Rodale's Scuba Diving Magazine v Billimon [1997] FMSC 9; 8 FSM Intrm. 018 (Chk. 1997) (31 January 1997)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 1996-1052

RODALE'S SCUBA DIVING MAGAZINE,
Plaintiff,

vs.

OSHIRO K. BILLIMON and MERELY S.
BILLIMON, formerly d/b/a CHUUK STAR
HOTEL, and TRUK INVESTMENT, INC.,
Defendants.

ORDER

Richard H. Benson
Associate Justice

Decided: January 31, 1997

APPEARANCE:

For the Plaintiff: Michael A. White, Esq.
White, Pierce, Mailman & Nutting
P.O. Box 5222
Saipan, MP 96950

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HEADNOTE

Civil Procedure - Service
For personal service of a complaint and summons to be effective when the defendant refuses to accept the papers the complaint and summons must be left where they might reasonably be found and the process server must make an attempt to describe generally the meaning of the papers in a language the defendant can understand. Rodale's Scuba Diving Magazine v. Billimon, 8 FSM Intrm. 18, 19 (Chk. 1997).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

I have before me the Plaintiff's Request to Enter Default, an Affidavit for Entry of Default, and a Memorandum in Support of Request to Enter Default with attached letter (Ex. A) of the police officer who acted as the process server. Also included is a request for a default judgment, jointly and severally, against all three defendants. No defendant has filed an answer or otherwise defended the First Amended Complaint filed on September 16, 1996.

Chuuk State Police Officer Pastor Mesenty's letter (Ex. A) and his Return of Service contained in the file indicate that Levy Bamadera, the manager of the Chuuk Star Hotel was served with a copy of the First Amended Complaint and Summons on September 26, 1996. The Amended Complaint alleges that Truk Investment, Inc. is the current owner of the hotel and the Memorandum states that the manager of the Chuuk Star Hotel is a "managing or general agent" of that corporation. Because nothing irregular appears on the face of any of these documents I conclude that the Clerk may enter a default and a default judgment against defendant Truk Investment, Inc.

The police officer's letter and Returns of Service indicate that in October, 1996 he twice attempted to personally serve the other two defendants, Oshiro and Merely S. Billimon, but that both times they refused to accept the documents from him. Plaintiff's Memorandum cites a number of U.S. cases interpreting American rules, similar to our FSM rule, that a defendant cannot defeat good personal service by simply refusing to accept the papers when the process server offers them. In the cases cited, Davis v. Musler, [1983] USCA2 737; 713 F.2d 907 (2d Cir. 1983); Wood v. Weening, 736 P.2d 1053 (Utah Ct. App. 1987); Business & Professional Adjustment Co. v. Baker, 659 P.2d 1025 (Or. Ct. App. 1983); United Life Ins. Co. v. Discount Co., 550 P.2d 699 (Wash. Ct. App. 1976), the process servers, once they had told the defendant, or a resident of suitable age at the defendant's dwelling, that they had legal papers for the defendant and were refused, left a copy of the complaint and summons on the premises where the defendant might easily find it. I cannot tell from the papers on file whether this was done for the Billimon defendants. Furthermore, our service rule differs from American rules in that it also requires that "[r]easonable attempts shall be made by the person serving the summons and complaint to assure that the person served understands the meaning of the summons and complaint." FSM Civ. R. 4(d)(1). This is generally taken to mean that an oral explanation should be given in a language understood by the person being served. See Rawepi v. Billimon, [1986] FMSC 13; 2 FSM Intrm. 240, 241 (Truk 1986). I therefore conclude that for personal service to be effective when the defendant refuses to accept the papers the complaint and summons must be left where they might reasonably be found and the process server must make an attempt to describe generally the meaning of the papers in a language the defendant can understand. This description should probably include the name of the court in which the suit is filed.

I cannot tell from the filings before me that this was done. I can assume that the complaint and summons were not left the first time the Billimon defendants refused to accept service; otherwise the police officer would not have had them the second time he tried to effect service. Perhaps the complaint and summons were left after the second attempt and perhaps the police officer made a reasonable attempt to explain their meaning to the Billimon defendants. I do not know. Therefore I will allow the plaintiff forty-five days from the entry of this order within which to either show that personal service had been effected in October (i.e., the complaint and summons were left where they might easily be found and a reasonable attempt to explain their content in a language understood by the defendants) or to effect personal service of the complaint and summons on the Billimon defendants.

The Clerk shall enter a default and default judgment against Truk Investment, Inc. and take no action at this time on the request for entry of default against defendants Oshiro and Merely Billimon.

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