Cite as Ramp v. Ramp,12 FSM Intrm. 228 (Pon. 2003)

[12 FSM Intrm. 228]

CIVIL ACTION NO. 1988-033

Decided: November 18, 2003

APPEARANCES:

HEADNOTES

Appellate Review – Notice of Appeal

A notice of appeal in civil cases must be filed within 42 days of entry of the order or judgment appealed from, and any motion for an enlargement of time to file a notice of appeal must be filed no later than 30 days after the original 42-day period. Ramp v. Ramp, 12 FSM Intrm. 228, 229 (Pon. 2003).

Appellate Review – Notice of Appeal

The good cause standard applies to a motion for the enlargement of time to file a notice of appeal when that notice is filed after the original 42 day period. The good cause standard is more lenient than

[12 FSM Intrm. 229]

the excusable neglect standard, to which the rule also makes reference. Ramp v. Ramp, 12 FSM Intrm. 228, 229-30 (Pon. 2003).

Civil Procedure – Filing

When a deadline is approaching, motions may customarily be accompanied by a motion to file by fax. Ramp v. Ramp, 12 FSM Intrm. 228, 230 (Pon. 2003).

Appellate Review – Notice of Appeal

A notice of appeal is typically a single page document that names the appellant and the other parties to the proceeding; indicates the order, judgment, or part thereof appealed from; shows the appellate division of the FSM Supreme Court as the court in which the appeal is brought; identifies counsel; and contains a certificate of service. Ramp v. Ramp, 12 FSM Intrm. 228, 230 (Pon. 2003).

Appellate Review – Notice of Appeal

When preparation of the notice of appeal would not have presented an insurmountable obstacle even given the distance involved and when there was no calendaring error and the notice for enlargement of time to file a notice of appeal was filed on the 72nd day after the entry of the order appealed from, which was the last day for doing so, while this presents a close question under a good cause standard, after careful consideration the court concludes that good cause for granting the enlargement of time to file the notice of appeal has not been stated. Ramp v. Ramp, 12 FSM Intrm. 228, 230 (Pon. 2003).

COURT'S OPINION

MARTIN YINUG, Associate Justice:

The respondent Erine Yoma Ramp, now known as Erine Goya ("Goya"), has moved under FSM Appellate Rule 4(a)(5) for an extension of time to file the notice of appeal from the order of June 30, 2003. That order denied two motions filed by Goya. [Ramp v. Ramp, 11 FSM Intrm. 630 (Pon. 2003).] Goya's counsel, Mary Berman ("Berman") received a copy of the order at her post office box in Kolonia, Pohnpei on July 14, 2003, one hour before she was scheduled to depart for a seven week vacation in the United States. Berman states that she practices from her home, does not maintain an office on Pohnpei, and has no office staff. She recites that she had sent a notice of her vacation dates to the court several weeks before her departure requesting that nothing be filed that required her attention, and that this notice was repeated on or about June 30, 2003. According to Berman, she contacted Goya once after she arrived in the U.S., explained to Goya the time limitations involved, and asked Goya to have Micronesian Legal Services (MLSC) file the notice of appeal for her. Goya reported back to her on about August 8, 2003, that MLSC had refused to help her. Berman then agreed to represent Goya after agreeing to a monthly payment plan for fees. Berman returned to Pohnpei on September 6, 2003. On September 10, 2003, Berman filed a motion to enlarge time for filing the notice of appeal from the June 30, 2003, order. September 10th is 72 days after June 30th, and thus the motion for an enlargement of time was filed on the last day permitted under the rule: FSM Appellate Rule 4(a)(1) provides that a notice of appeal in civil cases must be filed within 42 days of entry of the order or judgment appealed from (42 days after June 30th is August 11th), while Rule 4(a)(5) provides that any motion for an enlargement of time to file the notice of appeal must be filed no later than 30 days after the original 42-day period (30 days after August 11th is September 10th).

Bualuay v. Rano<, 11 FSM Intrm. 139, 147 (App. 2002), adopted the good cause standard for a motion for the enlargement of time to file a notice of appeal when that notice is filed after the original

[12 FSM Intrm. 230]

42 day period provided for under FSM Appellate Rule 4(a)(1). The good cause standard is more lenient than the excusable neglect standard, to which the rule also makes reference. Id. In Bualuay, the court permitted the enlargement of time under the rule where Bualuay's counsel was busy; his client was unavailable for consultation; there was a delay in receiving notice of the motion because the court did not have an operative copy machine; and there was also a Chuuk statute to comply with.

Looking to all the facts and circumstances of the case at bar, the issue distills to one of convenience. Filing papers with the court from a distance of several thousand miles is undeniably more difficult than doing so while present in Pohnpei. Yet papers are routinely filed in this court by off-island attorneys. Although Berman was on vacation and did not have access to her office, fax machines and e-mail have eased the logistics of long-distance litigation. Where a deadline is approaching, motions in this court are customarily accompanied by a motion to file by fax. Berman had notice of the order as of July 10, 2003, and although Berman did not hear from Goya until on about August 8, 2003, that Goya wanted her to pursue proceed on her behalf, there is nothing in the record to indicate that communication between Berman and Goya was impossible or even particularly difficult. The client's unavailability was a specific fact that the court relied on Bualuay. Further, Berman heard definitively from her client about August 8, 2003, which was still three days before the filing deadline for the notice of appeal under FSM Appellate Rule 4(a)(1) had expired: 42 days from June 30, 2003, is August 11, 2003. Moreover, under FSM Appellate Rule 3(c) a notice of appeal is typically a single page document that names the appellant and the other parties to the proceeding; indicates the order, judgment, or part thereof appealed from; shows the appellate division of this court as the court in which the appeal is brought; identifies counsel; and contains a certificate of service. Thus preparation of the notice would not have presented an insurmountable obstacle even given the distance involved.

Goya cites Northwest Truck & Trailer Sales, Inc. v. Dvorak, 877 P.2d 31 (Mont. 1994), which the appellate division of this court relied on in Bualuay. In that case, the Montana Supreme Court, while noting that the facts presented "a very close case," affirmed the trial court's finding of both good cause and excusable neglect where counsel had filed a notice of appeal one business day late as a result of a calendaring error. 877 P.2d at 35. The trial court found that it was "impelled to add that it is difficult not to consider the fact that the notice of appeal was only filed one business day late." Id. Here, however, there was no calendaring error, and in contrast to one day after the deadline in Dvorak, the notice for enlargement of time was filed on the 72nd day after the entry of the order appealed from, which was the last day for doing so.

While this case presents its own close question under a good cause standard, after careful consideration the court concludes that Goya has not stated good cause under Bualuay for granting the enlargement of time to file the notice of appeal under FSM Appellate Rule 4(a)(5). Accordingly, the motion for an enlargement of time to file the notice of appeal from the order of June 30, 2003, is denied.