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Eto v. Muranaka11/6/2002
a nonresident defendant before expiration of statute of limitations, tolling statute does not apply to adverse possession action because of statutory scheme allowing for service by publication on parties outside state in such actions), cert. denied, 507 U.S. 972 (1993).
Thus, contrary to Plaintiff's contention, Defendant was amenable to service.
IX.
Plaintiff argues that Defendant "was impossible and/or difficult to locate [and a]ccordingly, . . . Defendant . . . falls into the exact category of difficult to locate defendants as contemplated in the enactment of HRS § 657-18." Again, as explained inShin, this court ruled that for "impossible or difficult to locate" defendants, service may be made pursuant to HRS § 634-36. Shin, 89 Hawaii at 6, 967 P.2d at 1064. Shin found that the defendant in that case was amenable for service, because under "HRS § 634-36 . . . [the plaintiff] at all times during the two-year . . . period of limitations . . . could have served [the defendant] in person, by mail, or failing that, by publication." Id. at 7, 967 P.2d at 1065. See First Hawaiian Bank v. Powers, 93 Hawaii 174, 188, 998 P.2d 55, 69 (App. 2000) (determining that the tolling provisions of HRS § 657-18 do not apply when the defendant is subject to the jurisdiction of the Hawaii courts and amenable to service of process under Hawaii's long-arm statutes, as set forth in HRS §§ 634-35 and 634-36). As discussed above, Defendant was amenable to service of process.
X.
Plaintiff urges, in opposition to the granting of summary judgment, that whether a foreign defendant is amenable to Hawaii's long-arm statute is a question of fact. In that connection, in Defendant's motion to dismiss or in the alternative for summary judgment, he contended that "Plaintiff's claims are time-barred by Plaintiff's failure to file the [Second] Complaint within the applicable statute of limitations." Explaining that "over three years and seven months [have] passed since the alleged incident on August 16, 1994 and the filing of Plaintiff's econd Complaint on April 8, 1998," he declared that "Plaintiff's claim is barred because the statute of limitations has been exceeded by over one year and seven months."
In her response, Plaintiff asserted that " § 657-18 tolls the running of the statute of limitations while a defendant is out of the state of Hawaii" (boldfaced type and capitalization omitted) and " statute of limitations was tolled while the first case[,] Civil No. 96-3372-01[,] was pending before this court" (boldfaced type and capitalization omitted), the same propositions she has raised on appeal and which we have addressed supra. With respect to her first ground, she urges that because of the difficulty in locating Defendant, "there are issues of fact as to whether or not Defendant . . . was amenable to personal or substitute service of process." We cannot agree that such issues of material fact genuinely exist, inasmuch as HRS §§ 634-35(a)(2) and 634-36 and, when applicable, the Hague Convention, provided a means for substituted service of process of a nonresident defendant. See Richards v. Midkiff, 48 Haw. 32, 39, 396 P.2d 49, 54 (1964) ("To create a 'genuine issue as to any material fact[,]' a question of fact presented . . . as to a particular matter must be of such a nature that it would affect the result." (Citing Lewis v. Atlas Corp. D.C., 63 F. Supp. 217, aff'd, 158 F.2d 599 (3d Cir. 1946).)).
XI.
Although Plaintiff failed to timely serve the First Complaint, she argues that the filing of the Second Complaint tolled the statute of limitations because the Second Complaint related back to the filing of the First Complaint.
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