Lee v Lee [2005] FMSC 25; 13 FSM Intrm. 252 (Chk. 2005) (20 May 2005)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite case as Lee v Lee, [2005] FMSC 25; 13 FSM Intrm. 252 (Chk. 2005)

DONG HUN LEE,
Plaintiff,

vs.

YONG YEE LEE, WON DON HAN and
WESLEY W. SIMINA,
Defendants.

__________________________________________

CIVIL ACTION NO. 2003-1023

ORDER GRANTING AND DENYING RELIEF FROM JUDGMENT

Dennis K. Yamase
Associate Justice

Decided: May 20, 2005

APPEARANCES:

For the Plaintiff:
Dong Hun Lee, pro se
1912-301 Munchon-Maul, 126 Juyeb-Dong, Islan-Gu
Goyang-City, Kyunggi-Do, KOREA

For the Defendants (Yong Yee Lee) (Won Dan Han):
Mun Su Park, Esq.
East-West Business Center, Suite 113
744 N. Marine Drive
Upper Tumon, Guam 96913

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HEADNOTES

Judgments - Relief from Judgment
When a party moves for relief from judgment under Civil Procedure Rule 60(b)(4) on the ground that the judgment was void, there is no requirement, as is usual when a default judgment is attacked under Rule 60(b), that the movant show that he has a meritorious defense. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 256 (Chk. 2005).

Civil Procedure
Although the court must first look to FSM sources of law rather than begin with a review of other courts’ cases, when it has not previously construed an FSM civil procedure rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 256 n.1 (Chk. 2005).

Judgments - Relief from Judgment
Unlike other grounds under Rule 60(b), the court does not have any discretion when relief from judgment is sought on the ground that the judgment was void because either a judgment is void or it is valid. A judgment is not void merely because it is erroneous. It is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 256 (Chk. 2005).

Jurisdiction - Personal
When a complaint and summons (the service of process) is not properly served on a defendant, the court does not have personal jurisdiction over that defendant. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 256 (Chk. 2005).

Judgments; Jurisdiction - Personal
A court which lacks personal jurisdiction over a defendant cannot enter a valid judgment against that defendant. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 256 (Chk. 2005).

Civil Procedure - Service
Service of process - service of the complaint and summons, with one exception, may not be effected by the plaintiff himself, but generally must be made by some authorized, disinterested person. The only method by which a plaintiff may himself serve a complaint and summons is by registered or certified mail, return receipt requested and delivery restricted to the addressee. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 256 (Chk. 2005).

Civil Procedure - Service
The alternatives for service of process upon persons in a foreign country do not permit a plaintiff himself to serve process. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 256 (Chk. 2005).

Civil Procedure - Service
Serving the complaint and summons by DHL Express does not comply with any of the permitted methods of service of process. DHL Express is not an authorized process server and service by DHL Express does not constitute service by mail. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 257 (Chk. 2005).

Civil Procedure - Service; Jurisdiction - Personal
A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived, if it is not raised either in the defendant’s answer or in a Rule 12 motion to dismiss made before the answer is filed. Objections to personal jurisdiction or to service of process must be raised in a timely fashion, i.e., as a party’s first pleading in the case, or they are waived. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 257 (Chk. 2005).

Civil Procedure - Service; Judgments - Relief from Judgment; Jurisdiction - Personal
When a defendant’s answer did not raise as a defense either lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process, he waived those defenses and a judgment against him is therefore not void on the ground of lack of personal jurisdiction over him or insufficiency of service of process upon him. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 257 (Chk. 2005).

Civil Procedure - Venue - Forum non Conveniens; Jurisdiction
A claim that civil matters should be dealt with in the defendant’s country and that since both he and the plaintiff were Koreans, the court should dismiss this case is an assertion of forum non conveniens. Forum non conveniens is not a claim that the court lacks jurisdiction over the case, but is a doctrine that the court may, as a matter of its discretion, decline jurisdiction and dismiss a case when the parties’ and the witnesses’ convenience and the ends of justice would be better served if the action were brought and tried in another forum in which the action could be heard. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 257 n.5 (Chk. 2005).

Civil Procedure - Service
For filings subsequent to the original complaint, every pleading, every paper relating to discovery, every written motion, notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. Service upon the party’s attorney or trial counselor or upon a party (if unrepresented) must be made by delivering a copy to that person or by mailing it to that person’s last known address. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 258 (Chk. 2005).

Civil Procedure - Service
Service of an the amended complaint on a defendant, who has already appeared in the case to plead or otherwise defend, was proper when the amended complaint was served by mail. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 258 (Chk. 2005).

Judgments - Relief from Judgment
When the only ground offered to justify relief from judgment is that the movant was not properly served the amended complaint and when the court has concluded that he was properly served the amended complaint by mail since he had already appeared in the case to plead or otherwise defend, the motion for relief from judgment must be denied. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 258 (Chk. 2005).

Civil Procedure - Default and Default Judgments
When a defendant’s sole action in the case was to file a paper that did not respond in any way to the original complaint, but disagreed with factual assertions in a co-defendant’s motion to dismiss and when he is a defendant against whom a judgment for affirmative relief is sought, he is in default since he has failed to plead or otherwise defend because the comment on the co-defendant’s motion did not constitute a pleading or a defense as otherwise provided by the civil procedure rules as it was not an answer to the plaintiff’s complaint (the only type of pleading the defendant could make) or a defense provided by the rules. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 258 (Chk. 2005).

Civil Procedure - Service
No service need to be made on the parties in default for failure to appear except that pleadings asserting new or additional claim for relief against them shall be served upon them in the manner provided for service of summons in Rule 4. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 258 (Chk. 2005).

Judgments - Relief from Judgment
When an amended complaint asserted additional factual claims, the defendant had to be served a summons with the amended complaint and the service had to be effected as would the service of any complaint and summons, and since he was served by ordinary mail, he was not properly served the amended complaint. The judgment based on the amended complaint is thus void as to him and a motion for relief from judgment will therefore granted as to him. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 258 (Chk. 2005).

Judgments - Relief from Judgment
On motion and upon such terms as are just, the court may relieve a party from a final judgment when the judgment is void. The court can order the plaintiff to serve the amended complaint and a summons issued by the court clerk on defendant being relieved from judgment by any means permissible under FSM Civil Procedure Rule 4 or 4 F.S.M.C. 204(2) or 4 F.S.M.C. 204(3) within a certain time. Lee v. Lee, [2005] FMSC 25; 13 FSM Intrm. 252, 259 (Chk. 2005).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

On December 10, 2004, the court granted the plaintiff’s unopposed motions and entered a summary judgment against defendant Yong Yee Lee and a default judgment against defendant Won Don Han. No just cause for delay being apparent, the clerk was directed to, and did, enter judgment against defendants Yong Yee Lee and Won Don Han, jointly and severally, for the sum of $344,561.64. FSM Civ. R. 54(b).

Defendants Yong Yee Lee and Won Don Han now move for relief from those judgments. Their ground for relief from judgment is that the judgment was based on the plaintiff’s amended complaint and they contend that the amended complaint was never properly served on them and that therefore the court lacked personal jurisdiction and thus could not issue a judgment against them. They further assert that they have a meritorious defense in that the contract upon which the plaintiff sued was entered into, allegedly on their behalf by the other defendant, Wesley Simina, but, they allege, without any authority from them to do so.

I. Procedural History

The plaintiff, Dong Hun Lee, filed his complaint and obtained summonses in this matter on August 20, 2003. According to his affidavits, filed September 9, 2003, the plaintiff personally served defendants Yong Yee Lee and Won Don Han the complaint and summons by dispatching separate copies by DHL Express to their respective addresses in the Republic of Korea. On September 30, 2003, defendant Yong Yee Lee filed his answer pro se. The answer referred to an attachment which was not attached to his answer. On October 29, 2003, defendant Wesley Simina filed a motion to dismiss the complaint against him for failure to state a claim (against him) upon which relief could be granted. On January 5, 2004, defendant Won Don Han filed pro se a paper, styled as an answer, but which did not respond to the plaintiff’s original complaint, but instead responded to Wesley Simina’s motion to dismiss.

On January 12, 2004, the plaintiff filed and served by mail his motion for leave to amend his complaint. On February 9, 2004, the court granted the motion and ordered the plaintiff to file and serve his amended complaint by March 15, 2004. The plaintiff filed his amended complaint on March 11, 2004. The certificate of service attached to the amended complaint stated that it was served on all defendants by mail on March 3, 2004. No summonses were served with the amended complaint. By court order, entered April 6, 2004, the defendants were given until May 1, 2004 to file their answers to the plaintiff’s amended complaint. Simina’s motion to dismiss was denied by court order entered on June 22, 2004, and he filed his answer to the amended complaint on June 24, 2004. On October 1, 2004, the plaintiff filed a certificate of service, dated September 24, 2004, showing service of the amended complaint on defendant Won Don Han. The receipt, printed in Korean (with no handwritten signature or postmark), purports to show service on Won Don Han by registered mail on August 9, 2004 at that defendant’s new address.

On October 11, 2004, the plaintiff filed his Request for Default Judgment Against Defendant Won Don Han and his Motion for Summary Judgment Against Defendant Yong Yee Lee (with supporting affidavit and exhibits). Both were, according to the attached certificate of service, served by mail on October 6, 2004. The motions were granted on December 10, 2004 and a judgment that defendants Yong Yee Lee and Won Don Han were jointly and severally liable for the sum of $344,561.64 was entered the same day.

II. Motion for Relief from Judgment

The ground upon which the movants seek relief from judgment may fairly be characterized as an assertion that the judgment is void. When a party moves for relief from judgment under Civil Procedure Rule 60(b)(4) on the ground that the judgment was void, there is no requirement, as is usual when a default judgment is attacked under Rule 60(b), that the movant show that he has a meritorious defense. 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2862, at 322-23 (2d ed. 1995).^[1] Furthermore, the court, also unlike other grounds under Rule 60(b), does not have any discretion when relief from ent is sought on the ground that the judgment was void. . Id. at 322.^[2] "Either a judgment is void or it is valid." Id. at 324. "A judgment is not void merely because it is erroneous. It is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law." Id. at 326-29 (footnotes omitted).

A. Personal Jurisdiction and Service of Process

The movants contend that the court had no personal jurisdiction over them because they were not properly served. When a complaint and summons (the service of process) is not properly served on a defendant, the court does not have personal jurisdiction over that defendant. Berman v. Santos, [1994] FMSC 31; 6 FSM Intrm. 532, 534 (Pon. 1994). "A court which lacks personal jurisdiction over a defendant cannot enter a valid judgment against that defendant." Broadcast Music, Inc. v. M.T.S. Enterprises, 811 F.2d 278, 281 (5th Cir. 1987).

The plaintiff himself served the original complaint and summons. Service of process - service of the complaint and summons, with one exception, may not be effected by the plaintiff himself, but generally must be made by some authorized,^[3] disinterested person. See, e.g., Simina v. Rayphand, [1999] FMCSC 16; 9 FSM Intrm. 500, 501 (Chk. S. Ct. Tr. 1999) (default judgment set aside when defendant was served the complaint and summons not by a policeman or some other specially appointed person in compliance with Civil Procedure Rule 4(c) but by plaintiff’s counsel) (construing similar rule in the Chuuk State Supreme Court). The only method by which a plaintiff may himself serve a complaint and summons is "by registered or certified mail, return receipt requested and delivery restricted to the addressee." FSM Civ. R. 4(d)(8).

There are alternatives for service of process upon persons in a foreign country. See FSM Civ. R. 4(i)(1); 4 F.S.M.C. 204(2)-(3). These also do not permit a plaintiff to serve process. Service of process under Rule 4(i)(1)(C) or 4(i)(1)(E) may be made by anyone not under the age of eighteen who is not a party. FSM Civ. R. 4(i)(1). Service of process under Rule 4(i)(1)(D) is made by the court clerk. Rule 4(i)(1)(B) only applies to service by letters rogatory, which by their nature, do not involve service by the plaintiff. Rule 4(i)(1)(A) permits service of process "in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction" and 4 F.S.M.C. 204(3)^[4] permits service of process "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." Nothing is before the court that would show that either Rule 4(i)(1)(A) or 4 F.S.M.C. 204(3) would apply - that a plaintiff in a Republic of Korea court would be permitted to serve his own process.

The plaintiff served the complaint and summons on the movants by DHL Express. This does not comply with any of the permitted methods of service of process. DHL Express is not an authorized process server and service by DHL Express does not constitute service by mail. See Magnuson v. Video Yesteryear, 85 F.3d 1424, 1430-31 (9th Cir. 1996) (service by Federal Express not service by mail); Transco Leasing Corp. v. United States, [1993] USCA5 1300; 992 F.2d 552, 554 n.2 (5th Cir. 1998) (service by Federal Express is not service by mail for determining when service is effective); Audio Enterprises v. B & W Loudspeakers of America, [1992] USCA7 188; 957 F.2d 406, 408-09 (7th Cir. 1992) (service of process in Canada by Federal Express is not service by mail; the court thus had no personal jurisdiction over defendant; complaint should have been dismissed for insufficiency of process). One reason why this should be so is apparent from this case. Service of process by mail is proper only if it is "by registered or certified mail," with a "return receipt requested and delivery restricted to the addressee." FSM Civ. R. 4(d)(8). There is no return receipt for service by DHL Express of the original complaint and summons signed by either of the movants. The court concludes that the service of the original complaint and summons was improper.

However, "[a] defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived," FSM Civ. R. 12(h)(1), if it is not raised either in the defendant’s answer or in a Rule 12 motion to dismiss made before the answer is filed. "[O]bjections to personal jurisdiction or to service of process must be raised in a timely fashion, i.e., as a party’s first pleading in the case, or they are waived." Broadcast Music, Inc., 811 F.2d at 281.

B. Defendant Yong Yee Lee

Defendant Yong Yee Lee filed his answer on September 30, 2003. That answer did not raise as a defense either lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process.^[5] By filing an answer that did not raise those defenses, Yong Yee Lee waived those defenses. The December 10, 2004 judgment is therefore not void on the ground of lack of personal jurisdiction over Yong Yee Lee or insufficiency of service of process upon him.

Yong Yee Lee asserts, not that the original complaint and summons (which he concedes that he received) was improperly served, but that the amended complaint was not properly served upon him. The motion merely makes the bald assertion that the service of the amended complaint was improper. It does not state a factual basis for this assertion. Nor does it state that Yong Yee Lee did not receive the amended complaint.

For filings subsequent to the original complaint "every pleading, every paper relating to discovery, every written motion, notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties." FSM Civ. R. 5(a). "[S]ervice upon the [party’s] attorney or trial counselor or upon a party [if unrepresented] shall be made by delivering a copy to that person or by mailing it to that person’s last known address . . . . Civ.(b. 5Acco According ting to the certificate of service, the amended complaint was served on Yong Yee Lee by mail^[6] on March 3, 2004. Yong Yee Les notm thadid notd not rece receive tive the amended complaint by mail. Nor does he offer any reason why this mailing should not constitute good service of the amended complaint upon him.

The court therefore concludes that Yong Yee Lee, having already appeared in the case to plead or otherwise defend, was properly served the amended complaint by mail. Since the only ground Yong Yee Lee offers to justify relief from judgment is that he was not properly served the amended complaint and since the court has concluded that he was properly served the amended complaint, the motion for relief from judgment must be denied as to Yong Yee Lee.

C. Defendant Won Don Han

Won Don Han comes before the court in a different posture. His sole action in this case was to file on January 5, 2004, a paper entitled "answer" that did not respond in any way to the original complaint, but disagreed with factual assertions in co-defendant Wesley Simina’s motion to dismiss. A defendant "against whom a judgment for affirmative relief is sought" is in default when he "has failed to plead or otherwise defend as provided by the [civil procedure] rules." FSM Civ. R. 55(a). Won Dan Han’s "answer" commenting on Simina’s motion does not constitute a pleading or a defense as otherwise provided by the civil procedure rules. It is not an answer to the plaintiff’s complaint. (The only type of pleading defendant Won Don Han could make. See FSM Civ. R. 7.) And it is not a defense provided by the civil procedure rules. Those defenses are listed in Civil Procedure Rule 12. Won Don Han was thus considered in default^[7] at the time the plaintiff filed his amended complaint.

"No service need to be made on the parties in default for failure to appear except that pleadings asserting new or additional claim for relief against them shall be served upon them in the manner provided for service of summons in Rule 4." FSM Civ. R. 5(a). The amended complaint asserted additional factual claims. Defendant Won Don Han therefore had to be served a summons with the amended complaint and the service had to be effected as would the service of any complaint and summons. It was not. Won Don Han was served by ordinary mail. He was thus not properly served the amended complaint. The December 10, 2005 judgment is thus void as to Won Don Han. The motion for relief from judgment is therefore granted as to Won Don Han. FSM Civ. R. 60(b)(4).

III. Conclusion

The original complaint and summons was not properly served on either movant. Yong Yee Lee waived any defense based on this improper service of process by failing to plead the defense when he answered the complaint. The amended complaint, to be properly served on him only had to be served by regular mail, which it was. Won Don Han never answered or otherwise defended against the original complaint. The amended complaint therefore had to be served on him in accordance with Civil Procedure Rule 4 (or 4 F.S.M.C. 204(2) or 204(3)) along with a summons. It was not.

Accordingly, the movants’ motion for relief from judgment is granted as to defendant Won Don Han and denied as to Yong Yee Lee. The December 10, 2004 judgment against Yong Yee Lee and Won Don Han is valid only against Yong Yee Lee. Since it was an invalid judgment against Won Don Han, the judgment as to him is vacated as is the December 7, 2004 entry of default against him. "On motion and upon such terms as are just, the court may relieve a party . . . from a fiudgment . .160;. . for the following ns: .&#: . . . (4) the judgis void .&#16. . . ." FSM C. 60(b). If it seem seems advisable to the plaintiff, he may serveamendmplaid a summons issy the court clerk on defendanendant Wont Won Don Han by any means permissible unde under FSer FSM Civil Procedure Rule 4 or 4 F.S.M.C. 204(2) or 4 F.S.M.C. 204(3) within 90 days of entry of this order. Otherwise, the case against Won Don Han will be dismissed.

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^[1] Although the court must first look to FSM sources of law rather than begin with a review of other courts’ cases, FSM Const. art. XI, §;11, when iten it has not previously construed an FSM civil procedure rule which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting ule. Bualuay v. Rano, 11 F 11 FSM Intrm. 139, 146 n.1 (App. 2002); Senda v. Mid-Pacific Constr. Co., [1994] FMSC 20; 6 FSM Intrm. 440, 444 (App. 1994). Rule 60(b)(4) has not previously been interpreted although other subsections of Rule 60(b) have often been construed.

^[2] See also Amayo v. MJ Co., [2001] FMSC 32; 10 FSM Intrm. 371, 377 (Pon. 2001) ("With the exception of void judgments under Rule 60(b)(4), the grant or denial of relief under Rule 60 of the FSM Rules of Civil Procedure rests with the sound discretion of the trial court."), rev’d on other grounds sub nom., Panuelo v. Amayo, [2004] FMSC 13; 12 FSM Intrm. 365 (App. 2004).

^[3] U.S. Civil Procedure Rule 4 was amended in 1983 to allow any person not a party to serve process Ä to serve the complaint and summons. See Jugolinija v. Blue Heaven Mills, Inc., 115 F.R.D. 13, 15 (S.D. Ga. 1986). The FSM Supreme Court has not made a similar revision to its rules.

^[4] Under 4 F.S.M.C. 204(2), "[s]ervice of process may be made upon any person subject to the jurisdiction of the Supreme Court under this section [204] by personally serving the summons upon the defendant outside the Federated States of Micronesia." It is undisputed that neither movant was personally served any paper in this lawsuit. Service was always effected either by DHL Express or through the mail.

^[5] His answer did raise a general claim that civil matters should be dealt with in the defendant’s country and that since both he and the plaintiff were Koreans, the court should dismiss this case. This is an assertion of forum non conveniens. Forum non conveniens is not a claim that the court lacks jurisdiction over the case, but is a doctrine that the court may, as a matter of its discretion, decline jurisdiction and dismiss a case when the parties’ and the witnesses’ convenience and the ends of justice would be better served if the action were brought and tried in another forum in which the action could be heard. BLACK’S LAW DICTIONARY 589 (5th ed. 1979). Yong Yee Lee did not pursue this with an appropriate motion and supporting points and authorities.

^[6] The motion to for leave to amend the complaint with the proposed amended complaint attached had earlier been served the same way.

^[7] The clerk did enter a default against Won Don Han on December 7, 2004.