FSM SUPREME COURT TRIAL DIVISION

Cite as Nakamura v. Mori, 16 FSM Intrm. 262 (Chk. 2009)

[16 FSM Intrm 262]

VALERIO NAKAMURA and TOROPIO NAKAMURA,

Plaintiffs,

vs.

MINORU R. MORI, in his official capacity as State

Manager of the FEDERATED STATES OF

MICRONESIA TELECOMMUNICATIONS

CORPORATION-CHUUK, and FEDERATED STATES

OF MICRONESIA TELECOMMUNICATIONS

CORPORATION,

Defendants/Third-Party Plaintiffs,

vs.

STATE OF CHUUK,

Third-Party Defendant.

CIVIL ACTION NO. 2007-1009

ORDER DENYING LEAVE TO FILE FIRST AMENDED COMPLAINT

Ready E. Johnny

Associate Justice

Decided: January 27, 2009
 

APPEARANCES:

For the Plaintiffs:                           Salomon M. Saimon, Esq.

                                                      Micronesian Legal Services Corp.

                                                      P.O. Box D

                                                      Weno, Chuuk FM 96942
 

For the Defendants:                       Stephen V. Finnen, Esq.

                                                      P.O. Box 1450

                                                      Kolonia, Pohnpei FM 96941
 

For the Third-Party Defendant:    Joses Gallen, Esq.

                                                     Attorney General

                                                     Office of the Chuuk Attorney General

                                                     P.O. Box 1050

                                                     Weno, Chuuk FM 96942


 

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[16 FSM Intrm 263]

HEADNOTES

Civil Procedure ) Pleadings ) Amendment

    When only two parties were named as defendants in the original complaintís caption, but a third was clearly named as a defendant in the complaintís text and it was served a separate summons, the third is a party-defendant because the failure to name a party as a defendant in the caption does not mean the action cannot be maintained against that party if the complaint makes a number of explicit references to that party and that party was served since a captionís technical defects can always be amended. Nakamura v. Mori, 16 FSM Intrm. 262, 266 n.1 (Chk. 2009).

Civil Procedure ) Pleadings ) Amendment

    In the absence of undue delay, bad faith or dilatory motive on the movantís part; or the movantís repeated failure to cure deficiencies by amendments previously allowed; or undue prejudice to the opposing party by virtue of the amendmentís allowance; or futility of amendment, leave to amend should, as the rule requires, be freely given. Nakamura v. Mori, 16 FSM Intrm. 262, 266-67 (Chk. 2009).

Civil Procedure ) Pleadings

    The amount of damages a plaintiff requests in the complaintís ad damnum clause does not limit the amount which a plaintiff may be awarded, even without an amendment to the ad damnum clause. The one exception is that a default judgment cannot exceed in amount that prayed for in the demand for judgment, although, in a default judgment, the court may determine that the damages are less than the amount prayed for. Nakamura v. Mori, 16 FSM Intrm. 262, 267 (Chk. 2009).

Civil Procedure ) Pleadings

    An ad damnum clause is a partyís statement at the end of a pleading of the monetary amount claimed due to the party as damages by virtue of the facts stated. Nakamura v. Mori, 16 FSM Intrm. 262, 267 n.2 (Chk. 2009).

Civil Procedure

    When the court has not previously construed an FSM civil procedure rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting the rule. Nakamura v. Mori, 16 FSM Intrm. 262, 267 n.3 (Chk. 2009).

Civil Procedure ) Parties; Civil Procedure ) Pleadings ) Amendment

    Since joint tortfeasors are not indispensable parties, leave to amend a complaint to drop an alleged joint tortfeasor from the suit should be freely given. Nakamura v. Mori, 16 FSM Intrm. 262, 267 (Chk. 2009).

Civil Procedure ) Pleadings ) Amendment

    Leave is freely given to amend complaints to change the theory of recovery and to add new claims when those new theories and claims are based upon the same facts and occurrences that were pled in the original complaint. Nakamura v. Mori, 16 FSM Intrm. 262, 268 (Chk. 2009).

Civil Procedure ) Pleadings ) Amendment

    Since a plaintiff need not advance a legal theory or, if the plaintiff does advance one, it need not be correct, and since every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the partyís pleadings, defendants generally will not be prejudiced by an amendment adding new claims or causes of action based on the same factual allegations as the original complaint. Nakamura v. Mori, 16 FSM Intrm. 262, 268 (Chk. 2009).

[16 FSM Intrm 264]

Civil Procedure ) Pleadings; Torts ) Damages ) Punitive

    Although, for punitive damages to be awarded, there must be evidence of gross negligence, it is not necessary for such proof to be set forth in the complaint. Nakamura v. Mori, 16 FSM Intrm. 262, 268 (Chk. 2009).

Civil Procedure ) Pleadings ) Amendment; Torts ) Negligence

    A negligence cause of action may be amended to add a punitive damages claim subject to proof at trial and, in the absence of such proof, the defendants may move to disallow any punitive damages award. Nakamura v. Mori, 16 FSM Intrm. 262, 268 (Chk. 2009).

Agency; Civil Procedure ) Parties; Torts ) Respondeat Superior

    When confronted with a situation where a principal may be held vicariously liable for its agentís acts, a plaintiff, at the plaintiffís option, may sue either the principal, the agent, or both. Thus, an agent is not an indispensable or necessary party to a vicarious liability claim against the principal. Nakamura v. Mori, 16 FSM Intrm. 262, 268 (Chk. 2009).

Agency; Civil Procedure ) Pleadings ) Amendment; Torts ) Respondeat Superior

    Since an agent is not an indispensable party to a vicarious liability claim against the principal, the principal would not be prejudiced if leave were granted to amend the complaint against it to include a vicarious liability claim against it for an agentís acts even if the plaintiffs do not also sue the agent. Nakamura v. Mori, 16 FSM Intrm. 262, 268 (Chk. 2009).

Torts ) Strict Liability

    Strict liability arises where the activity performed is not merely dangerous, but abnormally dangerous, so that one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

Civil Procedure ) Pleadings ) Amendment

    A motion to amend a complaint may be denied if it is futile. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

Civil Procedure ) Pleadings ) Amendment; Torts ) Strict Liability

    When there is nothing inherently abnormally dangerous about road drainage systems, a proposed amendment to add a strict liability claim for damages from a road drainage system would be denied as futile since it would not be able to withstand a summary judgment motion. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

Torts ) Nuisance

    Nuisance is a cause of action involving a substantial interference with oneís use and enjoyment of oneís land caused by anotherís intentional and unreasonable conduct, or anotherís unintentional negligent or reckless conduct, or anotherís performance of abnormally dangerous conduct. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

Civil Procedure ) Pleadings ) Amendment; Torts ) Nuisance

    When the original complaint alleged that the defendantsí negligence damaged the plaintiffsí property and interfered with their use and enjoyment of their dwelling, the defendants will not be prejudiced by an amended complaint including a nuisance theory of recovery. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

[16 FSM Intrm 265]

Civil Procedure ) Pleadings ) Amendment; Torts ) Infliction of Emotional Distress

    When, in the original complaint, the plaintiffs sought damages for pain and suffering, they inartfully pled an emotional distress claim, and a clarification of this claim in an amended complaint will not prejudice the defendants. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

Civil Procedure ) Dismissal; Civil Procedure ) Service; Jurisdiction ) Personal

    Rule 4(j) provides that if service of the summons and complaint is not made on a defendant within 120 days after the filing of the complaint, the action will be dismissed as to that defendant without prejudice upon motion or on the courtís own initiative, but dismissal for lack of service is also possible under Rule 41(b). A case against a defendant may be dismissed under Rule 41(b) for lack of personal jurisdiction over that defendant, that is, because that defendant was never properly served the summons and complaint and the court thus never acquired personal jurisdiction over that defendant. Dismissal under Rule 41(b) for lack of jurisdiction is without prejudice. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

Civil Procedure ) Pleadings ) Amendment; Civil Procedure ) Service

    An attempt to reinstate a defendant dismissed for lack of service by including it in an amended complaint after it has been dismissed, cannot be considered a motion to amend the complaint to add a new party but must be considered, at least as far as the dismissed defendant is concerned, to be a motion to reinstate a party earlier dismissed for lack of service of process on that party, in other words, a motion to enlarge time to effect service on the dismissed defendant. Nakamura v. Mori, 16 FSM Intrm. 262, 270 (Chk. 2009).

Civil Procedure ) Pleadings ) Amendment; Civil Procedure ) Service

    Rule 15 (amendment of pleadings and relation back) cannot be used to subvert the principles that underlie Rule 4(j) ) prompt service of process. The purpose of allowing complaints to be amended is to enable the pleadings to be conformed to the developing evidence rather than to extend the time for service indefinitely. Nakamura v. Mori, 16 FSM Intrm. 262, 270 (Chk. 2009).

Civil Procedure ) Pleadings ) Amendment; Civil Procedure ) Service

    Rule 4(j) is intended to force parties and their attorneys to be diligent in prosecuting their causes of action. Filing an amended complaint does not justify the lack of prior service of process on a defendant in a multi-defendant case. The normal and expected procedure is to serve the unserved defendant first and then amend the complaint. Nakamura v. Mori, 16 FSM Intrm. 262, 270 (Chk. 2009).

Civil Procedure ) Service

    Time to serve a summons and complaint on a defendant may be enlarged for good cause shown if the enlargement is sought before the 120-day period has expired, or for excusable neglect if sought after the 120-day period has passed. Nakamura v. Mori, 16 FSM Intrm. 262, 270 (Chk. 2009).

Civil Procedure ) Pleadings ) Amendment; Civil Procedure ) Service

    When the plaintiffs offer no explanation whatsoever why they did not, at anytime, serve the summons and complaint on a defendant later dismissed for lack of service or why they never sought additional time to serve that defendant, the court will not give the plaintiffs leave to file a proposed first amended complaint that includes the previously-dismissed party-defendant. Nakamura v. Mori, 16 FSM Intrm. 262, 270 (Chk. 2009).

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[16 FSM Intrm 266]

COURTíS OPINION

READY E. JOHNNY, Associate Justice:

The plaintiffsí motion to amend their complaint is denied for the reasons that follow.

I. Motion to Amend Complaint

    The plaintiffs, Valerio Nakamura and Toropio Nakamura, move to amend their complaint. The Nakamuras seek to reinstate, as a defendant, BS Company (previously dismissed as a party); to drop Minoru R. Mori, in his official capacity as State Manager of the FSM Telecommunications Corporation-Chuuk as a party-defendant; to add as separate causes of action or new claims, those for punitive damages, vicarious liability, strict liability, nuisance, and emotional distress; and to add a prayer for $1 million in general damages.

    The Federated States of Micronesia Telecommunications Corporation ("Telecom") and Minoru R. Mori in his official capacity as State Manager of the Federated States of Micronesia Telecommunications Corporation-Chuuk oppose the motion to amend the complaint. They contend that the amendment will cause further delay because, if allowed, they would then have to serve the third-party defendant with a new third-party complaint. They consider the proposed amended complaint to be a ploy by the Nakamuras to get another chance to serve a party that had already been dismissed and against which, in the defendantsí view, the applicable statute of limitation, 6 TTC 303, ran out after that dismissal. They assert that, although there is no "relation back" problem with BS Company because it was named in the original complaint, the statute of limitations continued to run after it was dismissed. They also assert that, without BS Company as a party, the vicarious liability claim against Telecom must fail because the vicarious liability count seeks to hold Telecom vicariously liable for BS Companyís alleged negligence.

    The defendants also object to the presentation of a number of new legal theories. They further object to the emotional distress claim, which in their view, is the basis for the Nakamurasí damage claim going from $7,418 in property damages to general damages $1 million.

    The Nakamuras, in their reply to the defendantsí opposition, contend that the statute of limitation that the defendants rely upon was repealed by the Chuuk Sovereign Immunity Act of 2000, Chk. S.L. No. 5-01-39, and that, under that Act, any suit against BS Company is still timely.

II. Standard for Leave to Amend Complaint

    Civil Rule 15(a) states that leave to amend the complaint "shall be freely given when justice so requires." Arthur v. FSM Dev. Bank, 14 FSM Intrm. 390, 394 (App. 2006); Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 (App. 2000). In the absence of undue delay, bad faith or dilatory motive on the movantís part; or the movantís repeated failure to cure deficiencies by amendments previously

[16 FSM Intrm 267]

allowed; or undue prejudice to the opposing party by virtue of the amendmentís allowance; or futility of amendment, leave to amend should, as the rule requires, be "freely given." Primo, 9 FSM Intrm. at 413. The ruleís purpose is to provide maximum opportunity for each claim to be decided on the merits rather than on procedural technicalities. Arthur, 14 FSM Intrm. at 394.

III. Amendments Sought

A. Amount of Damages

    The original complaint demanded "damages according to proof" and attached an accounting of $7,418 in property damages. The proposed amended complaint seeks $1 million.

    Under our Rules of Civil Procedure, the amount of damages a plaintiff requests in the complaintís ad damnum clause does not limit the amount which a plaintiff may be awarded, even without an amendment to the ad damnum clause. FSM Civ. R. 54(c) ("every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the partyís pleadings"); see also Troutman v. Modlin, 353 F.2d 382, 385 (8th Cir. 1965); Riggs, Ferris & Gerr v. Lilibridge, 316 F.2d 60, 61-63 (2d Cir. 1963); Craven v. Associated Transp., Inc., 40 F.R.D. 8, 11-21 (D.S.C. 1966) (cases interpreting U.S. Fed. R. Civ. P. 54(c) which is identical to FSM Rule 54(c)). The one exception is that a default judgment cannot "exceed in amount that prayed for in the demand for judgment," FSM Civ. R. 54(c), although, in a default judgment, the court may determine that the damages are less than the amount prayed for, see, e.g., Pohl v. Chuuk Public Utility Corp., 13 FSM Intrm. 550, 553-54 (Chk. 2005). Except for a sum certain or a sum that is reasonably calculable, the dollar amount demanded in the prayer for relief is relatively meaningless except to limit the recovery possible in a judgment by default. Thus, change to a general demand for $1 million will not prejudice any defendant because, either way, the Nakamuras can only be awarded such damages as are proven.

B. Dropping a Party

    The Nakamurasí seek to drop Minoru Mori as a party-defendant. Since joint tortfeasors are not indispensable parties, e.g., Samaha v. Presbyterian Hosp., 757 F.2d 529, 531 (2d Cir. 1985), leave to amend a complaint to drop an alleged joint tortfeasor from the suit should be freely given, id. The defendants have not asserted any prejudice or that Mori is an indispensable party. The Nakamuras may amend their complaint to drop Mori as a party-defendant.

C. New Claims or Causes of Action

    The Nakamuras also seek to plead new theories of recovery ) punitive damages, vicarious

[16 FSM Intrm 268]

liability, strict liability, nuisance, and emotional distress. Leave is freely given to amend complaints to change the theory of recovery and to add new claims when those new theories and claims are based upon the same facts and occurrences that were pled in the original complaint. Since a plaintiff need not advance a legal theory or, if the plaintiff does advance one, it need not be correct, FSM v. Kana Maru No. 1, 14 FSM Intrm. 368, 373 (Chk. 2006); Annes v. Primo, 14 FSM Intrm. 196, 203 (Pon. 2006); Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 114 (Chk. 1995), and since "every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the partyís pleadings," FSM Civ. R. 54(c), defendants generally will not be prejudiced by an amendment adding new claims or causes of action based on the same factual allegations as the original complaint. The Nakamuras new claims are analyzed below.

1. Punitive Damages

    The Nakamuras seek to add a claim for punitive damages. Although, for punitive damages to be awarded, there must be evidence of gross negligence, it is not necessary for such proof to be set forth in the complaint. Leatherman v. Pollard Trucking Co., 482 F. Supp. 351, 354 (E.D. Okla. 1978). Thus, a negligence cause of action may be amended to add a punitive damages claim subject to proof at trial and, in the absence of such proof, the defendants may move to disallow any punitive damages award. Id. at 354-55. Thus, leave my be given for the Nakamuras to add a punitive damages claim.

2. Vicarious Liability

    The Nakamuras also seek to add a vicarious liability cause of action against Telecom. They seek to prove that Telecom is vicariously liable for any work done on the Mt. Tonachau road and drainage system by Telecomís contractor and agent, BS Company. Telecom objects to this proposed amendment on the ground that, in its view, it would be futile to reinstate BS Company as a party-defendant because the statute of limitations has run to sue BS Company for the emotional distress claim.

    However, whether leave should be granted to amend the complaint to include a vicarious liability claim against Telecom does not depend on whether BS Company can be reinstated as a party-defendant. When confronted with a situation where a principal may be held vicariously liable for its agentís acts, a plaintiff, at the plaintiffís option, may sue either the principal, the agent, or both. Thus, the agent, here alleged to be BS Company, is not an indispensable or necessary party to a vicarious liability claim against the principal. See, e.g., Nottingham v. General Am. Communications Corp., 811 F.2d 873, 880 (5th Cir. 1987) (joinder of principal and agent not required); Hall v. National Serv. Indus., Inc.,172 F.R.D. 157, 159 (E.D. Pa. 1997) (employee is not a necessary party to suit against employer under respondeat superior); Murphy v. Newport Waterfront Landing, Inc., 806 F. Supp. 322, 325 (D.R.I. 1992) (employee not indispensable party to respondeat superior suit against employer); Bausch v. Philatelic Leasing, Ltd., 728 F. Supp. 1201, 1209 (D. Md. 1989) (principals and agents are not indispensable parties); Willis v. Semmes, Bowen & Semmes, 441 F. Supp. 1235, 1246 (E.D. Va. 1977) (agent not indispensable party even if agency theory advanced); Yamane v. Pohlson, 137 P.3d 980, 990 (Haw. 2006) (employee not necessary party to suit against employer under respondeat superior); Market Tavern, Inc. v. Bowen, 610 A.2d 295, 305 (Md. Ct. Spec. App. 1992) (employee need not be named or joined to hold employer vicariously liable). BS Company, as Telecomís alleged agent, is therefore not an indispensable party to a vicarious liability claim against Telecom for BS Companyís alleged acts. Thus, Telecom, the principal, would not be prejudiced if leave were granted to amend the complaint against it to include a vicarious liability claim against it for BS Companyís acts even if the Nakamuras do not also sue BS Company.

[16 FSM Intrm 269]

3. Strict Liability

    The Nakamuras also seek to add a strict liability claim. Strict liability arises where the activity performed is not merely dangerous, but abnormally dangerous, so that one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 535 (Pon. 1998).

    A motion to amend a complaint may be denied if it is futile. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 87 (App. 1999). Since there is nothing inherently abnormally dangerous about road drainage systems, this proposed amendment appears to be futile since it would not be able to withstand a summary judgment motion. See, e.g., Wilson v. American Trans Air, Inc., 874 F.2d 386, 391-92 (7th Cir. 1989) (amendment properly denied as futile when amendment would not have survived summary judgment motion).

4. Nuisance

    Nuisance is a cause of action involving a substantial interference with oneís use and enjoyment of oneís land caused by anotherís intentional and unreasonable conduct, or anotherís unintentional negligent or reckless conduct, or anotherís performance of abnormally dangerous conduct. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a, 262h (Pon. 2002). Since the original complaint alleged that the defendantsí negligence damaged the Nakamurasí property and interfered with their use and enjoyment of their dwelling, the defendants will not be prejudiced by an amended complaint including a nuisance theory of recovery.

5. Emotional Distress

    The Nakamuras also seek to include an emotional distress claim. When, in the original complaint, the Nakamuras sought damages for pain and suffering, they inartfully pled an emotional distress claim. A clarification of this claim in an amended complaint will not prejudice the defendants.

D. Reinstatement of BS Company as Party-Defendant

    When this case was filed on September 19, 2007, BS Company was named as a defendant. One hundred eighty-three days later on March 20, 2008, the clerk sent the Nakamuras a notice that if steps were not taken to prosecute the case against BS Company by April 21, 2008, the case against BS Company was subject to dismissal for lack of prosecution. Since BS Company was never served the complaint and summons, the clerk may have erred in citing Rule 41(b) (dismissal for lack of prosecution) instead of Rule 4(j) (dismissal without prejudice for lack of service). But the Nakamuras never took any steps to prosecute the case against BS Company ) to serve the complaint and summons on BS Company.

    On April 28, 2008 (222 days after the complaint was filed), the court dismissed BS Company as a party-defendant, again citing Rule 41(b) instead of Rule 4(j). Civil Rule 4(j) is usually the applicable rule. Rule 4(j) provides that "[i]f 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 courtís own initiative." But dismissal for lack of service is also possible under Rule 41(b). A case against a defendant may be dismissed under Rule 41(b) for lack of personal jurisdiction over that defendant ) that is, because that defendant was never properly served the summons and complaint and the court thus never acquired personal jurisdiction over that defendant. Dismissal under Rule 41(b) for lack of jurisdiction is without prejudice. FSM Civ. R. 41(b) ("a dismissal

[16 FSM Intrm 270]

under this subdivision . . . other than a dismissal for lack of jurisdiction . . . operates as an adjudication upon the merits"); see also Compagnie des Bauxites de Guinee v. LíUnion Atlantique S.A. díAssurances, 723 F.2d 357, 360 (3d Cir. 1983) ("dismissal for want of in personam jurisdiction is not a judgment on the merits").

    BS Company was dismissed because the Nakamuras failed to serve the summons and complaint on it and the court thus lacked personal jurisdiction over BS Company. The Nakamuras, even after the clerkís March 20, 2008 notice, did not serve the summons and complaint on BS Company or seek additional time within which to serve BS Company. Thus, the Nakamurasí attempt to reinstate BS Company by including it in an amended complaint after BS Company has been dismissed, cannot be considered a motion to amend the complaint to add a new party. The court must consider, at least as far as BS Company is concerned, this to be a motion to reinstate a party earlier dismissed for lack of service of process on that party ) in other words, it is a motion to enlarge time to effect service on defendant BS Company.

    Rule 15 (amendment of pleadings and relation back) cannot be used to subvert the principles that underlie Rule 4(j) ) prompt service of process. Bachenski v. Flash Cab Co., No. 91 C817, 1992 WL 71799 at *1-2 (N.D. Ill. 1992). "The purpose of allowing complaints to be amended is to enable the pleadings to be conformed to the developing evidence rather than to extend the time for service indefinitely." Del Raine v. Carlson, 826 F.2d 698, 705 (7th Cir. 1987) (the 120 days does not start running again from when the amended complaint is served). Rule 4(j) "is intended to force parties and their attorneys to be diligent in prosecuting their causes of action." Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir. 1985) ("desire to amend complaint before effecting service does not constitute good cause"). Filing an amended complaint does not justify the lack of prior service of process on a defendant in a multi-defendant case. Excalibur Oil, Inc. v. Gable, 105 F.R.D. 543, 544 n.4 (N.D. Ill. 1985). The normal and expected procedure would have been to serve the unserved defendant first and then amend the complaint. Id.

    Time to serve a summons and complaint on a defendant may be enlarged for good cause shown if the enlargement is sought before the 120-day period has expired, or for excusable neglect if sought after the 120-day period has passed. FSM Civ. R. 6(b). Although they devote considerable effort in their motion discussing the standard for a motion to amend, the Nakamuras expend little effort on why this particular proposed amended complaint should be allowed. They offer no explanation whatsoever why they did not serve the summons and complaint on BS Company at anytime after September 19, 2007, or why they never sought additional time to serve BS Company.

    Since the proposed first amended complaint includes a previously-dismissed party-defendant, the court cannot give the Nakamuras leave to file and serve it. It is therefore unnecessary to reach the issue of whether a statute of limitations would bar one or more cause of action against BS Company. Accordingly, the December 30, 2008 motion to amend the plaintiffsí complaint is denied. The plaintiffs may move again for leave to amend their complaint, if they do so by February 13, 2009.

IV. Conclusion

    Accordingly, the Nakamurasí motion to file a first amended complaint is denied. They have until February 13, 2009, to again seek leave to file an amended complaint in conformity with this order.

___________________________

Footnotes:

1. Although only Minoru Mori and BS Companywere named as defendants in the caption of the original complaint, the FSM Telecommunications Corporation was clearly named as a defendant in the complaintís text and it was served a separate summons. Because a captionís technical defects can always be amended, the failure to name a party as a defendant in the caption does not mean the action cannot be maintained against that party if the complaint makes a number of explicit references to that party and that party was served. Moses v. Oyang Corp., 10 FSM Intrm. 210, 212 (Chk. 2001). FSM Telecommunications Corporation is thus a party-defendant.

2. An ad damnum clause is a partyís statement at the end of a pleading of the monetary amount claimed due to the party as damages by virtue of the facts stated.

3. When the court has not previously construed an FSM civil procedure rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting the rule. See, e.g., Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994).

4. Some jurisdictions have even abolished the practice of using general ad damnum clauses. See, e.g., In re Shell Oil Co., 970 F.2d 355, 356-57 (7th cir. 1992) (citing Ill. Rev. St. ch. 110, ∂ 2-604); Tyan v. Nelson, 686 N.E.2d 484, 486 n.7 (Mass. App. Ct. 1997) (citing Mass. Gen. L. ch. 231, ß 13B).

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