.
I am authorized to state that Justice COATS joins in this dissent.
. The majority notes that when Ms. Torres-Bravo, the substituted person, was deposed, she "could not provide an address for her parents' home and believed that the homes in that small town did not have numbers." Maj. op. at T4. But the plaintiffs, at some point in time, acquired the address from Ms. Torres-Bravo. See Response to Defendant Paulo Rodriguez-Cera's Motion for Enlargement of Time to File Answer or Otherwise Respond to Plaintiffs' Amended Complaint, p. 3 n. 2, July 22, 2010 ("Defendant Paulo's sister, Lydia Torres-Bravo, provided both a cell phone and a mailing address for her parents. Defendant Paulo is now living under his parents' care, so Defendant Paulo's counsel is virtually assured of contacting Defendant Paulo through his parents.").
. It is likely that the defendant's address would be known in most cases. Rule 4(f) states that the court must be satisfied that the plaintiff used "due diligence" to attempt personal service. In completing due diligence, the plaintiff is likely to learn the defendant's address, as occurred in this case.