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Medabalmi v Island Imports Co [2001] FMSC 53; 10 FSM Intrm. 32 (Chk. 2001) (6 February 2001)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Medabalmi v Islands Imports Co, [2001] FMSC 53; 10 FSM Intrm. 32 (Chk. 2001)

RAO MEDABALMI and DEVI B.B. MEDABALMI,
Plaintiffs,

vs.

ISLAND IMPORTS CO., JOHN AISER ENGICHY and ROSEMARY ENGICHY,
Defendants.

CIVIL ACTION NO. 2000-1032

ORDER

Richard H. Benson
Associate Justice

Decided: February 6, 2001

APPEARANCES:

For the Plaintiff:
Craig D. Reffner, Esq.
Law Offices of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

For the Defendant:
Wesley Simina, Esq.
P.O. Box 94
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Civil Procedure - Motions
Even though failure to timely oppose a motion is deemed a consent to that motion, a court still needs proper grounds before it may grant the motion. Medabalmi v. Island Imports Co., [2001] FMSC 53; 10 FSM Intrm. 32, 34 (Chk. 2001).

Civil Procedure - Default and Default Judgments; Civil Procedure - Service
Although failure to make proof of service does not affect the validity of the service, it does mean that the clerk cannot enter a default because before a clerk will enter a default against a defendant, the record must show that that defendant was properly served. Medabalmi v. Island Imports Co., [2001] FMSC 53; 10 FSM Intrm. 32, 34 (Chk. 2001).

Civil Procedure - Default and Default Judgments; Jurisdiction - Personal
A court must be assured that it has acquired personal jurisdiction over a defendant before it enters a default against him, and a court does not have personal jurisdiction over a defendant unless or until he has been properly served. Medabalmi v. Island Imports Co., [2001] FMSC 53; 10 FSM Intrm. 32, 34 (Chk. 2001).

Civil Procedure - Pleadings; Civil Procedure - Service
If a defendant has never been properly served with a complaint and summons, that defendant cannot possibly file a late or untimely answer because the twenty-day time to answer allowed in Civil Procedure Rule 12(a), or the thirty-day time to answer allowed in 4 F.S.M.C. 204(3), does not start running until valid service of the complaint and summons has been made. Medabalmi v. Island Imports Co., [2001] FMSC 53; 10 FSM Intrm. 32, 34 (Chk. 2001).

Civil Procedure - Motions; Civil Procedure - Pleadings
Motions to strike under Rule 12(f) are viewed with disfavor and are infrequently granted. Medabalmi v. Island Imports Co., [2001] FMSC 53; 10 FSM Intrm. 32, 35 (Chk. 2001).

Judgments - Default Judgments
Courts ordinarily favor resolving cases on their merits rather than on procedural grounds. Medabalmi v. Island Imports Co., [2001] FMSC 53; 10 FSM Intrm. 32, 35 (Chk. 2001).

Civil Procedure - Default and Default Judgments; Civil Procedure - Pleadings
Because default judgments will be vacated under proper circumstances so that cases can be decided on their merits, and because when only a default has been entered, the policy in favor of vacating the default and deciding the case on its merits is even stronger, the policy in favor of deciding a case on its merits when no default has been entered and the answer merely filed a few days late must be much stronger. Medabalmi v. Island Imports Co., [2001] FMSC 53; 10 FSM Intrm. 32, 35 (Chk. 2001).

Civil Procedure - Service
Serving an answer three days late, and filing it four days late is not the type of prejudice that would allow a plaintiff to prevail while avoiding the case being decided on its merits because public policy favors court judgments be on the merits. Medabalmi v. Island Imports Co., [2001] FMSC 53; 10 FSM Intrm. 32, 35 (Chk. 2001).

Civil Procedure - Pleadings; Torts - Fraud
In all averments of fraud the circumstances constituting fraud must be stated with particularity. Medabalmi v. Island Imports Co., [2001] FMSC 53; 10 FSM Intrm. 32, 35 (Chk. 2001).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

I have before me the plaintiffs' Motion to Strike Answer to Complaint and Request for Entry of Default, filed January 2, 2001. On February 5, 2001, the plaintiffs filed a Notice of Non-Opposition to Plaintiffs' Motion to Strike Defendants' Answer to Complaint and Request for Entry of Default. The motion seeks to strike the Defendants' Answer to Complaint; Affirmative Defenses, filed on December 8, 2000, on the ground that it was filed late and the defendants did not move for an enlargement of time within which to file their answer. No opposition to the motion has been filed.

Even though failure to timely oppose a motion is deemed a consent to that motion, Actouka v. Etpison, [1983] FMSC 3; 1 FSM Intrm. 275, 276 (Pon. 1983) (relying on FSM Civ. R. 6(d)), I still need proper grounds before I may grant the motion, Senda v. Mid-Pacific Constr. Co., [1994] FMSC 20; 6 FSM Intrm. 440, 442 (App. 1994).

The Complaint was filed on October 31, 2000. The filed Return of Service states that, on November 13, 2000, a person "served the Complaints with Summons upon Island Import Company, Mr. John Engichy and his wife Mrs. Rosemary Engichy by giving them to Mr. John Engichy at his residence . . .&#" An r for afor all thre three defendants was served by mail on December 7, 2000, and filed on December 8, 2000. On January 2, 2001, the plaintiffs filed their n to e and asked that a default be entered against allt all defe defendants.

Even were the answer to be stricken, defaults still could not be entered at this time against defendants Island Import Company and Rosemary Engichy because the record does not reflect proper service upon those two parties. (If the record had read that the papers were served "at their residence" it could have been read as proper service on Mrs. Engichy as well, but it does not.) This does not necessarily mean that the service was invalid because "[f]ailure to make proof of service does not affect the validity of the service." FSM Civ. R. 4(g). But it does mean that the clerk could not enter a default because before a clerk will enter a default against a defendant, the record must show that that defendant was properly served. This is because a court must be assured that it has acquired personal jurisdiction over a defendant before it enters a default against him, and a court does not have personal jurisdiction over a defendant unless or until he has been properly served. See Berman v. Santos, [1994] FMSC 31; 6 FSM Intrm. 532, 534 (Pon. 1994); 10 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2682, at(2d ed. 1983).

Similarly, if a defendant has never been properly served with a complaint and summons, that defendant cannot possibly file a latuntimely answer. The twenty-day time to answer allowed in C in Civil Procedure Rule 12(a), or the thirty-day time to answer allowed in 4 F.S.M.C. 204(3), does not start running until valid service of the complaint and summons has been made. No such service appearing in the record, the motion to strike, as to defendants Island Import Company and Rosemary Engichy, may be denied on this ground alone.

The plaintiffs contend that the answer was filed late. It was. For a complaint and summons validly served on November 13, 2000, the answer, pursuant to Civil Rule 12(a) would have been due December 4, 2000. (The longer thirty-day time period under 4 F.S.M.C. 204(3) does not apply in this case.) No motion to enlarge time to file answer was made. The plaintiffs contend that the answer should be stricken for this reason and because they would be prejudiced if the answer is not stricken and defaults entered. The motion to strike is brought pursuant to Civil Procedure Rule 12(f).

"[M]otions under Rule 12(f) are viewed with disfavor and are infrequently granted." 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1380, at49 (2d ed. 1990) (f0) (footnote omitted).[1] Courts ordinarily favor resolving cases on their merits rather than on procedural grounds. See, e.g., FSM Dev. Bank v. Gouland, [2000] FMSC 32; 9 FSM Intrm. 375, 378-79 (Chk. 2000) (because of the strong policies favoring resolution on the merits, a trial court should resolve its doubts in favor of a party seeking relief from the entry of a default); Semwen v. Seaward Holdings, Micronesia, [1995] FMSC 17; 7 FSM Intrm. 111, 114 (Chk. 1995) (complaint will not be dismissed although plaintiff's lawyer has misconceived claim's proper legal theory); Paul v. Hedson, [1993] FMSC 29; 6 FSM Intrm. 146, 147 (Pon. 1993) (dismissal for attorney misconduct disfavored); Lonno v. Trust Territory (III), [1983] FMSC 4; 1 FSM Intrm. 279, 281 (Kos. 1983) (default judgments disfavored and readily set aside rather than deprive party of opportunity to contest claim on its merits); Truk Transp. Co. v. Trans Pacific Import Ltd., [1988] FMSC 1; 3 FSM Intrm. 512, 515 (Truk S. Ct. Tr. 1988) (in deciding motion to set aside a default judgment, court is guided by the principle that cases should normally be decided after trials on the merits). Under proper circumstances default judgments will be vacated so that cases can be decided on their merits. See Lonno (III), 1 FSM Intrm. at 281; 11 Wright, Miller, & Kane, supra, § 2857, at 257 (2d ed. 1995as("cases calling for great liberality in granting Rule 60(b) motions [for relief from judgment], for the most part, have involved default judgments"). When only a default has been entered, the policy in favor of vacating the default and deciding the case on its merits is even stronger. Gouland, 9 FSM Intrm. at 378-79 ("[b]ecause of the strong policies favoring resolution on the merits the trial court has only a narrow scope of discretion" to deny motion to vacate entry of default). Logically, the policy in favor of deciding a case on its merits when no default has been entered and the answer merely filed a few days late must be much stronger.

The defendants raise a number of defenses, which, if proven, could negate some, or all, of the relief the plaintiffs seek. Except for having to prosecute the case, which they were, presumably, prepared to do if the answer had been filed four days earlier, the plaintiffs have not claimed nor shown any prejudice to them by the defendants' serving their answer three days late, and filing it four days late. That is not the type of prejudice that would allow a plaintiff to prevail while avoiding the case being decided on its merits. Public policy favors court judgments be on the merits. The court has previously denied a motion for a default judgment for filing an answer later than the time prescribed in Civil Rule 12(a). Lonno (III), 1 FSM Intrm. at 280-81. That tardy answer included an affirmative defense that could have barred the plaintiff's claim. Id. at 281. The same may be true in this case.

There being no proper ground to grant it, the plaintiffs' motion is accordingly denied as to all defendants. In addition, the motion is denied as to defendants Island Import Company and Rosemary Engichy on the ground of lack of valid service.

This case is now at issue. Now therefore it is hereby ordered that the parties shall make all discovery requests by June 1, 2001, complete all discovery by July 3, 2001, and shall file any pretrial motions by July 31, 2001. The court will set a date for hearing pretrial motions once they have been filed. Among the affirmative defenses raised by the defendants is fraud and misrepresentation. Because "[i]n all averments of fraud . . . the mstanonstconstitutinguting fraud . .&. shall be stated with path particularity," FSM Civ. R. 9(b), the defendants have until February 28, 2001, to file a supplemental pleading or amended answer with respect to that defense statinwith the particularity requ required by the rule or that affirmative defense will be stricken.

^[1] When an FSM Civil Procedure Rule is nearly identical to a U.S. Federal Civil Procedure Rule and the FSM Supreme Court has not previously construed the FSM Rule, it may look to the U.S. federal practice for guidance in interpreting the rule. Senda v. Mid-Pacific Constr. Co., [1994] FMSC 20; 6 FSM Intrm. 440, 444 (App. 1994); Jano v. King, [1992] FMSC 11; 5 FSM Intrm. 326, 329 (App. 1992); Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433, 441 (App. 1984).