FSM SUPREME COURT
TRIAL DIVISION (Truk)
Cite as Morris v. Truk State,
3 FSM Intrm. 454 (Truk 1988)

[3 FSM Intrm. 454]

MEL MORRIS,
Plaintiff,

v.

STATE OF TRUK,
Defendant.

FSM CIV. NO. 1987-1002

OPINION
 
Before Honorable Richard H. Benson
Associate Justice
FSM Supreme Court
April 13, 1988

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

     For the Defendant:     Jeanne H. Rayphand, Esq.
                                          Attorney General's office
                                          State of Truk
                                          Moen, Truk 96942

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HEADNOTES
Civil Procedure;
Depositions - Costs
     Where the court set aside a default judgment upon the payment by defendant to plaintiff of air fare to attend the trial, no modification will be granted to require the defendant to pay the costs of the plaintiff's counsel to go to plaintiff's residence to take his deposition which is being noticed by the plaintiff, especially where there is no showing that plaintiff could not attend the trial, nor will the court decide before trial whether such deposition could be used at trial.  Morris v. Truk, 3 FSM Intrm. 454, 456-57 (Truk 1988).

[3 FSM Intrm. 455]

Judgment - Default
     In a case in which the defendant satisfied a default judgment and the judgment was later set aside, the court will order the amount received by the plaintiff paid into an account under the control of the court pending final disposition of the case on the merits, where it appears that the plaintiff's health and place of residence are uncertain, and where the passage of time renders the plaintiff's ability to produce the amount more uncertain, should the outcome of the case require this.  Morris v. Truk, 3 FSM Intrm. 454, 458 (Truk 1988).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:

PROCEDURAL HISTORY
     Two related motions are before the court.  First, the plaintiff moves  to amend the conditional order setting aside the default judgment.  The motion was not supported by a memorandum of points and authorities.  A medical certificate supporting the plaintiff's motion was filed with the court.  The defendant filed an opposition to the plaintiff's motion, also unsupported by a memorandum of points and authorities.  The parties waived oral argument on the motion.

     Second, on February 18, 1988, the defendant filed and noticed a motion seeking the return to it of money paid to satisfy the default judgment.  This motion was supported by a memorandum of points and authorities.  On February 29, 1988, the plaintiff filed his opposition to this motion.

ISSUES
     I.  Whether the conditions mandated in the order setting aside default judgment should be changed because of the plaintiff's ill-health, and require instead that 1) Truk State provide airfare and fees to plaintiff's attorney  to travel to the U.S. Mainland to conduct a deposition of the plaintiff, and 2) that the court allow such deposition be used in lieu of personal appearance of the plaintiff at a trial on the merits.

     II.  Whether restitution of the money awarded to the plaintiff in the default judgment is warranted following the setting aside of the default judgment and before final judgment on the merits.

HOLDING
     I.   The court will not require the government to pay airfare and fees to the plaintiff's attorney in order that the plaintiff's deposition may be taken by him in North America.

[3 FSM Intrm. 456]

     The court will not rule at this time whether the plaintiff's deposition may be introduced at trial.

     II.  The plaintiff is not required to pay the amount of the judgment collected to Truk State, but is required to deposit the funds in an account subject to court control until final decision in this case.

FACTS
     On March 27, 1987, the default judgment was entered.  The amount of the judgment was paid.  The defendant moved to set aside the default judgment on September 2, 1987.  The motion was conditionally granted on December 30, 1987.  The order required that the defendant provide 1) the plaintiff round-trip airfare from the plaintiff's home in the United States to Truk to attend the trial, and 2) the transportation and per them expenses of the plaintiff's attorney necessary to the effective prosecution of the case.  The defendant filed a certificate on February 3, 1988, attesting to the fulfillment of the conditions.

     Subsequently, on February 10, 1988, the plaintiff submitted a motion to amend the order setting aside default judgment.  The plaintiff now asserts that major illness prevents him from attending and providing oral testimony at trial.  Because of his illness, the plaintiff proposes that a deposition in lieu of oral testimony be taken at the plaintiff's residence in Washington State, USA, and that the cost of the plaintiff's attorney's airfare, per diem, and the deposition expense be borne by the defendant.  A medical certificate in support of the plaintiff's motion to amend was filed on March 17, 1988.  On March 25, 1988, a supplemental memorandum was filed by the plaintiff, elaborating on the proposed calculation of attorney's fees incident to the taking of a deposition of the plaintiff in the United States.

     The defendant submitted on February 18, 1988, an opposition to the motion to amend.  Also on February 18, 1988, the defendant filed a motion for restitution supported by a memorandum of points and authorities.  On February 29, 1988, the plaintiff submitted an opposition to the motion for restitution.

REASONING
     I.  Motion to Amend Order Setting Aside Default Judgment.
          A. Deposition of Plaintiff Outside Forum.
     This court granted the motion setting aside the default judgment conditioned upon the defendant providing the plaintiff with round-trip airfare from his home in the United States to Truk, and transportation and per them expenses of the plaintiff's attorney incurred in the prosecution of the case.

     The plaintiff now asserts, and a statement by his physician so maintains, that the plaintiff is unable to attend trial at this time because of medical complications following surgery in November 1987 for lung cancer.

[3 FSM Intrm. 457]

     A plaintiff residing outside the court's jurisdiction is normally expected to be present in the court at trial and submit to oral testimony.  If there is a showing of illness, other undue hardship, or special circumstances, however, this requirement may be waived.  8 C. Wright & A. Miller, Federal Practice and Procedure § 2112, at 407 n.87 (1970).

     Without judging the veracity of the unsworn statement submitted by the plaintiff's physician, the statement indicates that the plaintiff was incapacitated as of March 2, 1988.  The doctor's statement, however, suggests that the plaintiff may be able to travel at a later date upon satisfactory resolution of the medical complications that followed surgery which now trouble the plaintiff.

     It is within the court's discretion to order that the deposition of a non-resident plaintiff be taken at the plaintiff's home or place of business upon a showing of undue hardship on the plaintiff to travel to the forum of the litigation.  4 J. Moore, Moore's Federal Practice ¶ 26.70 [1.2], at 26-449 to 453 (1984); See Hyman v. American Export Lines, Inc., 213 F.2d 221 (2d  Cir. 1954).  The cases following this general precept, however, involve a defendant requesting the deposition of the plaintiff.  Our research reveals no cases in which the plaintiff noticed his own deposition be taken at a point distant from the court because of undue hardship. Lack of precedent, and the facts of this case which do not establish compelling reasons for the deposition to be taken at a distant place, cause the court not to permit the amendment.

     B.     Attorney's Fees and Costs for Deposition of Plaintiff.
     Attorney's fees and costs incident to deposition may be allocated by the court, pursuant to FSM Rules of Civil Procedure 26(f).  See 4 J. Moore, Moore's Federal Practice ¶ 26-77, at 26-493 to 499 (1984).  Under the holding of this order, however, no such allocation is required.

     C.     Use of Plaintiff's Deposition in Lieu of Oral Testimony.
     The plaintiff submits in his motion for amendment that the deposition  of the plaintiff will be used in court instead of the plaintiff's oral testimony.  FSM Rule of Civil Procedure 32(a)(3) allows the deposition of a witness, whether or not a party, to be used for any purpose by any party if the court finds that certain factors are present.  The existence of circumstances that would preclude a witness from testifying in open court are, however, to be determined at trial at the time the deposition is presented in lieu of oral testimony, not months before trial as the plaintiff now  requests.  8 Wright & Miller, Federal Practice and Procedure § 2147, at 461-64 (1970).  The plaintiff's request is, therefore, inappropriate at this time  and is denied.

     II.  Motion for Restitution.
     Although restitution may be ordered upon setting aside a judgment, it is a discretionary act of the court within the bounds of equity and is not

[3 FSM Intrm. 458]

mandatory.  Holmes v. Williams, 273 P.2d 931, 932 (Cal. 1954), quoting favorably, Restatement of the Law of Restitution § 74.  The plaintiff will  not be required to return the judgment sum to Truk State.

     Instead, the amount received by the plaintiff in satisfaction of the default judgment shall be paid into an account subject to the control of the court as agreed upon by counsel.  These factors relate to this decision:

     1.  The health of the plaintiff is uncertain;
 
     2.  The domicile of the plaintiff is unclear. (The statement of the plaintiff's personal physician setting forth the plaintiff's medical condition and prognosis is addressed to an in-care-of address in Brimington,  Washington.  The plaintiff's physician, according to the address on his statement, is located in Clackamas, Oregon.  The statement indicates, moreover, that British Columbia, Canada is the plaintiff's current residence); and

     3.  The longer the time elapsing after the payment of the judgment the greater the uncertainty that funds will be available at the time of final disposition.

MANDATE
     The motion to amend the order which set aside the default judgment is denied.

     The plaintiff shall, within 60 days, pay into an account established in conformity with this order, the amount he received in satisfaction of the default judgment.

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