OPINIONS

OF THE

APPELLATE DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2011-2012)

LONGLINE SERVICES, INC., and ALGIS ALONSO ACEVEDO GONZALES, Appellants,

v.

RICHARD KUPFER, Appellee.

________________________________

High Court of American Samoa
Appellate Division

APPELLATE DIVISION

AP No. 09-10

April 30, 2012

[1] A trial court’s choice between two permissible views of the weight of evidence is not clearly erroneous where the evidence would support a conclusion either way. 

[2] A court abuses its discretion when it does not apply the correct law or rests its decision on a clearly erroneous finding of a material fact. 

[3] A trial court abuses its discretion when it makes an error of law. Thus, the first step of the abuse of discretion test is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested. If the trial court failed to do so, the appellate court must conclude it abused its discretion. If the trial court identified the correct legal rule, the appellate court moves to the second step of the abuse of discretion test. The second step of the abuse of discretion test is to determine whether the trial court’s application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record. If any of these three apply, only then is the appellate court able to have a definite and firm conviction that the trial court reached a conclusion that was a mistake or was not among its permissible options, and thus that it abused its discretion by making a clearly erroneous finding of fact. 

[4] Where an undisputed certification and facts as alleged by a plaintiff confirm that the defendant’s alleged conduct may relate to his official duties, that plaintiff must serve the defendant and his government-agency employer pursuant to T.C.R.C.P. 4(d)(5). 

[5] It is axiomatic that a court must have power to enforce its own orders. Longline Services, Inc. v. Kupfer, AP No. 09-10, slip op. at 10 (App. Div. Apr. 30, 2012).

[6] Where an undisputed certification certifying a defendant was working in his official capacity at the time of a complained-of incident and facts as alleged by a plaintiff confirm that the defendant’s alleged conduct may relate to his official duties, failure to serve process in accordance with T.C.R.C.P. 4(d)(5) and A.S.C.A. §§ 43.0501, et seq., can be grounds for dismissing a complaint with prejudice if a court orders compliance at threat of dismissal with prejudice within 30 days and the plaintiff does not comply. It is not an abuse of discretion for a lower court in such circumstances to so hold. Longline Services, Inc. v. Kupfer, AP No. 09-10, slip op. at 10-12 (App. Div. Apr. 30, 2012).

Before RICHMOND, Associate Justice; WARD, Associate Justice; PATEA* Acting Associate Justice; SATELE, Associate Judge; and FA’AMAUSILI, Associate Judge.

Counsel:	For Appellants, Mark F. Ude
For Appellee, Jeanne M. Franken, Assistant United States Attorney; and Marshall Ashley

OPINION AND ORDER

At issue on appeal is whether the Trial Division correctly dismissed Appellants’ Amended Complaint with prejudice, for failure to effect proper and timely personal service on Appellee Richard Kupfer (“Kupfer”) and on his employer (National Oceanic and Atmospheric Administration (“NOAA”)), and whether such dismissal was an abuse of discretion. Oral arguments were held on February 23, 2012. For the reasons set forth below, we affirm the Trial Division’s order dismissing Appellants’ Amended Complaint with prejudice. [**2**]

BACKGROUND

The table below provides a timeline of events from which the present suit has sprung, and it describes the procedural background leading to the subsequent appeal.

Date
	Event	
April 3, 2009	Kupfer was employed by NOAA and assigned as the coordinator for National Marine Fisheries Service (“NMFS”) fishing observer. Appellants Longline Services, Inc., (“Longline”) and Algis Alonso Acevedo Gonzales (“Gonzales”) allege Kupfer referred to Gonzales as being “drunk,” while aboard a fishing vessel captained by Gonzales, during a U.S. Coast Guard (“USCG”) safety inspection. Appellants also allege Kupfer referred to Gonzales as being “drunk” a second time during a phone conversation with the USCG. According to Appellants, these statements resulted in the USCG docking the fishing vessel for approximately six days.
	
April 9, 2009	Appellants filed a Complaint against Kupfer for the alleged defamatory statements Kupfer made against Gonzales.
	
May 11, 2009	Kupfer filed a Motion to Dismiss for, inter alia, failure to effect proper service of process. 
	
June 17, 2009	The Trial Division heard Kupfer’s Motion to Dismiss. 
	
August 12, 2009	The Trial Division dismissed Count Four of the Complaint with prejudice, and issued an Order quashing service of the Complaint and ordering Appellants to “initiate proper service on Kupfer and the United States” within 30 days from the date of the Order. The Trial [**3**] Division further warned Appellants, “If proper service is not effectuated by such time, the matter will be dismissed with prejudice.”
	
September 2, 2009	Appellants filed, ex parte, a Motion for Service of Process by Publication, claiming that Kupfer was attempting to avoid service of process.
	
September 9, 2009	The Trial Division granted Appellants’ motion for service of process by publication.
	
September 10, 2009	Appellants filed an Amended Complaint.
	
November 10, 2009	Kupfer filed a Motion to Dismiss the Amended Complaint for Insufficiency of Service of Process, Lack of Personal and Subject Matter Jurisdiction, and Failure to State a Claim. 
	
December 21, 2009	The Trial Division heard Kupfer’s Motion to Dismiss.
	
January 28, 2010	The Trial Division issued an Order Dismissing the Amended Complaint With Prejudice (“Order”).
	
February 8, 2010	Appellants filed a Motion for Reconsideration.
	
May 25, 2010	The Trial Division denied Appellants’ Motion for Reconsideration.
	
June 2, 2010	Appellants filed a Notice of Appeal.
	
September 17, 2010	The Clerk of Courts filed a Notice of Filing of Record on Appeal.
	
February 23, 2012	The Appellate Division heard oral arguments on the matter. [**4**] 

STANDARD OF REVIEW

The Trial Division’s dismissal of Appellant’s Amended Complaint is based on Appellant’s failure to comply with the Trial Court Rules of Civil Procedure and the Trial Division’s orders. Such a determination involves questions of law and fact. 

[1] The Appellate Division reviews questions of law de novo. Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992). Findings of fact, however, are reviewed deferentially under the “clearly erroneous” standard. A.S.C.A. § 43.0801(b); TCW Special Credits v. F/V Kassandra Z, 7 A.S.R.3d 3, 7 (App. Div. 2003). “A finding [of fact] is clearly erroneous when the entire record produces the definite and firm conviction that the court below committed a mistake, according particular weight to the trial judge’s assessment of conflicting and ambiguous facts.” TCW Special Credits, 7 A.S.R.3d at 7. 

[2, 3] A court abuses its discretion when it “does not apply the correct law or rests its decision on a clearly [**5**] erroneous finding of a material fact.” Casey v. Albertsons’, Inc., 362 F.3d 1254, 1257 (9th Cir. 2004).

DISCUSSION

There are two issues on appeal: (1) Whether Appellants properly and timely served Appellees pursuant to the Order the Trial Division issued on August 12, 2009; and (2) whether the Trial Division abused its discretion when it dismissed Appellant’s Amended Complaint with prejudice. [**6**]

I.	APPELLANTS DID NOT PROPERLY EFFECT SERVICE OF PROCESS

On May 11, 2009, Kupfer filed his first Motion to Dismiss, contending, inter alia, that Appellants failed to effect proper service. Since the Motion to Dismiss invoked T.C.R.C.P. 12(b)(5), the burden was on Appellants to establish that their service of process was adequate. Cooper v. Conn. Pub. Defender’s Office, 480 F.Supp.2d 536, 538 n. 1 (D.C. Conn. 2007). This necessarily means a determination as to what manner of service is required under T.C.R.C.P. 4. Thus, the Trial Division correctly inquired into Kupfer’s capacity in the action filed.

[4] The record below shows that at the June 17, 2009, hearing on the Motion to Dismiss, Kupfer provided a certification from Peter F. Frost, Director, Torts Branch, Civil Division, U.S. Department of Justice, that Kupfer was acting within the scope of his federal employment at the time of the incidents. The record also shows that Appellants utterly failed to present any evidence to refute such certification. The Trial Division, after considering the undisputed certification and the facts as alleged in Appellants’ Complaint, found that Kupfer’s alleged conduct may relate to his official duties, and therefore properly [**7**] required that Kupfer and his employer (NOAA) be served pursuant to T.C.R.C.P. 4(d)(5) (“Rule 4(d)(5)”).

The Trial Division’s August 12, 2009, Order tracks the language of Rule 4(d)(5), and in no uncertain terms gave Appellants 30 days to properly serve the parties or risk a dismissal with prejudice. Upon review, there is nothing ambiguous about the Rule or the trial court’s Order.

The record below contains no evidence that Kupfer was personally served within the court-ordered 30 days (or at all, for that matter). Instead, 21 days into the 30-day period, on September 2, 2009, Appellants filed an ex-parte Motion for Service of Process by Publication, claiming that Kupfer was attempting to avoid service of process. The Trial Division granted the request on September 9, 2009. A day later, which was already 29 days into the court-ordered 30-day period, Appellants filed an Amended Complaint.

On November 10, 2009, Kupfer filed a Motion to Dismiss the Amended Complaint for, inter alia, insufficiency of service of process. Again, the burden was on Appellants to establish that their service of process was adequate. Cooper, 480 F.Supp.2d at 538 n. 1. At the December 21, 2009, hearing on the Motion to Dismiss, Kupfer again [**8**] provided certification from Peter F. Frost, Director, Torts Branch, Civil Division, U.S. Department of Justice, that Kupfer was acting within the scope of his federal employment at the time of the incidents. The record also contains an affidavit from Kupfer’s supervisor in Honolulu, Hawaii regarding, inter alia, the temporary nature of Kupfer’s assignment to American Samoa. 

Upon reviewing the record, it is clear that Appellants offered no evidence to refute the Attorney General’s certification. Once again, Appellants failed to meet their burden to disprove the Attorney General’s certification by a preponderance of the evidence. Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1993). Thus, it was proper for the Trial Division to find that Kupfer provided prima facie evidence that he was acting in the scope of his [**9**] employment at the time of the alleged incident. See Longline Services, Inc. v. Kupfer, CA No. 26-09, slip op. at 7 n. 3 (Trial Div. Jan. 28, 2010) (Order Granting Defendant’s Motion to Dismiss). Therefore, service of process upon Kupfer and his employer had to be accomplished pursuant to Rule 4(d)(5). And once again, the record clearly reflects that Appellants utterly failed to present any evidence to show that Kupfer was served “by delivering a copy of the summons and of the (Amended) Complaint” upon Kupfer. 

It should be noted that even after Appellants obtained leave to serve process by publication, the record below lacks any evidence from Appellants that Kupfer was served in compliance with A.S.C.A. §§ 43.0502-.0504, to wit: there was no proof of publication in a newspaper, no proof of posting in front of the courthouse, and no proof that [**10**] Kupfer actually received service of process by registered mail.,  

Based on the record below, the Trial Division correctly ruled that service of process was not perfected, that it therefore lacked personal jurisdiction over Kupfer, and that the matter should be dismissed. 

II.	THE TRIAL DIVISION DID NOT ABUSE ITS DISCRETION

We find no merit in any of the reasons that Appellants proffer to explain how the Trial Division abused its discretion. 

[5, 6] It is axiomatic that a court must have power to enforce its own orders. The Trial Division gave clear direction to Appellants on how to perfect service of process. Equally unambiguous are the procedural instructions that A.S.C.A. §§ 43.0501 et seq. and T.C.R.C.P. 4 provide for effectuating service of process. The Trial Division gave Appellants ample time to properly serve Kupfer—i.e., 30 days from its August 12, 2009 Order. The Trial Division also warned Appellants of the consequences should they fail to serve Kupfer within the 30-day window. [**11**]

[6] Despite all of this assistance, Appellants still failed to perform this seemingly simple task. They made no showing as to why they did not act diligently within the 30-day period to properly serve Kupfer. In addition, the record below reveals no effort whatsoever by Appellants to seek an extension(s) of time if they felt that more time was needed to perfect service of process. Indeed, Appellants had not even filed any proof of service by the time the Trial Division heard Kupfer’s Motion to Dismiss the Amended Complaint on December 21, 2009. Appellants clearly had ample time to properly serve Kupfer. Instead, Appellants insisted that service of process was satisfied simply because they had sent an envelope, bearing Kupfer’s name, to his place of work via registered mail. 

[6] Reviewing the trial court’s determination of the facts and its application of the law thereto for abuse of discretion, we hold that the powers of the trial court to enforce the Trial Court Rules of Civil Procedure and its valid orders, were correctly applied below. We also hold that the facts in this matter as found below are not clearly erroneous. [**12**]

Lastly, we hold the trial court’s application of the legal rule in this case was not illogical, implausible, nor without support in inferences that may be drawn from the record. The trial court’s decision dismissing this action was clearly within the range of its permissible options. There being no clear mistake made below as a matter of law, we hold the trial court did not abuse its discretion in dismissing this action. [**13**]

ORDER

For the reasons stated above, we affirm the Trial Division’s order. It is so ordered.