•
1 3 P41 5:00 2
5 IN THE SUPERIOR COURT OF GUAM 6
7 ROBERT PATTON RYAN, 8 DOMESTIC CASE NO. DM 0160-14 Plaintiff, 9 V. 10 DECISION AND ORDER
11 MYROSLAVA OLEKSANDRIVNA DEMCHONKO, 12 Defendant. 13
15 INT ROD UCT ION 16
17 This matter came before the Honorable Arthur R. Barcinas on the Plaintiffs Motion for
18 Service by Publication. Ladd A. Baumann represents the Plaintiff. The Defendant has not been 19 served and has not appeared. 20 DISCUSSION 21 1. Failure to File a Motion in Compliance with the Local Rules of the Superior Court of 22
23 Guam
24 Pursuant to Rule 7(b)(1) of the Guam Rules of Civil Procedure, "[a]n application to the 25 court for an order shall be by motion . . . . " GRCP Rule 7(b)(1)(2012). CVR 7. 1(b) requires 26 that motions must be made in writing, and must follow a particular form, "[ e]very motion shall 27
28 Decision and Order DMO160-14; Robert P. Ryan vs. Myroslava O. Demchenko
be presented in writing," and "the moving party must present a motion, which will contain the 1
2 date on which the motion will be heard, as provided for in CVR Rule 7.1(e)(2)."
3 Pursuant to Rule 7.1(a) of the Local Rules of the Superior Court of G ua m, "the 4 provisions of this rule shall apply to motions, applications, petitions, orders to show cause, and 5 all other proceedings except a trial on the merits and applications for a temporary restraining 6 order . . . ." CVR 7.1(a)(2012)(emphasis added). Therefore, any application or motion 7
8 requesting that the Court take action must follow the format prescribed by CVR Rule 7.1.
9 Pursuant to CVR 7.1(e)(2): 10
11 Counsel for the parties must file an "Agreement of Hearing Date," in a form shown below in Attachment "CVR 7.1A." It shall be the responsibility of the 12 moving party or his attorney to contact the attorney for each party who has 13 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. 14 Once the parties have agreed on a date for oral argument, the moving party shall clear the date with the chambers clerk. When the date has been cleared with the 15 clerk, that date shall be inserted in the "Agreement of Hearing Date." If the parties 16 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 17 the Court with a notation that the non-moving party does not agree or is not available, in which event the Court shall either determine the hearing date or 18 determine that no oral argument shall be scheduled and the motion shall proceed 19 to briefing and disposition under CVR 7.1(e)(4), in the Court's discretion.
20 Local Rules of the Superior Court of Guam, CVR Rule 7.1 (e)(2) (2012)(emphasis added). 21 Thus, even if no other party has yet appeared in the action, the Plaintiff must still submit 22 a written motion accompanied by an "Agreement of Hearing Date Form." In addition, pursuant 23 to CVR 7.1(c), "[t]here shall be served and filed with the motion: ( 1) a memorandum in support 24 thereof containing the points and authorities upon which the moving parties relies, including 25 citations ...." CVR Rule 7.1(c)(2012)(emphases added). No Agreement of Hearing Date form 26 and no Memorandum of Points and Authorities were included with the Plaintiff's "application." 27 Under CVR Rule 7.1(f), "Papers not timely filed by a party including any memoranda or 28 other papers required to be filed under this Rule shall not be considered without leave of court."
Page 2 of 20 Decision and Order • • DM0160-14; Robert P. Ryan vs. Myroslava O. Demchenko
1 Under CVR 7.1(k), "The Court need not consider motions, oppositions to motions or briefs or
2 memoranda that do not comply with this Rule," and " the failure to comply fully with this Rule
3 subjects the offender at the discretion of the Court to the sanctions of General Rule 2.1." CVR
4 7.1(k)(2012).
5 Under GR 2.1: The violation of or failure to conform to any of these General Rules, the Guam 6 Rules of Civil Procedure, or the Local Rules of the Superior Court of Guam - 7 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 8 opposing counsel, as the Court may deem appropriate under the circumstances. 9 Local Rules of the Superior Court of Guam GR 2.1 (2012). 10 Under CVR Rule 7.1(k), the Court need not consider the Plaintiff's application, as it 11 does not comply with CVR 7.1. 12
13 Because the Court finds that any application for an order must be made by motion which
14 fully complies with the Guam Rules of Civil Procedure and the Local Rules of the Superior 15 Court of Guam, the Court finds that the Plaintiff's application for an order for publication and 16 mailing does not comply and may therefore, be STRICKEN. 17
18 II. Personal Jurisdiction and Service
19 The Plaintiff's application is deficient in other, more substantial respects. Rule 4(e) of
20 the Guam Rules of Civil Procedure requires that if a person against whom an action is filed is a 21 resident of Guam or any other jurisdiction of the United States, they must be served either: (1) 22 under the laws of Guam; (2) "as prescribed by the law of the place where the person is served;" 23
24 or (3) in person, or at his residence by leaving it with a household member of suitable age, or by
25 serving the person's agent. GRCP Rule 4(e)(2012). Substituted service by statute, 7 GCA § 26 14106, under Rule 4(o) is permitted through operation of Rule 4(e)(1). However, if the 27 Defendant is not a resident of Guam or any jurisdiction of the United States, and is instead a 28
Page 3 of 20 Decision and Order 0 DMO160-14; Robert P. Ryan vs. Myroslava O. Demchenko
resident of a foreign country, then service must be made under GRCP Rule 4(f), and may no 1
2 longer be made "in any manner prescribed or authorized by the laws of Guam," as permitted
3 under GRCP Rule 4(e)(1), but instead must be made only in conformity with GRCP Rule 4(f), 4 in order to abide by the laws of the sovereign nation in which service will be made. 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 In this case, the Motion for Order for Publication of Summons was invalid, on two
9 bases: 1) the declaration and verified complaint in this case do not establish the residency of the 10 Defendant within the jurisdiction of the United States, and instead state that the Plaintiff does 11 not know the Defendant's whereabouts and that the Defendant's last known mailing address 12 was located in Ukraine, and therefore, substituted service under 7 GCA § 14106 through Rule 13
14 4(o) is inapplicable; and 2) even if substituted service under 7 GCA 14106 were applicable, the
15 verified application and complaint submitted did not contain the factual statements required to 16 establish due diligence under 7 GCA § 14106, and instead only made a bare assertion that due 17 diligence had been done. Further, because the Defendant is a resident of Ukraine, the Court 18
19 finds that the complaint fails to show that the Court's exercise of jurisdiction over the Defendant
20 is proper in this case. 21 A. Foreign Service Requirements 22 A court must have jurisdiction over a defendant's person, his or her property, or the res 23 which is the subject of the suit; further, the defendant must be amenable to and must receive 24
25 service of process. These are the concepts that embody jurisdiction and service as required for
26 due process of law. A court may not enter a valid personal judgment in the absence of the 27 proper exercise of personal jurisdiction after proper service. Pennoyer v. Neff, 95 U.S. 714, 716 28
Page 4 of 20 Decision and Order 0 • DMO160-14; Robert P. Ryan vs. Myroslava O. Demchenko
(1877)("said judgment is in personam, and appears to have been given without the appearance 1
2 of the defendant in the action, or personal service of the summons upon him, and while he was a
3 non-resident of the State, and is, therefore, void"); New York Life Insurance Co. v. Dunleyy, 4 241 U.S. 518, 522-23 (1916); Hansberry v. Lee, 311 U.S. 32, 40 (1940)("It is a principle of 5 general application in Anglo-American jurisprudence that one is not bound by a judgment in 6 personam in a litigation ...to which he has not been made a party by service of process."). 7
8 As a prerequisite to a court' s exercise of personal jurisdiction over a defendant (or
9 jurisdiction over the res of the suit), the procedural requirement of service of summons must be 10 satisfied. "[S]ervice of summons is the procedure by which a court having venue and 11 jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party 12 served." Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-45 (1946); see also 13
14 Robertson v. Railroad Labor Bd., 268 U.S. 619, 622-23 (1925). 15 Prior to 1993, three conditions needed to be satisfied before a court could exercise 16 personal jurisdiction over a non-resident defendant; 1) a constitutionally sufficient relationship 17 must exist between the defendant and the forum; 2) a basis for the defendant's amenability to 18
19 service of summons must exist; and 3) the procedural requirement of service of summons must
20 have been satisfied by notice to the defendant. Omni Capital Intern., Ltd. v. Rudolf Wolff & 21 Co., Ltd., 484 U.S. 97, 103-104, and n.6 (1987). 22 In 1987, in Omni Capital International v. Rudolf Wolff & Company, Ltd., the Supreme 23 Court held that international service on a foreign defendant under the Commodities Exchange 24
25 Act, which was silent on service in a foreign country at the time, was ineffective under former
26 Rule 4(h), due to lack of amenability to service. The Court held: 27
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[B]efore a court may exercise personal jurisdiction over a defendant, there must 1 be more than notice to the defendant and a constitutionally sufficient relationship 2 between the defendant and the forum. There also must be a basis for the defendant's amenability to service of summons. Absent consent, this means there 3 must be authorization for service of summons on the defendant. Thus, under Rule 4(e), a federal court normally looks either to a federal statute or to the long-arm 4 statute of the State in which it sits to determine whether a defendant is amenable 5 to service, a prerequisite to its exercise of personal jurisdiction.
6 Id. at 104-105. 7 "Amenability," therefore, means the existence of a n explicit federal provision for 8 international service or the existence of a state long-arm statute which authorizes such service. 9 See Id.; and Mwani v. bin Laden, 417 F.3d 1, 8-9 (D.C. Cir. 2005). 10
11 However, "amenability" to service, even for foreign residents, has been substantively
12 eliminated as an issue in cases under the Federal Rules of Civil Procedure, because in 1993, the 13 Advisory Committee on Civil Rules replaced the former Federal Rule Rule 4(i) with what is 14 now Rule 4(f). Subdivision (f) of Rule 4 is a comprehensive provision for service of a summons 15
16 and complaint on individuals residing in a foreign country. The history of the rule, the Practice
17 Notes and the 1993 Advisory Committee Notes indicate that the new Rule 4(f) was drafted in 18 response to the United States Supreme Court's decision in Omni Capital International, such that 19 its enactment would nullify Omni 's amenability requirement that there be explicit authorization 20 by state or federal law for service outside the United States. According to the Note of the 21
22 Advisory Committee: "[g]iven the substantial increase in the number of international
23 transactions and events that are the subject of litigation in federal courts, it is appropriate to 24 infer a general legislative authority to effect service on defendants in a foreign country." 25 Advisory Committee on Civil Rules, Note to Subdivision (f) (1993). The texts of Rule 4(f) and 26 (k) facilitate the use of state long-arm statutes to assert jurisdiction over defendants who cannot 27
28 be served under state law, but who can be constitutionally subjected to the jurisdiction of a
Page 6 of 20 Decision and Order 1 • DM0160-14; Robert P. Ryan vs. Myroslava O. Demchenko
particular court through minimum contacts or the physical location of subject property, by 1
2 legislatively authorizing service on those foreign resident individuals.
3 Because the Guam Rules of Civil Procedure are directly derived from the 2003 Federal 4 Rules of Civil Procedure, federal cases interpreting the rules constitute highly persuasive 5 authority in Guam. People v. Diaz , 2007 Gua m 3 ¶ 14, n.4. Therefore, since the 1993 6 amendment to the Federal Rules of Procedure and Guam's adoption of these amended rules, 7
8 including Rule 4(f), in order to establish that the Superior Court of Guam has jurisdiction over a
9 particular defendant the Plaintiff must show through its pleadings or other evidence: 1) that 10 service of process has properly been effected; and 2) that there is a constitutionally valid basis 11 for the exercise of personal jurisdiction by the Court. 12
13 Any judgment entered against a defendant who fails to appear cannot be enforced if the
14 court has never established jurisdiction over the defendant through proper service. Bixler v. 15 Foster , 596 F.3d 751, 761-62 (10th Cir. 2010). More significantly, a default judgment obtained 16 against a resident of a foreign nation who is not properly served under Rule 4(f) is void for lack 17 of personal jurisdiction and must be vacated. Shenouda v. Mehanna, 203 F.R.D. 166, 171-72 18
19 (D. N.J. 2001). The Supreme Court of Guam has adopted these concepts with regard to default
20 judgments in Guam, stating: "[w]hen it is found that there has been defective service of process, 21 the judgment is void ...."' Pineda v. Pineda, 2005 Guam 10 ¶ 19 (quoting In re Cossio , 163 22 B.R. 150, 154 (B.A.P. 9th Cir. 1994) (citation omitted)). 23 A court has an affirmative duty to sua sponte examine its jurisdiction over the parties 24
25 when judgment is sought against a party who has failed to plead, appear, or otherwise defend
26 against the action, to ensure that it does not enter a void judgment. System Pipe & Supply, Inc. 27 v. M/V Viktor Kurnatovskiy, 242 F.3d 322, 324 (5th Cir. 2001); accord Mwani v. bin Lgden , 28
Page 7 of 20 Decision and Order DMO160-14; Robert P. Ryan vs. Myroslava O. Demchenko a 417 F.3d 1, 6 (D.C. Cir. 2005); Dennis Garberg & Assocs. v. Pack-Tech Intl Corp., 115 F.3d I
2 767, 772 (10th Cir.1997); see also Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619
3 F.3d 207, 213-14 (2d Cir. 2010); and In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). A failure to 4 serve process will lead to a dismissal of the action; however, the court should not resolve the 5 question without first giving the plaintiff an adequate opportunity to assert facts establishing the 6 court's jurisdiction over the defendant. In re Tuli, 172 F.3d 707, 713 (9th Cir. 1999). The 7
8 plaintiff bears the initial burden of establishing jurisdiction, but the court "ordinarily demands
9 only a prima facie showing of jurisdiction by the plaintiff[ ]." Mwani v. bin Laden, 417 F.3d 1, 10 6-7 (D.C. Cir. 2005). 11 The Plaintiff's verified application is deficient in substantial respects regarding this 12
13 prima facie showing that proper personal service will be effected. Rule 4(e) of the Guam Rules
14 of Civil Procedure requires that if a person against whom an action is filed is a resident of Guam 15 or any other jurisdiction of the United States, they must be served either: (1) under the laws of 16 Guam; (2) "as prescribed by the law of the place where the person is served;" or (3) in person, 17 or at his residence by leaving it with a household member of suitable age, or by serving the 18
19 person's agent. GRCP Rule 4(e)(2012). However, if the Defendant is not a resident of Guam or
20 any jurisdiction of the United States, then personal service must be made under GRCP Rule 21 4(f), as the legislatively authorized method of service on residents of sovereign foreign nations, 22 and may no longer be made "in any manner prescribed or authorized by the laws of Guam," as 23 permitted under GRCP Rule 4(e)(1), but instead must be made in conformity with GRCP Rule 24
25 4(f).
26 The Plaintiffs verified complaint in DM 0 160- 14 states: "Defendant, MYROSLAVA 27 OLEKSANDRIVNA DEMCHONKO, is a resident of the Ukraine. Her last known address is 28
Page 8 of 20 Decision and Order 0 • DM0160-14; Robert P. Ryan vs. Myroslava O. Demchenko
Shvedskaya Street #10, Poltava, Ukraine, 36000." Ryan v. Demchenko, Domestic Case No. DM 1
2 0160-14, Compl., p. 2, ¶ 11(b) (filed March 18, 2014). The language of the complaint indicates
3 that the Defendant is a resident of Ukraine. The Plaintiffs declaration does not declare under 4 penalty of perjury that the Defendant is a resident of Ukraine, but does confirm the Defendant's 5 last known address. Ryan v. Demchenko, Domestic Case No. DM 0160-14, Pl. Decl., p. 1, 13 6 (filed March 18, 2014). From the facts as the Plaintiff has stated them, the Court cannot be 7
8 certain of the Defendant's residency or whereabouts, but it does appear to the Court that the 9 Defendant is not a resident of the United States, or at least that the Plaintiff has not alleged this 10 to be the case. 11 In order for the Court to properly enter any judgment, it has to appear from either the 12
13 declaration of service or other verified document that service of process will be properly
14 effected on the Defendant against whom judgment will be entered. In this case, there are no 15 allegations which would lead the Court to believe that the Defendant is subject to service of 16 process under the laws of Guam. In fact, the verified statements of the complaint and the 17 Plaintiffs declaration suggest that Defendant Mryoslava Oleksandrivna Demchenko is not a 18
19 resident of the United States, is most likely a resident of Ukraine, and is therefore, not subject to
20 service of process under Guam law. 21 Rule 4(e)(1), allowing for service of process through publication under statute through 22 Rule 4(o), is only applicable where the defendant resides in a jurisdiction of the United States. 23 Elisan Entertainment, Inc. v. Suazo, 206 F.R.D. 335, 335-38 (D. Puerto Rico 2002). "[W]hile it 24
25 is true that the current Fed.R.Civ.P. 4(e)(1) permits the use of state law to perform
26 extraterritorial service, by its own terms, its usage is strictly limited to service upon individuals 27 within `any judicial district of the United States."' Id., at 336. Service of process on foreign 28
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residents "must be made pursuant to Fed.R.Civ.P. 4(f)." Id. There is a special procedure for 1
2 serving residents of foreign nations under Rule 4(f):
3 [W]hen a party seeks to serve process on an individual residing in a foreign country, the Court must follow this two ( 2) prong test: first it must ascertain 4 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 mentioned by Rule 4(f)(1). If there is no applicable internationally agreement 7 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 Defendant Mryoslava Oleksandrivna Demchenko is not a resident of Guam or 11 any United States jurisdiction, and is, as set forth in the Plaintiffs complaint, most likely a 12 resident of Ukraine: 1) service under Rules 4(e)(1) and (o) is not applicable; and 2) service 13
14 under GRCP Rule 4(f) must be effected as a precursor to the exercise of personal jurisdiction
15 over the Defendant and entry of judgment, as no evidence that a waiver has been obtained from 16 the Defendant has been provided to the Court by the Plaintiff. Id. 17 Ukraine has acceded to the Hague Convention on the Service Abroad of Judicial and 18
19 Extrajudicial Documents in Civil and Commercial Matters, and its accession entered into force
20 in 2001. Status Table , Hague Conference on Private International Law, 21 http://www.hcch.net/index en.php?act=conventions.status&cid=17. GRCP Rule 4(f)(1) is 22 applicable in such an instance, which requires service under the laws of the foreign country in 23 which the Defendant resides, rather than U.S. laws. There are no exceptions to these foreign 24
25 service requirements, and the Court may not apply its own local laws to override international
26 law. See, e.g., Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988) 27 (compliance with the service requirements of the Hague Convention under Rule 4(f) is 28
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mandatory when serving a foreign defendant in a signatory country); and Societe Nationale 1
2 Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 534 n. 15, (1987).
3 Perhaps most importantly, if the Defendant appears to be a resident of Ukraine, Rule 4(1) 4 regarding proof of service, contains a special provision for proving foreign service, specifically 5 requiring that if process is served in a foreign country by any of the methods described in Rule 6 4(f)(2) or Rule 4(f)(3), the proof of service must include a receipt signed by the addressee or 7
8 other tangible evidence of delivery to the addressee showing compliance with the law of the
9 receiving country which is satisfactory to the court. GRCP Rule 4(1) (2012) ("Proof of service 10 in a place not within Guam or any other jurisdiction of the United States, its territories, 11 commonwealths, or possessions shall, if effected under paragraph (1) of subdivision (f), be 12 made pursuant to the applicable treaty or convention, ...."). For the obvious reason that a 13
14 foreign Defendant will usually not be present in the forum jurisdiction, this requirement is
15 intended to assure the Court that the process was properly served in the foreign country. Only 16 upon the provision of this proof of service may the Court be assured that it may properly 17 exercise personal jurisdiction over the foreign Defendant. The Plaintiff has made no declaration 18
19 that any attempt to follow the Hague Convention procedures has been done, and the Court has
20 not been provided acceptable proof of service under the Hague Convention. 21 In Saysavanh v. Saysavanh, 145 P.3d 1166 (Utah App. 2006), Husband filed an 22 amended petition for divorce in Utah seeking dissolution of marriage from Wife, who lived in 23 Mexico. Id. at 1167. Approximately one week later, Husband filed a motion for alternative 24
25 service pursuant to Rule 4(d)(3)(B)(iii) of the Utah Rules of Civil Procedure. Id. Like the Guam
26 Rules of Civil Procedure, the Utah Rules of Civil Procedure were directly derived from the 27 Federal Rules of Civil Procedure. The trial court granted the motion for alternative/substituted 28
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service, and the next month, the court clerk mailed an Amended Verified Petition for Divorce, a I
2 summons, a Motion for Order to Show Cause, and an Order to Show Cause to Wife in Mexico,
3 requesting a return receipt. Id. at 1167-68. The receipt was later returned to the court clerk 4 unsigned and without any other indication that the documents had been delivered to Wife. Id. 5 Wife did not appear at the hearing to show cause. Id. Despite Wife's absence, the trial court 6 granted Husband's motion for order to show cause, and subsequently entered a default decree of 7
8 divorce. Id. Upon becoming aware of the default divorce decree, Wife immediately obtained
9 counsel in Utah and filed a motion to set aside the default decree of divorce pursuant to Rule 10 60(b) on the basis of lack of personal jurisdiction. Id. The trial court denied the motion to set 11 aside the default decree, finding that Husband "made every effort possible to apprise [Wife] of 12
13 the divorce proceedings, including strict compliance with Rule 4(d)(3)(B)(iii) of the Utah Rules
14 of Civil Procedure." Id. 15 The Court of Appeals of Utah reversed the trial court's decision, finding that where the 16 rules set forth a particular manner of effecting international service, such as the Hague Service 17 Convention, that manner of service is controlling and strict compliance is required, stating: 18
19 Rule 4 of the Utah Rules of Civil Procedure governs service of process, and 20 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) 21 is applicable, we first assess whether there is an internationally agreed means of 22 service in Mexico, "such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents." Utah R. Civ. P. 23 4(d)(3)(A). If there exists an internationally agreed means of service between the countries, rule 4(d)(3)(A) is applicable. See id. If there is no internationally 24 agreed means of service, rule 4(d)(3)(B) is applicable. See Utah R. Civ. P 25 4(d)(3)(B).
26 Id. 27
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Finding that Husband had served Wife under Rule 4(d)(3)(B), instead of Rule 4(d)(3)(A) 1
2 and the Hague Service Convention, as the internationally agreed means of service between
3 Mexico and the United States, the appellate court held that the default decree was improperly 4 entered against Wife: "Husband has failed to properly serve Wife according to rule 4(d) of the 5 Utah Rules of Civil Procedure and the Hague Service Convention. As a result, service of 6 process was not properly effectuated and the trial court lacks personal jurisdiction. We therefore 7
8 reverse the trial court's denial of Wife's motion to set aside the default decree of divorce." Id. at 9 1169. 10 Similarly, in Ward v. Ludwig , 778 N.E.2d 650 (Ohio Ct. App. 2002), following the 11 entry of a default decree of divorce, Wife, a German citizen, entered an appearance for limited 12
13 purpose of contesting the trial court's jurisdiction and petitioning to vacate the judgment. Id. at
14 651. The trial court denied the petition. Id. The Ohio Court of Appeals overturned the trial 15 court, holding that the decree of divorce was void for lack of service. Id. at 652-53. The 16 appellate court found that Husband, who filed the action while Wife was living in Germany, 17 was required to comply with the provisions of the Hague Service Convention, which was 18
19 adopted by both Germany and the United States; and even though Wife had received actual
20 notice of the complaint and related papers, it was error for the trial court to allow alternative 21 service by registered mail. Id. 22 The point of these cases is clear. In order for the trial court to enter a valid and binding 23 judgment of divorce against a resident of a foreign nation, service must be validly made in that 24
25 country under the proper rule of procedure, and any applicable agreed international service
26 provisions; where there is no such provision, Rule 4(f)(2) requires that service must be effected 27 under the laws of the country in which service will occur. Service which does not comply with 28
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a specifically applicable foreign service provision is invalid, and no judgment may be entered 1
2 thereon, even if personal service which would be valid within the United States has been
3 effected under a different rule. Between sovereign nations, the laws of the sovereign are 4 controlling with regards to its own citizens. 5 In this case, the Plaintiff filed his request for substituted service on the same day as he 6 filed the complaint. It is apparent that the Plaintiff has not "made every effort possible to 7
8 apprise [Wife] of the divorce proceedings," Saysavanh, 145 P.3d at 1167-68, as he has not 9 attempted personal service or any service at all "by any internationally agreed means reasonably 10 calculated to give notice, such as those means authorized by the Hague Convention on the 11 Service Abroad of Judicial and Extrajudicial Documents." GRCP Rule 4(f)(1)(2012). Because 12
13 the method of service proposed by the Plaintiff does not establish that it will comply with the
14 laws of Ukraine, at this time, the Court must DENY the issuance of substituted service under 7 15 GCA § 14106 through Rule 4(o), as requested by the Plaintiff. 16 B. Requirements of Substituted Service and Deficiency of Underlying Declaration in 17 Support of Order Allowing Service by Publication 18
19 Even if the Defendant was a resident of a United States jurisdiction, and therefore, could
20 be subject to any service allowed under Guam law or U.S. law under GRCP Rule 4(e)(1), the 21 current GRCP Rule 4 only allows for service through publication and mailing as permitted by 22 statute or court order, in accordance with due process. GRCP Rule 4(o)(2012). 7 GCA § 14106 23 is the controlling statute, and specifically allows for service by publication and mailing instead 24
25 of personal service under GRCP Rule 4(e)(1) or (2), only when an application is made to the
26 Court upon a verified affidavit (or declaration, see 6 GCA § 4308) swearing either that the 27 person "has departed from Guam ...or conceals himself to avoid the service of summons" and 28
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that "a cause of action exists against the defendant." 7 GCA § 14106 (2012). It states in 1
2 relevant part:
3 (a) Where the person on whom service is to be made has departed from Guam, and cannot, after due diligence, be found in Guam, or conceals himself to avoid 4 the service of summons ... and the fact appears by affidavit to the satisfaction of 5 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 6 respect to whom the service is to be made ... such court or judge may make an order that the service be made by the publication of the summons and by mailing 7 the complaint and summons. (b) Service by mail shall be by any kind of U.S. 8 Postal Service delivery that provides for written proof of mailing, written proof of delivery and restricted delivery to the addressee only. 9
10 7 GCA § 14106 (emphasis added).
11 The Plaintiff apparently requests that this order for service by publication issue simply
12 because the Defendant is no longer a resident of Guam. See Pl. Compl. p.2 ¶ II(b). However, 13 service by publication and mailing under 7 GCA § 14106, in lieu of personal service under 14 GRCP Rule 4, constitutes substituted service, and has specific factual requirements which must 15
16 be declared to the Court.
17 Rule 4(e) anticipates that parties who reside in other United States jurisdictions may 18 need to be served from time to time, and provides a method for such personal service, stating: 19 "service upon an individual ... may be effected ... in any other jurisdiction of the United 20 States, its territories, commonwealths, and possessions: (1) ... as prescribed by the law of the 21
22 place where the person is served; or (2) by delivering a copy of the summons and of the
23 complaint to the individual personally ...." GRCP Rule 4(e). 24 Personal delivery of service is the gold standard of available service methods, and is 25 "always adequate in any type of proceeding." Mullane v. Central Hanover Bank & Trust Co., 26 339 U.S. 306, 313 (1950). Due process requires that service must be "reasonably calculated, 27
28 under all the circumstances, to apprise interested parties of the pendency of the action and
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afford them an opportunity to present their objections" because "process which is a mere 1
2 gesture is not process." Id. at 314-15.
3 For unknown or missing persons, service through ineffectual or even "futile" methods 4 such as publication may be sufficient. Id. at 317. But, "[a]s to known present [parties] of 5 known place of residence, however, notice by publication stands on a different footing. 6 Exceptions in the name of necessity do not sweep away the rule that within the limits of 7
8 practicability notice must be such as is reasonably calculated to reach interested parties." Id. at
9 318. Accordingly, the United States Supreme Court found that a state statute which authorized 10 service of process through publication was insufficient with regards to parties whose addresses 11 and residences were known, stating: 12
13 Publication may theoretically be available for all the world to see, but it is too much in our day to suppose that each or any individual beneficiary does or could 14 examine all that is published to see if something may be tucked away in it that affects his property interests. We have before indicated in reference to notice by 15 publication that, `Great caution should be used not to let fiction deny the fair play 16 that can be secured only by a pretty close adhesion to fact.'
17 Id. at 320 (quoting McDonald v. Mabee , 243 U.S. 90, 91 (1917)). 18 Following this reasoning, other courts have held that a party must attempt personal 19 service or other service designed to reasonably provide notice, prior to attempting substituted 20 service. See Goetz v. Syntheses Technologies, Inc. , 415 F.3d 481, 485-86 (5th Cir. 2005) ("Nail 21
22 and mail" substituted service, i.e., service through posting and mailing, as authorized under state
23 statute, was improper for lack of due diligence when the plaintiff failed to make even a single 24 attempt at personal service at a known residence belonging to the defendant); Burchett v. City 25 of Newport Beach, 33 Cal.App.4th 1472, 1477 (Cal. App. 4 Dist. 1995)(failure to effect or even 26 attempt personal service prior to attempting substituted service was improper, and deprived 27
28 court of personal jurisdiction over defendants); Sangdahl v. Litton, 69 F.R.D. 641 (S.D.N.Y.
Page 16 of 20 Decision and Order • • DMO160-14; Robert P. Ryan vs. Myroslava O. Demchenko
1976); Moreland v. Dorsey Thornton and Associates LLC , No. 10-CV-867, 2010 WL 5463333, 1
2 **2-3 (E.D. Wis. December 29, 2010) ( court allowed substituted service by publication and
3 ordinary mail, but only after the Plaintiff diligently made several attempts at personal service, 4 and exhausted other methods of service reasonably calculated to give notice). 5 In Sangdahl, the District Court would not approve substituted service on a non-resident 6 defendant where the defendant could readily have been served in the state of his residence under 7
8 the New York long-arm statute. The court found, "any order permitting substituted service
9 should be made only after plaintiff sustains the `heavy burden' of showing that an exhaustive 10 search has been made for defendant and all other permissible methods of service are 11 impracticable." Id. at 644-45. 12
13 7 GCA § 14106 was adopted from the California Code of Civil Procedure, Title 5,
14 Jurisdiction and Service of Process, Chapter 3, Summons, §§ 412.10, et. seq. Particularly,
15 California now permits service by publication under CCCP § 415.50 , which is substantively 16 similar to 7 GCA § 14106. Under these statutes regarding service of summons, in California, 17 "[a]ll means other than personal delivery to the defendant are considered substituted service, 18
19 and personal service must have been diligently attempted before substituted service may be
20 performed." Bonita Packing Co. v. O'Sullivan, 165 F.R.D. 610, 613 (C.D. Ca. 1995 ). Where a 21 Guam statute is derived from a California statute, California cases interpreting the statute are 22 highly persuasive, and the Superior Court of Guam must follow California precedent unless 23 there is a compelling reason to deviate from the California law. Fajardo v. Liberty House Guam, 24
25 2000 Guam 4 ¶ 17; and Cruz v. Cruz, 2005 Guam 3 ¶ 9. Accordingly, 7 GCA § 14106 provides
26 a method of substituted service and requires a showing that personal service is unavailing. 27
Page 17 of 20 Decision and Order • 0 DM0160-14; Robert P. Ryan vs. Myroslava O. Demchenko
Under the specific language of 7 GCA § 14106, publication and mailing are to be 1
2 utilized only when, "after due diligence" it is apparent that the party to be served "has departed
3 Guam" or "conceals himself to avoid service of the summons, ..." 7 GCA § 14106 (2012). Like 4 the statute at issue in Goetz, "under the plain text of the statute, a plaintiff is required to exercise 5 `due diligence' to complete service ...." Goetz, 415 F.3d at 483; see also Bland v. Fairfax 6 County, Va., 275 F.R.D. 466, 470 (E.D. Va. 2011) ("This is an example that where the rules 7
8 favored personal service to the exclusion of other methods, the rules say so."); and Moreland, at
9 *3 (citing Wis. Stat. 801.11(5)(b)) ("if with reasonable diligence a defendant cannot be served 10 by the means set forth above then a summons may be served ... by publication and mailing."). 11 It is clear from the language of 7 GCA § 14106 that other methods of service are preferred to 12
13 service by publication and mailing, and a party must exercise "due diligence" prior to seeking
14 an order permitting service under this statute. 15 Interpreting the former California Code of Civil Procedure § 412, from which 7 GCA § 16 14106 is directly derived, the Supreme Court of California has interpreted "due diligence" to 17 mean actual, documented efforts to locate and personally serve a defendant. Kahn v. Matthai , 18
19 115 Cal. 689, 692, 47 Pac. 698, 699 (Cal. 1897); see also Chapman v. Moore, 151 Cal. 509,
20 513-14, 91 P. 324, 325-26 (Cal. 1907); Rue v. Quinn , 137 Cal. 651, 655-57, 66 P. 216, 217 21 (Cal. 1902); and Forbes v. Hyde, 31 Cal. 342, 350 (Cal. 1866). In Kahn, the court found that 22 the first step in showing "diligence" in requesting service by publication under the statute is the 23 filing of a prescribed affidavit showing in detail the probative facts indicating a thorough search 24
25 to locate the defendant, including the dates of any attempts to serve the defendant by another
26 method of service; thus, an affidavit which did not include this information was "fatally 27 defective in failing to show with accuracy the efforts made to serve defendant with summons." 28
Page 18 of 20 Decision and Order 0 0 DM0160-14; Robert P. Ryan vs. Myroslava O. Demchenko
Id. In accordance with the language of the statute, service by publication and mailing under 7 1
2 GCA § 14106 is only available as an option of last resort, when a defendant has fled Guam or is
3 hiding somewhere to avoid service, and the plaintiff has exercised due diligence, but has been 4 unable to locate and personally serve the defendant due to the defendant's evasion. 5 In accordance with the due process clause, and cases interpreting the former CCCP § 6 412, which was identical to 7 GCA § 14106, the Court finds that it is improper for a party to 7
8 make a request for service by publication and mailing on a party whose residence or domicile is 9 known, prior to exercising due diligence to serve the party by other means reasonably calculated 10 to give actual notice, such as personal service. The due diligence requirement of § 14106 does 11 not merely refer to attempts to ascertain the Defendant's location, but is to be interpreted as part 12 of the statutory scheme to effectuate summons via personal service whenever possible, and only 13
14 employ substituted service upon a showing that personal service is unavailable or impracticable.
15 In this case, from the allegations of the verified complaint and the Plaintiffs declaration, the 16 Plaintiff believes, though does swear under penalty of perjury, that the Defendant is a resident 17 of Ukraine, and has a last known address by which the Plaintiff could attempt to contact the 18
19 Defendant using the Hague Convention procedures. But no attempt at personal service at the
20 Defendant's last known address was ever made in this case, despite a lack of showing that such 21 service is impracticable and unavailable. Goetz , 415 F.3d at 485 ("due diligence is absent where 22 the plaintiffs have failed to make any attempts to perform service at known addresses."); and 23 Trackman v. Kenney, 187 Cal.App.4th 175, 185 (Cal.App.3.Dist. 2010) ("Ordinarily, ... two or 24
25 three attempts at personal service at a proper place should fully satisfy the requirement of
26 reasonable diligence and allow substituted service to be made."). Thus, even if the Court found 27 that the Defendant was not a resident of a foreign country who was subject to Rule 4(f)(1), and 28
Page 19 of 20 Decision and Order 0 9 DMO160-14; Robert P. Ryan vs. Myroslava O. Demchenko
was instead subject to Rule 4(e), the Court would find that the Plaintiff has improperly made a 1
2 request for service by publication and mailing before exercising due diligence, and the Court
3 would be required to DENY any request by the Plaintiff for an order permitting service under 7 4 GCA § 14106 and Rule 4(o), made prior to any attempt at personal service. 5 CONCL USION 6 For the reasons set forth above, the Plaintiff's Motion for Order for Publication of 7
8 Summons is DENIED. The Plaintiff has not attempted to serve the Defendant by personal
9 service of process, which the Guam Rules of Civil Procedure and the treaty obligations of the 10 United States require the Plaintiff to do. As Ukraine is a state party to the Hague Convention, 11 and the Plaintiff believes that the Defendant is a resident of Ukraine and has a last known 12 address in Ukraine at which to attempt to contact the Defendant, the Plaintiff should first follow 13
14 the Hague Convention procedures to attempt personal service. The Court will only consider
15 substituted service upon the foreign resident Defendant upon a showing of proof, with the 16 required documentation, that the Plaintiff's did his due diligence in attempting to summons the 17 Defendant by personal service of process via the proper Hague Convention procedures, and that 18
19 despite said due diligence the Hague Convention procedures are unavailable or impracticable as
20 a means of summons. 21 IT IS SO ORDERED MAR 31 2014 22
24 HONORABLE-ARTHUR R. BARCINAS 25 Judge, Superior Court of Guam SERVICE VIA COURT. BOX 26 **"oWedpe the a coot of the original hereto was place" the boxot^ 27
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