THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Berman v. Santos ,
6 FSM Intrm. 532 (Pohnpei 1994)

[6 FSM Intrm. 532]

MARY BERMAN,
Plaintiff,

vs.

EDWEL SANTOS, Individually, and
in his Official Capacity as Chief Justice
of the Pohnpei Supreme Court,
Defendant.

CIVIL ACTION NO. 1994-097

ORDER AND MEMORANDUM OF DECISION

Andon L. Amaraich
Associate Justice

Decided:  September 27, 1994

APPEARANCES:
For the Plaintiff:          Mary Berman, Esq.
                                     P.O. Box 163
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Richard L. Counts, Esq.
                                     Assistant Attorney General
                                     Office of the Pohnpei Attorney General
                                     Kolonia, Pohnpei FM 96941

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HEADNOTES
Civil Procedure ) Dismissal; Civil Procedure ) Service; Jurisdiction ) Personal
     The purpose of the rules addressing process and service of process in civil cases is to assure that a defendant receives sufficient notice of all causes of action that are filed against him and thus has a fair and adequate opportunity to defend.  Where a plaintiff fails to properly serve a defendant, the court does not have jurisdiction over that defendant, and the case may not proceed, but will be dismissed without prejudice.  Berman v. Santos, 6 FSM Intrm. 532, 534 (Pon. 1994).

Civil Procedure ) Service
     Where a state official was sued in his individual capacity and service of the complaint and summons was made on the governor's office and the state attorney general, it is not good service because service upon an individual is made by delivery to the individual personally or by leaving copies at the individual's dwelling house or usual place of abode or of business or by delivery to an agent authorized to receive service of process.  Berman v. Santos, 6 FSM Intrm. 532, 534 (Pon. 1994).

[6 FSM Intrm. 533]

Civil Procedure ) Service
     Although the civil rules do not provide for a specific method of service upon a state officer in his official capacity, service upon a state officer in his official capacity requires that he receive notice of the suit.  Berman v. Santos, 6 FSM Intrm. 532, 534-35 & nn. 3, 4 (Pon. 1994).

Civil Procedure ) Service
     Proof of service of process should be made to the court promptly and in any event within the time during which the person served must respond.  Berman v. Santos, 6 FSM Intrm. 532, 535 (Pon. 1994).
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COURT'S OPINION
ANDON L. AMARAICH, Associate Justice:
     In this case, Plaintiff Mary Berman, an attorney, is suing Defendant Edwel Santos of the Pohnpei State Supreme Court in both his personal capacity and in his official capacity as Chief Justice of the Pohnpei Supreme Court.  The complaint alleges that Defendant Santos is precluding Plaintiff from practicing law in the state courts, by preventing her from sitting for the Pohnpei State Bar Exam, and by refusing to admit her to practice before the Pohnpei State Court based on her admission to the FSM Bar.

     Plaintiff Berman further alleges that Defendant's acts amount to violations of her "civil rights," as well as her constitutional rights of "due process" and "equal protection."  Plaintiff seeks damages for the resulting "humiliation, injury to her reputation and loss of employment opportunities," as well as an injunction "to prevent the Pohnpei State Supreme Court Chief Justice . . . from interfering with Mary Berman's admission to practice as an attorney before the State Supreme Court."

     Defendant Santos responds by arguing, inter alia, that this action should be dismissed because the process and service of process did not conform to the FSM Rules of Civil Procedure.  Specifically, Defendant Santos asserts that he never received a copy of the summons and complaint, and that he, in fact, did not learn that a complaint had been filed against him until well after the expiration of the time within which he was required to file his answer.  The Court now proceeds to an examination of the parties' claims.

FACTS
     On June 28, 1994, Plaintiff Berman initiated this suit by filing a complaint with the Office of the Clerk of the FSM Supreme Court.  The complaint included a "Certificate of Service," which certified that the summons and complaint would be served "upon defendant through service upon the State Attorney and State Chief Executive's Office on June 28, 1994."  Upon receipt of the Complaint, the Clerk issued a summons which Plaintiff was instructed to serve, together with a copy of the complaint, upon the defendant.  The summons informed the defendant that he would have twenty days from the date that he was served with the summons and complaint in which to file his answer with this Court.

     On August 15, 1994, Plaintiff returned to this Court to file a Motion for Default based on defendant's failure to respond within the time period allowed by the FSM Rules of Civil Procedure.  In that motion, Plaintiff affirmed that she "did cause to be served on June 28, 1994 copies of the

[6 FSM Intrm. 534]

summons and complaint in this matter," and that "[n]o answer or other response has been made by the defendant within the time permitted by law."

     On August 22, 1994, Defendant moved to dismiss the complaint based, inter alia, on Plaintiff's insufficient service of process.  In his motion, Defendant states that the service of copies of the summons and complaint upon the Office of the State Attorney and the Governor, rather than upon the named Defendant himself, was insufficient under the rules of this Court.  Defendant Santos asserts further that, because of Plaintiff's failure to effect proper service, he did not learn of the suit filed against him until well after the time in which he was to respond had expired.

DISCUSSION
     The purpose of the FSM Rules addressing process and service of process in civil cases is to assure that a defendant receives sufficient notice of all causes of action that are filed against him.  In this way, a defendant is provided a fair and adequate opportunity to defend against that action.  Moreover, where a plaintiff fails to properly serve a defendant, the court in which the case is filed does not possess the authority to assert jurisdiction over that defendant, and the case may not proceed.  Accordingly, compliance with the rules governing the service of process, although they may at times appear overly rigid and technical, is critical to the fair and efficient administration of justice.  In the instant action, service of process did not conform to the FSM Rules of Civil Procedure; therefore, this case is dismissed without prejudice.

Service of Process ) Individual Defendant in Personal Capacity
     In this action, Defendant Santos was sued individually, in both his personal capacity and in his official capacity as an officer of the state government.  FSM Civil Rule 4(d)(1) states that service upon an individual defendant shall be made  by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode or of business . . . or by delivering a copy . . . to an agent authorized by appointment or by law to receive service of process.

     Here, Plaintiff did not deliver a copy of the summons and complaint to Defendant Santos personally, but instead served copies of the summons and complaint upon the "State Attorney and [the] State Chief Executive's Office [the Governor]." As such, service of process was insufficient to notify Defendant that a cause of action had been filed against him, and the case therefore cannot proceed against the Chief Justice in his personal capacity.

Service of Process ) Individual Defendant in Official Capacity
     The FSM Rules of Civil Procedure do not provide for a specific method of service upon an individual state officer in his official capacity.  Instead, there are two rules that are relevant to determining the proper method of service for a state officer in his official capacity.1  FSM Civil Rule

[6 FSM Intrm. 535]

4(d)(1), stated above, provides the proper service of an individual defendant, while FSM Civil Rule 4(d)(6) states, in part, that service upon a "state, municipal corporation or other governmental organization thereof" shall be made "by delivering a copy of the summons and of the complaint to the chief executive officer thereof and by delivering, or sending by registered or certified mail, a copy of the summons and of the complaint to the attorney general or chief legal officer of that state."

     It is clear from its wording, that Rule 4(d)(6) refers to service upon state governmental entities, not upon state officers.  Moreover, the distinction between a suit against (1) a state, and (2) an officer of the state is a significant one, and, indeed one that is recognized in other subsections of Rule 4.  Compare FSM Civ. R. 4(d)(4) (requiring service only upon the attorney general in a suit against the National Government) with FSM Civ. R. 4(d)(5) (requiring service upon both the National Government and the officer himself in a suit against an officer of the National Government).  While an actions against the National Government and against an officer of the National Government both are likely to impact directly upon the National Government itself, Rule 4(d)(5) nonetheless recognizes that, in a suit against a federal officer, "the defendant officer should also be personally served, given that the action is directly against him, that some action or inaction is requested from him, and that he might be held in contempt if he were to violate the court's orders."  Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 29 (1st Cir. 1988) (citing 2 James W. Moore & Jo D. Lucas, Moore's Federal Practice 4.29 (1988)).2

     Despite the fact that our Rules do not explicitly distinguish the method of service for officers of the state or its entities, a suit against a state officer in his official capacity involves concerns that are identical to those that are present in a suit against an officer of the National Government.  The action is directed against the state officer personally, and it is against the state officer that some type of action or prohibition is sought.  Moreover, requiring service only upon the state government creates the risk that the defendant state officer will not receive notice of a suit directly against him.  In fact, that is the very result in this case. Accordingly, it is the rule of this Court that service upon a state officer in his official capacity requires that the state officer receive notice of the suit.  As such, service against a state officer will be sufficient if delivered pursuant to Rule 4(d)(1).3  In the present case, the parties do not dispute that a copy of the summons and complaint was never delivered to Defendant Santos.  Accordingly, service was insufficient under the FSM Rules of Civil Procedure, and the complaint must be dismissed.4

[6 FSM Intrm. 536]

Return of Service
     As a final matter, the Court also elects to address Plaintiff's failure to file a return of service in this action.  The FSM Rules of Civil Procedure, in addition to requiring plaintiffs to file the summons and complaint with the Court prior to serving copies of them upon the defendants in an action, also require plaintiffs to file "proof of service" subsequent to that delivery.  According to FSM Civil Rule 4(g), entitled "Return," "[t]he person serving process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process."5

     In the instant case, however, Plaintiff did not file a return of service within the time in which Defendant was required to respond to the summons and complaint. According to the summons issued by the Court, Defendant was instructed to file his response with the Court no later than twenty (20) days after receiving process.  Thus, notwithstanding the fact that Plaintiff's service was made to an improper party, the answer of the defendant was due on July 19, and Plaintiff's return of service, at the very latest, became due on that same day.6

     As stated above, however, Plaintiff did not make such a filing.  In fact, following the filing of the summons and complaint in this case, the Plaintiff did not make another filing with this Court until the Motion for Default was filed August 15.7

CONCLUSION
     In sum, Plaintiff's errant method of service prevents this case from proceeding against Defendant Santos in either his personal or official capacity.  The improper service of process in this case was compounded further by Plaintiff's failure to file a return of service.  This case is therefore dismissed without prejudice.

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Footnotes:
 
1.  The rules do provide, however, a separate rule addressing the method of service for officers of the national government.  According to Rule 4(d)(5), service shall be made "[u]pon an officer . . . of the National Government of the Federated States of Micronesia, by serving the National Government of the Federated States of Micronesia and by delivering a copy of the summons and of the complaint to such officer."
 
2.  Where, as here, an as yet uninterpreted FSM Rule of Civil Procedure is identical, or nearly identical, to a U.S. Rule of Civil Procedure, decisions of the United States federal courts may be relied upon to provide guidance for interpreting the FSM rule.  Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992).
 
3.  Although Rule 4(d)(6) does not require that service of process also be made directly upon the state or state governmental entity, we believe that the risk flowing from that fact is minimal.  In most cases, the government also will be a named party in the suit.  In such cases, the government will receive notice of the suit pursuant to Rule 4(d)(6).  Moreover in most cases such as this one, where a suit is only against the state official, the official will notify the state's legal officers.  Finally, even in the few cases where the official fails to notify the state legal officers, it is still preferable that the named defendant receive the service of process, rather than the unnamed state governmental entity.
 
4.  Although I hold today that service upon a state officer in his official capacity is sufficient if made pursuant to Rule 4(d)(1), it is not the only means by which such service can be made.  According to Rule 4(d)(7), service brought pursuant to Rule 4(d)(1) "is also sufficient if the summons and complaint are served in the manner prescribed by the law of the state in which the case is pending."  The method of service undertaken in this case, however, is also insufficient under Pohnpei State Rule 4(d)(5), which states that service upon a state officer in his official capacity requires that copies of the summons and complaint be delivered to both the state government and the officer.
 
5.  In the event that service is performed by someone other than a police officer, Rule 4(g) also requires that the return of service be accompanied by an affidavit detailing the method of service.
 
6.  The twenty day time period for return of service begins running on the first full day after service is made.  FSM Civ. R. 6(a).  Therefore, since service was made on June 28, 1994, the twenty day period opened on June 29, 1994, and therefore closed on July 19, 1994.
 
7.  Although a "Certificate of Service" stating that copies of the summons and complaint were served on June 28, 1994, was filed along with the complaint on June 28, this certificate does not constitute return of service because it was filed before Plaintiff received the summons, and therefore prior to the delivery of the summons and complaint.