FSM SUPREME COURT TRIAL DIVISION
Cite as Muti v. Chuuk Public Utilities Corp. 24 FSM R. 308 (Chk. 2023)
ROSA MUTI and KEMES MUTI, on behalf
of the children of their late father, Muti Kette,
Plaintiffs,
vs.
CHUUK PUBLIC UTILITIES CORPORATION
(CPUC) and CHUUK STATE,
Defendants.
CIVIL ACTION NO. 2023-1003
ORDER CONCERNING MOTION TO DISMISS
Larry Wentworth
Associate Justice
Hearing: October 5, 2023
Decided: October 16, 2023
APPEARANCES:
For the Plaintiffs:
Sabino S. Asor, Esq.
213 Raven Way
Dededo, Guam 96929
For the Defendants:
Mohammed Kutty, Jr., Esq.
Chuuk Attorney General
Office of the Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942
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Civil Procedure Rule 4(c)(1) generally requires that service of the summons and complaint be made by an adult who is not a party. A plaintiff's attorney is considered a party. Muti v. Chuuk Public Utilities Corp., 24 FSM R. 308, 310 (Chk. 2023).
Failure to make proof of service does not affect the validity of the service. Muti v. Chuuk Public Utilities Corp., 24 FSM R. 308, 310 (Chk. 2023).
Service of process on an attorney not authorized to accept service for his client is ineffective. But an attorney, who is not only the defendant corporation's general counsel but is also a corporation officer, may agree to accept service of process on the corporation's behalf. Muti v. Chuuk Public Utilities Corp., 24 FSM R. 308, 311 (Chk. 2023).
Although the court must look first to FSM sources of law rather than begin reviewing other courts' cases, when an FSM court has not previously construed an aspect of an FSM civil procedure rule that is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance. Muti v. Chuuk Public Utilities Corp., 24 FSM R. 308, 311 n.1 (Chk. 2023).
Since service of a complaint and summons generally must be made by an adult non-party on the defendant itself rather than on its attorney, neither the initial service of process on the defendant's counsel nor the second service by a party were an effective service of process. Muti v. Chuuk Public Utilities Corp., 24 FSM R. 308, 311 (Chk. 2023).
A motion to dismiss for insufficiency of service is a Rule 12(b)(5) motion to dismiss (or a combined Rule 12(b)(5) and Rule 12(b)(2) (lack of jurisdiction over the person) motion to dismiss), which courts often, instead of granting a dismissal, just quash the service and grant further time to effect proper service of process. Muti v. Chuuk Public Utilities Corp., 24 FSM R. 308, 311 (Chk. 2023).
If the deceased's land is registered land with a certificate of title, then the land must go through an heirship proceeding in the Chuuk Land Commission for the proper heirs to be determined and named on a new certificate of title. If the land is not registered land, then, a probate proceeding with a court-appointed administrator or administrators, would allow the case to proceed with just that person or those persons appointed as estate administrator(s) as plaintiffs until such time as the decedent's estate is distributed. Muti v. Chuuk Public Utilities Corp., 24 FSM R. 308, 312 (Chk. 2023).
In a claim for damages to land, such as trespass, all the co-owners of the affected land are indispensable parties to the action and must be joined if they are not already parties; otherwise the defendant faces a substantial risk that it may be subject to multiple or inconsistent judgments if any of the other persons who claim to be co-owners later decide to sue. Muti v. Chuuk Public Utilities Corp., 24 FSM R. 308, 312 (Chk. 2023).
A trespass case will be dismissed for failure to join the land's co-owners as indispensable parties plaintiff because any judgment rendered in the co-owners' absence will be prejudicial to the defendant since any of the other co-owners could sue for the same trespass, thus subjecting the defendant to multiple judgments for the same acts; because even a judgment in the defendant's favor would not prevent another co-owner from suing for the same acts; because there are no protective provisions that could be included in a judgment that would lessen the prejudice; and because the plaintiff has an adequate remedy since the dismissal is without prejudice – he may refile the case with the co-owners included. Muti v. Chuuk Public Utilities Corp., 24 FSM R. 308, 312 (Chk. 2023).
If all of the land's co-owners are not named and joined as plaintiffs, this case should be dismissed for failure to join indispensable parties because unnamed, pseudonymous plaintiffs are disfavored since defendants have a due process right to know who is suing them so they may prepare their defense and know against whom a final judgment will be res judicata. Muti v. Chuuk Public Utilities Corp., 24 FSM R. 308, 312 (Chk. 2023).
The six-year statute of limitations applies to claims for both trespass, and for due process, while the twenty-year statute of limitations applies to actions for a recovery of an interest in land. Muti v. Chuuk Public Utilities Corp., 24 FSM R. 308, 312 (Chk. 2023).
When the plaintiffs appear to only seek money damages, not the recovery of an interest in land, which would not involve money damages, and their lawsuit was filed on February 1, 2023, money damages for trespass and due process violations before February 1, 2017, are barred by the six-year statute of limitations. Muti v. Chuuk Public Utilities Corp., 24 FSM R. 308, 312 (Chk. 2023).
P@likir26!* * * *
LARRY WENTWORTH, Associate Justice:
On October 5, 2023, the court heard Chuuk Public Utility Corporation's Motion to Dismiss and the plaintiffs' Opposition to CPUC's Motion to Dismiss. CPUC's counsel appeared for argument but the plaintiff's counsel did not. CPUC moved orally that an order issue for plaintiffs' counsel to show cause why he should not be held in contempt for his failure to appear at the October 5, 2023 hearing, which oral motion would be withdrawn if CPUC is dismissed as a party.
CPUC moves for dismissal of the case against on the three grounds: 1) insufficiency of the service of process on CPUC; 2) that the plaintiffs are not the proper parties to bring suit; and 3) that the statute of limitations bars the plaintiffs' suit. The court will address these in order.
CPUC contends that the service of process was insufficient because the complaint and summons were not served by someone other than the plaintiffs or their counsel thereby causing the court to lack personal jurisdiction over CPUC. CPUC contends that, based on a certificate of service appended to the complaint, the plaintiffs' counsel served the complaint and summons and that is insufficient service of process. The plaintiffs respond that because they failed to file their return of service before CPUC moved to dismiss, the court should not go further than quashing the service of process and then giving the plaintiffs two weeks or so to effect proper service.
It is uncertain how the complaint and summons were actually served on CPUC. Civil Procedure Rule 4(c)(1) generally requires that service of the summons and complaint be made by an adult who is not a party and a plaintiff's attorney is considered a party. Ardos v. Pohnpei, 23 FSM R. 91, 93 (Pon. 2020).
The "certificate of service" on the complaint's last page states: "I, [plaintiffs' counsel's name], do certify that I have caused to be served on the named defendants true copies of the foregoing . . . ." There is no indication that plaintiff's counsel himself actually served the complaint and summons or how he "caused" them to be served. Nor does CPUC indicate how it was served. CPUC relies only on the complaint's "certificate of service" to presume that plaintiff's counsel himself served the summons and complaint. But plaintiff's counsel could have caused the process to be served by a police officer or by some other means. In the absence of a return of service or an affidavit from whoever at CPUC was served, the court cannot tell from these filings. Even so, the "[f]ailure to make proof of service does not affect the validity of the service." FSM Civ. R. 4(g).
On September 13, 2023, a Mary Kette filed a "Proof of Service," in which she states that, on September 11, 2023, she personally gave a certain named person at CPUC's private counsel's office a true copy of the complaint (no mention is made of whether a summons was also served). She also stated that she understood that her "uncles had served a copy at the beginning of the case on the same law office." It appears "her uncles" may be plaintiffs and that even Mary Kette might even be a plaintiff or the daughter of a plaintiff.
If the initial service was made not on CPUC itself but on its attorneys' law office, it may be ineffective. "[S]ervice of process on an attorney not authorized to accept service for his client is ineffective." Santos v. State Farm Fire & Cas. Co., 902 F.2d 1092, 1094 (2d Cir. 1990).1 However, an attorney, who is not only the defendant corporation's general counsel but is also a corporation officer, may agree to accept service of process on the corporation's behalf. American Centennial Ins. Co. v. Handal, 901 F. Supp. 892, 900 (D.N.J. 1995). But there is no indication that CPUC authorized its counsel to accept service of process on its behalf or that CPUC's counsel held such a position that counsel might be able to agree to accept service of process on CPUC's behalf.
Since service of a complaint and summons generally must be made by an adult non-party on the defendant itself rather than on its attorney, neither the initial service of process on CPUC's counsel nor the September 11, 2023 second service were effective service of process. A motion to dismiss for insufficiency of service is a Rule 12(b)(5) motion to dismiss (or a combined Rule 12(b)(2) (lack of jurisdiction over the person) and Rule 12(b)(5) motion to dismiss), which courts often, instead of granting a dismissal, just quash the service and grant further time to effect service of process properly. Helgenberger v. Ramp & Mida Law Firm, 21 FSM R. 445, 450 (Pon. 2018). The plaintiffs have also suggested this less drastic remedy and asked for this opportunity.
NOW THEREFORE IT IS HEREBY ORDERED that, UNLESS the summons and complaint (see part II below about the complaint) are served on CPUC itself (and not its attorney) by an adult non-party who is not a member of the plaintiffs' family, BEFORE December 13, 2023, all prior "service of process" on CPUC is quashed and the case against CPUC is dismissed without prejudice.
CPUC also contends that the named plaintiffs are not proper parties to bring this action and that Muti Kette's possible heirs and devisees are indispensable parties to this action. CPUC notes that the plaintiffs allege that it is continuing to trespass on the land on Tonoas of the plaintiffs' father, Muti Kette, who is now deceased. CPUC contends that the plaintiffs appear to not be the real parties in interest because they are neither court-appointed administrators of Muti Kette's estate nor third-party beneficiaries of the earlier (expired 2000) lease agreement with Kette, but, at most, only co-owners, or potential co-owners, with unnamed others of the land. CPUC argues that if this case "proceeds with only Rosa Muti and Kemes Kette as plaintiffs, then unidentified heirs and others who may have a claim, may file subsequent lawsuits to exercise and protect any potential rights that they may have."
The plaintiffs respond that Muti Kette's heirs are the only possible claimants to the land and that it is unreasonable for CPUC to demand that the plaintiffs go through a probate proceeding for them to assert their claims against CPUC's ongoing use of their property.
If the plaintiffs' land is registered land with a certificate of title, then the land must go through an heirship proceeding in the Chuuk Land Commission for the proper heirs to be determined and named on a new certificate of title. If the land is not registered land, then, a probate proceeding with a court-appointed administrator or administrators, would allow the case to proceed with just that person or those persons appointed as estate administrator(s) as plaintiffs until such time as the decedent's estate is distributed.
In a claim for damages to land, such as trespass, all the co-owners of the affected land are indispensable parties to the action and must be joined if they are not already parties; otherwise the defendant faces a substantial risk that it may be subject to multiple or inconsistent judgments if any of the other persons who claim to be co-owners later decide to sue. Ifenuk v. FSM Telecomm. Corp., 11 FSM R. 201, 203-04 (Chk. 2002). Thus, a trespass case will be dismissed for failure to join the land's co-owners as indispensable parties plaintiff because any judgment rendered in the co-owners' absence will be prejudicial to the defendant since any of the other co-owners could sue for the same trespass, thus subjecting the defendant to multiple judgments for the same acts; because even a judgment in the defendant's favor would not prevent another co-owner from suing for the same acts; because there are no protective provisions that could be included in a judgment that would lessen the prejudice; and because the plaintiff has an adequate remedy since the dismissal is without prejudice – he may refile the case with the co-owners included. Ifenuk v. FSM Telecomm. Corp., 11 FSM R. 403, 405 (Chk. 2003). Therefore, if all of the co-owners are not named and joined as plaintiffs, this case should be dismissed for failure to join indispensable parties because unnamed, pseudonymous plaintiffs are disfavored since defendants have a due process right to know who is suing them so they may prepare their defense and know against whom a final judgment will be res judicata. Setik v. Mendiola, 21 FSM R. 537, 550 (App. 2018).
Here, the named plaintiffs sue on behalf of an unknown number of unnamed persons – all the children of their late father. CPUC therefore does not know the identity of everyone "suing" it. All co-owners of the land in question should named and should sue as plaintiffs at the same time. Otherwise, CPUC's due process rights would be violated.
NOW THEREFORE IT IS HEREBY ORDERED that this case will be dismissed unless, before December 13, 2023, the plaintiffs have either amended their complaint to include as named plaintiffs all co-owners of the land in question in this case or have had an administrator(s) appointed for Muti Kette's estate and amended their complaint to name that person(s) as plaintiff(s) instead.
CPUC also contends that the six-year statute of limitations bars this action for trespass and due process violations. The plaintiffs contend that once the state's lease with Muti Kette expired in 2000, the defendants continued to maintain a presence on his land thereby giving rise to trespass and due process claims. The six-year statute of limitations applies to claims for both trespass, see, e.g., Sipia v. Chuuk, 8 FSM R. 557, 558 (Chk. S. Ct. Tr. 1998); and for due process, see, e.g., Dereas v. Eas, 14 FSM R. 446, 456 n.5 (Chk. S. Ct. Tr. 2006), while the twenty-year statute of limitations applies to actions for a recovery of an interest in land, Chk. S.L. No. 5-01-39, § 9.
The plaintiffs appear to only seek money damages, not the recovery of an interest in land, which would not involve money damages. Thus, since this lawsuit was filed on February 1, 2023, money damages for trespass and due process violations before February 1, 2017, are barred by the statute of limitations. Id. § 11.
Accordingly, trespass and due process claims against CPUC before February 1, 2017 are dismissed. The rest of the case against CPUC will be dismissed without prejudice unless, by December 13, 2023, the complaint has been amended with the proper plaintiffs (either administrator(s) of Muti Kette's or all land claimants) and has been served together with a summons by an adult non-party on CPUC itself, not its attorney. Considering the motion's outcome, the court, at this time, declines to issue an order to show cause why the plaintiffs' counsel should not be held in contempt.
_______________________________Footnotes:
1 Although the court must look first to FSM sources of law rather than begin reviewing other courts' cases, when an FSM court has not previously construed an aspect of an FSM civil procedure rule that is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance. Pillias v. Saki Stores, 20 FSM R. 391, 395 n.1 (Chk. 2016). The court has not previously considered the effectiveness of service of process on a defendant's attorney instead of the defendant itself.
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