The court also vacated an entry of default against Dr. Friedrich Beiling.
On June 11, 2007, Marissa Ann Muna filed a complaint for personal injury damages alleging negligent medical treatment by the Department of Public Health, the Commonwealth Health Center and Bieling.
On Feb. 8, 2008, Muna moved for an order from the court to allow service of summons to Bieling by publication since the doctor had already moved to Guam.
The plaintiff, through her counsel Michael W. Dotts, said she does not know the whereabouts of Bieling and she proposes to serve the summons and complaint upon the Attorney General’s Office in a newspaper here and on Guam.
The court granted the plaintiff’s motion for service by publication on Feb. 21, 2008 and she had the summons published for four consecutive weeks in both the Saipan and Guam editions of the Marianas Variety.
The last publication came out in the Guam edition on April 7, 2008.
The plaintiff moved for entry of default against Bieling on May 14 last year, but the defendants filed an opposition with a motion to substitute the commonwealth as defendant in place of Bieling.
Bieling entered a general appearance to join the motion of the commonwealth for relief from entry of default on June 2, 2008.
The defendants stated that the plaintiff’s motion was legally insufficient to support an order for service by publication, and the service of summons against Bieling was invalid.
The defendants also said that the plaintiff’s attorney failed to make a reasonable effort to locate Bieling for service.
The plaintiff argued that relief should be denied on the basis of the culpability of the defendants who had knowledge of the action since June 2007.
In its analysis, the court said that “if a person to be served can be found in the commonwealth or any jurisdiction of the United States, personal or substituted personal service is appropriate,” but if the person to be served cannot be found within the territory described, service must be accomplished by other means like leaving a certified copy with the attorney general or sending by registered mail. After service on the AG, and if the defendant cannot be personally served or if the court is satisfied that the defendant cannot be served the summons after reasonable diligence, the court may order that service be made by publication in at least one newspaper of general circulation not less than 221 days prior to the return date of the summons.”
Manglona stated that the plaintiff’s service of summons and complaint of Bieling by publication was “unjustified and therefore deficient.”
“The court finds that defendant could have been personally served with process at the time of the plaintiff’s motion for an order by service of publication, and that defendant’s availability for personal service was reasonably discoverable by the plaintiff.”
The court concludes that the plaintiff has failed to exercise reasonable diligence.
