Cite as Nahnken of Nett v. United States (II) ,
6 FSM Intrm. 417 (Pohnpei 1994)

[6 FSM Intrm. 417]



on its own and standing in the place of



Andon L. Amaraich
Associate Justice

Hearing:  May 5, 1994
Decided:  June 8, 1994

For the Plaintiffs:          Mary Berman, Esq.
                                       P.O. Box 163
                                       Kolonia, Pohnpei FM 96941

For the Defendants:     Daniel J. Berman, Esq.
                                       Rush, Moore, Craven, Sutton, Morry & Beh
                                       2000 Hawaii Tower
                                       745 Fort Street
                                       Honolulu, HI 96813-3862

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Civil Procedure ) Deposition
     Where plaintiff initially appeared for deposition and thereafter missed several continued dates within a two week time span because of funerals at which he was required to officiate, the failure to appear on the rescheduled dates was substantially justified so as to make sanctions under FSM Civil Rule 37(d) inappropriate.  Nahnken of Nett v. United States (II), 6 FSM Intrm. 417, 419-20 (Pon. 1994).

[6 FSM Intrm. 418]

Civil Procedure ) Joinder
     A motion to add counterclaims and join new defendants will be denied where the new defendants and counterclaims are virtually identical to those in a separate pending action before the court and the moving party has failed to show that the relief sought by the opposing party is the same as that sought in an earlier decided case between the same parties.  Nahnken of Nett v. United States (II), 6 FSM Intrm. 417, 421-22 (Pon. 1994).

Civil Procedure ) Discovery
     Official duties or employment obligations do not of themselves constitute a valid basis for a party to obtain a blanket protective order against being deposed in a lawsuit.  Nahnken of Nett v. United States (II), 6 FSM Intrm. 417, 422 (Pon. 1994).

Civil Procedure ) Deposition
     Ordinarily the court will not grant motions for protective orders to substitute interrogatories for depositions in view of the recognized value and effectiveness of oral over written examinations.  Nahnken of Nett v. United States (II), 6 FSM Intrm. 417, 422 (Pon. 1994).

Civil Procedure ) Discovery
     Absent a showing of any of the factors listed in FSM Civil Rule 26(c), the court will not intrude at the deposition stage at the insistence of a party to declare what is relevant information that may be sought.  Nahnken of Nett v. United States (II), 6 FSM Intrm. 417, 422 (Pon. 1994).

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ANDON L. AMARAICH, Associate Justice:
     A hearing on several pending motions in this action was held on May 5, 1994 at 10:00 a.m.  The Court disposes of these motions as follows:  the Etscheit defendants' Motion for Order of Costs and Fees for Failure to Appear at a Deposition is denied.  The plaintiff's Motion for Protective Order Limiting Discovery is denied.  The Etscheit defendants' Motion to Amend Answer with Counterclaims is denied.  Plaintiff's Motion to Amend Complaint is still under advisement and the Court will issue a ruling on that motion after reviewing written opposition submitted by the defendants.

Etscheit Defendants' Motion for Order of Costs and Fees
     The Etscheit defendants bring this motion pursuant to FSM Civil Rule 37(d) as a result of the failure of the plaintiff, the Iso Nahnken of Nett, to appear for a deposition on four separate occasions.  According to defendants, the plaintiff's deposition was originally scheduled for June 11, 1993 in Pohnpei. On that date all counsel and plaintiff appeared and the deposition was begun but not completed.  Counsel for both sides orally agreed to continue the deposition to June 14.  Plaintiff appeared on June 14 and the deposition continued, but defendants' counsel did not complete his questioning.  Counsel and plaintiff agreed to continue the deposition again to June 18.  Plaintiff did not appear, however, on that day.  Counsel for both sides agreed to reset the deposition to June 21.  Plaintiff did not appear on June 21, and counsel for the Etscheit defendants' set up alternative dates for June 23 and June 26.  Plaintiff did not appear on either of these dates.  Plaintiff's counsel

[6 FSM Intrm. 419]

left Pohnpei on June 28 and the Etscheit defendants' counsel left on July 1, thereby precluding any further scheduling of the deposition at that time.

     The plaintiff opposes the motion for order of costs and fees.  He states that on the first attempt to hold the deposition, June 11, 1993, questioning was terminated after a short time by request of the Etscheit defendants' counsel. Aff. Iso Nahnken Iriarte para. 1 (Aug. 19, 1993).  On the second attempt, on June 14, questioning was not completed by the close of the business day and the deposition had to be continued.  Aff. Iso Nahnken para. 2.  On each of the four subsequent scheduled dates, June 18, 21, 23 and 26, the plaintiff states that he was called upon to officiate at funerals in Nett.  Aff. Iso Nahnken paras. 3-6.  Plaintiff argues that this is a traditional duty that can not be delegated or ignored.  In each instance except for June 26 he claims to have given sufficient advance notice through counsel that he would not be able to attend the deposition as arranged.1

     The parties are in agreement that FSM Civil Rule 37(d) applies to this situation, but they emphasize different provisions of the rule.  FSM Civil Rule 37(d) states in relevant part:

     If a party . . . fails (1) to appear before the officer who is to take the deposition, after being served with proper notice, . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just . . . In lieu of any order or in addition thereto, the court shall require the party failing to act . . . to pay the reasonable expenses, including attorney's or trial counselor's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

The Etscheit defendants emphasize the duty of the Court to require a party failing to appear for a deposition to pay for the reasonable expenses they incurred as a result of the non-appearances.  The plaintiff argues that an award of costs is not justified since the failure to appear on the four separate dates was with good cause and the last clause of Rule 37(d) allows the Court to disallow costs on such a basis.

     There have been no FSM cases construing FSM Civil Rule 37(d).  It is the Court's view that the last clause of the rule affords the Court the discretion to determine whether the circumstances of a particular case would warrant the sanction prescribed by the rule or not.  4A James W. Moore et al., Moore's Federal Practice 37.01[6] (2d ed. 1990).  In this case the Court believes that the sanction is not warranted.

     No party disputes that the Nahnken as traditional leader has a prominent role in attending and conducting funerals of family members.  The Etscheit defendants do not challenge plaintiff's assertion that he was called to officiate at burials or funeral related matters on the four occasions that he missed the scheduled deposition appointments in June 1993.  However, the Etscheit defendants allege that plaintiff is relying on his traditional role as a pretext for evading further deposition.  The Court lacks sufficient facts in support of this allegation and so must reject it.  56 Am. Jur. 2d Motions, Rules, and Orders 24 (1971).

     Civil Rule 37(d) empowers the Court to impose sanctions upon a party for failure to present

[6 FSM Intrm. 420]
himself at deposition, but does not require the Court to do so.  In the U.S. courts have exercised wide discretion and flexibility in applying Rule 37(d) to specific situations.  In one case, sanctions were not imposed on a plaintiff for failure to appear at a deposition where the failure was not willful, the plaintiff showed he was suffering from health problems, and the plaintiff agreed to appear at a later deposition date.  Fradkin v. Ernst, 98 F.R.D. 478 (D. Ohio 1983) (cited at 4A James W. Moore et al., Moore's Federal Practice 37.01[6] (2d ed. 1990)).  In the case of Diaz v. Southern Drilling Co., 427 F.2d 1118 (5th Cir. 1970), the party failing to appear for a deposition was sanctioned because he had failed to show any justification for repeated non-appearance, had failed to give any advance notice of his absence, and had never cooperated in rescheduling deposition dates.

     The Court finds that in this instance the plaintiff did make a good faith effort to appear initially at the scheduled deposition.  Thereafter his failure to appear at rescheduled times during June 1993 was substantially justified by the necessity of attending a series of funerals.  The Court emphasizes that this finding is limited to the particular facts connected with this motion.  The Court accepts that more than one funeral occasionally occurs close together, as apparently was the case during the period in question.  That is not to say, however, that substantial justification for missing a deposition will always be assumed simply on grounds of traditional duties and functions.  The circumstances of each situation must be examined and weighed.  Under the circumstances of the present motion, the plaintiff will not be sanctioned under FSM Civil Rule 37(d).

Etscheit Defendants' Motion to Join New Defendants
     The Etscheit defendants in the course of deposing the plaintiff in June 1993 obtained certain information which led to the pending motion to add eight or nine new defendants.2  These defendants were appellants in Civil Appeal No. 348 (1982) before the Trust Territory High Court, an appeal from a quiet title action (Ponape Civil Action 142-78) brought by the Nanmwarki and Nahnken of Nett against the Etscheits concerning the same property at issue in the present lawsuit.

     The Etscheit defendants claim that in the course of the June 1993 deposition, plaintiff stated that in addition to the relief requested in the complaint, $50 million in damages, plaintiff also would seek the return of the approximately 1,250 acres known as Mpomp presently under title to the Etscheits.  As such the claims of the plaintiff in this action would be substantially the same as those of Civil Action 142-78 and Civil Appeal No. 348.  Since the claims would be virtually identical, defendants argue, and the new defendants to be joined were appellants in the 1982 appeal case alleging interest in the same land, they would be able to assert an interest again vis-a-vis the present action.

     The claimants in the Trust Territory appeal case were dismissed on grounds that they were not parties or privies to the underlying quiet title action between the Etscheits and the Nanmwarki and Nahnken of Nett.  Nanmwarki, Naniken of Nett v. Etscheit Family, 8 TTR 287, 288 (App. 1982).  The Etscheit defendants in the present motion to join argue that since the claims of the eight appellants were not litigated on the merits in the 1982 appeal case and given the fact that these same defendants still occupy portions of the land in Mpomp, the Etscheit defendants would have indispensable claims against these individuals based primarily on trespass.  The June 1993 deposition of plaintiff, according the Etscheits, revealed that plaintiff had authorized some or all of

[6 FSM Intrm. 421]

the eight individuals to enter and occupy Etscheit property.  The Etscheits claim that without joinder of the eight individuals, they cannot obtain complete relief.

     The Court does not agree.  First, the Court rejects the Etscheits' assertion that this civil action encompasses title determination.  This is a lawsuit for money damages, as described by the complaint.  The Court will not take judicial notice of what defendants assert that plaintiff said during the June 1993 deposition.  The deposition testimony has not been admitted as evidence and plaintiff at the May 5th hearing contested the accuracy of its translation.  Morris v. Truk, 3 FSM Intrm. 454, 456-57 (Truk 1988) (court will not decide before trial whether a deposition could be used at trial as evidence).

     The Court does take judicial notice that the Etscheit defendants filed Civil Action No. 1993-080 after the present motion had been filed.  Civil Action No. 1993-080 is a separate civil action asserting the same claims based on trespass against the same defendants sought to be joined in this case.3 There has been no final disposition of Civil Action No. 1993-080.

     Counsel for the Etscheit defendants admitted in his Motion for Enlargement of Time [with regard to hearing date] at 1 (Mar. 28, 1994) that the motion to join new defendants had been mooted by the filing of Civil Action No. 1993-080.  The Appellate Division of this Court in its Order Denying Petition for Writ of Prohibition stated:  "Without even a general prayer for relief, the plaintiff only seeks monetary damages from the defendants."  Nahnken of Nett v. Trial Division, 6 FSM Intrm. 339, 340 (App. 1994) (emphasis added).  The Etscheit defendants' own Opposition Memorandum of Points and Authorities to Stay of Proceedings at 2-3 (Jan. 25, 1994) stated:

     The arguments of Defendants overlook the importance of an efficient disposition of a monetary damage case . . . .  As a monetary damage case, the courts final judgment will not quiet title to the land.  The judgment is [sic] for money damages should be litigated without delay of a stay because irreparable harm is absent to any property, and no indicia of bias of the court may be found.

(emphasis added).  This Court ruled in its Memorandum of Decision regarding recusal of the presiding judge entered January 21, 1994:  "In this lawsuit [the plaintiff] does not seek, however, to quiet title to the land or to have title issued in his name, but rather demands judgment of $50,000,000 in damages from the defendants for acts and omissions that have allegedly deprived him of possession and use of the land."  Nahnken of Nett v. United States (I), 6 FSM Intrm. 318, 320 (Pon. 1994) (emphasis added).  Thus despite the view of the Etscheit defendants' as stated at the May 5th hearing that somehow this action has become a lawsuit over title as well as damages, the prior assertions of the Etscheit defendants and this Court's prior opinions in this matter make it clear that this lawsuit is not an action to quiet title.  The Court therefore finds no grounds to join the proposed new defendants.

Etscheit Defendants' Motion to Amend Answer with Counterclaims
     The Etscheit Defendants' proposed amendment to their answer to add counterclaims is interlinked with their motion to join new defendants.  The counterclaims proposed include allegations of trespass, intentional interference with contract, and violation of civil rights against the

[6 FSM Intrm. 422]

eight defendants to be joined in this action.  The Court deems that this motion and the motion to add defendants are interdependent and thus must stand or fall together.  For the reasons stated above, both motions must fall.  The Court does not share the Etscheit defendants' perception of this case as stated at the hearing as a quiet title action.  The proposed counterclaims and prayer for relief are virtually identical to those asserted in the pleadings in Civil Action 1993-080.  There is no basis, therefore, for finding that the counterclaims are compulsory on the basis of possible res judicata bar as defendants allege.

     The Court also denies the request made by the Etscheit defendants at the May 5 hearing that this action be consolidated with Civil Action 1993-080. Having denied the motion to join defendants and add counterclaims, the Court can see no grounds for uniting these two cases.  Consolidation as requested by the Etscheit defendants would create unwarranted confusion of issues and unduly complicate proceedings in both matters.

Plaintiff's Motion for Protective Order Limiting Discovery
     Plaintiff argues that he should be granted a protective order against further deposition and instead be allowed to answer through written interrogatories. The objection to further deposition is based on two concerns: (1) that the plaintiff as a traditional leader can not predict when he might be called away to officiate at a traditional function or perform a necessary customary duty; and (2) that should deposition be continued, the scope of questioning should be limited to relevant matters.

     As to the first point, the Court realizes that the plaintiff does not always have a set schedule concerning traditional responsibilities.  The same holds true with regard to professional responsibilities of people active in business, government or public life in general.  However, official duties or employment obligations do not by themselves constitute a valid basis for a blanket protective order against being deposed in a lawsuit.  8 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 2037, at 274 n.46 (1970). The party requesting discovery enjoys a presumption in favor of choosing whichever method and sequence of discovery will provide sufficient information.  The greater effectiveness of oral over written examination has been noted by this Court and U.S. courts in denying motions for protective orders to substitute interrogatories for depositions.  McGillivray v. Bank of FSM (I), 6 FSM Intrm. 404, 408 (Pon. 1994); 8 Wright & Miller 2039; Goldberg v. Raleigh Mfrs., Inc., 28 F. Supp. 975 (D. Mass. 1939).

     The Court is not persuaded that any of the factors listed in FSM Civil Rule 26(c) for granting a protective order ) i.e. "annoyance, embarrassment, oppression, or undue burden or expense" ) are present.  As to plaintiff's request that the scope of questioning be limited to relevant matters, the Court refers the parties to the language of the FSM Civil Rule 26(b)(1) stating that any information reasonably calculated to lead to the discovery of admissible evidence may be sought.  The Court will not intrude at the deposition stage to declare what is relevant.  That determination is a matter for the trial judge at the time evidence obtained in the form of deposition testimony is sought to be admitted at trial.

     The motion for protective order is denied.  Pursuant to FSM Civil Rule 26(c), the Court orders that plaintiff's deposition continue until completed. Parties shall have 10 days from the date of entry of this order to submit a joint stipulated schedule of deposition of the plaintiff.  If no such joint stipulation is received, the Court will issue its own order scheduling deposition.  The parties are strongly urged to cooperate in completing this deposition and all other discovery expeditiously.

[6 FSM Intrm. 423]

     All of the motions argued at the hearing held on May 5, 1994, with the exception of plaintiff's motion to amend complaint, are denied.  Each party shall bear their own costs in relation to these motions.  The deposition of the plaintiff shall continue and be completed per arrangement between the parties, or failing such mutual arrangement by order of this Court.

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1.  The reason plaintiff offers for the failure to give notice on June 26 is that the body of plaintiff's deceased nephew arrived unexpectedly by plane from the U.S. that day.  Aff. Iso Nahnken para. 8.
2.  The motion caption lists nine individuals by name; elsewhere in the memorandum of points and authorities the defendants refer to eight additional defendants to be joined.
3.  Civil Action 1993-080 also names several other defendants in addition to the ones sought to be joined in this action.