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Eto v. Muranaka11/6/2002
We hold that an alleged tortfeasor not found in Hawaii, who is a citizen and resident of Japan, was amenable to service under Hawaii Revised Statutes (HRS) §§ 634-35 (1993) and 634-36 (1993), and the Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters [hereinafter Hague Convention]. In the instant case, Defendant-Appellee Ryu Muranaka (Defendant) was amenable to service under HRS §§ 634-35 and 634-36 and under the Hague Convention, when that treaty applied. However, (1) the first complaint of Plaintiff-Appellant Takako Eto (Plaintiff) was not timely served on Defendant, (2) HRS § 657-18 (1993) did not toll the statute of limitations, (3) the dismissal of the first complaint without prejudice did not toll the statute of limitations, and (4) the filing of a second complaint did not relate back to the date of the filing of the first complaint. Therefore, the circuit court of the first circuit (the court) was correct in granting Defendant summary judgment on Plaintiff's second complaint on the ground that the statute of limitations had run.
I.
Plaintiff claimed that on August 16, 1994, she was standing in line to cook her food at a barbeque grill when Defendant splashed grease on her clothes. The two engaged in a brief discussion, after which Defendant took a set of iron tongs and pressed it against Plaintiff's nose. He then orally threatened her and struck her with the tongs three times below her right eye.
The police arrived on the scene and arrested Defendant. Plaintiff asserted that she suffered blurred vision and burns as a consequence of Defendant's conduct. Both Plaintiff and Defendant are citizens and residents of Japan.
II.
As a result of the aforesaid incident, Plaintiff filed a complaint for personal injuries, Civil No. 96-3372-08, on August 15, 1996 (First Complaint). Pursuant to Rules of the Circuit Courts of the State of Hawaii (RCCH) Rule 28 (1971), Plaintiff was required to serve the First Complaint on Defendant by February 15, 1997, six months after filing the action.
Plaintiff did not serve Defendant by that date. Her prior counsel was unsuccessful in obtaining Defendant's address from the Honolulu Police Department (HPD). Plaintiff's present counsel also sought the assistance of Defendant's employer, Japan Airlines, which refused to assist in the matter. After criminal charges against Defendant were dismissed, HPD released his purported address to Plaintiff on May 16, 1997. That address in Japan, however, was no longer valid when obtained by Plaintiff. In the latter part of 1997, Plaintiff located Defendant's then-current address.
Pursuant to the Hague Convention, Plaintiff mailed the First Complaint and summons to the Japan Ministry of Foreign Affairs, which received it on December 12, 1997. Plaintiff's counsel was informed by a March 22, 1998 letter from the Consulate General of Japan that the Japan Ministry of Foreign Affairs served the First Complaint on Defendant on January 28, 1998, one year and five months after the filing of the First Complaint on August 15, 1996.
On February 10, 1998, Defendant moved to dismiss Plaintiff's First Complaint. A hearing on the motion to dismiss was apparently held on March 25, 1998 and the motion was granted by Judge Kevin S.C. Chang.
On March 27, 1998, prior to the filing of Judge Chang's written order of dismissal which was eventually filed on May 1, 1998, Plaintiff filed a "Motion to Set Aside Dismissal Without Prejudice, for Rehearing of Defendant's February 10, 1998 Motion to Dismiss, or for Reconsideration of Order Granting Defendant's Motion to Dismiss Complaint . . . , to Extend Ti
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