Cite as FSM v. Kailis, 7 FSM Intrm. 27 (Pohnpei 1995)

[7 FSM Intrm. 27]



Theodosios GEORGE KAILIS and



Richard H. Benson
Associate Justice

Decided:  February 8, 1995

For the Plaintiffs:          Fredrick L. Ramp, Esq.
                                       P.O. Box 1480
                                       Kolonia, Pohnpei FM 96941

For the Defendants:     R. Barrie Michelsen, Esq.
                                       Law Offices of R. Barrie Michelsen
                                       P.O. Box 1450
                                       Kolonia, Pohnpei FM 96941

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Civil Procedure ) Admissions
     FSM Civil Rule 36(b) permits a withdrawal of admissions, including admissions by omission, when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.  Pohnpei v. Kailis, 7 FSM Intrm. 27, 28 (Pon. 1995).

Civil Procedure ) Admissions
     When delay in filing answers to requests for admissions was not caused by bad faith and no prejudice in maintaining the action is caused the requesting party, the late filing may be allowed, under conditions, as a withdrawal or amendment of answers obtained by omission.  Pohnpei v. Kailis, 7 FSM Intrm. 27, 29 (Pon. 1995).

[7 FSM Intrm. 28]

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RICHARD H. BENSON, Associate Justice:
     This case came before me on the motion of the defendants filed December 6, 1994 to allow a late response to requests for admissions pursuant to FSM Civil Rule 36(b).  The motion is opposed by the plaintiffs.

     I have carefully considered the memorandums of counsel and the authorities that are cited.  I conclude that the motion should be granted conditioned upon the defendants stating the evidentiary basis for the requests denied.


     The plaintiffs filed and served their requests for admissions on August 31, 1994. By agreement the time to answer was enlarged to October 31, 1994.  In October the Acting Attorney General of Pohnpei and the defendant Kailis discussed a suspension of proceedings to allow an opportunity for settlement discussions.  On October 18, 1994 the Acting Attorney General informed defendant Kailis in writing that suspension was agreeable but would not apply to pending discovery matters. The Acting Attorney General is not admitted to appear in this case.

     Defendants' counsel heard of the agreement to suspend and wrote plaintiffs' counsel on October 21, 1994 to confirm.  The latter confirmed the suspension, but informed defendants' counsel that it did not apply to discovery matters.  This event is not disputed by the defendant's counsel, however the record does not reflect when it took place or the means of communication used.  In any event, defendants never applied for an enlargement of time to answer.

     In mid-November settlement negotiations broke down.  On November 14, 1994, the plaintiffs filed their motions to confirm admissions (based on defendants' failure to answer), to compel discovery, for an award of attorney's fees and costs, and for partial summary judgment.  The factual basis for the motion for summary judgment, the motion alleges, is provided in part by the request for admissions which are deemed admitted because of the defendants' failure to answer.

     On December 6, 1994 the defendants filed answers to the request for admissions and filed the present motion to allow the late answers.

     FSM Civil Rule 36(b) permits a withdrawal of admissions (in this case admissions by omission) "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits."  No question is raised but that the first test is met.  I agree.

     The plaintiffs maintain that prejudice exists because of the delay incurred, the necessity of motions, and the nature of the answers now offered.  I conclude that the delay (although unfortunate and unjustified) does not constitute the prejudice stated in Rule 36(b).

     As to the nature of the answers, the plaintiffs give examples which, they claim, show that the

[7 FSM Intrm. 29]

defendants admitted the authenticity of certain letters sent by the defendants, but denied other requests for admissions which contained the representations made in those letters.  I have examined the requests which the plaintiffs cite for this practice. The admissions requested each differ in some respect from the representations in the letters admitted as genuine or in the party(ies) to whom the representations were made.  I cannot say that this will prejudice the plaintiffs in maintaining the action.

     The plaintiffs urge that there was bad faith in the delay in answering.  The facts show that the answers were not due until October 31, 1994; that there was uncertainly as to the range of the suspension agreement; that it is unclear when and how plaintiffs informed the defendants' counsel that pending discovery was not to be affected by the suspension; and that all of this period was muddied by the direct discussions between defendant Kailis and the Pohnpei State Acting Attorney General.  I cannot conclude that bad faith of defendants caused the delay.

     It is therefore ordered

     1.  that the admissions (by omission to answer) are withdrawn;

     2.  that the answers to the requests for admissions filed December 6, 1994 are allowed conditioned upon the filing required by 3 below; and

     3.  that the defendants shall file by February 28, 1995 a statement of the evidentiary basis for the denials of those requests for admission which are denied.

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