5 IN THE SUPERIOR COURT OF GUAM 6
7 R.K., INC., ) CIVIL CASE NO. CV1224-12 ) 8 Plaintiff, ) ) DECISION AND ORDER 9 v. ) 10 ) SMART HAND INTERNATIONAL and ) 11 DANIEL ARCENAS, ) 12 ) Defendants. ) 13
14 INTRODUCTION 15
16 This matter came before the HONORABLE ARTHUR R. BARCINAS on the 23rd day 17 of November, 2012, on review after hearing on November 6, 2012, at which hearing it was 18 apparent that service had not yet been effected on the Defendants in this case. James M. Maher, 19 Esq., represents the Plaintiff, and the Defendants have not yet been served nor made an 20 appearance. The Court now issues the following Decision and Order on the matter. 21 DISCUSSION 22 The issue of personal jurisdiction arises in this case because the Plaintiff has "moved" 23 for an order of the Court allowing service upon the Defendants through publication and mailing 24 by submitting a "Verified Application for Service by Publication and Mail (GRCP Rule 4(0))," 25 and a proposed "Order Re: Application for Service by Publication and Mail (GRCP Rule
26 4(0))." 27 A) Failure to File a Motion in Compliance with the Local Rules of the Superior Court of
28 Guam Decision and Order Civil Case No. CV1224-12
Pursuant to Rule 7(b)(1) of the Guam Rules of Civil Procedure, "[a]n application to the 2 court for an order shall be by motion .... " GRCP Rule 7(b)(l)(2012). CVR 7.1(b) requires 3 that motions must be made in writing, and must follow a particular form, "[e]very motion shall 4 be presented in writing," and "the moving party must present a motion, which will contain the 5 date on which the motion will be heard, as provided for in CVR Rule 7. 1(e)(2)." 6 Pursuant to Rule 7.1(a) of the Local Rules of the Superior Court of Guam, "the 7 provisions of this rule shall apply to motions, applications, petitions, orders to show cause, and 8 all other proceedings except a trial on the merits and applications for a temporary restraining 9 order . . . ." CVR 7.1(a)(2012)(emphasis added). Therefore, any application or motion 10 requesting that the Court take action must follow the format prescribed by CVR Rule 7.1. 11 Pursuant to CVR 7. 1(e)(2): 12 Counsel for the parties must file an "Agreement of Hearing Date," in a form 13 shown below in Attachment "CVR 7.1 A." It shall be the responsibility of the moving party or his attorney to contact the attorney for each party who has 14 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. 15 Once the parties have agreed on a date for oral argument, the moving party shall 16 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 17 do not agree on a date for oral argument or if a party has not entered an 18 appearance, the moving party may submit the "Agreement of Hearing Date" to the Court with a notation that the non-moving party does not agree or is not 19 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 20 to briefing and disposition under CVR 7.1 (e)(4), in the Court's discretion. 21 Local Rules of the Superior Court of Guam, CVR Rule 7.1 (e)(2) (20 12)(emphasis added). 22 Thus, even if no other party has yet appeared in the action, the Plaintiff must still submit 23 a written motion accompanied by an "Agreement of Hearing Date Form." In addition, pursuant 24 to CVR 7.1 (c), "[t]here shall be served and filed with the motion: (1) a memorandum in support 25 thereof containing the points and authorities upon which the moving parties relies, including 26 citations ...." CVR Rule 7. 1(c)(2012)(emphases added). No Agreement of Hearing Date forn1 27 and no Memorandum of Points and Authorities were included with the Plaintiffs "application." 28
Page 2 of 18 Decision and Order Civil Case No. CV1224-12
Under CVR Rule 7.1 (t), "Papers not timely filed by a party including any memoranda or
2 other papers required to be filed under this Rule shall not be considered without leave of court."
3 Under CVR 7.1 (k), "The Court need not consider motions, oppositions to motions or briefs or
4 memoranda that do not comply with this Rule," and "the failure to comply fully with this Rule
5 subjects the offender at the discretion of the Court to the sanctions of General Rule 2.1." CVR
6 7.1(k)(2012). 7 Under GR 2.1: The violation of or failure to conform to any of these General Rules, the Guam 8 Rules of Civil Procedure, or the Local Rules of the Superior Court of Guam 9 Civil Rules shall subject the offending party or counsel to such penalties, including monetary sanctions and/or the imposition of costs and attorney's fees to 10 opposing counsel, as the Court may deem appropriate under the circumstances. 11 Local Rules of the Superior Court of Guam GR 2.1 (2012). 12 Under CVR Rule 7.1 (k), the Court need not consider the Plaintiff s application, as it 13 does not comply with CVR 7.1. Because the Court finds that any application for an order must 14 be made by motion which fully complies with the Guam Rules of Civil Procedure and the Local 15 Rules of the Superior Court of Guam, the Court finds that the Plaintiff s application for an order 16 for publication and mailing does not comply and may therefore, be STRICKEN on this basis. 17 B) Personal Jurisdiction and Service 18 The Plaintiffs application for service by publication and mailing is deficient in other, 19 more substantial respects. 20 Rule 4(e) of the Guam Rules of Civil Procedure requires that if a person against whom 21 an action is filed is a resident of Guam or any other jurisdiction of the United States, they must 22 be served either: (1) under the laws of Guam; (2) "as prescribed by the law of the place where 23 the person is served;" or (3) in person, or at his residence by leaving it with a household 24 member of suitable age, or by serving the person's agent. GRCP Rule 4(e)(2012). Substituted 25 service by statute, 7 GCA § 14106, under Rule 4(0) is pennitted through operation of Rule 26 4( e)(1). However, if the Defendants are not residents of Guam or any jurisdiction of the United 27 States, and are instead resident of a foreign country, then service must be made under GRCP 28
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Rule 4(f), and may no longer be made "in any manner prescribed or authorized by the laws of 2 Guam," as pennitted under GRCP Rule 4(e)(1), but instead must be made only in conformity 3 with GRCP Rule 4(f), in order to abide by the laws of the sovereign nation in which service will 4 be made. Personal service under Rule 4 must be made within 180 days of the filing, but may be
5 extended by the Court for good cause. GRCP Rule 4(m)(2012). 6 In this case, the Order Re: Application for Service by Publication and Mail was 7 unsupported and therefore, invalid, on two bases: 1) the declaration and verified complaint in 8 this case indicate the physical location of the Defendants in a foreign country, the Republic of 9 the Philippines, and therefore, substituted service under 7 GCA § 14106 through Rule 4(0) is 10 inapplicable; and 2) even if substituted service under 7 GCA 14106 were applicable, the verified 11 application and complaint submitted did not contain the factual statements required under 7 12 GCA § 14106, and no due diligence has yet been demonstrated prior to the request for
13 substituted service. 14 1) Foreign Service May be Required 15 A court must have jurisdiction over a defendant's person, his or her property, or the res 16 which is the subject of the suit; further, the defendant must be amenable to and must receive 17 service of process. These are the concepts that embody jurisdiction and service as required for 18 due process of law. A court may not enter a valid personal judgment in the absence of the 19 proper exercise of personal jurisdiction after proper service. Pennoyer v. Neff, 95 U.S. 714, 716 20 (1877)("said judgment is in personam, and appears to have been given without the appearance 21 of the defendant in the action, or personal service of the summons upon him, and while he was a 22 non-resident of the State, and is, therefore, void"); New York Life Insurance Co. v. Dunlevy, 23 241 U.S. 518, 522-23 (1916); Hansberry v. Lee, 311 U.S. 32, 40 (1940)("It is a principle of 24 general application in Anglo-American jurisprudence that one is not bound by a judgment in 25 personam in a litigation ... to which he has not been made a party by service of process."). 26 As a prerequisite to a court's exercise of personal jurisdiction over a defendant (or 27 jurisdiction over the res of the suit), the procedural requirement of service of summons must be 28 satisfied. "[S]ervice of summons is the procedure by which a court having venue and
Page 4 of18 Decision and Order Civil Case No. CV1224-12
jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party
2 served." Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-45 (1946); see also
3 Robertson v. Railroad Labor Bd., 268 U.S. 619, 622-23 (1925).
4 Prior to 1993, three conditions needed to be satisfied before a court could exercise
5 personal jurisdiction over a non-resident Defendant; 1) a constitutionally sufficient relationship
6 must exist between the Defendant and the forum; 2) a basis for the Defendant's amenability to
7 service of summons must exist; and 3) the procedural requirement of service of summons must
8 have been satisfied by notice to the Defendant. Omni Capital Intern., Ltd. v. Rudolf Wolff &
9 Co., Ltd., 484 U.S. 97, 103-104, and n.6 (1987).
10 In 1987, in Ornni Capital International v. Rudolf Wolff & Company, Ltd., the Supreme
11 Court held that international service on a foreign Defendant under the Commodities Exchange
12 Act, which was silent on service in a foreign country at the time, was ineffective under former
13 Rule 4(h), due to lack of amenability to service. The Court held:
14 [B]efore a court may exercise personal jurisdiction over a Defendant, there must 15 be more than notice to the Defendant and a constitutionally sufficient relationship between the Defendant and the forum. There also must be a basis for the 16 Defendant's amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the Defendant. Thus, under Rule 17 4( e), a federal court normally looks either to a federal statute or to the long-arm 18 statute of the State in which it sits to determine whether a Defendant is amenable to service, a prerequisite to its exercise of personal jurisdiction. 19
20 Id. at 104-105. 21 "Amenability," therefore, means the existence of an explicit federal prOVlSlon for 22 international service or the existence of a state long-arm statute which authorizes such service. 23 See Id.; and Mwani v. bin Laden, 417 F.3d1, 8-9 (D.C. Cir. 2005). 24 However, "amenability" to service, even for foreign residents, has been substantively 25 eliminated as an issue in cases under the Federal Rules of Civil Procedure, because in 1993, the 26 Advisory Committee on Civil Rules replaced the former Federal Rule Rule 4(i) with what is 27 now Rule 4(f). Subdivision (f) of Rule 4 is a comprehensive provision for service of a summons 28 and complaint on individuals residing in a foreign country. The history of the rule, the Practice
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Notes and the 1993 Advisory Committee Notes indicate that the new Rule 4(f) was drafted in 2 response to the United States Supreme Court's decision in Omni Capital International, such that 3 its enactment would nullify Omni's amenability requirement that there be explicit authorization 4 by state or federal law for service outside the United States. According to the Note of the 5 Advisory Committee: "[g]iven the substantial increase in the number of international 6 transactions and events that are the subject of litigation in federal courts, it is appropriate to 7 infer a general legislative authority to effect service on Defendants in a foreign country." 8 Advisory Committee on Civil Rules, Note to Subdivision (f) (l993). The texts of Rule 4(f) and 9 (k) facilitate the use of state long-arm statutes to assert jurisdiction over defendants who cannot 10 be served under state law, but who can be constitutionally subjected to the jurisdiction of a 11 particular court through minimum contacts or the physical location of subject property, by 12 legislatively authorizing service on those foreign resident individuals. 13 Because the Guam Rules of Civil Procedure are directly derived from the 2003 Federal 14 Rules of Civil Procedure, federal cases interpreting the rules constitute highly persuasive 15 authority in Guam. People v. Diaz, 2007 Guam 3 'Il 14, n.4. Therefore, since the 1993 16 amendment to the Federal Rules of Procedure and Guam's adoption of these amended rules, 17 including Rule 4(f), in order to establish that the Superior Court of Guam has jurisdiction over a 18 particular defendant the Plaintiff must show through its pleadings or other evidence: 1) that 19 service of process has properly been effected; and 2) that there is a constitutionally valid basis
20 for the exercise of personal jurisdiction by the Court. 21 Any judgment entered against a defendant who fails to appear cannot be enforced if the 22 court has never established jurisdiction over the defendant through proper service. Bixler v. 23 Foster, 596 F.3d 751,761-62 (lOth Cir. 2010). More significantly, a default judgment obtained 24 against a resident of a foreign nation who is not properly served under Rule 4(f) is void for lack 25 of personal jurisdiction and must be vacated. Shenouda v. Mehanng, 203 F.R.D. 166, 171-72 26 (D. N.J. 2001). The Supreme Court of Guam has adopted these concepts with regard to default 27 judgments in Guam, stating: "[w]hen it is found that there has been defective service of process,
Page 6 of18 Decision and Order Civil Case No. CV1224-12
the judgment is void .... '" Pineda v. Pineda, 2005 Guam 10 '1 19 (quoting In re Cossio, 163 2 B.R. 150, 154 (B.A.P. 9th Cir. 1994) (citation omitted)). 3 A court has an affirmative duty to sua sponte examine its jurisdiction over the parties 4 when judgment is sought against a party who has failed to plead, appear, or otherwise defend 5 against the action, to ensure that it does not enter a void judgment. System Pipe & Supply, Inc. 6 v. MN Viktor Kumatovskiy, 242 F.3d 322, 324 (5th Cir. 2001); accord Mwani v. bin Laden, 7 417 F.3d 1,6 (D.C. Cir. 2005); Dennis Garberg & Assocs. v. Pack-Tech Int'l Corp., 115 F.3d 8 767, 772 (lOth Cir.1997); see also Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 9 F.3d 207,213-14 (2d Cir. 2010); and In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). A failure to 10 serve process will lead to a dismissal of the action; however, the court should not resolve the 11 question without first giving the plaintiff an adequate opportunity to assert facts establishing the 12 court's jurisdiction over the defendant. In re Tuli, 172 F.3d 707, 713 (9th Cir. 1999). The 13 plaintiff bears the initial burden of establishing jurisdiction, but the court "ordinarily demands 14 only a prima facie showing of jurisdiction by the plaintiff[]." Mwani v. bin Laden, 417 F.3d 1,
15 6-7 (D.C. Cir. 2005). 16 The Plaintiff s application is deficient in substantial respects regarding this prima facie 17 showing that proper service will be effected. Rule 4( e) of the Guam Rules of Civil Procedure 18 requires that if a person against whom an action is filed is a resident of Guam or any other 19 jurisdiction of the United States, they must be served either: (1) under the laws of Guam; (2) "as 20 prescribed by the law of the place where the person is served;" or (3) in person, or at his 21 residence by leaving it with a household member of suitable age, or by serving the person's 22 agent. GRCP Rule 4(e)(2012). However, if the Defendants are not residents of Guam or any 23 jurisdiction of the United States, nor incorporated in Guam or any United States Jurisdiction 24 then personal service must be made under GRCP Rule 4(f), as the legislatively authorized 25 method of service on residents or corporations of sovereign foreign nations, and may no longer 26 be made "in any manner prescribed or authorized by the laws of Guam," as permitted under 27 GRCP Rule 4(e)(l), but instead must be made in conformity with GRCP Rule 4(f).
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The Plaintiff s verified Complaint in CV 1224-12 states in relevant part: "R.K. is 2 informed and believes, and upon such information and belief, alleges that Defendant 3 SMART HAND INTERNATIONAL, INC. ("Smart"), was, and is at all relevant times 4 mentioned herein, a corporation authorized to conduct business on Guam." R.K., Inc. v. Smart 5 Hand International, Inc. et aI, Civil Case No.CV1224-12, CompI. for Unlawful Detainer, pp. 1 6 2, 'Il 3 (filed October 29, 2012). This statement is not verified or certified on personal 7 knowledge, and therefore, cannot support a finding that Defendant Smart Hand International, 8 Inc., is a domestic corporation subject to service in Guam. Next, the application itself states; 9 "[t]o the best of Plaintiffs knowledge, said defendants are in the Philippines and their present 10 whereabouts are unknown to plaintiff." Again, this statement is unverified and not declared true 11 under penalty of perjury. However, this language indicates that the Defendants are currently 12 located in the Philippines. The Plaintiffs attorney's statements seem to indicate that Defendants 13 are most likely a foreign resident and incorporation of the Philippines. 14 In order for the Court to properly enter any judgment, it has to appear from either the 15 declaration of service or other verified document that service of process will be properly 16 effected on the defendant against whom judgment will be entered. In this case, there are no 17 allegations which would lead the Court to believe that the Defendants are subject to service of 18 process under the laws of Guam. In fact, the unverified statements of the complaint and the 19 application would tend to show that Defendants are resident in a foreign country, and are 20 therefore, not subject to service of process under Guam law. 21 Rule 4(e)( 1), allowing for service of process through publication by statute through Rule 22 4( 0), is only applicable where the defendant resides in a jurisdiction of the United States. Elisan 23 Entertainment, Inc. v. Suazo, 206 F.R.D. 335, 335-38 (D. Puerto Rico 2002). "[W]hile it is true 24 that the current Fed.R.Civ.P. 4(e)(1) permits the use of state law to perform extraterritorial 25 service, by its own terms, its usage is strictly limited to service upon individuals within 'any 26 judicial district of the United States.'" Id., at 336. Service of process on residents of foreign 27 countries "must be made pursuant to Fed.R.Civ.P. 4(0." Id. Service on a foreign corporation 28 must also be made through the foreign service requirements of Rule 4(0· GRCP Rule
Page 8 of18 Decision and Order Civil Case No. CY1224-12
4(h)(2012). There is a special procedure for serving residents of foreign nations under Rule
2 4(f):
3 [W]hen a party seeks to serve process on an individual residing in a foreign 4 country, the Court must follow this two (2) prong test: first it must ascertain whether the foreign country in which the party to be served is residing has entered 5 into any international agreement with the United States, such as the Hauge(sic) Convention on the Service Abroad of Judicial and Extrajudicial Documents in 6 Civil or Commercial Matters of November 15, 1965, which is specifically 7 mentioned by Rule 4(f)(1). If there is no applicable internationally agreement which might provide a reasonable means of service, then the party serving process 8 must do so using one of the several methods provided by subsection (f)(2). 9 Id. 10 Because Defendants are not alleged to be residents of Guam or any United States 11 jurisdiction, but rather, probably resident or incorporated in the Philippines, as suggested by the 12 Plaintiff: 1) service under Rules 4(e)(1) and (0) is most likely not applicable; and 2) service 13 under GRCP Rule 4(f) must be effected as a precursor to the exercise of personal jurisdiction 14 over the Defendants and entry of judgment, as no evidence that a waiver has been obtained from 15 the Defendants has been provided to the Court by the Plaintiff. Id. 16 The Philippines is not a party to the Hague Convention on the Service Abroad of 17 Judicial and Extra Judicial Documents in Civil and Commercial Matters, and it is not apparent 18 that it is a party to any treaties or contracts regarding service with the United States. GRCP 19 Rule 4(f)(1) is not applicable in such an instance. Therefore, it appears that the Plaintiff will be 20 required to comply with other subsections of Rule 4(f). There are no exceptions to the foreign 21 service requirements of Rule 4(f), and the Court may not apply Guam law to override 22 international law. See, e.g., Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694,699 23 (1988) (compliance with the service requirements of the Hague Convention under Rule 4(f) is 24 mandatory when serving a foreign defendant in a signatory country); and Societe Nationale 25 Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 534 n. 15, (1987). 26 Perhaps most importantly, because the Defendants are likely resident in the Philippines, 27 Rule 4(1) regarding proof of service, contains a special provision for proving service in a foreign 28
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country, specifically requiring that if process is served in a foreign country by any of the 2 methods described in Rule 4(f)(2) or Rule 4(f)(3), the proof of service must include a receipt 3 signed by the addressee or other tangible evidence of delivery to the addressee showing 4 compliance with the law of the receiving country which is satisfactory to the court. GRCP Rule 5 4(1) (2012) ("Proof of service in a place not within Guam or any other jurisdiction of the United 6 States, its territories, commonwealths, or possessions shall, .. .if effected under paragraph (2) or 7 (3) thereof, include a receipt signed by the addressee or other evidence of delivery to the 8 addressee satisfactory to the court"). For the obvious reason that a foreign defendant will 9 usually not be present in the forum jurisdiction, this requirement is intended to assure the Court 10 that the process was properly served in the foreign country. Only upon the provision of this 11 proof of service may the Court be assured that it may properly exercise personal jurisdiction 12 over the foreign defendant. The method of service proposed and requested by the Plaintiff 13 requires no return of a signed receipt or other tangible proof of service to the Defendants as 14 required by Rule 4(1). This is not sufficient to satisfy Rules 4(f) and (1). 15 In Saysavanh v. Saysavanh, 145 P.3d 1166 (Utah App. 2006), Husband filed an 16 amended petition for divorce in Utah seeking dissolution of marriage from Wife, who lived in 17 Mexico. Id. at 1167. Approximately one week later, Husband filed a motion for alternative 18 service pursuant to Rule 4(d)(3)(B)(iii) ofthe Utah Rules of Civil Procedure. Id. Like the Guam 19 Rules of Civil Procedure, the Utah Rules of Civil Procedure were directly derived from the 20 Federal Rules of Civil Procedure. The trial court granted the motion for alternative/substituted 21 service, and the next month, the court clerk mailed an Amended Verified Petition for Divorce, a 22 summons, a Motion for Order to Show Cause, and an Order to Show Cause to Wife in Mexico, 23 requesting a return receipt. Id. at 1167-68. The receipt was later returned to the court clerk 24 unsigned and without any other indication that the documents had been delivered to Wife. Id. 25 Wife did not appear at the hearing to show cause. Id. Despite Wife's absence, the trial court 26 granted Husband's motion for order to show cause, and subsequently entered a default decree of 27 divorce. Id. Upon becoming aware of the default divorce decree, Wife immediately obtained 28 counsel in Utah and filed a motion to set aside the default decree of divorce pursuant to Rule
Page 10 ofl8 Decision and Order Civil Case No. CV1224-12
60(b) on the basis of lack of personal jurisdiction. Id. The trial court denied the motion to set
2 aside the default decree, finding that Husband "made every effort possible to apprise [Wife] of
3 the divorce proceedings, including strict compliance with Rule 4(d)(3)(B)(iii) of the Utah Rules
4 of Civil Procedure." Id.
5 The Court of Appeals of Utah reversed the trial court's decision, finding that where the
6 rules set forth a particular manner of effecting international service, such as the Hague Service
7 Convention, that manner of service is controlling and strict compliance is required, stating:
8 Rule 4 of the Utah Rules of Civil Procedure governs service of process, and 9 subsection 4(d)(3) specifically governs service of process in a foreign country. See Utah R. Civ. P. 4(d)(3). In order to determine which part of subsection 4(d)(3) IO is applicable, we first assess whether there is an internationally agreed means of service in Mexico, "such as those means authorized by the Hague Convention on 11 the Service Abroad of Judicial and Extrajudicial Documents." Utah R. Civ. P. 12 4(d)(3)(A). Ifthere exists an internationally agreed means of service between the countries, rule 4(d)(3)(A) is applicable. See id. If there is no internationally 13 agreed means of service, rule 4(d)(3)(B) is applicable. See Utah R. Civ. P 4(d)(3)(B). 14
16 Finding that Husband had served Wife under Rule 4(d)(3)(B), instead of Rule 4(d)(3)(A) 17 and the Hague Service Convention, as the internationally agreed means of service between 18 Mexico and the United States, the appellate court held that the default decree was improperly 19 entered against Wife: "Husband has failed to properly serve Wife according to rule 4( d) of the 20 Utah Rules of Civil Procedure and the Hague Service Convention. As a result, service of 21 process was not properly effectuated and the trial court lacks personal jurisdiction. We therefore 22 reverse the trial court's denial of Wife's motion to set aside the default decree of divorce." Id. at 23 1169. 24 Similarly, in Ward v. Ludwig, 778 N.E.2d 650 (Ohio Ct. App. 2002), following the 25 entry of a default decree of divorce, Wife, a German citizen, entered an appearance for limited 26 purpose of contesting the trial court's jurisdiction and petitioning to vacate the judgment. Id. at 27 651. The trial court denied the petition. Id. The Ohio Court of Appeals overturned the trial 28 court, holding that the decree of divorce was void for lack of service. Id. at 652-53. The
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appellate court found that Husband, who filed the action while Wife was living in Germany, 2 was required to comply with the provisions of the Hague Service Convention, which was 3 adopted by both Germany and the United States; and even though Wife had received actual 4 notice of the complaint and related papers, it was error for the trial court to allow alternative 5 service by registered mail. Id. 6 The point of these cases is clear. In order for the trial court to enter a valid and binding 7 judgment of divorce against a resident or corporation of a foreign nation, service must be 8 validly made in that country under the proper rule of procedure, and any applicable agreed 9 international service provisions; where there is no such provision, Rule 4(f)(2) requires that 10 service must be effected under the laws of the country in which service will occur. Service 11 which does not comply with a specifically applicable foreign service provision is invalid, and no 12 judgment may be entered thereon, even if personal service which would be valid within the 13 United States has been effected under a different rule. Between sovereign nations, the laws of 14 the sovereign are controlling with regards to its own citizens. 15 Because the Plaintiff has only alleged facts which indicate that the method of service 16 proposed by the Plaintiff must comply with the laws of the Philippines, at this time, the Court 17 must DENY the issuance of substituted service under 7 GCA § 14106 through Rule 4(0), on 18 Defendant Daniel Arcenas, as requested by the Plaintiff. 19 Next, although not addressed in Plaintiff s application, 7 GCA § 14105 is the statute 20 which governs substituted service on Guam corporations, and is also most likely not applicable 21 at this time based on the facts alleged by the Plaintiff. This statute applies specifically to Guam 22 corporations. It states: 23 The summons must be served by delivering a copy thereof as follows: 1) If the 24 suit is against a domestic cOlporation, to the president or other head of the corporation, a vice president, a secretary, an assistant secretary, general manager, 25 or a person designated for service of process or authorized to receive service of process. If such corporation is a bank, to any of the foregoing officers or agents, 26 thereof, or to a cashier or an assistant cashier thereof. If no such officers or agents 27 of the corporation can be found within Guam after diligent search, then to the Director of Revenue and Taxation as provided in 18 GCA § 6101, unless the 28 corporation be of a class expressly excepted from the operation of that section.
Page 12 of 18 Decision and Order Civil Case No. CV1224-12
7 GCA § 14105 (2012) (emphasis added).
2 18 GCA § 6101 states in relevant part: If [a designation of an agent for service] has not been filed with the Director of 3 Revenue and Taxation, or if process against any domestic corporation cannot, 4 with the exercise of due diligence, be served upon the person designated or in any other manner provided by law, service may be had upon such corporation by 5 delivering to the Director of Revenue and Taxation, or to any person employed in his office in the capacity of a deputy, duplicate copies of such process, together 6 with a fee of Forty Dollars ($40.00), which shall be included in the taxable costs 7 of the suit, action, or proceeding. Upon the receipt of such process and fee, the Director of Revenue and Taxation shall forthwith give notice of the service of 8 such process to the corporation at its principal office in Guam, and shall deliver to such office, a copy of such process. The defendant shall appear and answer within 9 thirty (30) days after such service upon the Director of Revenue and Taxation. 10 18 GCA § 6101 (2012) (emphasis added). 11 Service of process on Defendant Smart Hand International, Inc., might be available if 12 the corporation is alleged to be domestic. However, the Plaintiff has presented no statements 13 which are certified or declared true under penalty of perjury that would allow this Court to make 14 a finding that Defendant Smart Hand International, Inc. is a domestic corporation, and therefore, 15 is subject to service under 7 GCA § 14105 and 18 GCA § 6101. On the basis of the pleadings 16 and the "application" in their current state, the Court cannot permit substituted service upon 17 either named Defendant. 18 The Plaintiff has failed to particularly plead and prove the residency of Defendant 19 Daniel Arcenas, and the place of incorporation of Defendant Smart Hand International, Inc., in 20 order for the Court to determine whether the Defendants are subject to service of process under 21 7 GCA §§ 14105 and 14106, as permitted by Rule 4(e) and the laws of Guam, or whether the 22 Defendants are resident of, and incorporated in, a foreign country and must be served in 23 accordance with Rule 4(f). Currently, the Plaintiff has only plead (and not proved) facts which 24 highly suggest that the Defendants are only subject to service under Rule 4(f); thus negating 25 service by publication and mailing under the laws of Guam, as permitted under Rule 4(e)(l), 26 and thus requiring that the application requesting an Order for Publication of Summons be 27 DENIED at this time. 28
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Civil Case No. CV1224-12
2) 2 in Support of Order Allowing Service by Publication Pursuant to 7 GCA § 14106 3 Even if the Plaintiff were to demonstrate that the Defendants could be subject to any 4 service allowed under Guam law or U.S. law under GRCP Rule 4(e)(l), the current GRCP Rule 5 4 only allows for service through publication and mailing as permitted by statute or court order, 6 in accordance with due process. GRCP Rule 4(0)(2012). 7 GCA § 14106 is the controlling 7 statute with regard to persons, and specifically allows for service by publication and mailing 8 instead of personal service under GRCP Rule 4(e)( 1) or (2), only when an application is made to 9 the Court upon a verified affidavit (or declaration, see 6 GCA § 4308) swearing either that the 10 person "has departed from Guam . . .or conceals himself to avoid the service of summons" and II that "a cause of action exists against the defendant." 7 GCA § 14106 (2012). It states in 12 relevant part: 13 (a) Where the person on whom service is to be made has departed from Guam, 14 and cannot, after due diligence, be found in Guam, or conceals himself to avoid the service of summons . .. and the fact appears by affidavit to the satisfaction of 15 the court, or a judge thereof, and it also appears by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in 16 respect to whom the service is to be made ... such court or judge may make an 17 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. 18 Postal Service delivery that provides for written proof of mailing, written proof of delivery and restricted delivery to the addressee only. 19
20 7 GCA § 141 06 (emphases added). 21 The Plaintiff apparently requests that this order for service by publication issue because 22 the Defendants are not currently present in Guam, and their exact whereabouts are unknown. 23 However, service by publication and mailing under 7 GCA § 141 06, in lieu of personal service 24 under GRCP Rule 4, constitutes substituted service, and has specific factual requirements which 25 must be declared to the Court as true, under penalty of perjury. 26 7 GCA § 14106 was adopted from the California Code of Civil Procedure, Title 5, 27 Jurisdiction and Service of Process, Chapter 3, Summons, §§ 412.10, et. seq. Where a Guam 28 statute is derived from a California statute, California cases interpreting the statute are highly
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persuasive, and the Superior Court of Guam must follow California precedent unless there is a 2 compelling reason to deviate from the California law. Fajardo v. Liberty House Guam, 2000 3 Guam 4 ~ 17; and Cruz v. Cruz, 2005 Guam 3 ~ 9. Accordingly, 7 GCA § 14106 provides a 4 method of substituted service and requires a showing that personal service is unavailing. 5 Under the specific language of 7 GCA § 14106, publication and mailing are to be 6 utilized only when, "after due diligence" it is declared as true that the party to be served "has 7 departed Guam" or "conceals himself to avoid service of the summons, ... " 7 GCA § 14106
8 (2012). 9 Even if the Court found that substituted service could be used to serve the Defendants in 10 this case, the Plaintiff has not complied with the specific requirements of the substituted service 11 provisions. 7 GCA § 14106 requires an "affidavit" or declaration swearing or declaring under 12 penalty of perjury, not only that the Defendants cannot be found in Guam, but either: 1) both 13 that the Defendants have "departed from Guam" AND "cannot ... be found in Guam;" or 2) 14 that the Defendants have concealed himself/herself "to avoid the service of summons .... " 7 15 GCA § 14106. Both of these options are carefully worded to allow the Court to make a 16 supported factual finding that the Defendants were formerly present in Guam and/or are now 17 attempting to avoid service, not merely that a defendant is not present in Guam. 18 Plaintiff has failed to file any affidavit or declaration to support its application. 19 Regarding the Defendants' "depart[ure]" from Guam, the Court can find no admissible 20 statements within the file which would allow the Court to make an evidentiary finding required 21 to support an order for substituted service. Nor does the verified complaint of the Plaintiff 22 contain any statements that the Defendants were formerly resident in Guam. No truly declared 23 statements that the Defendants have ever resided in Guam and thus, have ever "departed from 24 Guam" are present. The Court finds that the complete lack of verified statements regarding the 25 Defendants' previous presence in and flight from Guam, or amenability to service in Guam, 26 renders the Plaintiffs application inadequate to support the issuance of an order for publication
27 and mailing under 7 GCA § 14106. 28
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Regarding the Defendants' "concealment" from service, Plaintiff s verified complaint 2 and application are also silent. In Kahn v. Matthai, interpreting the former California Code of 3 Civil Procedure § 412, the direct and identical forerunner to 7 GCA § 14106, service by 4 publication was originally permitted by the trial court on the ground that the defendant was 5 seeking to conceal herself to avoid the service of the summons, however, on appeal, the 6 judgment was overturned by the Supreme Court of California, on the basis that the affidavit 7 submitted did not contain declared facts which had any actual tendency to show that the 8 defendant had departed from California or was concealing herself from service, and thus, the
9 affidavit was insufficient. Id. at 692-93. 10 Service by publication and mailing is not to be lightly granted, nor lightly treated under II 7 GCA § 14106, as it is permitted only in the alternative that personal service pursuant to GRCP 12 Rule 4(e) cannot be made because of the defendant's actions. GRCP Rule 4(e)(1) and (2), and 13 Burchett, 33 Cal.AppAth at 1477. The affidavit (or declaration) must be in proper form in order 14 for the Court to grant the order for publication and acquire jurisdiction over the Defendants, and 15 must allege that the Defendants were formerly present in Guam and fled, or that they are 16 concealing whereabouts to avoid service. Forbes v. Hyde, 31 Cal. 342,350 (Cal. 1866). "If 17 either of these facts does not appear by affidavit, the court or judge has no jurisdiction to make 18 the order, and an order made thereon will be insufficient to sustain a judgment based upon such 19 service." Rue v. Quinn, 137 Cal. 651,655-57,66 P. 216,217 (Cal. 1902). 20 The Plaintiffs application fails to contain a declaration or affidavit containing the 21 minimum requirements for the issuance of an order for service by publication and mailing. 22 Further, although the verified complaint could supplement the application, the verified 23 complaint neither declares that the Defendants resided in Guam and have fled, nor that the 24 Defendants are concealing themselves to avoid service under GRCP Rule 4(e). An undeclared 25 statement of an attorney in a motion to the effect that a person is not present in Guam does not
26 satisfy the requirements of 7 GCA § 14106.
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Accordingly, the verified complaint and application fail to properly declare the specific 2 facts required by 7 GCA 14106, and the Plaintiff s request for an Order for Publication would
3 be DENIED on this basis as well. 4 Finally, Plaintiffs application and verified complaint further fail to allege that personal 5 service pursuant to GRCP Rule 4(e)(1) or (2) was ever attempted or was not possible in this 6 case, as required to satisfY the statute's requirement of due diligence. 7 It is clear from the language of 7 GCA § 14106 that other methods of service are
8 preferred to service by publication and mailing, and a party must exercise "due diligence" prior 9 to seeking an order permitting service under this statute. 10 Interpreting the former California Code of Civil Procedure § 412, from which 7 GCA § 11 14106 is directly derived, the Supreme Court of California has interpreted "due diligence" to 12 mean actual, documented efforts to locate and personally serve a defendant. Kahn v. Matthai, 13 115 Cal. 689, 692, 47 Pac. 698, 699 (Cal. 1897); see also Chapman v. Moore, 151 Cal. 509, 14 513-14,91 P. 324,325-26 (Cal. 1907); Quinn, supra, at 217; and Forbes, supra, at 350. In 15 Kahn, the court found that the first step in showing "diligence" in requesting service by 16 publication under the statute is the filing of a prescribed affidavit showing in detail the probative 17 facts indicating a thorough search to locate the defendant, including the dates of any attempts to 18 serve the defendant by another method of service; thus, an affidavit which did not include this 19 information was "fatally defective in failing to show with accuracy the efforts made to serve 20 defendant with summons." Id. In accordance with the language of the statute, service by 21 publication and mailing under 7 GCA § 14106 is only available as an option oflast resort, when 22 a defendant has fled Guam or is hiding somewhere to avoid service, and the plaintiff has 23 exercised due diligence, but has been unable to locate and personally serve the defendant due to
24 the defendant's evasion. 25 In accordance with the due process clause, and cases interpreting the former CCCP § 26 412, identical to 7 GCA § 14106, the Court finds that it is improper for a party to make a 27 request for service by publication and mailing on a party prior to exercising due diligence 28 through documented attempts to serve the party by other means reasonably calculated to give
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actual notice, such as personal service. In this case, it is not apparent from the allegations of the 2 verified complaint and the application that any attempt at personal service has been made. No 3 attempt at personal service is documented in order for the Court to make a finding as to due 4 diligence. See Goetz, 415 F.3d at 485 ("due diligence is absent where the plaintiffs have failed 5 to make any attempts to perform service at known addresses."); and Trackman v. Kenney, 187 6 Cal.App.4th 175, 185 (Cal.App.3.Dist. 2010) ("Ordinarily, ... two or three attempts at personal
7 service at a proper place should fully satisfy the requirement of reasonable diligence and allow 8 substituted service to be made."). Thus, even if the Court found that the Defendants were not 9 subject to Rule 4(f)(2) or (3), and could instead be subject to Rule 4(e), the Court would find
10 that the Plaintiff has improperly made a request for service by publication and mailing without II demonstrating any attempts at due diligence, and the Court would be required to DENY any 12 request by the Plaintiff for an order permitting service under 7 GCA § 14106 and Rule 4(0),
13 made prior to demonstrating any attempt at personal service. 14 CONCLUSION 15 After considering the "application," the Court finds that the Plaintiff's request for
16 substituted service is improperly made under CVR 7.1, and more importantly, is unaccompanied 17 by any declaration or affidavit (or even the verified complaint) attesting the facts required under 18 7 GCA § 14106 or 7 GCA § 14105. Based upon the foregoing, the Application for Order for
19 Service by Publication is DENIED. Plaintiff must file a proper motion and either an amended
20 verified complaint, affidavit, or declaration setting forth the facts required to allow the Court to 21 make an evidentiary finding which would support the issuance of an order for substituted
22 service under 7 GCA §§ 14105 and 14106.
24 IT IS SO ORDERED this ~~=--
26 HONORABLE ARTHUR R. 27 Judge, Superior Court of Guam 28
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