FSM 10 Intrm. 098-099

FSM SUPREME COURT TRIAL DIVISIONCite as

O’Sullivan v. Panuelo

10 FSM Intrm. 257 (Pon. 2001)

[10 FSM Intrm. 257]

SHERRY O’SULLIVAN

Plaintiff,

vs.

FRANK PANUELO; ELSA THOMAS; HERBERT GALLEN,

individually, and in his capacity as Public Information Officer for the Office of the President of the Federated States of

Micronesia; FRANKLIN FRANK, individually and in his capacity

as Public Information Officer of the Congress of the

Federated States of Micronesia; and

THE FEDERATED STATES OF MICRONESIA,

Defendant.

CIVIL ACTION NO. 1997-061

ORDER DENYING MOTION FOR ENTRY OF DEFAULT JUDGMENT

Andon L. Amaraich

Chief Justice

Decided: June 20, 2001

APPEARANCES:

For the Plaintiff: Sherry O'Sullivan, pro se

125 Donald Road, Apt. 207

William's Lake, BC V2G 4R3 CANADA

For the Defendants: Andrew Sprenger, Esq.

(Panuelo & Thomas) Micronesian Legal Services Corporation

P.O. Box 129

Kolonia, Pohnpei FM 96941

[10 FSM Intrm. 258]

For the Defendants: Kim E. Greene, Esq.

(FSM & Gallen) Assistant Attorney General

FSM Department of Justice

P.O. Box PS-105

Palikir, Pohnpei FM 96941

For the Defendant: Dennis Belcourt, Esq.

(Frank) FSM Congress Legislative Counsel

P.O. Box PS-3

Palikir, Pohnpei FM 96941

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HEADNOTES

Civil Procedure ) Default and Default Judgments

When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by the rules and that fact is made to appear by affidavit or otherwise, the clerk must enter that party's default. The term "default" simply means the defendant has failed to plead or otherwise defend within the time required by the rules. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 260 (Pon. 2001).

Civil Procedure ) Default and Default Judgments

A motion is not required prior to entry of default. However, entry of default does not occur automatically. The entry of default must be requested and the request must be accompanied by proof of default demonstrating the defendant "has failed to plead or otherwise defend." When the fact of default is established by "affidavit or otherwise" the court clerk is required to enter it. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 260 (Pon. 2001).

Civil Procedure ) Default and Default Judgments; Civil Procedure ) Filings

Until a default is entered by the court clerk, a party still may appear in the action and the clerk must accept for filing defendant's pleadings or motions, even if filed outside the times prescribed by the rules. Once a defendant's pleadings or motions are filed, it is too late for the entry of default, and the defendant is entitled to proceed with its defense. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 260 (Pon. 2001).

Civil Procedure ) Default and Default Judgments

No default can be entered against a party which has either filed a response indicating its intent to defend the action or engaged in other behavior which constitutes an active defense. Customarily, a party expresses its intent to defend by filing a motion or an answer to the complaint, but it is not uncommon for an unrepresented party to respond by mailing a letter to the court, and the court's practice has long been to recognize such submissions as an expression of a party's intent to defend, thereby preventing entry of default. Whether a party's written response or other behavior satisfies the Rule 55 requirement that the party must "plead or otherwise defend" to prevent entry of default is made on a case by case basis. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 260 (Pon. 2001).

Civil Procedure ) Default and Default Judgments

A default judgment may only be entered against a party following entry of that party's default. Where no default has been entered, no judgment by default is available. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 260 (Pon. 2001).

[10 FSM Intrm. 259]

Civil Procedure ) Default and Default Judgments; Judgments ) Relief from Judgment

Courts generally disfavor default judgments and readily set them aside rather than deprive a party of the opportunity to contest a claim on the merits. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 260 (Pon. 2001).

Civil Procedure ) Default and Default Judgments

Default proceedings protect diligent parties from delay and uncertainty caused by unresponsive parties. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 261, 262 (Pon. 2001).

Civil Procedure ) Default and Default Judgments

A default ensures that litigants who are vigorously pursuing their cases are not hindered by those who are not, in an environment of limited judicial resources. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 261 (Pon. 2001).

Civil Procedure ) Default and Default Judgments

Whether a default judgment should be entered will be considered only if any defendant is in default and it is appropriate to enter default against that defendant. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 261 (Pon. 2001).

Civil Procedure ) Default and Default Judgments

No default judgments will be entered against defendants who have timely filed their answer to the plaintiff's amended complaint or against a defendant who had actively defended his position against the earlier complaint, against whom no default had been entered by the clerk, and whose answer was filed late, but before the motion for default judgment was filed. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 261 (Pon. 2001).

Civil Procedure ) Default and Default Judgments

A default and default judgment will not be entered against a defendant who, although he did not respond to plaintiff's amended complaint, has been active in his defense and who in his answer to the original complaint asserted defenses to each factual allegation in the first amended complaint, which complaint varies only slightly from the original and in a way that is not material the to claims for relief against him. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 261-62 (Pon. 2001).

Civil Procedure ) Default and Default Judgments

When a defendant has adequately defended against the complaint so as to prevent the entry of default, and considering the liberal standard for setting aside a default judgment, and recognizing the court's desire to permit matters to proceed on their merits, a defendant's opposition to a motion for a default judgment for failure to respond to an amended complaint will be taken as a request for leave of court to file an answer to plaintiff's first amended complaint and the defendant will be directed to file a responsive pleading. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 262 (Pon. 2001).

Civil Procedure ) Injunctions; Constitutional Law ) Freedom of Expression; Torts ) Defamation

Until such time as the plaintiff demonstrates the allegedly defamatory nature of the publications at issue, either by way of trial or proper motion accompanied by admissible supporting evidence, a permanent injunction cannot lawfully issue against the publication of speech that the defendants contend is true and which involves matters of public concern. O'Sullivan v. Panuelo, 10 FSM Intrm. 257, 262 (Pon. 2001).

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[10 FSM Intrm. 260]

COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

This matter comes before the court on plaintiff's January 25, 2001 motion for default judgment against all defendants. As further described below, each party to this action has sufficiently pled and defended against plaintiff's complaint so as to preclude both the entry of default and the issuance of judgment by default. Accordingly, the motion will be denied and this matter will proceed on its merits.

1. Entry of Default

The entry of default and default judgments is governed by Rule 55 of the FSM Rules of Civil Procedure: "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter that party's default." FSM Civ. R. 55(a).

Within the scope of the FSM Rules of Civil Procedure, the term "default" simply means the defendant has failed to plead or otherwise defend within the time required by the rules.

Pursuant to Rule 55(a), a motion is not required prior to entry of default. However, entry of default does not occur automatically. The entry of default must be requested and the request must be accompanied by proof of default demonstrating the defendant "has failed to plead or otherwise defend." Where the fact of default is established by "affidavit or otherwise" the court clerk is required to enter it.

Until the default is entered by the court clerk, a party still may appear in the action and the clerk must accept for filing defendant's pleadings or motions, even if filed outside the times prescribed by the rules. Once defendant's pleadings or motions are filed, it is too late for the entry of default, and a defendant is entitled to proceed with its defense. No default can be entered against a party which has either filed a response indicating its intent to defend the action or engaged in other behavior which constitutes an active defense. Customarily, a party expresses its intent to defend by filing a motion or an answer to the complaint. It is not uncommon, however, for an unrepresented party to respond by mailing a letter to the court. It has long been this court's practice to recognize such submissions as an expression of a party's intent to defend, thereby preventing entry of default.

The determination of whether a party's written response or other behavior satisfies the requirement in Rule 55 that the party must "plead or otherwise defend" to prevent entry of default must be made on a case by case basis.

2. Entry of Default Judgment

A default judgment may only be entered against a party following entry of that party's default. Where no default has been entered, no judgment by default is available.

This court described its policy toward default judgments in Lonno v. Trust Territory (III), 1 FSM Intrm. 279 (Kos. 1983), as follows:

Courts generally disfavor default judgments and readily set them aside rather than deprive a party of the opportunity to contest a claim on the merits. See Cound, Friedenthal & Miller, Civil Procedure 888 (3d. ed. 1980). This Court subscribes to that view. The Trust Territory's answer has been filed. Default judgment now, or denial to defendant of the

[10 FSM Intrm. 261]

right to assert [a defense],by way of punishment for tardiness,

would be inappropriate, especially against this notably vigorous

defendant.

Lonno (III) , 1 FSM Intrm. at 281. Default proceedings protect diligent parties from delay and uncertainty caused by unresponsive parties. A default ensures that litigants who are vigorously pursuing their cases are not hindered by those who are not, in an environment of limited judicial resources.

3. Plaintiff's Motion

The matter presently before the court is labeled a "Motion for Default Judgment." As stated above, such a motion may only be granted after default is entered. The matter of whether a default judgment should be entered will be considered only if any defendant is in default and it is appropriate to enter default against that defendant.

A. Defendants FSM and Herbert Gallen

Defendants FSM and Herbert Gallen filed an answer to plaintiff's amended complaint on December 15, 2000, well within the time permitted by the rules. They fully and accurately describe this in their opposition papers. As such, they are not in default.

B. Defendant Franklin Frank

Defendant Franklin Frank ("Frank") filed an answer to plaintiff's amended complaint on January 25, 2001, the same day the present motion was filed. While it is clear that Frank's answer to the amended complaint was not within the time limits of the FSM Rules of Civil Procedure, the Court's file reflects that his answer was filed before plaintiff's motion for default judgment, and no default had been entered by the clerk. As a result, Frank is not in default.

Although Frank failed to respond to the amended complaint within the initial 10 day period, FSM Civ. R. 12(a), it would be unjust under the circumstances presented here to conclude that he has not adequately pled or defended against this action. To the contrary, Frank has actively defended his position in this matter,1 and as he points out in his opposition papers, the complaint and the first amended complaint are so similar that the posture of his defense was not affected by the change.

There has been no prejudice to any party by Frank's delayed filing, which despite its tardiness, precludes the entry of default.

C. Defendant Frank Panuelo

Defendant Frank Panuelo ("Panuelo") is the only defendant who did not respond to plaintiff's amended complaint. Nevertheless, Panuelo also has been active in his defense and the facts surrounding his involvement in the case clearly demonstrate his intention to defend. Moreover, Panuelo's answer to the original complaint asserts defenses to each of the factual allegations in the first

[10 FSM Intrm. 262]

amended complaint, which varies only slightly from the original complaint and in a way that is not material the to claims for relief against him.

Default proceedings protect diligent parties from delay and uncertainty caused by unresponsive parties. However, Panuelo has adequately defended against the complaint so as to prevent the entry of default. Considering the liberal standard for setting aside a default judgment, and in recognition of the Court's desire to permit matters to proceed on their merits, Panuelo's opposition will be taken as a request for leave of court to file an answer to plaintiff's first amended complaint. To avoid any confusion as to his defense of the operative complaint, Panuelo is directed to file a responsive pleading within twenty (20) days from the date of this order.

4. Other Relief Requested by Motion

In the last paragraph of her motion, plaintiff requests the court to order the FSM Government and its agents to withdraw from publication certain written material referencing her name and to issue an apology on the Internet.

This request goes to the heart of the matters at issue in the case about which there is substantial dispute. Plaintiff essentially requests a permanent injunction against the publication of speech that the defendants contend is true and involves matters of public concern. Until such time as the plaintiff demonstrates the allegedly defamatory nature of the publications at issue, either by way of trial or proper motion accompanied by admissible supporting evidence, the requested order cannot lawfully issue.

CONCLUSION

Based on the foregoing, entries of default will not issue and plaintiff's motion for default judgment is in all respects hereby denied. Defendant Panuelo is hereby granted twenty (20) days from the date of this Order to file a responsive pleading to plaintiff's amended complaint.

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______________________________________________________

Footnotes:

1. It is worth noting that Frank's counsel was responsible for locating plaintiff to provide notice of a motion to dismiss for failure to prosecute joined in by several defendants. It was not incumbent upon Frank to do this as it is a plaintiff's responsibility to prosecute her case and to keep the parties and the court informed of her location. Thus, Frank's diligence in this matter had the effect of preventing dismissal of this case, which would have otherwise been appropriate.