FSM SUPREME COURT
TRIAL DIVISION (Pon.)
Cite as Mailo v. Twum-Barimah,
3 FSM Intrm. 411 (Pon. 1988)

[3 FSM Intrm. 411]

ERENCIA MAILO,
Plaintiff,

v.

DANIEL TWUM-BARIMAH,
Defendant.

CIV. ACTION NO. 1986-045

OPINION
 
Before Edward C. King
Chief Justice
July 1, 1988

APPEARANCES:
          For the Plaintiff:          R. Barrie Michelsen
                                               Ramp & Michelsen
                                               P.O. Box 1480
                                               Kolonia, Pohnpei 96941

          For the Defendant:     Robert L. Keogh
                                               Attorney-at-Law
                                               P.O. Box GZ
                                               Agana, Guam 96910

[3 FSM Intrm. 412]
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HEADNOTES
Judgment
     FSM Civ. R. 68, allowing for taxation of costs against a plaintiff who declines the defendant's offer of judgment and who then obtains a judgment less favorable than the amount of the offer, does not apply when the litigation is dismissed.  Mailo v. Twum-Barimah, 3 FSM Intrm. 411, 413 (Pon. 1988).

Dismissal of Action;
Costs
     Where there is dismissal of an action, even though the dismissal is voluntary and without prejudice, the defendant is the prevailing party within the meaning of Rule 54(d) which provides for awards of costs to the prevailing party.  Mailo v. Twum-Barimah, 3 FSM Intrm. 411, 413 (Pon. 1988).

Dismissal of Action
     When a party incurs considerable expense in preparation for trial and the other party seeks for dismissal, the Court may specify the conditions under which dismissal will be allowed, but dismissal need not be accepted by a party who finds the conditions too onerous.  Mailo v. Twum-Barimah, 3 FSM Intrm. 411, 414 (Pon. 1988).

Dismissal of Action;
Costs
     Where a plaintiff seeks dismissal of her own complaint without prejudice under Rule 41(a)(2), it is generally thought that the Court should at least require the plaintiff to pay the defendant's costs of the litigation as a condition to such dismissal and these costs may include travel expenses of plaintiff's attorney.  Mailo v. Twum-Barimah, 3 FSM Intrm. 411, 415 (Pon. 1988).

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COURT'S OPINION
EDWARD C. KING, Chief Justice:
     This lawsuit was instituted by the plaintiff on July 3, 1986.  In her complaint, plaintiff Mailo alleged that as a colleague of the defendant in the national government Department of Resources & Development, she was subjected by him to demands for sexual activity, then harassed when she rebuffed his advances.  She asserted that she finally was forced to resign from her employment because of the defendant's activities.  She sought compensatory and punitive damages.  The defendant denied all these charges.

     After the lawsuit was filed, more than one year elapsed while the parties actively conducted pretrial discovery and filed various motions in the litigation.

[3 FSM Intrm. 413]

     The trial was set for November 10, 1987.  On November 9, plaintiff filed a motion seeking dismissal of the case pursuant to Rule 41(a)(2) of the Rules of Civil Procedure, saying she "does not have the economic ability to pursue this matter at the present time."

     Defendant does not object to dismissal but asserts that any dismissal should be with prejudice, preventing plaintiff from reinstituting the action at some later date.

     The defendant has also moved to have costs taxed against the plaintiff.  That motion is based upon Rules 68 and 54(d) of the FSM Rules of Civil Procedure and 6 F.S.M.C. 1017 and 1018.

I.
     The charges in this case are quite serious ones.  If it is true, as counsel represents, that plaintiff seeks to terminate the litigation only because she is financially unable to go on, she should not be barred from having those charges considered at a later time.  The Court declines to require that the dismissal be with prejudice.

II.
     Rule 68 does not apply to the facts of this case.  That rule provides that if a plaintiff rejects a defendant's formal settlement offer "to allow judgment to be taken against him" and if "the judgment finally obtained by the offeree is not more favorable than the offer," the plaintiff "must pay the costs incurred after the making of the offer."

     Mr. Twum-Barimah made such an offer to Ms. Mailo, offering to pay $1,000 in the settlement of her claim.  Since the plaintiff is now proposing to dismiss the lawsuit without any payment whatever to her, Mr. Twum-Barimah reasons, the resolution of this case is less favorable to the plaintiff then was his offer, so the plaintiff should be required to pay costs as specified in FSM Civ. R. 68.

     The language of Rule 68 does not support Mr. Twum-Barimah's position.  The rule applies where "the judgment finally obtained by the offeree is not more favorable than the offer."  The plaintiff here is requesting dismissal of the litigation.  No judgment is being obtained by the plaintiff, and the rule therefore does not apply.

     Rule 68 is drawn verbatim from the United States Federal Rules of Civil Procedure and we may look to United States authorities for guidance in determining the meaning of the rule.  It is therefore relevant that the United States Supreme Court has reached the conclusion stated above, employing the same reasoning.  Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S. Ct. 1146, 1151, 67 L. Ed. 2d 287, 292 (1981).

     Defendant's reliance upon 6 F.S.M.C. 1017 and 1018 is also

[3 FSM Intrm. 414]

misplaced.  Those provisions have been held to apply only to Trust Territory courts. Semens v. Continental Air Lines Inc. (II), 2 FSM Intrm. 200, 204 (Pon. 1986).

     Rule 54(d) of the FSM Rules of Civil Procedure provides for awards of costs to the prevailing party.  This rule is technically applicable.  Where there is dismissal of an action, even though the dismissal is voluntary and without prejudice, the defendant is the prevailing party within the meaning of Rule 54(d).  See 6 J. Moore, Moore's Federal Practice 54.70[4].

     Yet, the rule does not seem an appropriate vehicle for adjustment of the positions of the parties in this case.  In absence of special considerations, courts frequently deny awards of costs under Rule 54(d) in circumstances where neither party's factual or legal position has been approved.  Srybnik v. Epstein, 230 F.2d 683, 686 (2d Cir. 1956); Kropp v. Ziebrath, 601 F.2d 1348, 1358 n.27 (8th Cir. 1979); Hohensee v. Basalagya, 50 F.R.D. 230, 232 (D. Pa. 1969).  Here, there has been no demonstration that the bringing of this lawsuit was unjustified, or that elements of the case were introduced simply to harass the defendant.  Plaintiff contends that the case is being dismissed simply because she can not afford to go on.  In this setting, the Court declines to award costs under Rule 54(d).

III.
     The fact remains, however, that there are special factors that call for court attention.  Plaintiff started this lawsuit and it remained in existence for well more than a year before she announced her financial inability to proceed to trial.  In the meantime, Mr. Twum-Barimah was forced to incur considerable expenses in preparation for trial.  If Ms. Mailo is now permitted to dismiss this case without prejudice to her right to refile identical charges in the future, there remains the possibility that Mr. Twum-Barimah will be exposed to a duplication of these costs in a second round of litigation.

     It appears appropriate to provide some measure of protection for the defendant as a condition to the requested dismissal.  Plaintiff seeks dismissal under FSM Civ. R. 41(a)(2), which provides that "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper."

     Under this rule, a court may specify the conditions under which dismissal will be permitted.  If the plaintiff finds the conditions too onerous, the dismissal need not be accepted by the plaintiff. 9 C. Wright &  A. Miller, Federal Practice and Procedure 2366 (1971).

     Where a plaintiff seeks dismissal without prejudice under Rule 41(a)(2), it is generally thought that the court should at least require the plaintiff to pay the costs of the litigation as a condition to such dismissal.  Id.  Here, defendant has filed a statement of costs and expenses in the amount of $2,774.15, and has requested that plaintiff be required to pay those costs as

[3 FSM Intrm. 415]

a condition of dismissal.  The Court has reviewed the statement and finds the non-travel expenses listed there reasonable.

     Special consideration has been given to the claims for travel expenses of defendant's counsel to and from counsel's offices in Guam.  The appellate division has recognized that costs awardable upon termination of litigation may include attorney travel expenses where there is a showing that no attorney was available on the island where the litigation took place.  Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 26 (App. 1985).  Here, defendant has contended that he canvassed all attorneys on Pohnpei and was unable to obtain representation.  Plaintiff has countered by filing affidavits of two attorneys practicing on Pohnpei.  Both say they were not approached by Mr. Twum-Barimah, although it may be noted that neither says he would have been willing to undertake representation of the defendant in this case.

     The Ray decision was made in the context of termination of litigation as the result of a final judgment in which one party prevailed on the merits.  The Court was considering what costs were awardable in such circumstances.

     The question before this Court is different.  To be decided here is what conditions should be imposed in approving a request for dismissal under FSM Civ. R. 41(a)(2).  Appropriate conditions should be determined on the basis of equity and fairness rather than whether the particular expenses would be proper costs upon final judgment.  In this FSM Civ. R. 41(a)(2) context, it appears proper and fair to require some payment by the plaintiff of the defendant's attorney travel expenses as a condition of dismissal without prejudice.

     Defendant's statement of costs includes almost $1,900 in attorney travel expenses.  The defendant has made no showing that the equities in this case rest entirely with him.  While the request for dismissal without prejudice calls for some protection for the defendant, there appears no reason why he should be relieved of all of his attorney's travel expenses.  Some may be borne by the defendant.  The Court concludes the expenses to be paid by the plaintiff, as a condition for dismissal of this case without prejudice, should be reduced from defendant's requested amount of $2,774.15, to $1,750;

IV.
     Accordingly, the plaintiff may dismiss this litigation without prejudice, but only upon the condition that plaintiff shall be taxed for costs payable to the defendant in the amount of $1,750.

     If plaintiff considers the condition stated here too onerous, she shall so notify the Court within fifteen days of the date of the order.  In that event, the motion to dismiss will be denied and the case will be set for trial.  Otherwise, an order dismissing the action without prejudice will issue and plaintiff will be taxed for costs in the amount of $1,750.

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