[24 FSM R. 37]

CIVIL ACTION NO. 2022-3005

Decided: February 2, 2023

APPEARANCES:

For the Plaintiff:         Michael J. Sipos, Esq.
                                  P.O. Box 2069
                                  Kolonia, Pohnpei FM 96941

HEADNOTES

Civil Procedure – Pleadings – Answer; Jurisdiction – Personal – Long-Arm

The court's ability to exercise personal jurisdiction over defendants in a foreign country is through the FSM long-arm statute, under which, a defendant has 30 days to file a response to a complaint and summons. Pacific Islands Dev. Bank v. Estate of Alfonso, 24 FSM R. 37, 38 (Yap 2023).

Civil Procedure – Pleadings – Answer; Jurisdiction – Personal – Long-Arm

The 30-day limit in 4 F.S.M.C. 204(3) for service of process takes precedence over the 20-day limit in Civil Procedure Rule 12(a) since a statute takes precedence over the procedural rules because, while the chief justice has the power to promulgate procedural rules, the rules may be amended by statute, the chief justice does not have the power to amend a statute, so when Congress has enacted a procedural rule, it is valid. Pacific Islands Dev. Bank v. Estate of Alfonso, 24 FSM R. 37, 39 n.1 (Yap 2023).

Civil Procedure – Service of Process; Jurisdiction – Personal – Long-Arm

When the summons informed the defendants that they had only 20 days to answer the complaint, but the long-arm statute grants them 30 days, the summons was defective and the service of process on those defendants was improper. The long-arm statute's service requirements are more stringent than those of the civil procedure rules because service must be made by an officer or person authorized to make service of summons in the state or jurisdiction where the defendant is served. Pacific Islands Dev. Bank v. Estate of Alfonso, 24 FSM R. 37, 39 (Yap 2023).

Civil Procedure – Default and Default Judgments – Entry of Default; Civil Procedure – Default and Default Judgments – Entry of Default – Setting Aside; Civil Procedure – Service of Process

A default should not be entered on improper service of process because a default judgment cannot be entered on defective or improper service of process, and if a default has been entered, it will be set aside instead of a default judgment entered. Pacific Islands Dev. Bank v. Estate of Alfonso, 24 FSM R. 37, 39 (Yap 2023).

COURT'S OPINION

LARRY WENTWORTH, Associate Justice:

On January 6, 2023, the clerk entered, at the plaintiff's request, the defaults of defendants Polycarvo J.A. Ngirailild, individually, and Jordan P. Foruw Ngirailild, a minor, through Polycarvo J.A. Ngirailild as his Guardian and Next Friend. Those two defendants had been served the complaint and summons by certified mail at their residence in the United States State of Alaska, a foreign country.

The court's ability to exercise personal jurisdiction over defendants in a foreign country is through the FSM long-arm statute, 4 F.S.M.C. 204. Under that statute, a defendant has 30 days to file a response to a complaint and summons. 4 F.S.M.C. 204(3); See also People of Tomil ex rel. Mar v. M/V Mell Sentosa, 17 FSM R. 478, 479 (Yap 2011); People of Gilman ex rel. Tamagken v. M/V Easternline I, 17 FSM R. 81, 83 & n.2 (Yap 2010); Boston Agrex, Inc. v. Helgenberger, 12 FSM R. 611, 613 (Pon. 2004); cf. UNK Wholesale, Inc. v. Robinson, 11 FSM R. 118, 121 (Chk. 2002); Medabalmi v. Island Imports Co., 10 FSM R. 32, 34 (Chk. 2001).1 The summons that was served on the two above-named defendants stated that the defendants had "20 days after service of this Summons upon you" to answer the complaint, and that "[i]f you fail to and [sic] answer in accordance with this Summons, judgment by default may be taken against you for the relief demanded in the Complaint."

Since the Summons informed defendants Polycarvo J.A. Ngirailild and Jordan P. Foruw Ngirailild that they had only 20 days to answer the Complaint when in fact the statute granted them 30 days, the summons was defective and the service of process on defendants Polycarvo J.A. Ngirailild and Jordan P. Foruw Ngirailild was improper. Furthermore, the long-arm statute's service requirements are more stringent than those of the civil procedure rules because service 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, 8 FSM R. 148, 150 (Pon. 1997). There is no indication that that was done.

A default should not be entered on improper service of process because a default judgment cannot be entered on defective or improper service of process. See, e.g., Staudte v. Abrahams, 172 F.R.D. 155, 156 (E.D. Pa. 1997) (one default set aside and another not entered when process was ineffectively serve on defendants); Rankel v. Town of Greenburgh, 117 F.R.D. 50, 53 (S.D.N.Y. 1987) (insufficient service of process will not support a default); Thorne v. Pennsylvania, 77 F.R.D. 396, 398 (E.D. Pa. 1977) (when service of process not properly rendered default judgment will be vacated); Brown v. Weschler, 135 F. Supp. 622, 624 (D.D.C. 1955) (court should not enter default when apparent that default will be set aside on motion); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2682, at 14 (3d ed. 1998) ("Before a default can be entered . . . the [defendant] must have been effectively served with process.").

NOW THEREFORE IT IS HEREBY ORDERED that the defaults of defendants Polycarvo J.A. Ngirailild and Jordan P. Foruw Ngirailild are VACATED.

Footnotes:

¹ The 30-day limit in 4 F.S.M.C. 204(3) takes precedence over the 20-day limit in Civil Procedure Rule 12(a) because a statute takes precedence over the procedural rules since, while the chief justice has the power to promulgate procedural rules, the rules may be amended by statute, but the chief justice does not have the power to amend a statute, so when Congress has enacted a procedural rule, it is valid. E.g., People of Tomil ex rel. Mar v. M/V Mell Sentosa, 17 FSM R. 478, 479 (Yap 2011).