5 IN THE SUPERIOR COURT OF GUAM
6 JORGE RIVERA, ) DOMESTIC CASE NO. DM0491-12 7 ) 8 Plaintiff, ) ) DECISION AND ORDER 9 v. ) ) 10 ) ADRIANA RIVERA, 11 ) Defendant. ) 12 )
14 INTRODUCTION
15 This matter came before the HONORABLE ARTHUR R. BARCINAS on the 29th day 16 of August, 2012, for review of Plaintiffs "motion" and proposed Order for Publication of 17 Summons received on July 17,2012. Attorney William B. Pole represents the Plaintiff, and the 18
Defendant has not yet been served, nor made an appearance. The Court now issues the 19
20 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. DM0491-12; Rivera v. Rivera
The requirement of writing is fulfilled ifthe motion is stated in a written notice of the hearing of the motion. 2 GRCP Rule 7(b)(I)(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 writing, 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 Rule 7.1 (a) of the Local Rules of the Superior Court of Guam, "the 9 provisions of this rule 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)(2012)(emphasis added). This local rule 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." lfthe 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 7.1 (e)(2) (2012)(emphasis added). 28
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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 proposed "Order for 21 Publication," as it does not comply with CVR 7.1, and it is unaccompanied by any agreement of 22 hearing date form and a memorandum of points and authorities. Because the Court finds that 23 any application for an order must be made by motion which fully complies with the Guam 24
25 Rules of Civil Procedure and the Local Rules of the Superior Court of Guam, the Court finds
26 that the Plaintiff s motion for an order for publication and mailing does not comply with these 27 rules and may therefore, be STRICKEN. 28
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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 opportunity 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
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318. Accordingly, the United States Supreme Court found that a state statute which authorized
2 service of process through publication was insufficient with regards to parties whose addresses
3 and residences were known, 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 should 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 IS
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-arm statute. The court found, "any order permitting substituted service
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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 -U 17; and Cruz v. Cruz, 2005 Guam 3 -U 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. 801.11 (5)(b)) ("if with reasonable diligence a defendant 28
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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 showing 11 "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 23 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 verified complaint, it is apparent that the Plaintiff is fully aware of the current location and 27 residence of the Defendant. No documented attempt at personal service has ever been made in 28
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this case, under either the laws of Guam, or the laws of Texas (Defendant's probable place of
2 residence), as provided under GRCP Rule 4(e), even though such service should be practicable
3 and is readily available. Goetz, 415F.3d at 485 ("due diligence is absent where the plaintiffs 4 have failed to make any attempts to perform service at known addresses."); and Trackman v. 5 Kenney, 187 Cal.AppAth 175, 185 (Cal.App.3.Dist. 2010) ("Ordinarily, . . . two or three 6 attempts at personal service at a proper place should fully satisfy the requirement of reasonable 7
8 diligence and allow substituted service to be made."). Thus, the Plaintiff has improperly made a 9 request for service by publication and mailing before exercising due diligence, and the Court 10 DENIES any request by the Plaintiff in this case for an order permitting service under 7 GCA § 11 14106 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
14 Requires an Affidavit or Verified Complaint Containing Particular Facts 15 If personal service cannot be effected, GRCP Rule 4(e)(1) allows service to be had by 16 other means authorized by the laws of Guam. 17 GRCP Rule 4 only allows for service through publication and mailing as permitted by 18
19 statute or court order. GRCP Rule 4(0)(2012). 7 GCA § 14106 is the controlling statute, and
20 allows for service by publication and mailing instead of personal service under GRCP Rule 21 4(e)(1) or (2), but only when an application is made to the Court upon a verified complaint or 22 affidavit (or declaration, see 6 GCA § 4308) swearing either that the person "has departed from 23 Guam ... or conceals himself to avoid the service of summons." 7 GCA § 14106 (2012). It 24
25 states in relevant part:
26 (a) Where the person on whom service is to be made has departed from Guam, 27 and cannot, after due diligence, be found in Guam, or conceals himself to avoid the service ofsummons . . . and the fact appears by affidavit to the satisfaction of 28 the court, or a judge thereof, and it also appears by such affidavit, or by the
8ofl2 Decision and Order Domestic Case No. DM0491-12; Rivera v. Rivera
verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made ... such court or judge may make an 2 order that the service be made by the publication of the summons and by mailing the complaint and summons. (b) Service by mail shall be by any kind of U.S. 3 Postal Service delivery that provides for written proof of mailing, written proof of delivery and restricted delivery to the addressee only. 4
5 7 GCA § 141 06 (emphases added).
6 The Plaintiff makes no arguments about the applicability of this statute or whether he 7 has met its minimum requirements, but apparently requests that this order for service by 8 publication issue because the Defendant is most likely not a resident of Guam. Service by 9 publication and mailing under 7 GCA § 14106, in lieu of personal service under GRCP Rule 4, 10
11 has specific factual requirements which must be declared to the Court. 7 GCA § 14106 requires
12 an "affidavit" or "verified complaint" swearing or declaring under penalty of perjury, not only I3 that the Defendant cannot be found in Guam, but either: 1) both that the Defendant "has 14 departed from Guam" AND "cannot ... be found in Guam;" or 2) that the Defendant has 15
16 concealed himself/herself "to avoid the service of summons ...." 7 GCA § 14106. Both of
17 these options are carefully worded to indicate to the Court that the Defendant is attempting to 18 avoid service, not merely that a defendant is not present in Guam. 19 Plaintiff has filed no affidavit or declaration supporting service through publication. 20 However, Plaintiff has verified his complaint. Regarding the Defendant's "depart[ure]" from 21
22 Guam, the verified complaint of the Plaintiff does not even contain a recitation of the language
23 of the statute, and further fails to even mention the current location of the Defendant. Rivera v. 24 Rivera, Ver. Compi. (filed July 17, 2012). No factual allegations that the Defendant has ever 25 resided in Guam and thus, has ever "departed from Guam" are present. Nor are there any 26 allegations that the Defendant has ever been to Guam, or would ever have been subject to 27
28 service in Guam. The Court finds that the statements of the verified complaint, without any
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accompanying information regarding the Defendant's previous presence in and flight from
2 Guam, or subjection to service in Guam, are inadequate to support the issuance of an order for
3 publication and mailing under 7 GCA § 14106. 4 Regarding the Defendant's "concealment" from service, Plaintiff s verified complaint is 5 silent. In Kahn v. Matthai, again interpreting the former CCCP § 412, direct forerunner to 7 6 GCA § 14106, service by publication was originally permitted by the trial court on the ground 7
8 that the defendant was seeking to conceal herself to avoid the service of the summons, however,
9 on appeal, the judgment was overturned by the Supreme Court of California, on the basis that 10 the affidavit did not have any tendency to show that the defendant had departed from California II or was concealing herself from service, and thus, the affidavit was insufficient. Id. at 692-93. 12 The closest the Plaintiff comes to referencing the Defendant's current location or 13
14 residence is in the Motion for Order Requiring Service by Publication, wherein he claims that
15 the "Defendant is residing in Texas and her last known address is 16307 Cavendish Dr. 16 Houston, Texas 77059." Rivera, Domestic Case No. DM0491-12, Mot. for Order Requiring 17 Service by Publication, lines 17-19 (filed July 17,2012) 18
19 At best, this statement sets forth a proclamation of Plaintiffs attorney, as the motion is
20 signed by only Plaintiffs attorney. The Plaintiff is not the affiant or declarant, and the neither 21 the Plaintiff nor the Plaintiff s attorney has not declared this "fact" under penalty of perjury 22 such that the Court could consider it as meeting the "affidavit" requirement of 7 GCA § 14106, 23 and therefore, the statement cannot be used as competent evidence in support of an order under 24
25 this statute. Monolithic Power Systems, Inc. v. 02 Micro Intern., Ltd., 558 F.3d 1341, 1350 (9th
26 Cir. 2009) (attorney's contentions cannot substitute for actual evidence); and Stringer v. St. 27 James R 1 School Dist., 446 F.3d 799, 802 (8th Cir. 2006). 28
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Service by publication and mailing is not to be lightly granted, nor lightly treated under
2 7 GCA § 14106, as it is permitted only in the alternative that personal service pursuant to GRCP
3 Rule 4(e) cannot be made because of the Defendant's actions. GRCP Rule 4(e)(1) and (2), and 4 Burchett, 33 Cal.App.4th at 1477. The affidavit or declaration or verified complaint must be in 5 proper form in order for the Court to grant the order for publication and acquire jurisdiction 6 over the defendant. Forbes, supra, at 350. "If either of these facts does not appear by affidavit, 7
8 the court or judge has no jurisdiction to make the order, and an order made thereon will be
9 insufficient to sustain a judgment based upon such service." Quinn, supra, at 217. 10 The Plaintiff's verified complaint fails to allege the minimum requirements for the II issuance of an order for service by publication and mailing. The verified complaint neither 12
declares that the Defendant has ever resided in Guam, nor that the Defendant has ever concealed 13
14 herself to avoid service under GRCP Rule 4( e). A statement to the effect that a person is not
IS present in Guam, without more, does not satisfy the requirements of 7 GCA § 14106. Plaintiff's 16 verified complaint further fails to allege that personal service pursuant to GRCP Rule 4(e)(1) or 17 (2) was ever attempted or was not possible in this case. 18
19 Accordingly, the verified complaint fails to establish the facts required under 7 GCA
20 14106, and the Plaintiff's "request" for an Order for Publication is DENIED on this basis as 21 well. 22 CONCLUSION 23 Based upon its review of the complaint and other documents as part of the Court's 24
25 analysis of the proposed "Order for Publication," the Plaintiff has failed to properly support its
26 "motion" for an Order for Publication, and therefore, service by publication must be DENIED at 27 this time. The Plaintiff is ORDERED to comply with the due diligence requirement of 7 GCA § 28
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14106, by attempting personal service on the Defendant prior to filing any future motions
2 requesting the issuance of an order under 7 GCA § 14106.
4 IT IS SO ORDERED this _ _ _ _ _~_ _ __ 5
7 HONORABLE ARTHUR R. BARCINAS Judge, Superior Court of Guam 8
II
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