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Fabian v Ting Hong Oceanic Enterprises Co Ltd [1997] FMSC 21; 8 FSM Intrm. 093 (Chk. 1997) (10 June 1997)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 1996-1025

KERIO FABIAN,
Plaintiff,

vs.

TING HONG OCEANIC ENTERPRISES CO., LTD.,
Defendant.

ORDER

Decided: June 10, 1997

APPEARANCES:

For the Plaintiff: Kerio Fabian, pro se
For the Defendant: John Hollinrake, Esq.
Law Offices of Hollinrake & Saimon
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Agency; Civil Procedure - Service
The duties of an agent for the service of process are not the same as those of an attorney. Practically anyone may serve in the capacity as an agent. It may entail little more than receiving legal papers and promptly forwarding them on to the principal. Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 93, 94 (Chk. 1997).

Agency; Attorney Trial Counselor and Client; Civil Procedure - Service
When a law firm has been designated as an agent for service of process by a foreign corporation required to appoint one in the FSM, the law firm may remain the corporation's agent for service even if the corporation has left the FSM and the firm is no longer its attorney. Fabian v. Ting Hong Oceanic Enterprises, 8 FSM Intrm. 93, 94-95 (Chk. 1997).

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RICHARD H. BENSON, Associate Justice:

I have before me the plaintiff's Motion for an Order in Aid of Judgment, attorney John Hollinrake's Motion to Set Aside Certificate of Service of Motion for an Order in Aid of Judgment, and the plaintiff's Opposition to John Hollinrake's Motion to Set Aside Certificate of Service of Motion for an Order in Aid of Judgment, and the plaintiff's Motion for Enlargement.

The plaintiff, Kerio Fabian, obtained a money judgment against defendant Ting Hong Oceanic Enterprises Co., Ltd. (Ting Hong) on February 21, 1997. On April 23, 1997, he filed and served upon Ting Hong's attorney of record, the Law Offices of Hollinrake & Saimon, his Motion for an Order in Aid of Judgment. On May 12, 1997, John Hollinrake, of the Law Offices of Hollinrake & Saimon, filed a Motion to Set Aside Certificate of Service of Motion for an Order in Aid of Judgment. The motion seeks to set aside the certificate of service "to the extent that service on John P. Hollinrake was not effective service on Ting Hong Oceanic Enterprises Co., Ltd." The plaintiff's opposition was filed on May 29, 1997, along with a motion to enlarge time for filing the opposition. Good cause having been show, the plaintiff's motion for an enlargement of time in which to oppose John Hollinrake's motion is hereby granted.

Mr. Hollinrake bases his motion on his contention that the authority of an attorney to act for his client ends when final judgment is obtained, especially with respect to the authority of the losing party's attorney. Mr. Hollinrake avers that he has contacted the Ting Hong and been advised that he no longer has any authority to act on its behalf with respect to this case. Mr. Hollinrake also states that, under the terms of Ting Hong's foreign fishing agreement which ended on March 31, 1997, his law firm was designated as the agent for service of process.

Although I note that at the time that the plaintiff filed his order in aid of judgment motion it was still possible for Ting Hong to appeal, FSM App. R. 4(a)(5) (42-day time period to appeal may be extended up to 30 days), so that the judgment might be said not to have been final at that time, I do not have to decide the question of whether the law firm of Hollinrake & Saimon had the authority to act as Ting Hong's attorneys when that motion was served. I need only decide whether service on the law firm was effective service on Ting Hong - if the law firm was Ting Hong's agent for service of process at that time. The duties of an agent for the service of process are not the same as those of an attorney. Practically anyone may serve in the capacity as an agent. It may entail little more than receiving legal papers and promptly forwarding them on to the principal.

The law firm states that it was designated Ting Hong's agent for service of process under Ting Hong's foreign fishing agreement. It offers no evidence that that designation became ineffective when the foreign fishing agreement came to an end. I have taken judicial notice of a previous Ting Hong foreign fishing agreement found in our public court records in FSM v. Wu Yong Hua, Civil Action No. 1994-1054. Language in that foreign fishing agreement required the appointment of an agent for the service of process. It did not provide for the termination of that appointment. The law firm further states that Ting Hong no longer does business in this jurisdiction. It is for just such an eventuality that the designation of an agent for the service of process is often required. The law firm offers no other legal argument that it is no longer Ting Hong's agent for service of process.

I can therefore only conclude that the law firm remains Ting Hong's agent for service of process, even if, which I do not decide, it may no longer be Ting Hong's attorney. John Hollinrake's Motion to Set Aside Certificate of Service of Motion for an Order in Aid of Judgment is therefore denied. Service on the law firm constituted effective service on Ting Hong's agent for service of process. The agent should have no trouble forwarding the plaintiff's motion to its principal, Ting Hong. The plaintiff may proceed with his Motion for an Order in Aid of Judgment. This order shall be served on Ting Hong through its agent for service of process, the Law Offices of Hollinrake & Saimon.

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