FSM SUPREME COURT TRIAL DIVISION
Cite as Elymore v. Walter,
10 FSM Intrm. 166 (Pon. 2001)

[10 FSM Intrm. 166]

JASON ELYMORE and AMATO ELYMORE
Plaintiffs,
 
vs.
 
PEDRONINO WALTER
Defendant.
 
CIVIL ACTION NO. 1999-025
 
ORDER AND MEMORANDUM
 
Martin Yinug
Associate Justice
 
Decided: April 26, 2001
 
APPEARANCES:
            
For the Plaintiffs:                 Craig D. Reffner, Esq.
                                              Law Offices of Fredrick Ramp
                                              P.O. Box 1480
                                              Kolonia, Pohnpei FM 96941
 
For the Defendant:              Salomon Saimon, Esq.
                                              Law Offices of Saimon & Associates
                                              P.O. Box 1450
                                              Kolonia, Pohnpei FM 96941

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HEADNOTES
 
Civil Procedure ) Dismissal; Torts ) Damages ) Punitive
     When six months have elapsed since the plaintiffs first asked for time to find new counsel and a court order explicitly stated what the consequences would be if new counsel did not file a notice of appearance by March 30, 2001, the plaintiffs' remaining punitive damages claim, absent a showing of good cause and excusable neglect, will be dismissed, and, given the purpose of punitive damages, a final judgment entered. Elymore v. Walter, 10 FSM Intrm. 166, 168-69 (Pon. 2001).
 
Torts ) Damages ) Punitive
     The purpose of punitive damages is to punish the tortfeasor, not compensate the victim. Elymore v. Walter, 10 FSM Intrm. 166, 168 (Pon. 2001).
 
Torts ) Damages ) Punitive
     Punitive damages are a windfall to the plaintiff and not a matter of right. Elymore v. Walter, 10 FSM Intrm. 166, 168 (Pon. 2001).
 
[10 FSM Intrm. 167]
 
Torts ) Damages; Torts ) Damages ) Punitive
     Regardless of the disposition of a punitive damages claim, plaintiffs are fully compensated by a damages award. Elymore v. Walter, 10 FSM Intrm. 166, 168 (Pon. 2001).
 
Civil Procedure ) Dismissal
     While the court is reluctant to hold a party responsible for the party's attorney's failure to act in time but when it was plaintiffs themselves who were acting to find new counsel, in the absence of a showing of excusable neglect for their failure to do so, the court will hold the plaintiffs responsible for their own actions and dismiss the punitive damages claim so that judgment may be entered. Elymore v. Walter, 10 FSM Intrm. 166, 168-69 (Pon. 2001).
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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

    This court's prior order of March 8, 2001, provided as follows:

Over five months have elapsed since plaintiffs first requested time to find new counsel. If an appearance is not filed by March 30, 2001, the punitive damages claim will be dismissed and judgment will be entered in accordance with the findings of fact and conclusions of law entered July 21, 2000.

     This language is plain.

     On April 6, 2001, Craig Reffner of Fred Ramp's office filed an Entry of Appearance. Also on that date, the court received plaintiffs' Motion for Enlargement of Time. That motion requests an enlargement of time to review certain financial information which plaintiffs' new counsel had received from plaintiffs' former counsel. Rule 6(b)(2) of the FSM Rules of Civil Procedure provides that the court may for good cause shown grant an enlargement of time after the time for doing of the act has expired if the failure to act in time was the result of excusable neglect. The motion does not request an enlargement of time to file the appearance, nor does it offer an explanation why the appearance was filed after the March 30, 2001, date specified in the March 8, 2001, order.

     Subsequently, on April 9, 2001, Ron Moroni, who represented the plaintiffs through trial in this case, filed certain financial data. The motion recites that the data was filed because he "had been unable to contact the Plaintiffs herein to determine whether they had been able to secure substitute counsel." Counsel further indicated that the data was submitted for consideration in the final judgment. The financial data is a balance sheet dated December 31, 1999, or more than 15 months ago.

     The findings of fact and conclusions of law entered in this case on July 21, 2000, favored the plaintiffs on their punitive damages claim, along with their claims for compensatory damages, and also required submission of certain financial information to the court on August 7, 2000, regarding the financial standing of defendant Pedronio Walter ("Walter"). That information had been disclosed only to plaintiffs' counsel under the terms of a protective order entered on November 9, 1999, pending the court's determination on the punitive damages claim. By motion filed on August 11, 2000, plaintiffs requested a continuance until September 30, 2000, to provide the information on the basis that they needed to do additional investigation; that settlement discussions were ongoing; and that plaintiffs' counsel was in the process of moving his office to Guam. The motion recited that it was unopposed, and the court granted it on that basis on August 14, 2000. On August 16, 2000, Walter filed a motion

[10 FSM Intrm. 168]

to set aside the August 14, 2000, order, and an opposition to plaintiffs' August 11, 2000, motion for a continuance. Taken together, the motion and opposition stated that there had been miscommunication between counsel regarding Walter's consent to plaintiffs' motion for continuance; that Walter in fact opposed the motion; and that plaintiffs had not demonstrated excusable neglect under Rule 6(b) of the FSM Rules of Civil Procedure for failing to file the motion for continuance before the August 7, 2000, deadline for filing the information. The court denied the motion to set aside the August 14, 2000, order, and directed that Walter should provide any further relevant extant information by September 30, 2000.

     On October 2, 2000, after the time for filing the information had expired, plaintiffs moved for a second continuance on the basis that it would not be practical for their then counsel, Ron Moroni, to continue to represent them because of his move to Guam. Counsel asked for a continuance of 90 days in order for him to assist the plaintiffs in finding new counsel. Walter did not oppose that motion. The court granted the motion and gave the plaintiffs until January 2, 2001, for their new counsel to file an appearance. New counsel did not file an appearance by the prescribed time, nor did plaintiffs request additional time for doing so before January 2, 2001. No formal motion to withdraw by Ron Moroni is of record. As matters stood on January 2, 2001, entry of judgment had been delayed at plaintiffs' instance for over five months after the findings of fact and conclusions of law had been entered.

     On January 24, 2001, Walter moved to dismiss the punitive damages claim under Rule 41(b) of the FSM Rules of Civil Procedure. That rule provides in pertinent part that the defendant may move to dismiss where plaintiff has failed "to comply with . . . any order of court." The motion recited the plaintiffs' failure to move forward on the punitive damages claim. On February 19, 2001, well after the time for responding to the motion to dismiss had elapsed, plaintiffs filed their response. The response was filed by Ron Moroni, and recites that "Plaintiffs [had] contacted the undersigned and asked [him] to request the Court to extend them an additional 60 days to find an attorney." After reciting the difficulties plaintiffs had experienced in locating new counsel, the motion asked yet another extension of time, this time 60 days, to find new counsel. On March 8, 2001, the court denied Walter's motion to dismiss, and gave plaintiffs the deadline of March 30, 2001, by which their new counsel was to file an appearance.

     In sum, nearly six months elapsed from when the plaintiffs first requested time to find new counsel (October 2, 2000) until the deadline of March 30, 2001, imposed by the March 8, 2001, order. That order explicitly stated what the consequence would be if new counsel did not file an appearance by then. On these facts, and absent a showing of good cause and excusable neglect under Rule 6(b)(2) of the FSM Rules of Civil Procedure, the court will not relieve the plaintiffs of the March 8, 2001, order requiring that new counsel file an appearance by March 30, 2001.

     The court considers two additional factors in dismissing the punitive damages claim. First, the purpose of punitive damages is to punish the tortfeasor, not compensate the victim. 22 Am. Jur. 2d Damages 733 (1988). As has frequently been stated, punitive damages are a windfall to the plaintiff. See, e.g., William L. Prosser, Law of Torts 13 (4th ed. 1971) ("It is generally agreed that punitive damages are a windfall to the plaintiff and not a matter of right.") Regardless of the disposition of the punitive damages claim, the plaintiffs have been fully compensated by the damages award made in the findings of fact and conclusions of law entered on July 21, 2000. [Elymore v. Walter, 9 FSM Intrm. 450 (Pon. 2000).] Second, this court has noted its reluctance to hold a party responsible for the party's attorney's failure to act in time. Paul v. Hedson , 6 FSM Intrm. 146, 147 (Pon. 1993). While plaintiffs' October 2, 2000, motion for a continuance requested additional time for plaintiffs' then counsel to assist plaintiffs to find new counsel, it is also apparent from the recitations in their February 19, 2001, opposition to Walter's motion to dismiss that as of that time it was plaintiffs themselves who

[10 FSM Intrm. 169]

were acting toward that end. The court, in ruling on the motion to dismiss, granted them additional time to complete the task. However, in the absence of a showing of excusable neglect for their failure to do so, the court holds the plaintiffs responsible for their own actions by giving effect to the dismissal language of the March 8, 2001, order. These two additional considerations weigh in favor of dismissal of the punitive damages count so that judgment may be entered, and this dispute finally resolved.

     Accordingly, a judgment dismissing the punitive damages claim and otherwise consistent with the findings of fact and conclusions of law entered on July 21, 2000, is entered herewith.

     Plaintiffs' Motion for Leave of Court to Conduct Discovery Concerning Defendant's Net Worth for Purpose of Awarding Punitive Damages filed on April 20, 2001, is denied as moot.

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