Cite as Boston Agrex, Inc. v. Helgenberger,12 FSM Intrm. 611 (Pon. 2004)

[12 FSM Intrm. 611]

CIVIL ACTION NO. 2004-028

Decided: August 25, 2004

APPEARANCES:

HEADNOTES

Civil Procedure – Default and Default Judgments

When the plaintiff served a corrected summons and complaint on the defendant on June 3, 2004 and the defendant filed his answer on July 14, 2004, the defendant's contention that the error in the plaintiff's original May 7, 2004 summons (erroneously citing Chuuk instead of Pohnpei as the place to file an answer) caused him to be confused about how and when to respond to the plaintiff's complaint and his contention that the defendant was not in default because he had 30 days, not 20 to answer, offer no possible basis on which the court can find good cause to relieve him from a default entered by the clerk on June 24, 2004. Boston Agrex, Inc. v. Helgenberger, 12 FSM Intrm. 611, 612-13 (Pon. 2004).

[12 FSM Intrm. 612]

Civil Procedure – Service

The statute that gives a defendant 30 days to respond to a complaint instead of the 20 days required under the Rules of Civil Procedure applies only to process served on defendants who are not within the FSM's territorial limits. Boston Agrex, Inc. v. Helgenberger, 12 FSM Intrm. 611, 613 (Pon. 2004).

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

I.

Defendant Bellarmine Helgenberger moves for relief from the default entered against him on June 24, 2004. For the reasons set forth below, the Court denies the motion.

II.

On May 7, 2004, Plaintiff filed a complaint against the Defendant in the Trial Division of this Court in Pohnpei. Also on May 7, 2004, Plaintiff served a copy of the complaint on the Defendant as well as a summons. Among other things, the summons informed the Defendant that he should file an answer to the complaint with the Clerk of Court in Chuuk within 20 days.

By May 31, 2004, Defendant had not yet responded to Plaintiff's complaint. Accordingly, Plaintiff moved for entry of default, and the Clerk entered default against the Defendant on that same day. The next day, the Plaintiff filed a notice of errata, notifying the Court that it did not intend to enforce its default judgment because the summons originally served on Defendant had incorrectly informed the Defendant that he must file an answer with the Court in Chuuk instead of Pohnpei, where the action was filed.

The Plaintiff then served the notice of errata, a corrected summons identifying the Trial Division in Pohnpei as the proper court for filing, and an additional copy of the complaint on Defendant on June 3, 2004. Again, however, Defendant did not respond to the Plaintiff's complaint in the time required by the Rules of Civil Procedure. As a result, Plaintiff again moved for entry of default, and the Clerk entered the default on June 24, 2004.

III.

Defendant contends that good cause exists to relieve him from the default entered against him because: (1) the error in the Plaintiff's original summons caused him to be confused about how and when to respond to the Plaintiff's complaint and (2) the Defendant is not in fact in default because, under 6 F.S.M.C. 134, Defendant had 30 days, not 20, in which to respond to the Plaintiff's complaint. The Court finds no merit in either of these contentions.

First, the Court does not believe that the error in the original summons, which identified the Court of filing in this case as the Trial Division in Chuuk instead of the Trial Division in Pohnpei, prevented the Defendant from timely responding to Plaintiff's complaint. The Plaintiff filed and served a notice of errata explaining this error and making it abundantly clear that Defendant was to file an answer with the Court in Pohnpei within 20 days of service of the corrected summons. This had the effect of giving the Defendant more time than he otherwise would have had to respond to Plaintiff's

[12 FSM Intrm. 613]

complaint. Further, even assuming that the Defendant was confused by the notice of errata or the corrected summons, the responsible course of action would have been to call the Court or the Plaintiff's attorney to clarify any confusion. The Defendant, however, did not do so.

The Court also finds no merit in Defendant's contention that he timely served his answer to Plaintiff's complaint under 6 F.S.M.C. 134, which gives a Defendant 30 days to respond to a complaint instead of the 20 days required under the Rules of Civil Procedure. To begin with, 6 F.S.M.C. 134 has no application to this case because that statute applies only to process served on defendants who are not within the territorial limits of the FSM. That is not the case here. Further, even assuming that Defendant could take advantage of the extended time for filing provided by § 134, Defendant's answer would still be untimely. Plaintiff served the corrected summons and complaint on Defendant on June 3, 2004. Thus, even under § 134, Defendant's answer was due no later than July 5, 2004. Defendant, however, filed his answer on July 14, 2004.

In sum, the Defendant has offered no possible basis on which the Court can find good cause to relieve him from default. Accordingly, Defendant's motion for relief from default is hereby denied.