FSM SUPREME COURT TRIAL DIVISION

Cite as Nakamura v. Mori, 16 FSM Intrm. 262 (Chk. 2009)

[16 FSM Intrm 262]

CIVIL ACTION NO. 2007-1009

Decided: January 27, 2009

APPEARANCES:

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[16 FSM Intrm 263]

HEADNOTES

    When only two parties were named as defendants in the original complaint’s caption, but a third was clearly named as a defendant in the complaint’s text and it was served a separate summons, the third is a party-defendant because the failure to name a party as a defendant in the caption does not mean the action cannot be maintained against that party if the complaint makes a number of explicit references to that party and that party was served since a caption’s technical defects can always be amended. Nakamura v. Mori, 16 FSM Intrm. 262, 266 n.1 (Chk. 2009).

    In the absence of undue delay, bad faith or dilatory motive on the movant’s part; or the movant’s repeated failure to cure deficiencies by amendments previously allowed; or undue prejudice to the opposing party by virtue of the amendment’s allowance; or futility of amendment, leave to amend should, as the rule requires, be freely given. Nakamura v. Mori, 16 FSM Intrm. 262, 266-67 (Chk. 2009).

    The amount of damages a plaintiff requests in the complaint’s ad damnum clause does not limit the amount which a plaintiff may be awarded, even without an amendment to the ad damnum clause. The one exception is that a default judgment cannot exceed in amount that prayed for in the demand for judgment, although, in a default judgment, the court may determine that the damages are less than the amount prayed for. Nakamura v. Mori, 16 FSM Intrm. 262, 267 (Chk. 2009).

    An ad damnum clause is a party’s statement at the end of a pleading of the monetary amount claimed due to the party as damages by virtue of the facts stated. Nakamura v. Mori, 16 FSM Intrm. 262, 267 n.2 (Chk. 2009).

    When the court has not previously construed an FSM civil procedure rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting the rule. Nakamura v. Mori, 16 FSM Intrm. 262, 267 n.3 (Chk. 2009).

    Since joint tortfeasors are not indispensable parties, leave to amend a complaint to drop an alleged joint tortfeasor from the suit should be freely given. Nakamura v. Mori, 16 FSM Intrm. 262, 267 (Chk. 2009).

    Leave is freely given to amend complaints to change the theory of recovery and to add new claims when those new theories and claims are based upon the same facts and occurrences that were pled in the original complaint. Nakamura v. Mori, 16 FSM Intrm. 262, 268 (Chk. 2009).

    Since a plaintiff need not advance a legal theory or, if the plaintiff does advance one, it need not be correct, and since every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings, defendants generally will not be prejudiced by an amendment adding new claims or causes of action based on the same factual allegations as the original complaint. Nakamura v. Mori, 16 FSM Intrm. 262, 268 (Chk. 2009).

    Although, for punitive damages to be awarded, there must be evidence of gross negligence, it is not necessary for such proof to be set forth in the complaint. Nakamura v. Mori, 16 FSM Intrm. 262, 268 (Chk. 2009).

    A negligence cause of action may be amended to add a punitive damages claim subject to proof at trial and, in the absence of such proof, the defendants may move to disallow any punitive damages award. Nakamura v. Mori, 16 FSM Intrm. 262, 268 (Chk. 2009).

    When confronted with a situation where a principal may be held vicariously liable for its agent’s acts, a plaintiff, at the plaintiff’s option, may sue either the principal, the agent, or both. Thus, an agent is not an indispensable or necessary party to a vicarious liability claim against the principal. Nakamura v. Mori, 16 FSM Intrm. 262, 268 (Chk. 2009).

    Since an agent is not an indispensable party to a vicarious liability claim against the principal, the principal would not be prejudiced if leave were granted to amend the complaint against it to include a vicarious liability claim against it for an agent’s acts even if the plaintiffs do not also sue the agent. Nakamura v. Mori, 16 FSM Intrm. 262, 268 (Chk. 2009).

    Strict liability arises where the activity performed is not merely dangerous, but abnormally dangerous, so that one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

    A motion to amend a complaint may be denied if it is futile. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

    When there is nothing inherently abnormally dangerous about road drainage systems, a proposed amendment to add a strict liability claim for damages from a road drainage system would be denied as futile since it would not be able to withstand a summary judgment motion. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

    Nuisance is a cause of action involving a substantial interference with one’s use and enjoyment of one’s land caused by another’s intentional and unreasonable conduct, or another’s unintentional negligent or reckless conduct, or another’s performance of abnormally dangerous conduct. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

    When the original complaint alleged that the defendants’ negligence damaged the plaintiffs’ property and interfered with their use and enjoyment of their dwelling, the defendants will not be prejudiced by an amended complaint including a nuisance theory of recovery. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

    When, in the original complaint, the plaintiffs sought damages for pain and suffering, they inartfully pled an emotional distress claim, and a clarification of this claim in an amended complaint will not prejudice the defendants. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

    Rule 4(j) provides that if service of the summons and complaint is not made on a defendant within 120 days after the filing of the complaint, the action will be dismissed as to that defendant without prejudice upon motion or on the court’s own initiative, but dismissal for lack of service is also possible under Rule 41(b). A case against a defendant may be dismissed under Rule 41(b) for lack of personal jurisdiction over that defendant, that is, because that defendant was never properly served the summons and complaint and the court thus never acquired personal jurisdiction over that defendant. Dismissal under Rule 41(b) for lack of jurisdiction is without prejudice. Nakamura v. Mori, 16 FSM Intrm. 262, 269 (Chk. 2009).

    An attempt to reinstate a defendant dismissed for lack of service by including it in an amended complaint after it has been dismissed, cannot be considered a motion to amend the complaint to add a new party but must be considered, at least as far as the dismissed defendant is concerned, to be a motion to reinstate a party earlier dismissed for lack of service of process on that party, in other words, a motion to enlarge time to effect service on the dismissed defendant. Nakamura v. Mori, 16 FSM Intrm. 262, 270 (Chk. 2009).

    Rule 4(j) is intended to force parties and their attorneys to be diligent in prosecuting their causes of action. Filing an amended complaint does not justify the lack of prior service of process on a defendant in a multi-defendant case. The normal and expected procedure is to serve the unserved defendant first and then amend the complaint. Nakamura v. Mori, 16 FSM Intrm. 262, 270 (Chk. 2009).

    Time to serve a summons and complaint on a defendant may be enlarged for good cause shown if the enlargement is sought before the 120-day period has expired, or for excusable neglect if sought after the 120-day period has passed. Nakamura v. Mori, 16 FSM Intrm. 262, 270 (Chk. 2009).

    When the plaintiffs offer no explanation whatsoever why they did not, at anytime, serve the summons and complaint on a defendant later dismissed for lack of service or why they never sought additional time to serve that defendant, the court will not give the plaintiffs leave to file a proposed first amended complaint that includes the previously-dismissed party-defendant. Nakamura v. Mori, 16 FSM Intrm. 262, 270 (Chk. 2009).

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COURT’S OPINION

READY E. JOHNNY, Associate Justice:

[16 FSM Intrm 268]

liability, strict liability, nuisance, and emotional distress. Leave is freely given to amend complaints to change the theory of recovery and to add new claims when those new theories and claims are based upon the same facts and occurrences that were pled in the original complaint. Since a plaintiff need not advance a legal theory or, if the plaintiff does advance one, it need not be correct, FSM v. Kana Maru No. 1, 14 FSM Intrm. 368, 373 (Chk. 2006); Annes v. Primo, 14 FSM Intrm. 196, 203 (Pon. 2006); Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 114 (Chk. 1995), and since "every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings," FSM Civ. R. 54(c), defendants generally will not be prejudiced by an amendment adding new claims or causes of action based on the same factual allegations as the original complaint. The Nakamuras new claims are analyzed below.

1. Punitive Damages

    The Nakamuras seek to add a claim for punitive damages. Although, for punitive damages to be awarded, there must be evidence of gross negligence, it is not necessary for such proof to be set forth in the complaint. Leatherman v. Pollard Trucking Co., 482 F. Supp. 351, 354 (E.D. Okla. 1978). Thus, a negligence cause of action may be amended to add a punitive damages claim subject to proof at trial and, in the absence of such proof, the defendants may move to disallow any punitive damages award. Id. at 354-55. Thus, leave my be given for the Nakamuras to add a punitive damages claim.

2. Vicarious Liability

    The Nakamuras also seek to add a vicarious liability cause of action against Telecom. They seek to prove that Telecom is vicariously liable for any work done on the Mt. Tonachau road and drainage system by Telecom’s contractor and agent, BS Company. Telecom objects to this proposed amendment on the ground that, in its view, it would be futile to reinstate BS Company as a party-defendant because the statute of limitations has run to sue BS Company for the emotional distress claim.

    However, whether leave should be granted to amend the complaint to include a vicarious liability claim against Telecom does not depend on whether BS Company can be reinstated as a party-defendant. When confronted with a situation where a principal may be held vicariously liable for its agent’s acts, a plaintiff, at the plaintiff’s option, may sue either the principal, the agent, or both. Thus, the agent, here alleged to be BS Company, is not an indispensable or necessary party to a vicarious liability claim against the principal. See, e.g., Nottingham v. General Am. Communications Corp., 811 F.2d 873, 880 (5th Cir. 1987) (joinder of principal and agent not required); Hall v. National Serv. Indus., Inc.,172 F.R.D. 157, 159 (E.D. Pa. 1997) (employee is not a necessary party to suit against employer under respondeat superior); Murphy v. Newport Waterfront Landing, Inc., 806 F. Supp. 322, 325 (D.R.I. 1992) (employee not indispensable party to respondeat superior suit against employer); Bausch v. Philatelic Leasing, Ltd., 728 F. Supp. 1201, 1209 (D. Md. 1989) (principals and agents are not indispensable parties); Willis v. Semmes, Bowen & Semmes, 441 F. Supp. 1235, 1246 (E.D. Va. 1977) (agent not indispensable party even if agency theory advanced); Yamane v. Pohlson, 137 P.3d 980, 990 (Haw. 2006) (employee not necessary party to suit against employer under respondeat superior); Market Tavern, Inc. v. Bowen, 610 A.2d 295, 305 (Md. Ct. Spec. App. 1992) (employee need not be named or joined to hold employer vicariously liable). BS Company, as Telecom’s alleged agent, is therefore not an indispensable party to a vicarious liability claim against Telecom for BS Company’s alleged acts. Thus, Telecom, the principal, would not be prejudiced if leave were granted to amend the complaint against it to include a vicarious liability claim against it for BS Company’s acts even if the Nakamuras do not also sue BS Company.

3. Strict Liability

    The Nakamuras also seek to add a strict liability claim. Strict liability arises where the activity performed is not merely dangerous, but abnormally dangerous, so that one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. Nelper v. Akinaga, Pangelinan & Saita Co., 8 FSM Intrm. 528, 535 (Pon. 1998).

    A motion to amend a complaint may be denied if it is futile. Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 87 (App. 1999). Since there is nothing inherently abnormally dangerous about road drainage systems, this proposed amendment appears to be futile since it would not be able to withstand a summary judgment motion. See, e.g., Wilson v. American Trans Air, Inc., 874 F.2d 386, 391-92 (7th Cir. 1989) (amendment properly denied as futile when amendment would not have survived summary judgment motion).

4. Nuisance

    Nuisance is a cause of action involving a substantial interference with one’s use and enjoyment of one’s land caused by another’s intentional and unreasonable conduct, or another’s unintentional negligent or reckless conduct, or another’s performance of abnormally dangerous conduct. Ambros & Co. v. Board of Trustees, 11 FSM Intrm. 262a, 262h (Pon. 2002). Since the original complaint alleged that the defendants’ negligence damaged the Nakamuras’ property and interfered with their use and enjoyment of their dwelling, the defendants will not be prejudiced by an amended complaint including a nuisance theory of recovery.

5. Emotional Distress

    The Nakamuras also seek to include an emotional distress claim. When, in the original complaint, the Nakamuras sought damages for pain and suffering, they inartfully pled an emotional distress claim. A clarification of this claim in an amended complaint will not prejudice the defendants.

D. Reinstatement of BS Company as Party-Defendant

under this subdivision . . . other than a dismissal for lack of jurisdiction . . . operates as an adjudication upon the merits"); see also Compagnie des Bauxites de Guinee v. L’Union Atlantique S.A. d’Assurances, 723 F.2d 357, 360 (3d Cir. 1983) ("dismissal for want of in personam jurisdiction is not a judgment on the merits").

    Time to serve a summons and complaint on a defendant may be enlarged for good cause shown if the enlargement is sought before the 120-day period has expired, or for excusable neglect if sought after the 120-day period has passed. FSM Civ. R. 6(b). Although they devote considerable effort in their motion discussing the standard for a motion to amend, the Nakamuras expend little effort on why this particular proposed amended complaint should be allowed. They offer no explanation whatsoever why they did not serve the summons and complaint on BS Company at anytime after September 19, 2007, or why they never sought additional time to serve BS Company.

    Since the proposed first amended complaint includes a previously-dismissed party-defendant, the court cannot give the Nakamuras leave to file and serve it. It is therefore unnecessary to reach the issue of whether a statute of limitations would bar one or more cause of action against BS Company. Accordingly, the December 30, 2008 motion to amend the plaintiffs’ complaint is denied. The plaintiffs may move again for leave to amend their complaint, if they do so by February 13, 2009.

IV. Conclusion

    Accordingly, the Nakamuras’ motion to file a first amended complaint is denied. They have until February 13, 2009, to again seek leave to file an amended complaint in conformity with this order.

Foot Notes:

1.Although only Minoru Mori and BS Company were named as defendants in the caption of the original complaint, the FSM Telecommunications Corporation was clearly named as a defendant in the complaint’s text and it was served a separate summons. Because a caption’s technical defects can always be amended, the failure to name a party as a defendant in the caption does not mean the action cannot be maintained against that party if the complaint makes a number of explicit references to that party and that party was served. Moses v. Oyang Corp., 10 FSM Intrm. 210, 212 (Chk. 2001). FSM Telecommunications Corporation is thus a party-defendant.

2.An ad damnum clause is a party’s statement at the end of a pleading of the monetary amount claimed due to the party as damages by virtue of the facts stated.

3.When the court has not previously construed an FSM civil procedure rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting the rule. See, e.g., Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994).

4.Some jurisdictions have even abolished the practice of using general ad damnum clauses. See, e.g., In re Shell Oil Co., 970 F.2d 355, 356-57 (7th cir. 1992) (citing Ill. Rev. St. ch. 110, ¶ 2-604); Tyan v. Nelson, 686 N.E.2d 484, 486 n.7 (Mass. App. Ct. 1997) (citing Mass. Gen. L. ch. 231, § 13B).

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