' • l .· ~
5 IN THE SUPERIOR COURT OF GUAM 6
7 MATTHEW ZWAN, 8 DOMESTIC CASE NO. DM 0377-14 Plaintiff, 9 v. 10 DECISION AND ORDER
11 JENNIFER ZWAN-O'LEARY,
12 Defendant.
15 INTRODUCTION 16 This matter came for review by the Honorable Arthur R. Barcinas on the ih day of July, 17 2014, upon the Plaintiffs Motion for Order Allowing Service by Publication. Attorney William 18 B. Pole represents the Plaintiff, and the Defendant has not yet been served or made an 19
20 appearance. For the reasons set forth below, the Plaintiffs Motion for Order for Publication of
21 Summons is DENIED. 22 DISCUSSION 23 If the Defendant in a Complaint for Divorce is a resident of a United States jurisdiction, 24 and therefore, could be subject to any service allowed under Guam law or U.S. law under GRCP 25
26 Rule 4(e)(1 ), the current GRCP Rule 4 only allows for service through publication and mailing
27 as permitted by statute or court order, in accordance with due process. GRCP Rule 4(o)(2012). 28 7 GCA § 14106 is the controlling statute, and specifically allows for service by publication and Decision and Order DM0377-14; Zwan v. Zwan-O'Leary
mailing instead of personal service under GRCP Rule 4(e)(l) or (2), only when an application is
2 made to the Court upon a verified affidavit (or declaration, see 6 GCA § 4308) swearing either
3 that the person "has departed from Guam . . .or conceals himself to avoid the service of 4 summons" and that "a cause of action exists against the defendant." 7 GCA § 14106 (2005). It 5 states in relevant part: 6 (a) Where the person on whom service is to be made has departed from Guam, 7 and cannot, after due diligence, be found in Guam, or conceals himself to avoid 8 the service of summons ... and the fact appears by affidavit to the satisfaction of the court, or a judge thereof, and it also appears by such affidavit, or by the 9 verified complaint on file, that a cause of action exists against the defendant in 10 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 11 the complaint and summons. (b) Service by mail shall be by any kind of U.S. Postal Service delivery that provides for written proof of mailing, written proof of 12 delivery and restricted delivery to the addressee only. 13 7 GCA § 14106 (2005) (emphasis added). 14 The Plaintiff apparently requests that this order for service by publication issue simply 15
16 because the Defendant cannot be found on Guam. See Pl.'s Mot. However, service by
17 publication and mailing under 7 GCA §14106, in lieu of personal service under GRCP Rule 4, 18 constitutes substituted service, and has specific factual requirements which must be declared to 19 the Court. 20 Rule 4(e) anticipates that parties who reside in other United States jurisdictions may 21
22 need to be served from time to time, and provides a method for such personal service, stating:
23 "service upon an individual ... may be effected ... in any other jurisdiction of the United 24 States, its territories, commonwealths, and possessions: (1) ... as prescribed by the law of the 25 place where the person is served; or (2) by delivering a copy of the summons and of the 26 complaint to the individual personally .... " GRCP Rule 4(e). 27
Page 2 of7 Decision and Order DM0377-14; Zwan v. Zwan-O'Leary
Personal delivery of service is the gold standard of available service methods, and is
2 "always adequate in any type of proceeding." Mullane v. Central Hanover Bank & Trust Co.,
3 339 U.S. 306, 313 (1950). Due process requires that service must be "reasonably calculated, 4 under all the circumstances, to apprise interested parties of the pendency of the action and 5 afford them an opportunity to present their objections" because "process which is a mere 6
7 gesture is not process." Id. at 314-15.
8 For unknown or missing persons, service through ineffectual or even "futile" methods
9 such as publication may be sufficient. Id. at 317. But, "[e]xceptions in the name of necessity IO do not sweep away the rule that within the limits of practicability notice must be such as is II reasonably calculated to reach interested parties." ld. at 318. Accordingly, the United States I2
13 Supreme Court found that a state statute which authorized service of process through
I4 publication was insufficient, stating: I5 Publication may theoretically be available for all the world to see, but it is too I6 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 I7 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 I8 that can be secured only by a pretty close adhesion to fact.' I9 ld. at 320 (quoting McDonald v. Mabee, 243 U.S. 90,91 (1917)). 20 Following this reasoning, other courts have held that a party must attempt personal 2I
22 service or other service designed to reasonably provide notice, prior to attempting substituted
23 service. See Goetz v. Synthesys Technologies, Inc., 415 F.3d 481, 485-86 (5th Cir. 2005) 24 ("Nail and mail" substituted service, i.e., service through posting and mailing, as authorized 25 under state statute, was improper for lack of due diligence when the plaintiff failed to make 26
27 even a single attempt at giving personal to the defendant); Burchett v. City of Newport Beach,
28 33 Cal.App.4th 1472, 1477 (Cal. App. 4 Dist. 1995) (failure to effect or even attempt personal
Page3 of7 Decision and Order DM0377-14; Zwan v. Zwan-O'Leary
service prior to attempting substituted service was improper, and deprived court of personal
2 jurisdiction over defendants); Sangdahl v. Litton, 69 F.R.D. 641 (S.D.N.Y. 1976); Moreland v.
3 Dorsey Thornton and Associates LLC, No. 10-CV-867, 2010 WL 5463333, **2-3 (E.D. Wis. 4 December 29, 2010) (court allowed substituted service by publication and ordinary mail, but 5 only after the Plaintiff diligently made several attempts at personal service, and exhausted other 6 methods of service reasonably calculated to give notice). 7
8 In Sangdahl, the District Court would not approve substituted service on a non-resident
9 defendant where the defendant could readily have been served in the state of his residence under 10 the New York long-arm statute. The court found, "any order permitting substituted service 11 should be made only after plaintiff sustains the 'heavy burden' of showing that an exhaustive 12
13 search has been made for defendant and all other permissible methods of service are
14 impracticable." Id. at 644-45. 15 7 GCA § 14106 was adopted from the California Code of Civil Procedure, Title 5, 16 Jurisdiction and Service of Process, Chapter 3, Summons, §§ 412.10, et. seq. Particularly, 17 California now permits service by publication under CCCP § 415.50, which is substantively 18
19 similar to 7 GCA § 14106. Under these statutes regarding service of summons, in California,
20 "[a]ll means other than personal delivery to the defendant are considered substituted service, 21 and personal service must have been diligently attempted before substituted service may be 22 performed." Bonita Packing Co. v. O'Sullivan, 165 F.R.D. 610, 613 (C.D. Ca. 1995).
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' • l .· ~
5 IN THE SUPERIOR COURT OF GUAM 6
7 MATTHEW ZWAN, 8 DOMESTIC CASE NO. DM 0377-14 Plaintiff, 9 v. 10 DECISION AND ORDER
11 JENNIFER ZWAN-O'LEARY,
12 Defendant.
15 INTRODUCTION 16 This matter came for review by the Honorable Arthur R. Barcinas on the ih day of July, 17 2014, upon the Plaintiffs Motion for Order Allowing Service by Publication. Attorney William 18 B. Pole represents the Plaintiff, and the Defendant has not yet been served or made an 19
20 appearance. For the reasons set forth below, the Plaintiffs Motion for Order for Publication of
21 Summons is DENIED. 22 DISCUSSION 23 If the Defendant in a Complaint for Divorce is a resident of a United States jurisdiction, 24 and therefore, could be subject to any service allowed under Guam law or U.S. law under GRCP 25
26 Rule 4(e)(1 ), the current GRCP Rule 4 only allows for service through publication and mailing
27 as permitted by statute or court order, in accordance with due process. GRCP Rule 4(o)(2012). 28 7 GCA § 14106 is the controlling statute, and specifically allows for service by publication and Decision and Order DM0377-14; Zwan v. Zwan-O'Leary
mailing instead of personal service under GRCP Rule 4(e)(l) or (2), only when an application is
2 made to the Court upon a verified affidavit (or declaration, see 6 GCA § 4308) swearing either
3 that the person "has departed from Guam . . .or conceals himself to avoid the service of 4 summons" and that "a cause of action exists against the defendant." 7 GCA § 14106 (2005). It 5 states in relevant part: 6 (a) Where the person on whom service is to be made has departed from Guam, 7 and cannot, after due diligence, be found in Guam, or conceals himself to avoid 8 the service of summons ... and the fact appears by affidavit to the satisfaction of the court, or a judge thereof, and it also appears by such affidavit, or by the 9 verified complaint on file, that a cause of action exists against the defendant in 10 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 11 the complaint and summons. (b) Service by mail shall be by any kind of U.S. Postal Service delivery that provides for written proof of mailing, written proof of 12 delivery and restricted delivery to the addressee only. 13 7 GCA § 14106 (2005) (emphasis added). 14 The Plaintiff apparently requests that this order for service by publication issue simply 15
16 because the Defendant cannot be found on Guam. See Pl.'s Mot. However, service by
17 publication and mailing under 7 GCA §14106, in lieu of personal service under GRCP Rule 4, 18 constitutes substituted service, and has specific factual requirements which must be declared to 19 the Court. 20 Rule 4(e) anticipates that parties who reside in other United States jurisdictions may 21
22 need to be served from time to time, and provides a method for such personal service, stating:
23 "service upon an individual ... may be effected ... in any other jurisdiction of the United 24 States, its territories, commonwealths, and possessions: (1) ... as prescribed by the law of the 25 place where the person is served; or (2) by delivering a copy of the summons and of the 26 complaint to the individual personally .... " GRCP Rule 4(e). 27
Page 2 of7 Decision and Order DM0377-14; Zwan v. Zwan-O'Leary
Personal delivery of service is the gold standard of available service methods, and is
2 "always adequate in any type of proceeding." Mullane v. Central Hanover Bank & Trust Co.,
3 339 U.S. 306, 313 (1950). Due process requires that service must be "reasonably calculated, 4 under all the circumstances, to apprise interested parties of the pendency of the action and 5 afford them an opportunity to present their objections" because "process which is a mere 6
7 gesture is not process." Id. at 314-15.
8 For unknown or missing persons, service through ineffectual or even "futile" methods
9 such as publication may be sufficient. Id. at 317. But, "[e]xceptions in the name of necessity IO do not sweep away the rule that within the limits of practicability notice must be such as is II reasonably calculated to reach interested parties." ld. at 318. Accordingly, the United States I2
13 Supreme Court found that a state statute which authorized service of process through
I4 publication was insufficient, stating: I5 Publication may theoretically be available for all the world to see, but it is too I6 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 I7 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 I8 that can be secured only by a pretty close adhesion to fact.' I9 ld. at 320 (quoting McDonald v. Mabee, 243 U.S. 90,91 (1917)). 20 Following this reasoning, other courts have held that a party must attempt personal 2I
22 service or other service designed to reasonably provide notice, prior to attempting substituted
23 service. See Goetz v. Synthesys Technologies, Inc., 415 F.3d 481, 485-86 (5th Cir. 2005) 24 ("Nail and mail" substituted service, i.e., service through posting and mailing, as authorized 25 under state statute, was improper for lack of due diligence when the plaintiff failed to make 26
27 even a single attempt at giving personal to the defendant); Burchett v. City of Newport Beach,
28 33 Cal.App.4th 1472, 1477 (Cal. App. 4 Dist. 1995) (failure to effect or even attempt personal
Page3 of7 Decision and Order DM0377-14; Zwan v. Zwan-O'Leary
service prior to attempting substituted service was improper, and deprived court of personal
2 jurisdiction over defendants); Sangdahl v. Litton, 69 F.R.D. 641 (S.D.N.Y. 1976); Moreland v.
3 Dorsey Thornton and Associates LLC, No. 10-CV-867, 2010 WL 5463333, **2-3 (E.D. Wis. 4 December 29, 2010) (court allowed substituted service by publication and ordinary mail, but 5 only after the Plaintiff diligently made several attempts at personal service, and exhausted other 6 methods of service reasonably calculated to give notice). 7
8 In Sangdahl, the District Court would not approve substituted service on a non-resident
9 defendant where the defendant could readily have been served in the state of his residence under 10 the New York long-arm statute. The court found, "any order permitting substituted service 11 should be made only after plaintiff sustains the 'heavy burden' of showing that an exhaustive 12
13 search has been made for defendant and all other permissible methods of service are
14 impracticable." Id. at 644-45. 15 7 GCA § 14106 was adopted from the California Code of Civil Procedure, Title 5, 16 Jurisdiction and Service of Process, Chapter 3, Summons, §§ 412.10, et. seq. Particularly, 17 California now permits service by publication under CCCP § 415.50, which is substantively 18
19 similar to 7 GCA § 14106. Under these statutes regarding service of summons, in California,
20 "[a]ll means other than personal delivery to the defendant are considered substituted service, 21 and personal service must have been diligently attempted before substituted service may be 22 performed." Bonita Packing Co. v. O'Sullivan, 165 F.R.D. 610, 613 (C.D. Ca. 1995). Where a 23 Guam statute is derived from a California statute, California cases interpreting the statute are 24
25 highly persuasive, and the Superior Court of Guam must follow California precedent unless
26 there is a compelling reason to deviate from the California law. Fajardo v. Liberty House Guam, 27
Page 4 of7 Decision and Order DM0377-14; Zwan v. Zwan-O'Leary
2000 Guam 4 ~ 17; Cruz v. Cruz, 2005 Guam 3 ~ 9. Accordingly, 7 GCA § 14106 provides a
2 method of substituted service and requires a showing that personal service is unavailing.
3 Under the specific language of 7 GCA § 14106, publication and mailing are to be used 4 only when, "after due diligence" it is apparent that the party to be served "has departed Guam" 5 or "conceals himself to avoid service of the summons ..." 7 GCA § 14106 (2005). Like the 6 statute at issue in Goetz, "under the plain text of the statute, a plaintiff is required to exercise 7
8 'due diligence' to complete service ...." Goetz, 415 F.3d at 483; see also Bland v. Fairfax
9 County, Va., 275 F.R.D. 466, 470 (E.D. Va. 2011) ("This is an example that where the rules 10 favored personal service to the exclusion of other methods, the rules say so"); and Moreland, at 11 *3 (citing Wis. Stat. 801.11(5)(b)) ("if with reasonable diligence a defendant cannot be served 12
13 by the means set forth above then a summons may be served ... by publication and mailing").
14 It is clear from the language of 7 GCA § 141 06 that other methods of service are preferred to 15 service by publication and mailing, and a party must exercise "due diligence" prior to seeking 16 an order permitting service under this statute. 17 Interpreting the former California Code of Civil Procedure § 412, from which 7 GCA § 18
19 141 06 is directly derived, the Supreme Court of California has interpreted "due diligence" to
20 mean actual, documented efforts to locate and personally serve a defendant. Kahn v. Matthai, 21 115 Cal. 689, 692, 47 Pac. 698, 699 (Cal. 1897); see also Chapman v. Moore, 151 Cal. 509, 22 513-14, 91 P. 324, 325-26 (Cal. 1907); Rue v. Quinn, 137 Cal. 651, 655-57, 66 P. 216, 217 23 (Cal. 1902); and Forbes v. Hyde, 31 Cal. 342, 350 (Cal. 1866). In Kahn, the court found that 24
25 the first step in showing "diligence" in requesting service by publication under the statute is the
26 filing of a prescribed affidavit showing in detail the probative facts indicating a thorough search 27 to locate the defendant, including the dates of any attempts to serve the defendant by another 28
Page 5 of7 Decision and Order DM0377-14; Zwan v. Zwan-O'Leary
method of service; thus, an affidavit which did not include this information was "fatally
2 defective in failing to show with accuracy the efforts made to serve defendant with summons."
3 Id. In accordance with the language of the statute, service by publication and mailing under 7 4 GCA § 14106 is only available as an option of last resort, when a defendant has fled Guam or is 5 hiding somewhere to avoid service, and the plaintiff has exercised due diligence, but has been 6
unable to locate and personally serve the defendant due to the defendant's evasion. 7
8 In accordance with the due process clause, and cases interpreting the former California
9 Code of Civil Procedure§ 412, whichwas identical to 7 GCA § 14106, the Court finds that it is 10 improper for a party to make a request for service by publication and mailing on a party whose 11 residence or domicile is known, prior to exercising due diligence to serve the party by other 12
13 means reasonably calculated to give actual notice, such as personal service. The due diligence
14 requirement of § 14106 is to be interpreted as part of the statutory scheme to effectuate 15 summons via personal service whenever possible, and only employ substituted service upon a 16 showing that personal service is unavailable or impracticable. 17 In this case, in the allegations of the verified complaint and in the Plaintiffs counsel's 18
19 declaration, the Plaintiff does not state that the Defendant has ever been to Guam and has
20 subsequently left Guam. Pole Decl. The only reference to due diligence is the Plaintiffs due 21 diligence in determining that the Defendant is not in Guam, but there is no reference to any 22 attempts to satisfy the due diligence requirement to actually effectuate personal service on the 23 Defendant. Id. The Plaintiff believes the Defendant resides in Washington State in the mainland 24
25 United States, and has a last known address. Pole Decl.; Def.'s Mot. 2. Although the Plaintiff
26 does not affirmatively state that he knows the Defendant's location, the minor children of the 27 parties reside with the Defendant, and the detailed custody arrangements requested in the 28
Page 6 of7 Decision and Order DM0377-14; Zwan v. Zwan-O'Leary
Plaintiffs Complaint strongly suggest that the location of the Defendant and the parties'
2 children is not unknown to the Plaintiff. But no attempt at personal service at the Defendant's
3 last known address is made mention of in any of the Plaintiffs filed documents, nor has the 4 Plaintiff shown that such service is impracticable and unavailable. See Goetz, 415 F.3d at 485 5 ("due diligence is absent where the plaintiffs have failed to make any attempts to perform 6 service at known addresses."); see also Trackman v. Kenney. 187 Cal.App.4th 175, 185 7
8 (Cal.App.3.Dist. 2010) ("Ordinarily, ... two or three attempts at personal service at a proper
9 place should fully satisfy the requirement of reasonable diligence and allow substituted service 10 to be made."). The Court finds that the Plaintiff has not pleaded facts sufficient to grant a 11 motion for service by publication and mailing, on grounds that the required due diligence to 12
13 attempt to actually effectuate personal service is not stated to have ever occurred, and the Court
14 is required to DENY any request by the Plaintiff for an order permitting service under 7 GCA § 15 14106 and Rule 4(o), made prior to any attempt at personal service. 16 CONCLUSION 17 For the reasons set forth above, the Plaintiffs Motion for Order Allowing Service by 18
19 Publication is hereby DENIED.
22 IT IS SO ORDERED this day of 'JUL 0 (', 2014 23
26 SERVICE VIA COURT BOX Judge, Superior Court of Guam 27
Page 7 of7