Muller v Enlet [2008] FMCSC 10; 16 FSM Intrm. 92 (Chk. S. Ct. Tr. 2008) (3 September 2008)

CHUUK STATE SUPREME COURT TRIAL DIVISION

CSSC-CA. NO. 66-2008

DOLORES MULLER,
Plaintiff,

vs.

BEN K. ENLET,
Defendant.

___________________________________

ORDER OF DISMISSAL

Camillo Noket
Chief Justice

Decided: September 3, 2008

APPEARANCES:

For the Plaintiff: Gideon Doone
P.O. Box 882
Weno, Chuuk FM 96942

For the Defendant: Ben K. Enlet
P.O. Box 1650
Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure  Service
In a civil action, service of process must be performed in compliance with Chuuk Civil Rule 4. Rule 4(a) specifies that service of process can be performed only after the filing of the complaint and the clerk's issuance of a summons. Muller v. Enlet, [2008] FMCSC 10; 16 FSM Intrm. 92, 93 (Chk. S. Ct. Tr. 2008).

Civil Procedure  Service
Unless specially appointed by the court, plaintiff's counsel is not a person who can properly serve process. Muller v. Enlet, [2008] FMCSC 10; 16 FSM Intrm. 92, 94 (Chk. S. Ct. Tr. 2008).

Jurisdiction  Diversity; Jurisdiction  Removal
Diversity jurisdiction gives concurrent original jurisdiction to the state and national courts. FSM GCO 1992-2 provides for removal of diversity cases from the state to national courts and is directed solely to the issue of the transfer of cases between the state and national courts. It provides a procedure for removal, not authority for dismissal from state court. Muller v. Enlet, [2008] FMCSC 10; 16 FSM Intrm. 92, 94 (Chk. S. Ct. Tr. 2008).

Civil Procedure Dismissal; Jurisdiction  Diversity
A motion to dismiss filed in the Chuuk State Supreme Court asserting non-consent to the court's jurisdiction will not, by its invocation of the FSM court's jurisdiction, deprive the Chuuk State Supreme court of its jurisdiction. Rather, in diversity cases, state courts otherwise having jurisdiction pursuant to state law are not divested of jurisdiction unless or until a removal petition is timely filed, prompt written notice of such filing is served upon all parties, and a copy of the petition is filed with the state court clerk. Thus, when an action is originally filed in state court, the state court retains its jurisdiction, despite the diversity of parties, so long as the same action is not filed in or removed to the FSM court. An allegation of diversity jurisdiction is not a proper basis for a defendant's motion to dismiss. Muller v. Enlet, [2008] FMCSC 10; 16 FSM Intrm. 92, 94 (Chk. S. Ct. Tr. 2008).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

BACKGROUND

1. On July 25, 2008, Plaintiff filed her complaint seeking money damages in relation to a contract for legal services with defendant.

2. On August 12, 2008, defendant filed and served his motion to dismiss.

3. As of September 1, 2008, the court has no record that plaintiff completed service of process.

BASES FOR MOTION TO DISMISS

In his motion to dismiss, defendant states that on July 8, 2005, counsel for plaintiff personally "served" the complaint and summons on him. Defendant contends that such "service" was improper because service of process can only occur after the complaint is filed and the court issues a summons pursuant to Chuuk Civil Rule 4(a). Defendant further contends that "service" was improper because plaintiff's counsel personally served the complaint when he was not a policeman or some one specially appointed to serve process, as required by Chuuk Civil Rule 4(c). Finally, defendant contends that the due to the diversity of the parties, the action must be dismissed for lack of subject matter jurisdiction.

ANALYSIS

In a civil action, service of process must be performed in compliance with Chuuk Civil Rule 4. If defendant is correct that plaintiff attempted to serve process on July 8, 2008, then such service violated Civil Rule 4(a). Rule 4(a) specifies that service of process can be performed only after the filing of the complaint and issuance of a summons by the clerk, which in this case did not occur until July 25, 2008.

In addition, if service was attempted on July 8, 2008, according to the court's record, there was no proof of service of process filed with the court within the time limits set forth in Civil Rule 4(f) ("the person serving process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process").

On the other hand, if plaintiff was merely providing defendant with a complimentary copy of his proposed complaint on July 8, 2008, then there has been no violation of Rule 4 for the reason that plaintiff has not yet performed service of process.

Assuming, however, that the "service" made on July 8, 2005 was an attempt by plaintiff to serve process, it was also not proper because it was made by plaintiff's counsel. Unless specially appointed by the court, plaintiff's counsel was not a person who could properly serve process. Chk. Civ. R. 4(c).

Defendant's last argument in support of his motion to dismiss is that the court lacks jurisdiction because there is a diversity of parties and they have not all consented to this court's jurisdiction. Diversity jurisdiction gives concurrent original jurisdiction to the state and national courts. FSM Const. art. XI, § 6(b); First Hawaiian v. k v. Berdon[2002] FMCSC 2; , 10 FSM Intrm. 538, 539 (Chk. S. Ct. Tr. 2002); Flossman v. Truk, [1988] FMCSC 3; 3 FSM Intrm. 438, 440 (Truk S. Ct. Tr. 1988); Gilmete v. Adams, [2002] FMSC 26; 11 FSM Intrm. 105, 108 (Pon.). FSM GCO 1992-2 provides ides for removal of diversity cases from the state to national courts. The first paragraph of FSM GCO 1992-2 states, in part: "the Constitution of the Federated States of Micronesia places in the FSM Supreme Court primary jurisdiction over cases which, upon consent of the litigants, may also fall within the jurisdiction of state courts." Defendant argues that because he did not consent to the state court's jurisdiction, it is subject to dismissal. Although the introductory language to GCO 1992-2 specifies that state court jurisdiction depends on the consent of the parties, GCO 1992-2 is directed solely to the issue of the transfer of cases between the state and national courts: it provides a procedure for removal, not authority for dismissal from state court.

If diverse parties do not consent to the Chuuk State Supreme Court's jurisdiction, but wish to have the case heard in the FSM Supreme Court, they should remove the case to the FSM Supreme Court using the procedure outlined in FSM General Court Order 1992-2. A motion to dismiss filed in the Chuuk State Supreme Court asserting non-consent to the court's jurisdiction will not, by its invocation of the FSM court's jurisdiction, deprive the Chuuk State Supreme court of its jurisdiction. Berdon, 10 FSM Intrm. at 539. Rather, in diversity cases, state courts otherwise having jurisdiction pursuant to state law are not divested of jurisdiction unless or until a removal petition is timely filed, prompt written notice of such filing is served upon all parties, and a copy of the petition is filed with the state court clerk. Pernet v. W oodruff[2001] FMSC 9; , 10 FSM Intrm. 239, 243 (App. 2001); FSM GCO 1992-2; Berdon, 10 FSM Intrm. at 539.

Thus, when an action is originally filed in state court, the state court retains its jurisdiction, despite the diversity of parties, so long as the same action is not filed in[1] or removed to the FSM court. FSM GCO 1992-2; Berdon, 10 FSM Intrm. at 539; Flossman, 3 FSM Intrm. at 440. The allegation of diversity jurisdiction is not a proper basis for defendant's motion to dismiss.

CONCLUSION

Because there was no proof that the July 8, 2008 service of process was properly performed according to the requirements of Civil Rule 4, the court hereby orders dismissal of the complaint without prejudice. In order to avoid such dismissal, plaintiff may file a certificate of service of process that shows compliance with Civil Rule 4 within ten (10) days of the date of service of this order.

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^[1]In Flossman, the court faced the situation where the same action had been filed in the state and the FSM court. The court held that filing the action in the FSM court gave the FSM court jurisdictional precedence over the state court in the same action. Thus, in addition to removal, originally filing an action in the FSM court is another way to register non-consent to the state’s diversity jurisdiction.