Meaamaile v. American Samoa

• Citation: 550 F. Supp. 1227
• Decision Date: 12 November 1982
• Docket Number: Civ. No. 82-0365.
• Parties: Muaava MEAAMAILE, aka Muaava Gaseata, Plaintiff, v. AMERICAN SAMOA; LBJ Hospital; Vaiula Tuatoo, M.D.; and Joseph Turner, M.D., Defendants.
• Court: U.S. District Court — District of Hawaii

550 F. Supp. 1227

Muaava MEAAMAILE, aka Muaava Gaseata, Plaintiff, v. AMERICAN SAMOA; LBJ Hospital; Vaiula Tuatoo, M.D.; and Joseph Turner, M.D., Defendants.

Civ. No. 82-0365.

United States District Court, D. Hawaii.

November 12, 1982.

David C. Schutter, Richard A. Marshall, Honolulu, Hawaii, for plaintiff.

Charles P. Hagood, Jr., Asst. Atty. Gen., Aviata F. Faalevao, Atty. Gen., Pago Pago, American Samoa, for defendants; Joseph L. Dwight, Jr., Honolulu, Hawaii, of counsel.

ORDER GRANTING MOTION TO DISMISS

SAMUEL P. KING, Chief Judge.

I. BACKGROUND

Plaintiff is a citizen of Western Samoa presently residing in the State of Hawaii. In August 1979, plaintiff was a civilian employee on the Western Samoa-owned ship "Queen Salamasina." This ship was used to ferry passengers and cargo between Western Samoa and American Samoa. On August 8, 1979, agents of the Government of American Samoa lawfully took control of the "Queen Salamasina" and used it to assist the American Samoa tugboat "Tatoso" in removing a vessel from a reef in the channel off Manua Island. During the course of this rescue operation plaintiff received an open, compound fracture of his leg. Plaintiff was taken to defendant LBJ Hospital in Pago Pago, American Samoa, where he remained for almost 14 months. During his stay at LBJ Hospital, plaintiff developed a serious infection in his left leg. In October 1980, plaintiff was transferred to Tripler Hospital in Honolulu, Hawaii, where his lower left leg was amputated in December 1980.

On July 13, 1982, plaintiff filed this suit alleging (1) that plaintiff's original injuries were proximately caused by the negligence of the agents of defendant American Samoa in carrying out the rescue operation discussed above; (2) that plaintiff was injured by the medical malpractice of defendants Dr. Vaiula Tuatoo, Dr. Joseph Turner, and LBJ Hospital, and that defendant American Samoa is responsible for such malpractice under the doctrine of respondeat superior; and (3) that because of his nationality as a Western Samoan plaintiff received inferior medical care at LBJ Hospital, in violation of 42 U.S.C. §§ 1981, 1983, and 1985.

Plaintiff asserts the jurisdiction of this court based upon the existence of diversity of citizenship within the meaning of 28 U.S.C. § 1332(a)(2), and upon the existence of a federal question within the meaning of 28 U.S.C. § 1331 arising out of plaintiff's civil rights allegations. Although the complaint makes no mention of admiralty jurisdiction, plaintiff's counsel argued at the hearing on this motion that the facts alleged in plaintiff's complaint state a cause of action in admiralty. Thus, solely for the purposes of the discussion on this motion, we will treat plaintiff's complaint as having alleged the existence of this court's admiralty jurisdiction under 28 U.S.C. § 1333.

The summons and complaint in this action were sent to defendants by certified mail.

On August 18, 1982, defendants made this motion to dismiss the action or quash the return of service on the ground that defendants had not been properly served. Defendants also moved to dismiss the suit on the basis of improper venue. After reviewing the relevant authorities, it is the conclusion of this court that the motion to dismiss must be granted.

II. SERVICE OF PROCESS

Defendants were served with the summons and complaint by certified mail in American Samoa. There is no doubt that such service was ineffective under the applicable law. Both the manner and place of service were improper.

Defendants were not, at the time they were served, and are not, at present, to be found within the State of Hawaii. Rule 4(e) of the Federal Rules of Civil Procedure provides the rule governing the proper manner of service upon a party not an inhabitant of or found within the state in which a district court sits. Rule 4(e) provides in part:

Whenever a statute of the United States or an order of court thereunder provides for service of a summons ... upon a party not an inhabitant of or found within the state in which the district court is held, service may be made under the circumstances and in the manner prescribed by the statute or order, or, if there is no provision therein prescribing the manner of service, in a manner stated in this rule.

Plaintiff has not suggested, nor has this court found, any federal statute providing for any special manner of service upon the defendants in this case.¹

Rule 4(e) further provides that service upon a non-inhabitant party may be made in accordance with a statute or rule of the state in which the district court sits. Plaintiff has not alleged, and cannot properly allege, however, that any Hawaii statute or rule provides for the service of process upon defendants. It is clear that the requirements for service in accordance with Hawaii's long-arm statute, Hawaii Rev.Stat. §§ 634-35, 634-36, have not been met.²

Thus, since neither any federal statute nor any Hawaii statute or rule provides for any special manner of service in this case, service must be made in accordance with the provisions of Rule 4, specifically, the provisions of Rule 4(c) and (d).³ These provisions were not complied with and the service attempted in this case was therefore ineffective.

Besides having been served in an improper manner, defendants were served outside the territorial limits within which service could properly be effected. Rule 4(e) provides in relevant part:

All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held, and when authorized by a statute of the United States or by these rules, beyond the territorial limits of that state.

American Samoa is not within the territorial limits of the State of Hawaii.⁴ Plaintiff has not suggested, nor has this court found, any federal statute authorizing the service of process in this case beyond the territorial limits of Hawaii. Also, it is clear that the requirements of the Hawaii long-arm statute have not been met. Thus, service in accordance with that statute cannot be invoked pursuant to the provision of Rule 4(e) that allows service in accordance with state law. It is clear, therefore, that defendants were improperly served outside the territorial limits of Hawaii. The service attempted was thus ineffective for this reason also.

Finally, the Foreign Sovereign Immunities Act of 1976 ("the Act"), 28 U.S.C. §§ 1330, 1602-1611, has no applicability to this case. American Samoa is not a "foreign state" within the meaning of the Act, but rather an unincorporated territory of the United States. Service upon American Samoa cannot, therefore, be properly effected pursuant to 28 U.S.C. § 1608, which provides rules for service upon foreign states. The order of this court entered on September 23, 1982, directing service pursuant to the Act is hereby vacated.

For the reasons discussed above, defendants' motion to dismiss this action on the ground of failure of service must be granted.

III. VENUE⁵

The complaint in this action states that federal jurisdiction is invoked on two grounds — diversity of citizenship and the existence of a federal cause of action. As noted above, this court will also, for the purposes of this motion, treat plaintiff's complaint as having alleged the existence of this court's admiralty jurisdiction.

The general federal venue statute, 28 U.S.C. § 1391, provides in part:

(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.

Here, the cause of action arose and all defendants reside in American Samoa, which is not within the judicial district of Hawaii.⁶ Thus, since jurisdiction is not founded solely on diversity of citizenship, and since no special venue provision appears to be applicable to this case,⁷ proper venue does not exist in the District of Hawaii with respect to plaintiff's civil claims. This presents an additional ground demanding the dismissal of plaintiff's civil claims.

Also, although the general federal venue statute (28 U.S.C. § 1391) does not apply to admiralty actions,⁸ it is clear that venue does not lie in Hawaii under traditional admiralty venue rules with respect to this suit. Under traditional admiralty rules, venue of an in personam suit is proper where the defendant is found and service of process is made on him, or where his property has been attached. In re Louisville Underwriters, 134 U.S. 488, 10 S.Ct. 587, 33 L.Ed. 991 (1890); Societe Com. de Transp. Transatl. v. S.S. "African Mercury", 366 F.Supp. 1347 (S.D.N.Y.1973); Fluor Corp., Ltd. v. S/S President Coolidge, 52 F.R.D. 538 (S.D.N.Y.1971); Rodriquez v. United Fruit Company, 236 F.Supp. 680 (E.D.Va.1964), rev'd on other grounds sub nom., Fanning v. United Fruit Co., 355 F.2d 147 (4th Cir.1966); 1 J. Moore, Moore's Federal Practice ¶ 0.14413.-1 (2d ed.1982). American Samoa cannot be found within Hawaii and service of process has not been and cannot be made upon American Samoa within Hawaii. Also, none of American Samoa's property has been attached in Hawaii, nor is it clear that it could be. See Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). In short, venue does not lie in Hawaii for an admiralty action against American Samoa.

It is the conclusion of this court, then, that this action must be dismissed for lack of venue, as well as failure of service.⁹

IV. RIGHT TO A JURY TRIAL AND INDEPENDENT JUDICIARY

Plaintiff argues that despite the unavailability of effective service and the lack of venue, this case should be tried in the District of Hawaii because this is the court with the closest ties to this case in which plaintiff can obtain his alleged constitutional rights to a trial by jury and an independent judiciary. Leaving aside the fact that Hawaii's ties to this case are tenuous, the...