5 IN THE SUPERIOR COURT OF GUAM
6 MELODIA G. PUGH, ) DOMESTIC CASE NO. DM0774-12 7 ) Plaintiff, ) 8 DECISION AND ORDER ) 9 v. ) ) 10 JOSEPH L. PUGH, ) II ) Defendant. ) 12 )
14 INTRODUCTION
15 This matter came before the HONORABLE ARTHUR R. BARCINAS on the 6th day of 16 December, 2012, for review of Plaintiff's "motion" and proposed Order Requiring Service by 17 Publication received on November 13, 2012. Attorney Gary W. F. Gumataotao represents the 18 Plaintiff, and the Defendant has not yet been served, nor made an appearance. The Court now 19
20 issues the following Decision and Order on the matter.
21 DISCUSSION 22 A) Requirements of Substituted Service 23 1) An Order Requires a Properly Filed Motion 24
25 The Guam Rules of Civil Procedure specifically require that:
26 (1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with 27 particularity the grounds therefor, and shall set forth the relief or order sought. 28 Decision and Order Domestic Case No. v.
is fulfilled if motion is in a notice of
2 GRCP 7(b)(l)(2012)(emphases added). 3 CVR 7.1(b) of the Local Rules of the Superior Court of Guam also requires that motions 4
5 must be made in ~rriting, and must follow a particular form, stating, "[e]very motion shall be
6 presented in writing," and "the moving party must present a motion, which will contain the date 7 on which the motion will be heard, as provided for in CVR Rule 7. 1(e)(2)." 8 Pursuant to Rnle 7.1(a) of the Local Rnles of the Superior Court of Guam, "the 9 provisions of this rnle shall apply to motions, applications, petitions, orders to show cause, and 10
11 all other proceedings except a trial on the merits and applications for a temporary restraining
12 order ...." CVR 7.1(a)(20l2)(emphasis added). This local rnle further emphasizes that any 13 requests to the Court for the issuance of an order are subject to the rules governing motions. 14 Therefore, any application requesting that the Court take action must follow the format 15
16 prescribed by CVR Rule 7.1.
17 Pursuant to CVR 7. 1(e)(2): 18 Counsel for the parties must file an "Agreement of Hearing Date," in a form 19 shown below in Attachment "CVR 7.1A." It shall be the responsibility of the moving party or his attorney to contact the attorney for each party who has 20 entered an appearance, or if the party(ies) are pro se, it is the moving party's responsibility to contact the pro se party and propose a date for oral argument. 21 Once the parties have agreed on a date for oral argument, the moving party shall 22 clear the date with the chambers clerk. When the date has been cleared with the clerk, that date shall be inserted in the "Agreement of Hearing Date." If the parties 23 do not agree on a date for oral argument or if a party has not entered an appearance, the moving party may submit the "Agreement of Hearing Date" to 24 the Court with a notation that the non-moving party does not agree or is not 25 available, in which event the Court shall either determine the hearing date or determine that no oral argument shall be scheduled and the motion shall proceed 26 to briefing and disposition under CVR 7.1 (e)(4), in the Court's discretion. 27 Local Rules of the Superior Court of Guam, CVR Rule 1 (e)(2) (2012)(emphasis added). 28
Page 2 of 11 Decision and Order Domestic Case No. DM0774-12; Pugh v. Pugh
Thus, even if no other party has yet appeared in the action, the Plaintiff must still submit
2 a written motion accompanied by an "Agreement of Hearing Date Form."
3 Pursuant to CVR 7.1(c), "[t]here shall be served and filed with the motion: (1) a
4 memorandum in support thereof containing the points and authorities upon which the moving 5 parties relies, including citations . ... " CVR Rule 7. 1(c)(2012)(emphases added). 6 Under CVR Rule 7.1 (f), "Papers not timely filed by a party including any memoranda or 7
8 other papers required to be filed under this Rule shall not be considered without leave of court."
9 Under CVR 7.1(k), "The Court need not consider motions, oppositions to motions or briefs or 10 memoranda that do not comply with this Rule," and "the failure to comply fully with this Rule 11 subjects the offender at the discretion of the Court to the sanctions of General Rule 2.1." CVR 12
13 7.1(k)(2012).
14 Under GR 2.1:
15 The violation of or failure to conform to any of these General Rules, the Guam 16 Rules of Civil Procedure, or the Local Rules of the Superior Court of Guam Civil Rules shall subject the offending party or counsel to such penalties, 17 including monetary sanctions and/or the imposition of costs and attorney's fees to opposing counsel, as the Court may deem appropriate under the circumstances. 18
19 Local Rules of the Superior Court of Guam GR 2.1 (2012).
20 Under CVR Rule 7.1 (k), the Court need not consider the Plaintiffs motion and proposed
21 "Order Requiring Service by Publication," as it does not comply with CVR 7.1, and it is 22 unaccompanied by any agreement of hearing date form and a memorandum of points and 23 authorities. Because the Court finds that any application for an order must be made by motion 24
25 which fully complies with the Guam Rules of Civil Procedure and the Local Rules of the
26 Superior Court of Guam, the Court finds that the Plaintiffs motion for an order for publication 27 and mailing does not comply with these rules and may therefore, be STRICKEN. 28
Page 3 of 11 Decision and Order Domestic Case No. DM0774-12; Pugh v. Pugh
2) Personal Service Must be Attempted Before Requesting Substituted Service
2 Rule 4( e) of the Guam Rules of Civil Procedure requires that a person against whom an
3 action is filed must be served in person, or at his residence by leaving it with a household 4 member of suitable age, or by serving the person's agent. GRCP Rule 4(e)(2012). Personal 5 service under Rule 4 must be made within 180 days of the filing, but may be extended by the 6 Court for good cause. GRCP Rule 4(m)(2012). 7
8 Rule 4(e) anticipates that parties who reside in other United States jurisdictions may
9 need to be served from time to time, and provides a method for such personal service, stating: 10 "service upon an individual ... may be effected ... in any other jurisdiction of the United 11 States, its territories, commonwealths, and possessions: (1) ... as prescribed by the law of the 12 place where the person is served; or (2) by delivering a copy of the summons and of the 13
14 complaint to the individual personally .... " GRCP Rule 4(e).
15 Personal delivery of service is the gold standard of available service methods, and is 16 "always adequate in any type of proceeding." Mullane v. Central Hanover Bank & Trust Co., 17 339 U.S. 306, 313 (1950). Due process requires that service must be "reasonably calculated, 18
19 under all the circumstances, to apprise interested parties of the pendency of the action and
20 afford them an 0pp0l1unity to present their objections" because "process which is a mere 21 gesture is not process." Id. at 314-15. 22 For unknown or missing persons, service through ineffectual or even "futile" methods 23 such as publication may be sufficient. Id. at 317. But, "[a}s to known present [parties} of 24
25 known place of residence, however, notice by publication stands on a different footing.
26 Exceptions in the name of necessity do not sweep away the rule that within the limits of 27 practicability notice must be such as is reasonably calculated to reach interested parties." Id. at 28
Page 4 of II Decision and Order Domestic Case No. DM0774-12; Pugh v. Pugh
318 (emphases added). Accordingly, the United States Supreme Court found that a state statute
2 which authorized service of process through publication was insufficient with regards to parties
3 whose addresses and residences were knOVVTI, stating: 4 Publication may theoretically be available for all the world to see, but it is too 5 much in our day to suppose that each or any individual beneficiary does or could examine all that is published to see if something may be tucked away in it that 6 affects his property interests. We have before indicated in reference to notice by publication that, 'Great caution should be used not to let fiction deny the fair play 7 that can be secured only by a pretty close adhesion to fact.' 8 Id. at 320 (quoting McDonald v. Mabee, 243 U.S. 90, 91 (1917)). 9 Following this reasoning, other courts have held that a party must attempt personal 10
II service or other service designed to reasonably provide notice prior to attempting substituted
12 service. See Goetz v. Synthesys Technologies, Inc., 415 F.3d 481, 485-86 (5th Cir. 2005) ("Nail 13 and mail" substituted service, i.e., service through posting and mailing, as authorized under state 14 statute, was improper for lack of due diligence when the plaintiff failed to make even a single 15
16 attempt at personal service at a known residence belonging to the defendant); Burchett v. City
17 of Newport Beach, 33 Cal.AppAth 1472, 1477 (Cal. App. 4 Dist. 1995)(failure to effect or even
18 attempt personal service prior to attempting substituted service was improper, and deprived 19 court of personal jurisdiction over defendants); Sangdahl v. Litton, 69 F.R.D. 641 (S.D.N.Y. 20 1976); Moreland v. Dorsey Thornton and Associates LLC, No. 10-CV-867, 2010 WL 21
22 5463333, **2-3 (E.D. Wis. December 29, 2010) (court allowed substituted service by
23 publication and ordinary mail, but only after the Plaintiff diligently made several attempts at 24 personal service, and exhausted other methods of service reasonably calculated to give notice). 25 In Sangdahl, the District Court would not approve substituted service on a non-resident 26 defendant where the defendant could readily have been served in the state of his residence under 27
28 the New York long-am1 statute. The court found, "any order permitting substituted service
Page 5 of 11 Decision and Order Domestic Case No. DM0774-12; Pugh v. Pugh
should be made only after plaintiff sustains the 'heavy burden' of showing that an exhaustive
2 search has been made for defendant and all other permissible methods of service are
3 impracticable." Id. at 644-45. 4 7 GCA § 14106 was adopted from the California Code of Civil Procedure, Title 5, 5 Jurisdiction and Service of Process, Chapter 3, Summons, §§ 412.10, et. seq., particularly, 6 California now permits service by publication under CCCP § 415.50, which is substantively 7
8 similar to 7 GCA § 14106. Under these statutes regarding service of summons, in California,
9 "[a]ll means other than personal delivery to the defendant are considered substituted service, 10 and personal service must have been diligently attempted before substituted service may be II performed." Bonita Packing Co. v. O'Sullivan, 165 F.R.D. 610, 613 (C.D. Ca. 1995). Where a 12 Guam statute is derived from a California statute, California cases interpreting the statute are 13
14 highly persuasive, and the Superior Court of Guam must follow California precedent unless
15 there is a compelling reason to deviate from the California law. Fajardo v. Liberty House Guam, 16 2000 Guam 4 ~ 17; and Cruz v. Cruz, 2005 Guam 3 ~ 9. Accordingly, 7 GCA § 14106 provides 17 a method of substituted service and requires a showing that personal service is unavailing. 18
19 Under the specific language of 7 GCA § 14106, publication and mailing are to be
20 utilized only when, "after due diligence" it is apparent that the party to be served "has departed 21 Guam" or "conceals himself to avoid service of the summons, ..." 7 GCA § 14106 (2012). 22 Like the statute at issue in Goetz, "under the plain text of the statute, a plaintiff is required to 23 exercise 'due diligence' to complete service .... " Goetz, 415 F.3d at 483; see also Bland v. 24
25 Fairfax County, Va., 275 F.R.D. 466,470 (E.D. Va. 2011) ("This is an example that where the
26 rules favored personal service to the exclusion of other methods, the rules say so."); and 27 Moreland, at *3 (citing Wis. Stat. 801.1 1(5)(b)) ("if with reasonable diligence a defendant 28
Page 6 of II Decision and Order Domestic Case No. DM0774-12; Pugh v. Pugh
cannot be served by the means set forth above then a summons may be served . . . by
2 publication and mailing. "). It is clear from the language of 7 GCA § 14106 that other methods
3 of service are preferred to service by publication and mailing, and a party must exercise due 4 diligence prior to seeking an order permitting service under this statute. In accordance with this 5 language, service by publication and mailing under 7 GCA§ 14106 is only available as an 6 option of last resort, when a defendant has fled Guam or is hiding somewhere in Guam to avoid 7
8 servIce.
9 Interpreting the former California Code of Civil Procedure § 412, from which 7 GCA § 10 14106 is directly derived, the Supreme Court of California found that the first step in sho\\ring II "diligence" in requesting service by publication is the filing of a prescribed affidavit showing in 12 detail the probative facts indicating a thorough search to locate the defendant, including the 13
14 dates of any attempts to serve the defendant by another method of service; thus, an affidavit
15 which did not include this information was "fatally defective in failing to show with accuracy 16 the efforts made to serve defendant with summons." Kahn v. Matthai, 115 Cal. 689, 692, 47 17 Pac. 698,699 (Cal. 1897); see also Chapman v. Moore, 151 Cal. 509, 513-14, 91 P. 324,325- 18
19 26 (Cal. 1907); Rue v. Quinn, 137 Cal. 651,655-57,66 P. 216,217 (Cal. 1902); and Forbes v.
20 Hyde, 31 Cal. 342, 350 (Cal. 1866). 21 In accordance with the due process clause, the Court finds that it is improper for a party 22 to make a request for service by publication and mailing on a party whose residence or domicile
is known, prior to exercising due diligence to serve the party by other means reasonably 24
25 calculated to give actual notice, such as personal service. In this case, from the allegations of the
26 motion filed, it is apparent that the Plaintiff is fully aware of the current location and residence 27 of the Defendant. No documented attempt at personal service has ever been made in this case, 28
Page 7 of II Decision and Order Domestic Case No. v.Pugh
under Guam, or the Arkansas place of residence),
2 II as provided under GRCP Rule 4(e), even though such should be practicable and
3 II readily available. 415 F.3d at 485 diligence is absent the plaintiffs have 4 failed to any attempts to perform service at known addresses."); and HUvl'UUCUi v. J."'~WI\:i)', 5 187 Ca1.AppAth 1 185 (Cal.App.3.Dist. 2010) ("Ordinarily, ... two or three attempts at 6
7 personal service at a proper place should fully satisfy the requirement of reasonable diligence
8 and allow substituted service to be made."). Thus, the Plaintiff has improperly made a request 9 for service by publication and mailing before exercising due diligence, and the Court DENIES 10 any request by the Plaintiff in this case for an order permitting service under 7 GCA § 14106 11 which is made prior to any attempt at personal service. 12
13 3) To Obtain Substituted Service in the Alternative to Personal Service, 7 GCA § 14106
15 GRCP Rule 4 only allows for service through publication and mailing as permitted by 16 statute or court order. GRCP Rule 4(0)(2012). 7 GCA § 14106 is the controlling statute, and 17 allows for service by publication and mailing instead of personal service under GRCP Rule 18
19 4(e)(I) or (2), but only when an application is made to the Court upon an affidavit (or
20 declaration, see 6 GCA § 4308) swearing either that the person "has departed from Guam ...or 21 conceals himself to avoid the service of summons." 7 GCA § 14106 (2012). It states in relevant 22 . part: 23 (a) Where the person on whom is to be made has departed from Guam, 24 and cannot, after due diligence, be found in Guam, or conceals himself to avoid 25 the service ofsummons . .. and the fact appears by affidavit to the satisfaction of the court, or a thereof, and it also appears by such affidavit, or by the 26 verified complaint on file, that a cause of action against the defendant in 27 respect to whom the service is to be made ... such court or judge may an order that service be made by publication of the summons and by mailing 28 the complaint and summons. (b) Service by mail shall be by any kind of U.S.
Page 8 of 11 Decision and Order Domestic Case No. DM0774-12; Pugh v. Pugh
Postal Service delivery that provides for written proof of mailing, 'WTitten proof of delivery and restricted delivery to the addressee only. 2 7 GCA § 141 06 (emphases added). 3 The Plaintiff makes no arguments about the applicability of this statute or whether he 4
5 has met its minimum requirements, but apparently requests that this order for service by
6 publication issue because the Defendant is not currently a resident of Guam. Service by 7 publication and mailing under 7 GCA § 141 06, in lieu of personal service under GRCP Rule 4, 8 has specific factual requirements which must be declared to the Court. 7 GCA § 14106 requires 9 an "affidavit" (or declaration see 6 GCA § 4308) swearing or declaring under penalty of 10
11 perjury, not only that the Defendant cannot be found in Guam, but either: 1) both that the
12 Defendant "has departed from Guam" AND "cannot ... be found in Guam;" or 2) that the 13 Defendant has concealed himselflherself "to avoid the service of summons ...." 7 GCA § 14 14106. Both of these options are carefully worded to indicate to the Court that the Defendant is 15
16 attempting to avoid service, not merely that a defendant is not present in Guam.
17 Plaintiff has filed no affidavit or declaration supporting the motion requesting service
18 through pUblication. This failure is fatal to the Plaintiffs motion. 19 In Kahn v. Matthai, again interpreting the former CCCP § 412, direct forerunner to 7 20 GCA § 14106, service by publication was originally permitted by the trial court on the ground 21
22 that the defendant was seeking to conceal herself to avoid the service of the summons, however,
23 on appeal, the judgment was overturned by the Supreme Court of California, on the basis that 24 the affidavit did not have any tendency to show that the defendant had departed from California 25 or was concealing herself from service, and thus, the affidavit was insufficient. Id. at 692-93. 26 Plaintiff merely references the Defendant's current location or residence in her 27
28 attorney's Motion for Order Requiring Service by Publication, wherein it is stated that "This
Page 9 of 1 1 Decision and Order Domestic Case No. DM0774-12; Pugh v. Pugh
motion is made on grounds that Defendant is residing in Arkansas.(sic) and his last known
2 address is 1724 Live Oak Drive, #2 Fayetteville, Arkansas 72740." Pugh v. Pugh, Domestic
3 Case No. DM0774-12, Mot. for Order Requiring Service by Publication, lines 17-19 (filed 4 November 13,2012) 5 At best, this statement sets forth a proclamation of Plaintiff s attorney, as the motion is 6 signed by only Plaintiffs attorney. The Plaintiff is not an affiant or declarant, and the neither 7
8 the Plaintiff nor the Plaintiffs attorney has not declared this "fact" under penalty of perjury
9 such that the Court could consider it as meeting the "affidavit" (or declaration) requirement of7 10 GCA § 14106, and therefore, the statement cannot be used as competent evidence in support of II an order under this statute. Monolithic Power Systems, Inc. v. 02 Micro Intern., Ltd., 558 F.3d 12
1341, 1350 (9th Cir. 2009) (attorney's contentions cannot substitute for actual evidence); and 13
14 Stringer v. St. James R 1 School Dist., 446 F.3d 799,802 (8th Cir. 2006).
15 Service by publication and mailing is not to be lightly granted, nor lightly treated under 16 7 GCA § 14106, as it is permitted only in the alternative that personal service pursuant to GRCP 17 Rule 4(e) cannot be made because of the Defendant's actions. GRCP Rule 4(e)(1) and (2), and 18
19 Burchett, 33 Cal.AppAth at 1477. The affidavit or declaration must be in proper form in order
20 for the Court to grant the order for publication and acquire jurisdiction over the defendant. 21 Forbes, supra, at 350. "If either of these facts does not appear by affidavit, the court or judge 22 has no jurisdiction to make the order, and an order made thereon will be insufficient to sustain a 23 judgment based upon such service." Quinn, supra, at 217. 24
25 The Plaintiff has failed to file the required affidavit or declaration and fails to truthfully
26 declare the minimum requirements for the issuance of an order for service by publication and 27 mailing. An attorney's statement to the effect that a person is not present in Guam, without 28
Page 10 of 11 Decision and Order Domestic Case No. DM0774-12; Pugh v. Pugh
more, does not satisfy the requirements of 7 GCA § 14106. Plaintiff further fails to declare that
2 personal service pursuant to GRCP Rule 4(e)(l) or (2) was ever attempted or was not possible
3 in this case, as required to satisfy due diligence and the requirements of due process. 4 Accordingly, the Plaintiffs "motion" for an Order for Publication is DENIED on these bases. 5 CONCLUSION 6 Based upon its reVIew of the motion and proposed "Order Requiring Service by 7
8 Publication," the Plaintiff has failed to properly support its "request," by filing an affidavit or
9 declaration setting forth specific facts, as required by statute. Therefore, service by publication 10 must be DENIED at this time. The Plaintiff is ORDERED to comply with the due diligence 11 requirement of 7 GCA § 14106, by attempting personal service on the Defendant and 12
documenting such attempts in a proper affidavit (or declaration) prior to filing any future 13
14 motions requesting the issuance of an order under 7 GCA § 14106.
16 IT IS SO ORDERED this _ _~_~~~~_ _. 17
19 Judge, Superior Court of Guam 20
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