Alik v Moses [1997] FMSC 3; 8 FSM Intrm. 148 (Pon. 1997) (12 August 1997)

[1997] FMSC 3; 8 FSM Intrm. 148 (Pon. 1997)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 1996-067

SHIRA L. ALIK,
Plaintiff

vs.

RESIO S. MOSES, individually,
ASTERIO A. TAKESY, in his capacity as Secretary of External Affairs and
the FEDERATED STATES OF MICRONESIA,
Defendants.

ORDER

BEFORE: Richard H. Benson, Associate Justice

Decided: August 12, 1997

APPEARANCES:
For the Plaintiff: Delson Ehmes, Sr., Esq.
For the Defendant: Carole Rafferty, Esq.
Chief of Litigation
Office of the FSM Attorney General

* * * *

HEADNOTES

Jurisdiction - Personal; Statutes - Construction
The Supreme Court may exercise personal jurisdiction in civil cases only over persons residing or found in the Federated States of Micronesia or who have been duly summoned and voluntarily appear, except as provided in the long arm statute. The terms "resides in," "is a resident of," and "residence is in" are roughly synonymous. Alik v. Moses, [1997] FMSC 3; 8 FSM Intrm. 148, 149-50 (Pon. 1997).

Civil Procedure - Service
Because a person may have more than one place of residence and a person's legal residence is his place of domicile or permanent abode, as distinguished from temporary residence, an FSM citizen temporarily working abroad is the legal resident of some state in the Federated States of Micronesia, and thus may be served process in any manner permitted by the FSM rules, such as by certified mail. Alik v. Moses, [1997] FMSC 3; 8 FSM Intrm. 148, 150 (Pon. 1997).

Jurisdiction - Personal
The FSM long-arm statute applies to persons without regard to their citizenship or residence. It may thus be applied to an FSM citizen. Alik v. Moses, [1997] FMSC 3; 8 FSM Intrm. 148, 150 (Pon. 1997).

Civil Procedure - Service
The service requirements of the long-arm statute are more stringent than those of the rules of civil procedure. Service of process may be by personal service, and the service of summons must be made in like manner as service within the Federated States of Micronesia and must be made by an officer or person authorized to make service of summons in the state or jurisdiction where the defendant is served. Alik v. Moses, [1997] FMSC 3; 8 FSM Intrm. 148, 150 (Pon. 1997).

Civil Procedure - Dismissal; Civil Procedure - Service
Under Rule 4(j) a complaint that has not been served within 120 days of being filed can only be dismissed upon motion or the court's own initiative. Service made after 120 days but before a motion or court initiative to dismiss is good service and dismissal will not be granted on a later motion. Alik v. Moses, [1997] FMSC 3; 8 FSM Intrm. 148, 151 (Pon. 1997).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

I have before me the Motion of Defendant Resio Moses to Dismiss Plaintiff's Claims, filed September 18, 1996, and Defendant Moses' Second Motion to Dismiss, filed March 13, 1997. The motions are denied. My reasons follow.

I. BACKGROUND

On August 2, 1996, the plaintiff filed suit against Resio S. Moses, former Secretary of External Affairs, Asterio A. Takesy, the current Secretary of External Affairs, and the national government. She makes various claims all stemming from what she alleges was her wrongful discharge from employment in Suva, Fiji, with the FSM Department of External Affairs. When the motions were filed, defendant Moses was the FSM Ambassador to the United Nations, and was stationed in New York City.

The plaintiff's first attempt at service on defendant Moses was by first class mail to his New York City address. The plaintiff's next attempt at service of the complaint and summons was made on September 27, 1996, by certified mail, return receipt requested, and delivery restricted to addressee sent to defendant Moses's New York City address by a Pohnpei police officer. Finally, on March 6, 1997, defendant Moses was personally served with the complaint and summons while on Pohnpei.

II. FIRST MOTION

Defendant Moses's first motion asserts that the complaint against him should be dismissed because the court lacks personal jurisdiction over him because he does not live in the FSM, has not been served with process in the FSM, and because the FSM long-arm jurisdiction does not apply to him. The motion did acknowledge that there was still time to cure the defect of insufficient service.

A. Residency

Defendant Moses' first argument relies on 6 F.S.M.C. 203, which provides that "[t]he Supreme Court may exercise personal jurisdiction in civil cases only over persons residing or found in the Federated States of Micronesia or who have been duly summoned and voluntarily appear, except as provided in Section 204 of this Chapter." Defendant Moses contends that he does not reside in the Federated States of Micronesia.

I consider the terms "resides in," "is a resident of," and "residence is in" to be roughly synonymous. I have difficulty believing that a citizen of the Federated States of Micronesia sent abroad to represent the nation as an ambassador is not a legal resident of some state in the Federated States of Micronesia even though he is temporarily stationed abroad. A person may have more than one place of residence. BLACK'S LAW DICTIONARY 1177 (5th ed. 1979). A person's legal residence is his "place of domicile or permanent abode, as distinguished from temporary residence." Id. at 897. I am therefore inclined to believe that defendant Moses does reside in the Federated States of Micronesia, and thus may be served process in any manner permitted by our rules. Service by certified mail is permitted under Civil Rule 4(d)(8).

I find support for this reasoning in the recent election of defendant Moses to Congress as a member representing Pohnpei. In order to be eligible for election to Congress, a person must, at the time of election, have been "a resident of the state from which he is elected for at least 5 years." FSM Const. art. IX, § 9.

B. Long-arm Strm Statute

Defendant Moses's second argument is that the FSM long-arm statute cannot be to assert personal jurisdiction over him either. First, he questions whether it could be apbe applied to him because, in his view, the long-arm statute only applies to persons who are neither citizens nor residents of the Federated States of Micronesia, and he is a citizen. In this contention he misreads the statute. It applies to "[a]ny person, corporation, or legal entity, whether or not a citizen or resident of the Federated States of Micronesia, who in person or through an agent does any of the acts enumerated in this Section . .㺼." 4 F.S.M.C. 204( 204(1). The long-arm statute thus applies to persons without regard to their citizenship or residence. It may be applied to an FSM citizen.

Defendant Moses also contends that he is not being sued for any of the causes of action enumerated in the long-arm statute, so the statute does not apply. The plaintiff's allegations are that defendant Moses, while Secretary of External Affairs at Palikir, on Pohnpei, wrongfully terminated her employment. This may fall under either subsection 204(1)(e) ("commission of a tortious act within the Federated States of Micronesia") or 204(1)(a) ("transaction of any business within the Federated States of Micronesia"). The plaintiff's allegations are within the long-arm statute.

Defendant Moses also contends that the plaintiff's service is ineffective under the long-arm statute. The service requirements of the long-arm statute are more stringent than those of our rules of civil procedure. Service of process may be by personal service. 4 F.S.M.C. 204(2). The service of summons must be made "in like manner as service within the Federated States of Micronesia by any officer or person authorized to make service of summons in the State or jurisdiction where the defendant is served." 4 F.S.M.C. 204(3). While defendant Moses was served "in like manner as service within the Federated States of Micronesia" he was not served "by any officer or person authorized to make service of summons in the jurisdiction where the defendant is served." He was served in New York City by certified mail sent by a Pohnpei police officer. That officer does not appear to be a person authorized to make service in New York City. I therefore conclude that defendant Moses was not properly served under the long-arm statute.

Although defendant Moses was not properly served under the long-arm statute, such service was unnecessary because as a resident of the Federated States of Micronesia service was effective under Civil Rule 4(d)(8).

III. SECOND MOTION

If any defects were present in the first two attempts at service they were cured by the third attempt - personal service on Pohnpei. Defendant Moses does not contend that this service would not be good service. Instead he contends that this service was invalid because it was not made within 120 days after the complaint was filed as required by Civil Rule 4(j). The rule states in pertinent part: "If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court's own initiative." FSM Civ. R. 4(j). Defendant Moses's argument must fail on two grounds.

Under Rule 4(j) the complaint can only be dismissed upon motion or the court's own initiative. Defendant Moses's motion was not made until after personal service was accomplished. It was thus too late. The court did not take any initiative to dismiss either. It did not send out a notice to the plaintiff that it was contemplating dismissal. Personal service was made on defendant Moses on Pohnpei before any Rule 4(j) notice, either by defendant's motion or by court notice, was given. The service was therefore good. The court therefore has personal jurisdiction over defendant Moses.

IV. CONCLUSION

Accordingly, both motions to dismiss are denied. Defendant Resio Moses shall file his answer within ten days of notice of this order. FSM Civ. R. 12(a)(1).

* * * *